The Union Bank Trust Department. Your Hometown Advantage.
Schroeder, Hoffman and Thigpen on
ALABAMA EVIDENCE bV William A. Schroeder, Jerome A. Hoffman and Richard Thigpen
INTROOUCTORV PRIC E
$69 .9 5 R811"lafly $)4 95
In thi s comprOllOn sivQ examination 0 1 th e rule s of Alabama EYldence. the authors prOsonllln In-dep th diScu SSion o f ali s/DBs 01 oYlden\lary procedure s frOm 1119 relatively Simple way s to ObJDCt 10 eVidence through COfl'lpetonca. privileges, ,aiel/once, impeachment. Ihe basi eVidence Iulo and p81 01 eVidence Many sections conlOln It di SCUSSion 0 1 Fe:derallaw and how It compares to ItS Alaball'8 coun tOIl)3rt Case law is thoroughly Ci ted thr oughout the book. An okcellont ra talanca 1001 l or both the Inexpenol'lced lind voteron lawyerl
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Obtllining, 0 1forlng lind Objectin g to EYldMCO ' CO ..... pOIOMO • ElIlimina llo n 0 1 W,tn OS80S • Relev(lnce lind Llm,tll tlons on the Admi SSion ot Relavllnl EvKlence ' Prlvllo ges ' Impellchment . hpert TestImony ' HIIII1Say • Au'honhC(l" o n arod Ident,hCOIlo n - Rule s 901. 902, 903 • Special Rul lll RollI"ng 10 Willing , Tile Best EVidence Rule and Ihe PIII OI Ev'donco RuIO ' Real lind OOmOn&1I8I!Ve EVIdence ' JudiCI OI NOll ce ' Presumption, Burdon B 0 1 Proo l and Per SUllaiQn
About the Author, _ _ _ _ _ _ _ _ __ _ _ __
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Buy Schroeder, Hoffman and Thigpen on Alebama Evidence and gel 30 % OFF any 0 1 the treatise s listed bejow : G8Inble & Corley 'S Alabtlma Ltlw of Oumuge. · 1992 (wI C UI s uPp ·) ""799!t $55 ,95 M cCurley & DaVIS ' Alaba ma Dillorco, Alimony & Child CUl tody 8 1982 (wI c ur s upp) -&67 " $47,55 Hansford's Tilley 's AI.bama Equity 2nd Ed , - 1985 '~9 95" $34 ,95 Ho ff 's Alabama Limitations of Ac tions & Notice PrOIlI, lons - 1984 (wI CUI supp) ..$3195 $26 ,65 Ho(J(J, HOfdy & Saod's Alabama Workme n ', Co mpan'at ion - 1982 (wI CUI s upp) So4 t 95" $31 ,45
1---- AND/OR ge t 40 %
OFF any of "The Law in "
.. series listed below: ----i
J8ffr,6S &. W,'k,nson 's Collection of Accounts · '98, (wI CUI II UPp) '~6 96 $ 16 ,1 6 Woltho!l 's Corporation, - Formation With Forms - 1981 (w I CUI s upp) ';Ii 96 $16 , 1 6 H8Irs ron 's Detinue, Encutionl & Mecha nics' Lien. e '990 (wI e UI suppl -$2695 $ 16 ,1 5 J6ff,,6S' Enforcement of Security Interelll in Perso nal P ro perty · ,980 (w I CUI iUPP) ~",~,a.~'<;5 $1 8,15 Huskoy & Erh6rBdgo 's Lendlo rd & Tenbnt - Breac h & Re medie • • '98' 52695 $16,1 6 Je""e5 ' Wrongful Death Ac tion. · '979 (wI cu. supp) "'2895 $16, 15
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THE }::.1 HARRISON COMPANY, PUBLISHERS
1-800-241 - 3561
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The Alnbllm/l Lawyer
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Our
Better First Alabama's Simplified Employee Pension (SEP) is simply a better way for you to provide retirement benefits and shelter income at the same timewhether you are self-employed or your business is a sole proplietorship. a part· nership. or a corporation. our SEP plan combines the tax advantages of a Keogh with the simplldty of an IRA.
Employers and employees benefit. Our SEP plan allows you to bUild a generous retirement fund for yourself and your employees. You can con· tribute up to 15%of each employee's eamings with a maximum of $30.CXXJ for each employee throuRh aSEPplan. in addition. you and your employees can contribute an addi· tional $2.CXXJ each to an IRA
a big tax advantage. All SEPcontrtbu· tions to your own accou nt and to your employees are fully deductible with tax deferred earnings. No IRS Reporting. Our SEP plan requires no iRS reports. min· imum documentation, and it's easy to administer. You have until Aplil15 to set up a SEPplan. But don't wait that long. OUf SEP plan can start making your fI:/ plans Simpler and I.!O Yes, 1'1/1 . better light now.
