author: SHAW, Justice.

text:
    BAPTIST HEALTH SYSTEM, INC., d/b/a Walker Baptist Medical Center v. Armando CANTU, as father and next friend of Daniel Jose Cantu, a minor
    1151117
    Supreme Court of Alabama.
    May 18, 2018
    Jasper P. Juliano, Mark W. Lee, and Paul M. Juliano of Parsons, Lee & Juliano, P.C., Vestavia; and Scott S. Brown and John C. Neiman, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.
    Dennis E. Goldasich, Jr., Justin C. Owen, and Joshua M. Vick of Goldasich & Associates, LLC, Birmingham; and Robert O. Bryan and P. Patton Nelson of Nelson, Bryan & Jones, Jasper, for appellee.
    Thomas A. Woodall of Sirote & Permutt, PC, Birmingham, for amicus curiae Alabama Rural Health Association, in support of the appellant.
    R. Bernard Harwood, Jr., of Rosen & Harwood, P.A., Tuscaloosa, for amicus curiae the Medical Association of the State of Alabama, in support of the appellant.
    Gregg B. Everett of Gilpin Givhan, P.C., Montgomery, for amicus curiae Alabama Hospital Association, in support of the appellant.
    R. Edwin Lamberth of Gilmore Law Firm, Mobile, for Alabama Association for Justice, in support of the appellee.
   SHAW, Justice.

Baptist Health System, Inc., d/b/a Walker Baptist Medical Center ("WBMC"), appeals from the Walker Circuit Court's denial of its postjudgment motion seeking relief from the judgment entered on a jury verdict in favor of Armando Cantu ("Armando"), as father and next friend of Daniel Jose Cantu ("Daniel"), a minor, on Armando's medical-malpractice claim. For the reasons discussed below, we reverse the judgment and remand the case for a new trial.

Facts and Procedural History

On September 19, 2009, Armando and his wife, Eulalia, took then three-month-old Daniel to WBMC's emergency room for treatment following symptoms including decreased appetite, coughing, and a fever that had lingered for several days. At that time, Daniel was diagnosed by the attending emergency-room physician as suffering from a viral illness (specifically, an upper-respiratory infection ) and was discharged with instructions to continue fluids and to seek further treatment if the symptoms continued. Thereafter, Daniel's condition allegedly further deteriorated into vomiting, suspected dehydration, decreased activity, and "irritab[ility] whenever his neck was touched."

The following day, September 20, 2009, Armando and Eulalia returned with Daniel to WBMC's emergency room. After an initial evaluation by the attending emergency-room physician, Daniel was ultimately admitted and was referred to Dr. James G. Wilbanks, a pediatrician with an office adjacent to, and admitting privileges at, WBMC, for inpatient treatment. During Daniel's stay at WBMC, his condition-diagnosed by Dr. Wilbanks as a viral infection and possible acetaminophen toxicity-allegedly improved; Daniel's fever resolved completely during that time and Daniel ate consistently, with no vomiting and normal urine output. Following a satisfactory physical examination and laboratory testings, Dr. Wilbanks discharged Daniel on September 22, 2009, without any accompanying prescription medication but with a follow-up appointment set for September 29, 2009.

Because, following his discharge from WBMC, Daniel allegedly slept little and continued to exhibit both irritability and fever, Armando and Eulalia took Daniel to see another pediatrician on September 23, 2009. During that visit, Daniel's pediatrician performed a "spinal-tap" test that was presumptively positive for the presence of bacterial meningitis. Daniel was immediately transported to WBMC's emergency room and was subsequently transferred to Children's Hospital in Birmingham, where he was treated with an antibiotic regimen and released on October 23, 2009, with the following "discharge diagnosis": "meningococcal meningitis, hydrocephalus status post ventriculoperitoneal shunt placement, seizure disorder, blindness, and deafness as a result of bacterial meningitis."

In October 2011, Armando sued both WBMC and Dr. Wilbanks in the Walker Circuit Court alleging a single count pursuant to Alabama's Medical Liability Act. Following several amendments to his original complaint, Armando essentially alleged that Dr. Wilbanks had negligently, wantonly, and/or recklessly breached acceptable standards of care in providing treatment to Daniel during his stay at WBMC. More specifically, according to Armando, Dr. Wilbanks and WBMC failed to "timely and/or properly diagnose" and to promptly treat Daniel's bacterial meningitis and, as a result of those alleged failures, Daniel was left with, among other permanent physical injuries, visual and hearing impairment and a seizure disorder.

The complaint further alleged that, during his treatment of Daniel, Dr. Wilbanks was acting both as "a servant, agent, and/or employee of ... WBMC" and "within the line and scope of said employment and/or agency, so that ... WBMC [was] vicariously liable for the conduct of [Dr.] Wilbanks" based on the fact that WBMC allegedly "maintained a reserved right of control over ... [Dr.] Wilbanks." This allegation of WBMC's control specifically referenced "the Governing Board of the Baptist Health System, the Medical Executive Committee of [WBMC], and the Medical Staff of [WBMC]."

Following discovery, the trial court denied WBMC's motion seeking a summary judgment on Armando's vicarious-liability claims against it and denied a similar motion by Dr. Wilbanks on Armando's wantonness claim against him. Thereafter, the matter proceeded to a jury trial. On the first day of trial, Armando stipulated to the dismissal without prejudice of his claims against Dr. Wilbanks.

At the conclusion of the trial, Armando's claims against WBMC "based upon vicarious liability or respondeat superior" were presented for the jury's consideration. Ultimately, the jury returned a verdict finding that Dr. Wilbanks's actions did not meet the applicable standard of care, finding WBMC liable for the conduct of Dr. Wilbanks, and awarding Armando $10,000,000 in damages; the trial court entered judgment accordingly. WBMC filed a postjudgment motion seeking a judgment as a matter of law or a new trial. Among the other claims included in that motion, WBMC specifically asserted that it was entitled to a new trial based on the trial court's admission, over WBMC's objections, of evidence of prior medical-malpractice lawsuits filed against WBMC. Following the trial court's denial of its postjudgment motion, WBMC appealed.

Standard of Review

" ' " 'The standard applicable to a review of a trial court's rulings on the admission of evidence is determined by two fundamental principles. The first grants trial judges wide discretion to exclude or to admit evidence.' " Mock v. Allen, 783 So.2d 828, 835 (Ala. 2000) (quoting Wal-Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala. 1998) ). Despite the latitude afforded the trial court in its evidentiary rulings, a trial court exceeds its discretion where it admits prejudicial evidence that has no probative value. See Powell v. State, 796 So.2d 404, 419 (Ala. Crim. App. 1999), aff'd, 796 So.2d 434 (Ala. 2001).
" ' " 'The second principle "is that a judgment cannot be reversed on appeal for an error [in the improper admission of evidence] unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties." ' " Mock, 783 So.2d at 835 (quoting Wal-Mart Stores, 726 So.2d at 655, quoting in turn Atkins v. Lee, 603 So.2d 937, 941 (Ala. 1992) ). See also Ala. R. App. P. 45. "The burden of establishing that an erroneous ruling was prejudicial is on the appellant." Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala. 1991).'
" Middleton v. Lightfoot, 885 So.2d 111, 113-14 (Ala. 2003) (emphasis omitted)."

Wood v. Hayes, 104 So.3d 863, 870 (Ala. 2012).