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On the coverThe Levcrt Of· fice i~ home to the Mobile aar Association and will be the site of a f(.>ception spon • sored by the Mobile Women Lawyers' Assoda· tion during the rmn unl meeting.
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The Impact of the Tax Reform Act of 1986 on Small Businesses- by Sand ra L Randleman .... . . 206
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The Tax Reform Act of 1986 now is being implemented. How does the act affect small businessesl
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Send ac:kln.· ss c"angt'S to The AlaiJ.l ma l awyer, P.O . 60x 41 56, M orl tgomcry, AL 361 0 1.
The Alabam<l La\\-yer
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Mobil e-as good as you remem- Introduction to l ender Liabilityber!- by Judge Arthur B, 8riskman by Gregory H. Hawley .. . . 214 " " "" "" " " " " " , 200 a,ICe i1gnin M obile is proud to host the bar's ann ulIl meeting. The Pori City has many ou tstanding reSIi\urantS and ol her attr.1Cli ons tha t should not be missL'(L
A creditor generally is well·armed wi th statutory and contractulll rights when $l!Ck. ing to remedy debtor delinquency. How· ever, the credi tor fa ces potcnt lal liability if unrea sonable collec t ion efforts ,HC eml)loy(.'(t .
INSIDE THI S ISSUE President's Page .... ExecutIve Director's Report About M embers, Among Firm ~ do ol>portunitiC!t Attorney s Adm illed to Bilr Lawycl ~ in the Filmi ly M CLE News Recent Dt..>cisions
19' 19, 19. 220
m 225
229 230
Young Lllwyers' Section .. Legislative Wrill)oUp
a.H Brief~
Riding thl' Cl rcuit ~ Memoria ls BM Commissioners' Action s Di'ICiptinary Io:cpon C la'~ i fi('(/ Notices
234
m 239 241 244 247
250 251
191
President's Page he opening prayer 01 'he April IS special meeting oltne board afbar commlssi(lni!r1 beg;.1'1 as follOW'S: ''The lord Sil'v1! us from l'V1l princes, priests and pllrllamer\!S . , . :' The Alabama Slale Bar rarely, if (MJr,
OIny, to remedy the wroog prior 10 sull and the opPQrtunity the ph'l lnUf( g..'l\IC the defend~nI to corre<:1 the problem, and the net worth of the defendant admissible In a POSItdill he.uing before the courl; Ihe lakes a pasHion concerning l>ending. bar was opposed to C.1PS Or formu· controversial legislation . This is as il las for punitive damages; should be; lilwyers can be found adyoG. The bar was In favor of giving the trial or appellate courts authority to cnllngall sides of all public issues. In the case of " IOrl reform:' hC)W(!\.'Cr, the protOIl( fees. COSIS and pcnahies for posed legislaTion was so far.reachlng and fr ivolous cla ims, defenses or basic in the adminislraliol'l ol jusUce Ihal appeals; the board of bar commissioners beli~ 7. The bar was In (iIVOr of aboliSohing It should take a position and communi· the automatic 10 percent affirm( me that position to the AIOlbama Stille (tnce fee, pr(Nided the apl>cllate legislature, courtShad the aUlhorlty to Impose By a VQlc of 33-0, wilh no abSttlnl ions, fees, costs and I>cnaltles for fri vothe board adopl<.-'d a general position reSCRUGGS lous apl>cals; garding Ihe various turt reform bills 8. The bar wa~ opposed to the PdY'" pending In the Alabama House of Representatives as of ment of any forms of damages to the stale and fur. the dale of the special meeting. The position of the bilr ther was opposed to any §cll ilng or a contingcncy fee arrangement by law; on the principal issues of tort reform may be summarized as (01l0YlS: 9. The bar was opposed to the structured seulement I. The bar supported the abolition of the scintilla rule bill for future damages 00 both philosophical and in favor of the rule 01 $Ubst,lnlial evidence as dclJnoo technical grounds; by the Eleventh Circuit; 10. Finally, the bar was opposed to the medlC.11 malprac2. The bilr supported till;! forum non conVt'n;cns bill for tice act because of its ca l~, formulas, required stan· CilUS(!S of action arising In the stil te of AlilD.lma; dard I'ayml;lnts of fu ture dnmages, witness rute and 3. The b<lf supported the (orum non conveniens rule rnnny technical deficiencies. for cases arising outside the state of Alabama; The Alabama State aar makes no campaign contribu· 4. The bar supported aboli shing the collil terill source tions and neither endalSes nor OI)po5eS c.lndldalcs for p0rule to allow tile admissibility of third·party payments litical office. It is apolitical in the truest sen~ and the bar's to the plaintiff by co ntract fOl' hospital ilnd medical only commodity In Ihc legislative proccss of tori reform expeos.es, provided the