Discussion

WBMC raises several challenges on appeal, including whether the trial court exceeded its discretion in allowing the jury to hear testimony of prior medical-malpractice actions brought against WBMC, in violation of § 6-5-551, Ala. Code 1975. This claim is dispositive.

Section § 6-5-551 provides:

"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.) See also Ex parte Anderson, 789 So.2d 190, 195 (Ala. 2000) ("If all conditions of the statute are met, then any other acts or omissions of the defendant health-care provider are exempt from discovery, and the discovering party is prohibited from introducing evidence of them at trial.... Such exemptions would include information regarding any other incidents regarding [the defendant] and [its] alleged breach of the standard of care."). Stated generally, for purposes of this case, that Code section prohibits the admission into evidence at trial of acts or omissions by a health-care provider that are not related to the acts or omissions giving rise to the complaint.

Despite the clear language of the foregoing Code section and the broad nature of the privilege it provides, we note that this Court has recognized, in limited circumstances, an exception. Specifically, as demonstrated by this Court's holding in Crowne Investments, Inc. v. Reid, 740 So.2d 400 (Ala. 1999), the privilege found in § 6-5-551 can, in effect, be waived and the opposing party be entitled to introduce evidence of other acts or omissions if the defendant health-care provider "opened the door" to such information. 740 So.2d at 408. In Crowne, the defendant health-care provider's counsel asked the plaintiff's witness, during cross-examination, about both her personal observations of the services rendered to the defendant's patients and her impression as to the quality of that care. On redirect, the plaintiff, without objection by the defendant, asked "a question regarding other acts," namely whether the witness had observed patients going unfed, which the witness answered without objection by the defendant. 740 So.2d at 408. The defendant's subsequent objection to that line of questioning was deemed untimely, and the trial court permitted further questions regarding the defendant's treatment of other patients. On appeal, we rejected the defendant's claim that the trial court's admission of the other-acts testimony violated § 6-5-551. Instead, we explained that "[a] party who opens the door to an otherwise objectionable area of testimony cannot claim error when the opposing party introduces similar evidence." 740 So.2d at 408 (emphasis added).

The exception recognized in Crowne, which allows a party to counter the introduction of otherwise objectionable or inadmissible evidence by the introduction of comparable evidence, appears to be based to some degree on the doctrine of "curative admissibility":

" 'Curative Admissibility is a doctrine which holds that if a party introduces illegal evidence, his opponent has the unconditional right to rebut such evidence with other illegal evidence.' "

Kelley v. State, 405 So.2d 728, 730 (Ala. Crim. App. 1981) (quoting C. Gamble, McElroy's Alabama Evidence § 14.01 (3d ed. 1977)). However, that rule is limited.

" 'The rule is applicable even if the opponent failed to object to the original illegal or inadmissible evidence. A limitation upon this doctrine is the rule that the illegal rebuttal evidence may be admitted only to the extent that it cures the effect of the admission of the first illegal evidence. If, for example, a party introduces evidence of a hearsay conversation then his opponent has the right to introduce only so much of the remainder of the conversation as rebuts that portion first offered.'
"C. Gamble, McElroy's Alabama Evidence, Section 14.01 (3rd ed. 1977).
"The doctrine of curative admissibility is limited to the extent that it cures the effect of the admission of the first illegal evidence. Hall v. State, 375 So.2d 536 (Ala. Cr. App. 1979). 'Since the testimony of [the] victim's nephew was limited to that of deceased being a 'nice guy' to the nephew and helped people out and did things, any rebuttal or curative testimony would have to be restricted [to] showing that the victim was not a 'nice guy' and did not 'help out people and do things.' Since a crime of moral turpitude would do little to rebut such testimony, it would have been inappropriate for the judge to have let such unrelated prior acts in evidence."

405 So.2d at 730 (emphasis added). See also American Fire & Cas. Ins. Co. v. Bryan, 379 So.2d 605, 609 (Ala. Civ. App. 1979) ("The curative admissibility doctrine holds that if one party introduces illegal evidence, his opponent has the unconditional right to rebut such evidence.... However, this doctrine is subject to the important qualification that matters not relevant to the issues on trial may not be brought out." (emphasis added) ).

With these principles in mind, we turn to the facts of the present case. The record reflects that during WBMC's cross-examination of Suzanne Pugh, WBMC's self-described "corporate representative" and "mouthpiece," WBMC's counsel, after confirming that Pugh had been employed by WBMC since 2004, engaged in the following exchange with Pugh:

"[WBMC's counsel]: Let me ask you this: You know what this claim is, this agency claim?
"[Pugh]: Yes.
"[WBMC's counsel]: Before you came into this courtroom and heard this claim, have you ever heard it proposed or ever heard of the notion before of a hospital somehow controlling or supervising the actions of independent physicians on staff?
"[Pugh]: No, I have never heard of that before."

(Emphasis added.) WBMC's counsel then proceeded to conclude his examination of Pugh with a few additional questions regarding Pugh's understanding of the independent nature of each physician's rendering of patient care at WBMC's hospital.

Immediately thereafter, Armando's counsel sought leave from the trial court to "ask ... a question" outside the jury's presence. The following colloquy ensued:

"[Armando's counsel]: That last question just opened the door so wide as to every other time [WBMC] has been sued for the actions of doctors. In fact, while she was an employee there, I sued [WBMC] for the conduct of [a doctor employed] in the emergency department and they paid money for those allegations, settled with me, and got out of the case.
"He's the one that opened the door. He said, have you ever even heard of this type of thing before, and she said no. And they have paid money for the same claim.
"[WBMC's counsel]: Judge, no door has been opened.
"THE COURT: Yes, it has.
"[WBMC's counsel]: I'm asking this witness in her role, what she does, if she's ever heard of-
"THE COURT: She's the mouthpiece for the hospital. That is who she is. She is the corporate mouth of the hospital and you asked if the hospital had ever heard of this before.
"[WBMC's counsel]: I asked this witness.
"THE COURT: Who is the mouthpiece of the hospital. She is the living embodiment of the hospital, she speaks for the hospital. When you asked her, you asked if the hospital ever had. You know, it went right by me but it certainly sounds like it just absolutely opened it up.
"[Armando's counsel]: Wide open.
"[WBMC's counsel]: It went by me as well, because I certainly don't know, Judge, of any law that says asking that question wipes Section 6-5-551 off the books.
"[Armando's cocounsel]: There is no way we can erase that. There is no way we can erase it. What he just got into evidence is this hospital has never been sued before.
"(Everyone talking at once.)
"[WBMC's counsel]: That was not the question.
"....
"[Armando's counsel]: My point being that he just asked her a question that opened the door to the fact that they have heard of this type of claim and that they have paid on this very type of claim money to settle a lawsuit."

Noting the potential "new facet" raised by the foregoing discussion and the jurors' exhaustion, the trial court recessed the trial for the day.

When proceedings resumed the following morning, the discussion continued, with Armando's counsel providing authority to the trial court on the doctrine of curative admissibility. Essentially, Armando's position was that, in asking the above-quoted question of Pugh, WBMC "open[ed] the door to the multitude of other times that [WBMC has] not only defended but ... paid money on these claims for doctors somehow controll[ed] or being supervised by the hospital." Thus, Armando's counsel sought the trial court's permission to question Pugh on redirect examination on the issue and to "explore [WBMC's] knowledge on other allegations."

In disputing the broad implications assigned to his question by the trial court and Armando's counsel, WBMC's counsel explained: "She was only asked have you ever heard of the notion that independent physicians are controlled, other than in this case." In addition to denying that "the door [had] been opened," WBMC's counsel further argued that the prejudice that would be caused by any allegedly curative evidence "certainly outweighs any probative value...."

Following additional arguments as to the potentially confusing and prejudicial impact of evidence of other wrongs or omissions on WBMC's ability to obtain a fair trial, Armando's counsel replied:

"And what they did was is they told the jury through ... Pugh that we've never even-[WBMC] has never even ever heard of this before. And I can tell you that that is far from the truth, far, far, far from the truth. And that statement that [WBMC] hasn't even ever heard of this or heard of the notion of this before has been opened completely wide-the door has been opened completely wide open, and the plaintiff should be able, according to Alabama law, to explore the defendants' knowledge relating to vicarious liability claims made in other cases."

The trial court denied a renewed request by WBMC's counsel to review the assembled evidence at a hearing before it was presented to the jury; the trial court instead ordered that "[WBMC would] have the opportunity to object as the testimony is coming in." In response to renewed complaints by WBMC's counsel that such evidence "violates [§] 6-5-551" and a specific request for a standing objection for purposes of appeal, the trial court agreed to "give [WBMC] a standing objection before [we] start" as well as the opportunity to lodge further and more particularized objections to particular items of evidence when they were introduced.

When proceedings resumed, Armando's counsel informed the trial court that he had, through the use of "the Alabama Court system website," identified "10 or 11" complaints that he would like to address in the following proposed manner:

"[W]hat we intend to do is to go into the fact that there was a lawsuit that was filed and that the allegation was that the doctor-the doctor's negligence was the responsibility of the hospital due to a vicarious liability claim, an agency claim, a claim that they controlled the conduct of the doctor during his performance of these actions and that they were represented by [WBMC's present counsel] in that case.
"We do not intend to go into the results of the case, settlement negotiations of the case, whether it was a defense verdict or a plaintiff's verdict or any amounts of money that they paid in specific references to these cases. We intend to limit them very narrowly in order to be as careful as we can in response to the Court's ruling that the door has been opened...."

As explained by Armando's counsel, the approach was based on "[t]he fact [that] the knowledge of ... [WBMC] was put into evidence ... through the specific question asked by [WBMC's counsel] and responded to by ... Pugh," which, he indicated, was "all [he] intend[ed] to explore."

In response, WBMC both provided authority for the proposition that and argued that the trial court should instead "allow the jury to take the interpretation of th[e] question ... to be ... under the setting of the ... standards, under the setting of Medicare rules and regulations and conditions of participation [asked about by Armando's counsel during direct examination of Pugh] ... as opposed to other litigation" and the exploration, in that context, of whether "through those very same documents ... the hospital did control the acts of a physician." WBMC further argued that, given the possible alternate interpretations of the disputed question, the legal, permissible interpretation should prevail.

The trial court rejected that notion and instead explained its belief that the answer WBMC solicited from Pugh suggested that the theory of liability advanced by Armando was "an absurd proposition... [that has] never been put out before" and that "this is a frivolous lawsuit." It therefore found, based on its application of the doctrine of curative admissibility, that the question and Pugh's answer opened the door to Armando's introduction of other lawsuits involving claims asserted against WBMC based on allegations that WBMC was liable "for the conduct of a physician working at the hospital based upon the theory of vicarious liability [or] if the physician is alleged to be an agent or employee of the hospital." The trial court did, however, prohibit evidence from both parties related either to the ultimate disposition of any such claim or lawsuit introduced by Armando's counsel or to the merits of the included claims.

Before the resumption of Pugh's testimony, the trial court again granted WBMC a continuing objection to the admission of each instance of other-claims evidence; Armando's counsel conceded to the continuing objection on the trial court's curative-admissibility ruling. Thereafter, in his redirect examination of Pugh, Armando's counsel obtained Pugh's confirmation that she was WBMC's corporate representative on the issues of physician relations, compliance with conditions of the Medicare and Medicaid programs, accreditation and certification, and WBMC's supervision and control over physician's actions. Thereafter, Armando's counsel read back the disputed question and Pugh's response, as set out above; Pugh confirmed that she had, in fact, given the response and again denied personal knowledge of specific details of other claims and/or litigation while conceding that someone at WBMC who, in fact, handled such claims likely had such knowledge. To purportedly counter Pugh's denial, Armando's counsel then proceeded with a slide presentation during which he provided the following accompanying narration of slides evidencing numerous prior claims and/or suits against WBMC:

• "Let's take a look at the lawsuit that was filed in 2007 relating to Ms. [L.H.]. Was [WBMC] aware in 2007 that [Ms. H.'s] left arm and left leg were paralyzed following a surgery at [WBMC], and that Ms. [H.] filed a lawsuit claiming that the doctor who did the surgery was negligent by leaving a four-inch catheter in her body, causing her paralysis, and Ms. [H.] claimed that [WBMC] was responsible for that surgeon's negligence; were you aware of that?"
• "Let's take a look at lawsuit involving Ms. [B.S.]. Allegedly in that case, [P.S.] died from a digoxin toxicity, Coumadin toxicity, and renal failure at [WBMC], and her family on her behalf sued [WBMC] claiming the hospital was responsible for the doctor's conduct and the doctor's medication error and claimed that the hospital was responsible for his conduct because they reserve the right to control his actions."
• "In 2008, [D.C.F.] ... filed a lawsuit on behalf of [S.M.] who died ... in ... the [WBMC] emergency department. In that lawsuit her family sued [WBMC] claiming it was responsible for the emergency room doctor negligently failing to timely administer insulin despite evidence it was needed."
• "[I]n 2008 ... [T.H.] was born with a brain injury -allegedly, [T.H.], a baby, was born with a brain injury at [WBMC]. [T.'s] family on his behalf sued [WBMC] claiming it was responsible for the doctor negligently failing to monitor the mother and the child during childbirth, specifically failing to recognize that the mother had a placental abruption and that the child suffered a significant brain injury in that case."
• "In 2013, [J.R.P.], a 42-year-old man, died from a staph infection several days after he sought treatment at [WBMC's] [emergency room], and his family filed a lawsuit. His family sued [WBMC] and claimed it was responsible ... for the ER doctor's negligence in failing to catch that staph infection."
• "In 2014, there was an eight-year-old little boy that died from undiagnosed and untreated pneumonia after being sent home from [WBMC] with a probable virus. In that case, the family sued [WBMC] claiming the hospital was responsible for the doctor's conduct and negligence in failing to treat the bacterial pneumonia."
• "In 2015, a case that's been widely publicized, allegedly a 16-year-old boy who was released from the emergency room department despite displaying homicidal and suicidal tendencies and his parents requesting him be admitted to a psychiatric facility. The complaint goes on to allege that they had the absolute right to require him to be kept because of their fear. He was released from the ER and allegedly he stabbed and killed his mother that night. In the complaint they describe how [WBMC] should have taken different action. The family sued [WBMC] alleging the hospital was responsible for the negligence of its ER doctor because it controlled and monitored and supervised that ER doctor."
• "In 2007 a lawsuit was filed, allegedly a cerebral palsy patient had made multiple trips to the [WBMC] emergency room claiming that he couldn't feel his hands or feet after a fall at home. He became a quadriplegic due to an undiagnosed spine injury. In that case, Mr. [F.] sued [WBMC] alleging that it was responsible for the emergency room doctor's negligence in failing to perform tests on Mr. [F.]."
• "In 2006 allegedly, according to the complaint, [A.B.]'s unborn child died at [WBMC] during childbirth. Ms. [B.] sued [WBMC] claiming the hospital was responsible for the doctor negligently failing to perform tests to rule out placental abruption."
• "...[I]n 2006 a lawsuit was filed that alleged that Ms. [W.] was left without use of her left hand after surgery at [WBMC]. In Ms. [W.]'s suit, [she] claim[ed] [WBMC] ... was responsible for the orthopedic surgeon negligently damaging the nerves, arteries, and veins of the arm during surgery."