cost 01 OOtilinlng the benefitS has been its argument in favor 01 reason, bal~nce and simalso WilS admissible; the hilr opposed the .KlmisslbUl· ple Intellectual honesty. When one considers that the Alaty of any gOV(!rnmental payments and further opbama State Bar has no real political power; Its apparent posed thc 3dmlsslblilly of any t31( consequences; Impact on 1011 reform has been significant. As Ihis article 5. The bolr SUI)ported raising the standard (or punitive Is being written, some substantial changes and modificadamages to clear and convincing proof, pr(Nlding tions have been made in the §Cnatc Incoq>Ofating some, il neutral review by the trial ilnd ilPI>cllatc courts bllt certainly not even it majority, of tile language making such fil ctS" s lhe efforts of the defendnnl. if (con!lnued on PilgC 194)
T
" 2
luly 198 7
Executive Director's
Report
Voting Responsibility- Does Your Vote Count? aen time rhCl'c Is (In election, I am amazed at the pre-electlon guessIng about the turnout and rhe many
E
fadors Ihill will influence Ihe e~crcl sc of this great frt."edom. II is unique In thi s great country of ours th(l' tumour ( itO be an issue, considering the ease and
frt.Worn to vote. nOllO mention the feel· Ings we possess, chller pro or COI'I, about Icadcr!hlp and public Issul..'S.
O(lr elected
The election underway In the state bar Is nO Illss rcflC(:tive of the (ll1trude in other eIL-'Cl ions. le.s than two weeks be-
fore the baUOts are to be counted, hav· Ing been in th e m.1i1 two weeks, fewer
Ihan SO percent OftllOSe eligible 10 vote have done so. Unlike most elections, the ballots were sent directly 10 the voters, who nceded only 10 mark a ballOl, place it in
il
secure envelope, then PUI both In
a cCrlincatiol'l/rctum envelope illld return same to the Electi ons Commiuee. Flfty.four electt>d commi ssioners will serve on the board of commissioners 35 of July I, 1967, plus three CK officio members. Twenty.nlne of thost.! pillces arc on the current ballot. With the rna· jority of the board up for election, marC Ihan SO percent of the memberShip should cast a 1).11101. It is the commi ssion which §Cts the course of action the bar will follow. You have a stake in thi s and should make your views known . I will h,we complcted 18 ye,lrs of ~e r· vice as YOllre>:ecutlve director when you read this (I hopc). I h;.ve watched with pride as our varioU! boords dealt with In· creaslngly comple~ professional issues under the concerned le;l(loohip 0( a loog line of outstanding presidents. I have ncver been proudt r of II boitrd's action 1h,m that taken In formulating. and later President Scruggs' ~rlicul a ting, thc bar's I>osition In thc 10rt reform debates. The bar hluJ a responsibility 10 act In thi s legislative effort 10 dlange ilO entire body
The Afabama LalVyer
of I,tw, and it was obvious the 1).1r made a difference. Th@ ph i o$Ophical issues haY{! nOi ~ resolved to everyone's sat· Isfactlon, but a hight'!' than otherwise quality of legislation will be enacted . Your board mel thrcc times within ]0 days to deal with thi s issue, Numerous smaller subgroups mCi in the Interim. The Clcpanded board will be even more reflective of the tOUl 1bar, /lnd you h/lve a role to play- you begin by continuing to InSure $irOnS Ictldershlp. The field of candidates is superb: they hllvc offered their services- you should e>:er· else your responsiblllt}· to choose those you think would best represent lhe profession. The new b.llloting placess has afford· <.'<1 the fi rst truly secret ballot; voters no IOllger certify on the ballot itself their eligibility to ca st a VOII! in the election, Now the ballot Is scaled Md certification Is made on an outside envelope. As these are received, the voter's name is stricken from the polling list, The envelopes are opened, and the sealed ballot envelopes are deposited in the approprlllle d rt uit 1).11101 box for canvassing by th@Election Commincc after the polls
dose, Certification of the return envelopes hIlS been II less than perf(!(t exerclse In ""entlon to detail; over ]0 persons fl." turned b"lIot5 with no (ertWcalioll. The biggest problem has been a failure to In· dicate the ci rcuit in which the vote Is Intended to be cast. There wa s no election In the Eleventh Judicitll Circuit, but many people declared their el igibility there, I>ossibly confusing it ..... lth the Elevelllh U.S. Ci rcuit Court of AP1>eal s. Others, I am sure, sealed tile bal101 (which had the state circuit number on It) and did not remember in which circuit they vOled . Still olhers "tertifie<l" by U.S. mall wi th return receipt s.