As to each of the above instances, Pugh denied personal knowledge of the specific claims, but conceded that either WBMC or a representative of WBMC was likely aware of the facts and circumstances of each case.

WBMC's brief to this Court-and those filed by numerous amici curiae-evidence a belief that, in prosecuting his claims against WBMC, Armando was, at least in part, attempting to pursue some new and different theory of vicarious medical liability, namely the imposition of a duty based on WBMC's participation in the federal Medicare and Medicaid programs and its compliance with the conditions of participation. It appears that this belief is what likely spurred the question to Pugh. It also appears that the question to Pugh by WBMC's counsel and her resulting answer was not a categorical denial of the existence of any past claims against WBMC on the theory of vicarious liability that actually "opened the door" to the introduction of evidence of any and all such claims. In fact, we question whether the information solicited from Pugh by WBMC's counsel was either objectionable or illegal; instead, it appears, at most, to have been, in the eyes of Armando's counsel, a purposeful untruth that would have exposed Pugh-and through her, WBMC-to potential impeachment. Therefore, the trial court could have, within the bounds of its discretion, decided that the door had been opened to allow the jury to hear of past vicarious-liability cases.

In any event, the extent to which it opened any door is nonetheless limited. Specifically, we find that Pugh's answer would have opened a door only to the extent of knowledge of the existence of prior lawsuits against WBMC where agency was at issue-not the additional facts from which any prior claims of vicarious liability stemmed. See Kelley v. State, and American Fire & Cas., supra. Despite representations by Armando's counsel that he intended "to introduce contradictory evidence in a limited and narrowly tailored fashion to prove that the hospital was aware that there were other allegations and other lawsuits [alleging] ... that the hospital was responsible for the conduct of its doctors through an agency theory through the reserved right of control allegation," the record does not indicate that the "contradictory evidence" Armando offered was so "limited and narrowly tailored." Instead, as demonstrated by the above quotations from the record, Armando's counsel did not limit his presentation of curative evidence solely to demonstrate WBMC's knowledge of the mere existence of such claims. To the contrary, the record clearly reflects that he used the opportunity to also introduce the damning, inflammatory facts and horrific injuries in each of those prior cases. Those factual recitations were, as WBMC argues, undeniably prejudicial. As demonstrated by the above caselaw, the doctrine of curative admissibility is a very narrow doctrine. The additional information disclosed to jurors by Armando's counsel regarding the injuries suffered by patients or the alleged prior misdeeds of WBMC lacked any probative value as to the issue for which they were ostensibly offered-WBMC's and/or Pugh's knowledge of lawsuits against WBMC based on a theory of vicarious liability-and their admission was error as a matter of law. See Wood, supra. As WBMC argues, the evidence of serious injury and death suffered by former patients of WBMC "served only to prejudice the jury by suggesting not only that WBMC is routinely held liable for the acts of its staff physicians but also that patients are routinely injured at [WBMC]." WBMC's brief at p. 62 (emphasis added). We note, too, that the alleged "curative evidence" also failed to establish that the disclosed prior claims were based on the specific theory of agency liability alleged in this case.

Armando's counsel was allowed to present to the jury exactly the type of evidence prohibited by § 6-5-551. Likewise, such overwhelming prejudice could not have been ameliorated by a single reference, during the trial court's jury instruction approximately two weeks after the above-described testimony, directing jurors to "consider that evidence ... only ... as it relates to [WBMC's] knowledge or awareness of other claims that have been asserted against [WBMC] alleging that the hospital was or is responsible for the conduct of physicians who were providing medical services at the hospital." As Justice Lyons observed, "[t]he breadth of th[e] prohibition [in § 6-5-551 condemning the introduction of extraneous evidence at trial] is ill-suited to avoid its violation by a limiting instruction given after introduction of the condemned evidence." Ex parte Brookwood Med. Ctr., 994 So.2d 264, 269 (Ala. 2008) (Lyons, J., concurring specially). This principle is especially true here, given both the volume and the nature of the other-act evidence offered by Armando, which specifically included evidence of multiple emergency-room-related claims and one remarkably similar incident regarding treatment of a minor child.

Conclusion

In light of the foregoing, this Court concludes that the facts related to the jury regarding prior acts and omissions by WBMC were entirely irrelevant for the purpose of curative admissibility, were highly prejudicial to WBMC, and warrant reversal of the judgment against WBMC. The judgment of the trial court is, therefore, reversed, and the cause is remanded for a new trial.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Parker, Main, Wise, Bryan, Sellers, and Mendheim, JJ., concur.

      We note that the record on appeal includes alternate spellings of Armando Cantu's first name. For purposes of this opinion, we have opted to use "Armando," the spelling included in Armando's sworn interrogatory responses, the records associated with Daniel's treatment at WBMC, and on Daniel's birth certificate.

      Other defendants were named in the complaint. They were, however, either subsequently dismissed or determined by the jury not to have breached any applicable standard of care.

      See § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975.

      We express no opinion on the merits of the other issues raised by WBMC in this appeal.

      In Crowne, the basis of the plaintiff's claim was that the defendant had "negligently caused or allowed [a patient] to be fed by his wife, who was not medically trained to feed someone in [the patient's] condition," and "that this negligence caused [the patient] to suffer an asphyxiation event and that he died as a proximate consequence of this negligence." 740 So.2d at 402.

      As WBMC points out to this Court, it objected to the proposed charge on grounds that it failed to "cure[ ] the error that has been allowed by introducing those other lawsuits" because, WBMC alleged, Armando's counsel allegedly "went outside the [trial court's] order by providing information that was beyond the scope of what the Court allowed."


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    EX PARTE Joshua WARD
    (In re: Joshua Ward v. Johnathan Motors, LLC, et al.)
    1170142
    Supreme Court of Alabama.
    May 18, 2018
    Thomas C. Donald, Birmingham, for petitioner.
    David E. Hodges, Birmingham, for respondents.
   SELLERS, Justice.

Joshua Ward petitions this Court for a writ of mandamus directing the Shelby Circuit Court to vacate its October 7, 2017, order setting aside a default judgment entered against Johnathan Motors, LLC, and its principal Jacques C. Chahla (hereinafter referred to collectively as "the dealership") and to enter an order reinstating the default judgment. We grant the petition and issue the writ.

Facts

On April 14, 2017, Ward filed a 12-count complaint against the dealership and fictitiously named defendants alleging, among other things, that on August 5, 2016, he purchased a vehicle from the dealership; that he made a down payment on the vehicle; that he made the first monthly installment payment on the vehicle; that he maintained full insurance coverage on the vehicle; but that on September 10, 2016, the dealership unilaterally voided the sale of the vehicle and unlawfully repossessed and converted to its own use the vehicle, the down payment, the monthly installment payment, and the personal property in the vehicle when it was unlawfully repossessed. The dealership was served by certified mail on April 19, 2017; the sufficiency of that service of process has not been challenged.

On August 14, 2017, Ward requested the clerk of the circuit court to enter a default against the dealership pursuant to Rule 55(a), Ala. R. Civ. P., based on the dealership's failure to answer or otherwise to defend in the case; the clerk subsequently made an entry of default in the case. On September 9, 2017, the trial court entered a default judgment against the dealership pursuant to Rule 55(b)(2), Ala. R. Civ. P., and a hearing to determine the damages was set for November 21, 2017.

On October 3, 2017, the dealership moved the trial court to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P., asserting that, although an entry of default had been made, no final judgment had been entered in the case because damages had not yet been determined, that it had a good and meritorious defense to the allegations asserted in the complaint, and that Ward would not suffer unfair prejudice if the default judgment was set aside. The dealership requested in the motion to set aside the default judgment that it be allowed 14 days in which to respond to the complaint.

On October 7, 2017, the trial court entered an order granting the dealership's motion to set aside the default judgment, but requiring the dealership to file an answer within seven days from the date of that order; the dealership did not file an answer within seven days as ordered.

On November 1, 2017, Ward moved the trial court to reconsider its order setting aside the default judgment, asserting that the dealership had not responded to the complaint as ordered and that the dealership had not met its initial burden of demonstrating the existence of the three factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988).

On November 12, 2017, the trial court denied Ward's motion to reconsider the order setting aside the default judgment. On November 13, 2017, the dealership filed an answer to the complaint. Ward thereafter petitioned this Court for a writ of mandamus directing the trial court to vacate its order setting aside the default judgment, to enter an order reinstating the default judgment against the dealership, and to schedule a hearing on damages.

Standard of Review and Applicable Law
"Because an order setting aside a default judgment is interlocutory and, therefore, not appealable, the proper remedy to review the trial court's action in entering that order is a petition for a writ of mandamus. Ex parte State ex rel. Atlas Auto Finance Co., 251 Ala. 665, 38 So.2d 560 (1948). The standard for issuing a writ of mandamus is well settled:
" 'Mandamus is an extraordinary remedy requiring a showing that 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 Edgar, 543 So.2d 682, 684 (Ala. 1989) ; Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991).'
" Ex parte Johnson, 638 So.2d 772, 773 (Ala. 1994). And see Ex parte Preston Hood Chevrolet, Inc., 638 So.2d 842 (Ala. 1994) ; and Ex parte Liberty Nat'l Life Ins. Co., 631 So.2d 865 (Ala. 1993). The standard of review this Court applies when considering a petition asking for a writ of mandamus requiring a judge to vacate an order setting aside a default judgment is whether the judge, in setting aside the default judgment, [exceeded] his discretion. See DaLee v. Crosby Lumber Co., 561 So.2d 1086 (Ala. 1990) ; Hallman v. Marion Corp., 411 So.2d 130 (Ala. 1982)."

Ex parte King, 776 So.2d 31, 33-34 (Ala. 2000). In Zeller v. Bailey, 950 So.2d 1149, 1152-53 (Ala. 2006), this Court further stated that the trial court's discretion to set aside a default judgment,

"although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant's right to defend an action on the merits. [ Kirtland v. Fort Morgan Auth. Sewer Serv., Inc.,] 524 So.2d [600] at 604 [ (Ala. 1988) ]. These interests must be balanced under the two-step process established in Kirtland.
"We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So.2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala. 1987), in deciding whether to deny [or grant] a motion to set aside a default judgment. Kirtland, 524 So.2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: '1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct.' 524 So.2d at 605."

(Emphasis added.)

Discussion

Ward asserts in his petition that the trial court erred in granting the dealership's motion to set aside the default judgment because, he says, the dealership failed to present in its motion any facts, evidence, or authority illuminating its reliance on the three-factor analysis set forth in Kirtland, i.e., a meritorious defense on the part of dealership, the lack of unfair prejudice to Ward if the default judgment is set aside, and culpability of the part of the dealership in failing to respond to the complaint. We agree.

As indicated, the trial court has broad discretion under Rule 55(c), Ala. R. Civ. P., in deciding whether to deny or to grant a motion to set aside a default judgment. In exercising that discretion, the trial court must apply the three-factor analysis set forth in Kirtland. However, the law is well settled that " ' "in order to trigger the mandatory requirement that the trial court consider the Kirtland factors, the party filing a motion to set aside a default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors." ' " Hilyer v. Fortier, 176 So.3d 809, 813-14 (Ala. 2015) (quoting D.B. v. D.G., 141 So.3d 1066, 1071 (Ala. Civ. App. 2013), quoting in turn Brantley v. Glover, 84 So.3d 77, 81 (Ala. Civ. App. 2011) ).

In its motion to set aside the default judgment, the dealership averred that it had a good and meritorious defense to the allegations asserted in the complaint, but it failed to provide any evidentiary details to substantiate that assertion. It is well settled that bare legal conclusions unsupported by affidavit or other evidence do not suffice to demonstrate a meritorious defense under Kirtland. See Martin v. Robbins, 628 So.2d 614, 617-18 (Ala. 1993) (noting that "[a] defaulting party has satisfactorily made a showing of a meritorious defense if the allegations in an answer or in a motion and its supporting affidavits, if proven at trial, would constitute a complete defense to the claims against the defaulting party or if sufficient evidence has been adduced either by affidavit or by some other means to warrant submitting the case to the jury"); see also Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So.2d 802, 808 (Ala. 2004) (noting that "[t]he existence of a meritorious defense is a 'threshold prerequisite,' Kirtland, 524 So.2d at 605, because without a meritorious defense, a finding that the plaintiff would not be prejudiced and a finding that the defendant was not culpable would matter little"). Regarding the factor of prejudice, the dealership, without any supporting evidence, merely averred that Ward would suffer no undue prejudice by having the default judgment set aside. However, this Court has held that "when a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the plaintiff will not be unfairly prejudiced if the default judgment is set aside." Phillips v. Randolph, 828 So.2d 269, 278 (Ala. 2002). Here, the dealership offered no explanation as to why Ward would not be unfairly prejudiced if the default judgment were to be set aside. Finally, the dealership did not address in its motion the culpability factor; the dealership did not even allege that its failure to respond to the complaint initially or as ordered by the trial court was not the result of culpable conduct on its part. See Kirtland, 524 So.2d at 608 (noting that to constitute culpable conduct a defaulting party's actions must constitute willful conduct or conduct committed in bad faith and that "[w]illful and bad faith conduct is conduct characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness"). As Ward's petition clearly indicates, the dealership did not file an answer to the complaint within seven days of the Court's October 7, 2017, order. Rather, the dealership waited to file its answer on November 13, 2017-almost one month after the date by which the trial court ordered the dealership to file its answer and more than 208 days after service of the summons and complaint, which service, as indicated, was unchallenged.

Based on the foregoing, we conclude that, because the dealership failed to meet its initial burden of demonstrating the existence of the three Kirtland factors, the trial court was without discretion to set aside the default judgment. Accordingly, the trial court erred in setting aside the default judgment.