HAMNER This first year, we returnoo defective certifications when possible. Some failed 10 print or type their n/lme5, signing their names inste"d lind thc signatures were illegible. The eKccutlve directors In Birmingh<lm (Beth Carmichael), Mobile (Barbara Rhodes) ilnd Mont80mery (Dot Wilson) were moSt helpful in gelting ballots back In the hands of their members to obtain prOper certifications, In the smaller cireulls, ballots W(!fe returned directly 10 the members, If identifiable. A commcrcia l mailing service wa s u!lcd in baUot preparation In Ihe larger circuits. I <1m aw<tre thilt a few errors occurred with missing ballots and return envelopes, but flew materials were sent if we were notined. As we celebrate the bicentennial of our Constitution. let us resolve to be bel· tervoters in all elOOlons. They all are 1m· pul1imt as they set futuro dlrectlons that, It is hoped, will bener the lot of all society . • - Reginald 1. Hamner
193
If you are a professional corporation, don't treat your finances like an amateur. Le t Howard Well belp you make 11m most of yow' CO'l)O"ate assets.
II 'S the c lusslc dilemma : holY to condu ct your IlI'ofesslonu I business, lin d 5111111nll time 10 deYol!' to the Im .~;lIr.f6 end of the IlUSlllCSS. The sol ulio n for' 1111H1Y IlrofesslonnJ cOI'I)ora lloll ~
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• Develop ,mil m UlI/lgc c ll1llloyce hellenl Ilhms, pension UIHJ rcl ln:rn cnl fll nd.') • Sugge st II working I:Ull ilul prUl!nllll \0 lIel 11 11:: most from youI" cu sh now • Provi de ke y cmll loycc IIISIII'1I11I'(: Wor king In cuurdlnullon wllh YOII!' tllIor'ncy Hnd yUill' fl CCOUnlllnl, I loword \Vell cun 1I Iso help ill sur'C Ihe rullll'c of y01 1r cor'llUr'ullo II 1\'11 Ii ESOI' II lUllS. 1r IIYSCII ngr'cc I tiC ti ts ti nt.! proSrnlllli fill' IiIlCC ClISful own c r'sh il} tIIt·1I01'e r. C ~ I I II Ol\'ti l'(l W('II I Odll)" 01' ~c tld In thc (' 011 11 0 11 , 1"01' (' om pl t·te In l'u I'm ntiml 011 nnnnc lullHllwrgCtllerll sCI'vl ces {lV{I II il ble (It 1I0l\'uI'd Wcll . Like YOII lel l YOIi I' c l ie nts, it'.~ hest to get II p l·ofcss1ol1ul .
He Ihe smUl'l csl investor' you kn o w,
Call Collect: (504) 582-2751 Aln hn l1w onl ces: Il ln l l i n g h ll tn, Dcca t u l', HUll lsvl lle, Mobile
Howard·
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sugges ted by The board of commi ssio ners. Th~ ~in 8 1i!, mOSI Impressive argument to the legislature wa s our abilily 10 lell tile 5en(lte Judiciary Commillee that Ihc bar's poSition had been apprOVt.>d by a un;mimOU5 vole, 33·0The ultim,ue form of tori reform presently is unknown, but whatever rea son ,n)d sense Is in the pa ckage that becomes law will ha\o1! been innuenced to some degree by the 33 members of the ooard bar commissioners who had the wisdom and courage to take a position MIt ne<:es~.1rily identical with th!.'lr private or profcss io MI vil.'W'S, but one entirely con· sistent with fllirness and the admlnl stra· lion of rru!.' justice. Special apl>recialio n also Is du!.' Champ lyons who translated the position of the commIssioners TO proposed amendments to the V(lriou s bills. Allhough Champ had nQthing todowith Ihe formulation of Ihe bar's position and he aClf,.>O "S a $C ri~ncr only, he did make his e)ctenslV(! talents available \0 Ihe bar on sharI notice and witho ut compensati on , The A lab..1ma Stille Bar is indebted to him for his lireless, generous servi ce. The bar's re spon se to 10ft reform should nOt be v ie\Nf,.-'d ilsa permancnt entry into the po litlclll rca lm. It Is a rarc (w nl enlered into with great caution and unanimous approval ; Dilly under the most unusual of ci rCUnlst.l nces should the Alabama State Bar tilke such a posi. ti on in the future, •
or
Get in your Qrders now for e~'ra
1987 Alabama Bar Directory, al $15.00 each (includes postage), 10 be published
L _ _________ ____________ __________________ __ J
194
(conlinucd from paSc 192)
copies of Ihe
Sn mc
Clly
President's Page
in August.