Conclusion

We issue the writ of mandamus and direct the trial court to vacate its order setting aside the default judgment. We further direct the trial court to reinstate the default judgment against the dealership and to set a hearing to determine damages.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

Mendheim, J., concurs in the result.

      In its response brief, the dealership cites TA Financial, Inc. v. Discover Bank, 967 So.2d 90 (Ala. 2007), for the proposition that the filing of an answer before a hearing on a default judgment cures the default. The dealership argues that, because it filed its answer before the scheduled hearing on damages, the default was cured. However, the dealership's argument is without merit because the dealership filed its answer after the default judgment was entered.


author: DONALDSON, Judge.

text:
    Charissa A. SMALLS v. WELLS FARGO BANK, N.A.
    2160756
    Court of Civil Appeals of Alabama.
    November 9, 2017 Rehearing Denied February 9, 2018 Certiorari Denied May 11, 2017
    Alabama Supreme Court 1170468
    Charissa A. Smalls, pro se.
    D. Keith Andress and Catherine Crosby Long of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellee.
   DONALDSON, Judge.

Generally, a party may appeal only from an adverse ruling, not from one granting the relief sought by the party. See Lewis v. Providence Hosp., 483 So.2d 398, 398 (Ala. 1986). Charissa A. Smalls ("Smalls") appeals from the order of the Madison Circuit Court ("the trial court") dismissing a complaint that Wells Fargo Bank, N.A. ("Wells Fargo"), had filed against her. Smalls has not appealed from an adverse ruling. We therefore dismiss the appeal.

Facts and Procedural History

The parties are before this court for the fourth time regarding real property in Madison County ("the property"). Smalls and Lloyd Harper, who were married at the time, purchased the property in 1998. They financed the purchase of the property with a promissory note secured by a mortgage on the property. Smalls and Harper divorced in 2006, and all of Harper's interest in the property was conveyed to Smalls pursuant to an agreement between them. The property first became the subject of litigation before the trial court in an action in which Wells Fargo sought a judicial-foreclosure sale of the property and Smalls contested Wells Fargo's right to foreclose ("the foreclosure action"). The trial court entered a judgment in favor of Wells Fargo, and Smalls appealed on April 7, 2014. In Smalls v. Wells Fargo Bank, N.A., 180 So.3d 910 (Ala. Civ. App. 2015) (" Smalls I"), we affirmed the judgment in part, reversed the judgment in part, and remanded the cause. On remand, the trial court entered another judgment in favor of Wells Fargo, and Smalls and her current husband, Eugene C. Smalls ("Eugene"), who had been added as a party, appealed on January 5, 2016. On August 19, 2016, we affirmed the judgment without an opinion, in Smalls v. Wells Fargo Home Mortgage, (No. 2150308, August 19, 2016), 231 So.3d 285 (Ala. Civ. App. 2016) ("Smalls II") (table). On October 17, 2016, Smalls and Eugene filed a petition for a writ of certiorari in the Alabama Supreme Court seeking review of our decision in Smalls II.

While the appeal in Smalls II was pending, Wells Fargo filed a complaint against Smalls on June 9, 2016, initiating the present action. Wells Fargo alleged a claim in the nature of ejectment pursuant to § 6-6-280, Ala. Code 1975. According to its allegations, Wells Fargo had conducted a foreclosure sale and had purchased the property on March 14, 2016. In her answer, Smalls alleged as counterclaims many of the claims she had alleged in the foreclosure action. On November 30, 2016, after this court had issued its decision in Smalls II, Smalls filed a "Motion to Dismiss with Prejudice," arguing that Wells Fargo had failed to state a claim upon which relief can be granted, that Wells Fargo was not a real party in interest that has standing to enforce the promissory note or to foreclose on the property, and that the petition for a writ of certiorari seeking review of our decision in Smalls II, which was then pending in our supreme court, precluded the present action from being heard on its merits.

On December 13, 2016, the trial court entered an order "transferring" the present action from Judge Chris Comer, who was originally assigned the case, to Judge Dennis O'Dell, who had presided over the foreclosure action. On December 19, 2016, Smalls filed an objection to the "transfer" order reassigning the case. In her objection, Smalls argued, in part, that the trial court lacked jurisdiction to enter the order, asserting that the Alabama Supreme Court had jurisdiction over the present action because of the then pending petition for a writ of certiorari in the foreclosure action.

On January 10, 2017, Smalls filed a notice of appeal from the December 13, 2016, order. We treated the case as a petition for a writ of mandamus in Ex parte Smalls, 244 So.3d 102 (Ala. Civ. App. 2017). In Ex parte Smalls, we summarized the contentions of the parties as follows:

"In her petition, Smalls contends that this case should be dismissed with prejudice and that the trial court lacked jurisdiction to enter a transfer order. She argues that Wells Fargo has failed to state a claim, that Wells Fargo was not the real party in interest with standing to conduct a foreclosure of the property, and that the trial court lacks subject-matter jurisdiction in the present action because of the pending petition for a writ of certiorari in the foreclosure action. She also attacks the evidentiary basis of Wells Fargo's ejectment claim, reiterating many of her arguments against Wells Fargo's right to foreclose on the property that she made in Smalls I and Smalls II. Before this court, Wells Fargo agrees that the present action should be dismissed, not based on those arguments advanced by Smalls in the trial court and before this court but, instead, because Wells Fargo asserts it is prosecuting two actions with the same claims and parties in contravention of § 6-5-540, Ala. Code 1975.5
"5 Section 6-5-440 provides:
" 'No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.' "

244 So.3d at 105. In Ex parte Smalls, this court denied Smalls's petition for a writ of mandamus because the trial court had not ruled on Smalls's motion to dismiss and her objection to the "transfer" order and because the primary ground for dismissal that the parties discussed in their arguments to this court-namely, the applicability of § 6-5-540, Ala. Code 1975-had not been presented to the trial court.

On May 12, 2017, the supreme court denied the petition for a writ of certiorari in Smalls II, without an opinion. On the same day, this court issued a certificate of judgment in Smalls II.

On May 18, 2017, Smalls filed a motion to dismiss in the present action. As the ground for dismissal, Smalls asserted that Wells Fargo had conceded that it had mistakenly prosecuted two actions with the same claims and parties in the same court in violation of § 6-5-440. On the same day, the trial court entered an order dismissing the present action on the ground asserted by Smalls.

On June 19, 2017, Smalls filed a notice of appeal to this court from the May 18, 2017, order of dismissal. We transferred the appeal to our supreme court based on this court's lack of jurisdiction. On October 20, 2017, our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Discussion

On appeal, Smalls challenges the order in the present action dismissing the complaint against her. That order was entered in her favor upon the ground she had asserted in her motion to dismiss that was filed immediately before the entry of the order.

" 'It is well settled that only an adverse ruling of the trial court is subject to an assignment of error and, consequently, reviewable on appeal.' Mobile Fuel Shipping, Inc. v. Scott, 375 So.2d 796, 797 (Ala. Civ. App. 1979) (citing McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973) ; and Tyson v. U.S. Pipe & Foundry Co., 286 Ala. 425, 240 So.2d 674 (1970) ). See also Lewis v. Providence Hosp., 483 So.2d 398, 399 (Ala. 1986) (citing McCulloch v. Roberts, supra) (holding that the plaintiff could not appeal a dismissal to which both parties had consented because there was no adverse ruling by the trial court).
"....
" ' "There being no adverse ruling against the [appellant], there is no justiciable controversy for this court to decide." ' Williams v. Continental Oil Co., 387 So.2d 130, 131 (Ala. 1980) (quoting Mobile Fuel Shipping, 375 So.2d at 797 )."

State v. Nguyen, 38 So.3d 72, 74-75 (Ala. Civ. App. 2009).

To the extent that Smalls's arguments on appeal involve the trial court's subject-matter jurisdiction, we note that, generally, a court that lacks subject-matter jurisdiction " ' "may take no action other than to exercise its power to dismiss the action .... Any other action taken by a court lacking subject matter jurisdiction is null and void." ' " Ex parte Blankenship, 893 So.2d 303, 307 (Ala. 2004) (quoting State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala. 1999), quoting in turn Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo. Ct. App. 1996) ). Therefore, the trial court's dismissal of the present action renders our consideration of such arguments unnecessary. Cf. State ex rel. Lloyd v. Morris, 262 Ala. 432, 433, 79 So.2d 431, 431-32 (1955) ("[The supreme court] has held that if an event pending appeal makes determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief, the appeal will be dismissed."). We also note that the "transfer" of the present action was merely a reassignment to a different judge within the trial court. The "transfer" was not between different trial courts, venues, or jurisdictions, as characterized by Smalls. "Subject-matter jurisdiction generally lies with a court ... and not with a specific judge sitting on that court." Ex parte Montgomery, 79 So.3d 660, 668 n.4 (Ala. Civ. App. 2011).

Nevertheless, "[o]nly adverse rulings by the trial court are reviewable on appeal." Lewis v. Providence Hosp., 483 So.2d at 398. The trial court's dismissal of the action was in Smalls's favor, not against her. Because this appeal does not present a justiciable controversy, we dismiss the appeal. See id.; State v. Nguyen, 38 So.3d at 75.

APPEAL DISMISSED.

Thompson, P.J., and Thomas and Moore, JJ., concur.

Pittman, J., recuses himself.

      This court has taken judicial notice of the records and materials from Smalls I, Smalls II, and Ex parte Smalls, 244 So.3d 102 (Ala. Civ. App. 2017). See City of Mobile v. Matthews, 220 So.3d 1061, 1063 (Ala. Civ. App. 2016) ("[A] court may take judicial notice of its own records.").

      Lloyd Harper and Jaylan Gopher were also named as defendants. They are not parties to this appeal.

      Smalls appears to also challenge the findings of the trial court in the foreclosure action. The trial court's judgment in the foreclosure action was affirmed in Smalls II, and our supreme court has denied the petition for the writ of certiorari seeking review of our decision in Smalls II. Regardless, there is no indication that the foreclosure action and the present action were consolidated. Therefore, the trial court's findings in the foreclosure action are not before us to review.


author: PITTMAN, Judge. MOORE, Judge, dissenting.

text:
    Ray F. ROBBINS II v. DIRECT GENERAL INSURANCE COMPANY
    2160138
    Court of Civil Appeals of Alabama.
    November 17, 2017 Rehearing Denied March 9, 2018 Certiorari Denied May 11, 2018
    Alabama Supreme Court 1170573
    Benjamin Wayne Robbins of Robbins & Robbins, Talladega, for appellant.
    W. Scott McGarrah of Allen & Newman, PLLC, Birmingham, for appellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.; Walker v. Walker, 144 So.3d 359, 364-65 (Ala. Civ. App. 2013) ; Pritchett v. State Farm Mut. Auto. Ins. Co., 834 So.2d 785, 791-92 (Ala. Civ. App. 2002) ; and Pate v. Billy Boyd Realty & Constr., Inc., 699 So.2d 186, 189 (Ala. Civ. App. 1997).

Thompson, P.J., and Donaldson, J., concur.

Moore, J., dissents, with writing, which Thomas, J., joins.

MOORE, Judge, dissenting.

On May 27, 2015, Ray F. Robbins II filed a complaint in the Talladega Circuit Court ("the trial court") against Direct General Insurance Company ("Direct General"). Robbins asserted claims of breach of contract resulting from Direct General's purported agreement, and failure to perform on that agreement, to repair Robbins's automobile with no diminished value; to pay Robbins the value of a rental vehicle while his automobile was being repaired; and to pay Robbins for his medical bills incurred as a result of his automobile accident with one of Direct General's insureds.

Following a number of other filings and orders, Direct General filed a motion for a summary judgment on June 7, 2016, attaching thereto, among other things, the affidavit of Robert Waldern, a claims manager for Direct General. Waldern stated, among other things, that, following the accident with Direct General's insured, an estimate for repairing the damage to Robbins's automobile had been prepared using "aftermarket crash parts supplied by a source other than the manufacturer" of the automobile and that the amount of the estimate was $5,012.11; that Robbins had been sent a letter from Direct General offering to settle his property-damage claim for that amount on January 8, 2015, and to allow Robbins to have his automobile repaired at a shop of Robbins's choice; that, beginning on that same date, Waldern had had several telephone conversations with Robbins, during which Waldern had told Robbins that Direct General would "pay for the repair of his vehicle to its pre-accident condition" and that it would allow the repair shop to use original manufacturers' parts for the repair of the vehicle instead of the "aftermarket" parts. Waldern also stated that he had discussed reimbursement for a rental vehicle with Robbins but that he had not discussed a diminution-of-value claim with Robbins.

In an affidavit that Robbins submitted to the court pursuant to an earlier filing, Robbins asserted, among other things, that Waldern had stated during their conversations that Direct General would not pay Robbins the difference between the value of his automobile before and after the accident, but that it would make the repairs to his automobile such that there would be no diminished value thereto, and that he would send Robbins something in writing memorializing their agreement. According to Robbins, Waldern had sent him an e-mail later that day and, on the following day, he had e-mailed a letter to Waldern indicating that Direct General had agreed to make the repairs to his automobile with the guarantee that Direct General would warrant that his automobile would have no diminished value. Robbins also stated that, in a telephone conversation thereafter, Waldern had confirmed their agreement. Robbins stated that, as a result, he had agreed to allow his automobile to be repaired under the conditions he had discussed with Waldern. He stated, however, that his automobile had not been repaired such that it had no diminished value, that Direct General had also failed to settle his claims for medical bills as discussed, and that another employee of Direct General had indicated that Direct General would not pay for Robbins's rental vehicle. In his affidavit filed in response to Direct General's summary-judgment motion, Robbins reiterated that Waldern had represented that Direct General would repair his automobile to its pre-accident condition and that it would have no diminished value and that, based on that representation, Robbins had agreed to allow the repairs to his automobile.

On July 19, 2016, the trial court entered a summary judgment in favor of Direct General, and, following the denial of Robbins's postjudgment motion, Robbins timely appealed to this court.

"Our standard of review for a summary judgment is as follows:
" 'We review the trial court's grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala. 2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id."We review the evidence in a light most favorable to the nonmovant." 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala. 2006).' "

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala. 2007) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala. 2006) ). In Perkins v. Johnson, 866 So.2d 1146, 1148-49 (Ala. Civ. App. 2003), this court explained:

"To recover on a breach-of-contract claim, a plaintiff must prove: '(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant's nonperformance, and (4) damages.' Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala. 1995). The elements of a contract are: (1) an offer and acceptance, (2) consideration, and (3) mutual assent to the essential terms of the contract. Southern Energy Homes, Inc. v. Hennis, 776 So.2d 105 (Ala. 2000)."

This court's no-opinion order of affirmance cites cases supporting the conclusion that Robbins and Direct General had not reached a meeting of the minds such that a contract had been formed regarding the repair of Robbins's automobile that would result in no diminished value thereto. It appears clear, however, according to the affidavits of both Waldern and Robbins, that, after Direct General had sent an offer to Robbins regarding the repair of his automobile, Robbins and Waldern had spoken and agreed to terms different than those contained in the offer, including an agreement to repair Robbins's automobile using original manufacturer's parts and to repay Robbins for the cost of a rental vehicle. Although Robbins admitted that Direct General had refused to simply pay him the difference between what his automobile had been worth before the accident and what it was worth after, Robbins also asserted in an affidavit that Waldern had represented that Direct General would pay to repair the automobile such that it would have no diminished value and that he had acted on that representation. Although Waldern asserted in his affidavit that he and Robbins had not had such a discussion regarding diminished value, Robbins's statements indicate that a genuine issue of material fact exists regarding the contents of the oral agreement reached between Waldern and Robbins. Because, in my opinion, a genuine issue of material fact exists, I would reverse the summary judgment entered by the trial court. Accordingly, I respectfully dissent.

Thomas, J., concurs.


text:
    MERCHANTS ADJUSTMENT SERVICE v. Hon. James H. MORGAN, Kordesia Williams, Darryl Williams, Benjamin F. Harper, and Aretha Taylor
    2161047
    Court of Civil Appeals of Alabama.
    February 9, 2018 Certiorari Denied May 11, 2018
    Alabama Supreme Court 1170440
    Gregory B. McAtee, Mobile, for appellant.
    Steve Marshall, atty. gen., and Bettie J. Carmack, asst. atty. gen., for appellee Judge James H. Morgan.
   DONALDSON, Judge.

AFFIRMED. NO OPINION.

See Rules 28(a)(10), 53(a)(1) and (a)(2)(F), Ala. R. App. P.; Rule 4(i)(2)(C), Ala. R. Civ. P ; White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008) ; Ex parte Flexible Prods. Co., 915 So.2d 34, 41 (Ala. 2005) ; City of Gulf Shores v. Harbert Int'l, 608 So.2d 348, 357-58 (Ala. 1992) ; Premier Health Mgmt., Inc. v. Sherling, 100 So.3d 561, 564 (Ala. Civ. App. 2012) ; Griffin v. Blackwell, 57 So.3d 161, 163 (Ala. Civ. App. 2010) ; Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996) ; and McBride v. McBride, 380 So.2d 886, 888 (Ala. Civ. App. 1980).

Thompson, P.J., and Pittman and Moore, JJ., concur.

Thomas, J., concurs specially.

THOMAS, Judge, concurring specially.

Merchants Adjustment Service ("Merchants") filed in the Clarke District Court, acting as a small-claims court ("the district court"), four separate complaints seeking recovery of debts allegedly accumulated by Kordesia Williams, Darryl Williams, Benjamin F. Harper, and Aretha Taylor. In each action, Merchants requested service by certified mail. See Rule 4(i)(2), Ala. R. Civ. P.; see also Rule 4(dc) (providing that Rule 4 applies in the district courts).

Certified-mail receipts were returned to the district court in each action. Each certified-mail receipt had been signed by an individual other than the named defendant; however, each individual had indicated on the certified-mail receipt that the individual was the "agent" of the named defendant. After the defendants failed to answer or otherwise defend the actions, Merchants filed, in each action, a motion seeking the entry of a default judgment. The district court concluded that Kordesia, Darryl, and Harper had not been properly served and entered an order in each of those actions denying Merchants' motion for a default judgment. Although the district court entered a continuance in the action against Taylor, it entered an order consolidating all four actions for purposes of appellate review.

Merchants filed a petition for the writ of mandamus in the Clarke Circuit Court ("the circuit court"), requesting that the circuit court order the district court to vacate its orders denying its requests for default judgments and to enter a default judgment in each action because, Merchants argued, the four defendants had been properly served. The materials submitted to the circuit court for review revealed that, in each action, Merchants had argued to the district court that it had complied with two methods of serving an individual pursuant to Rule 4(c). That is, according to Merchants, it had complied with Rule 4 by causing each summons and complaint to be left "at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein," Rule 4(c)(1), and by causing the "deliver[y] [of] a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process."Id. The circuit court determined that the district court had not abused its discretion by determining that the four defendants had not been properly served; thus, the circuit court entered an order denying Merchants' mandamus petition. Merchants filed a timely notice of appeal to this court. Premier Health Mgmt., Inc. v. Sherling, 100 So.3d 561, 564 (Ala. Civ. App. 2012) (explaining that an appeal was the proper method for review of a judgment denying a petition for a writ of mandamus).

I concur to affirm the circuit court's refusal to grant mandamus relief to Merchants regarding the actions against Kordesia, Darryl, and Harper, see Johnson v. Hall, 10 So.3d 1031, 1037 (Ala. Civ. App. 2008), and I also concur to affirm the circuit court's refusal to grant mandamus relief to Merchants regarding the action against Taylor. Ex parte Flexible Prods. Co., 915 So.2d 34, 41 (Ala. 2005) (citing Ex parte Vance, 900 So.2d 394, 398-99 (Ala. 2004) ). However, I write specially to point out that this appeal illustrates what is surely unintended confusion created by certain language in Rule 4.

Rule 4(i)(1) provides for service of a summons and compliant by a process server. A process server "shall deliver a copy of the process and accompanying documents to the defendant or other person who may be served under the provisions of Rule 4(c)." Rule 4(i)(1)(C). Thus, subject to certain exceptions, a process server may leave documents "at the individual's dwelling house or usual place of abode." Rule 4(c)(1). Rule 4(i)(2) provides for service of a summons and complaint by certified mail. Service by certified mail is effective when delivered to "the named addressee or the addressee's agent." Rule 4(i)(2)(C). I cannot fathom why service is effective when a process server leaves a summons and complaint with an individual of suitable age and discretion but service is ineffective if the same individual signs a certified-mail receipt. That distinction, whatever it is, does not serve to "simplify service requirements under Alabama law and to facilitate service of process." See Committee Comments to August 1, 1992, Amendment to Rule 4(c)(1).

In my opinion, clarity could be brought to Rule 4 by amending the rule to create separate subsections for individuals and for entities for which agency considerations appear more apt. For example, an "agent," as defined by Rule 4(i)(2)(C), is "a person or entity specifically authorized by the addressee to receive the addressee's mail and to deliver that mail to the addressee." The distinction has application in the context of an entity, see, e.g., LVNV Funding, LLC v. Boyles, 70 So.3d 1221 (Ala. Civ. App. 2009), and perhaps in the context of some individuals; however, in this appeal, the summons and complaints had been delivered by certified mail to the homes of the defendants. In one action, the certified-mail receipt clearly demonstrated that it had been received by the defendant's wife who signed as "agent" of her husband. Regardless, the district court determined that the husband had not been properly served, and Merchants could not avail itself of mandamus relief because it could not show that the wife had had authority as an agent to accept service for her husband because he did not "acknowledge[ ] actual receipt of the summons and complaint," Rule 4(i)(2)(C), and the district court had the discretionary authority to determine whether "the evidence proves the addressee did actually receive the summons and complaint in time to avoid a default."Id.