I
lvl y 198 7
ALABAMA STATE BAR 1987 ANNUAL MEETING July 16-18
As
ILE good as you remember!
Speaker: Stephen Sachs- former attorney general, Maryland
and
Among the Programs: The Practical Impact of Tort Reform What Every Practitioner Should Know AbDUl Tax Reform Recent Decisions of the Alabama Supreme Court
Insurance Practice Developments and
Socials: Bloody Mary Party- For members and spouses/guests, Riverview's Plantation Batlroom Foyer
Mamba/ship Receptions- Thursday's sponsored by Cabaniss, Johnston, Gardner, Dumas & O'Neal at Rousso's; Friday's sponsored by Mobile Women Lawyers' Association , al The Levert Of/ice, Mobile Bar Association headquarters, and by Insurance Specialists, Inc., at the Riverview Plaza Dessert Party- Chocolate smorgasbord. sundae bar, cordials and entertainment by "Three on a String" Champagne Breakfast- Sponsored by Kirke路Van Orsdel Insurance SeNices, Inc., Riverview's Alabama Ballroom Spouses' 8runch- "Charlotte & the Yankee Captain," Mobile Country ClUb. entertainment, brunch and transportation
... and mUCh , much more! The Alabama Lawyer
195
About Members, Among Firms ABOUT MEMB ERS Melissa A. Posey announces the OpiJning of her office ilt 622 A1.i1laa f{o.ld, Mobile, Alahama 36609. Phone (20S) 666.(,1 55.
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Paul M. Harden announces thc opening d his nev-' office (I t Court Square, Suite 102, Evergreen, AliIbama )6401. Phone (20S) 578-4746.
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Thoma s l. Johnston . mnounces the opening r:J his offices ,11 Old B<mk
Building, Milln Street, Rockford, Alabama. Phone (20S) 377-4720.
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Cr.llg S. Pillman announces thc opening of his olftce al 161 Conti Street, Mobile, Alabama 36602, P.O. BOll 1321, Mobile, Alabama 36601.
Phone (205) 432-0532.
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Tommie Wilson. formerly of the Alilb,Hllil Attorney GcnCfil l's Office, announces the opening of her omces
at 2)05 Cogswell Avenue, l'ell City, AI,.bam" 35125. Phone {lOS} 338· 4422.
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D. l. Ma rlin announ ces the relocation of his office from 215 South Main StrcellO 210 South Main Streel, Mmillon, Alnbam<l. H is new office is across Ihe SlrL'(!t from hi ~ former location, arld rhc mailing add ross, P.O. Box 456, Moulton, A labama 35650 and telephone rlUmber, (205) 974-9200, have nor changed.
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M ichael A. A m.lcrstm announCC$ his admlss,on 10 the Tennessee Sla te Bar ;lI,d hi s assoCiation with the firrll of Gearh l ~r, Pe ters & H or ton, 801 Cheslnut Sireet, Challall008a, Tennessee 37402, Phone (6 15) 756-5171. He pll..'Yiously was a member of the law firm of Skinner 8< Anderson, lJirmingham, Alabama.
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Std!;) Miles And erson announces her admission to the Tenr H~ssec Stale Bar arld her position as sta ff att orn ey wllh Blue Cross Blue Shield ofTennessec, 801 Pine StrCCt. Chattanooga, Tennessee 37402. Phone (615) 755·5837.
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The law offj~e of Tho mM H. Jackson has mOVLod to 1810 Third Avenue, NOrth , Bess emer, Al abar"i1 , Phone (205) 428-7318.
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Ri c hard J. StockhOlm, III , Jr"lnounccs a chJnge of address fro m 19 Clen Iris Pan.:, Birlllingham AL 35205, 10903 Cily Federal Building, Blnnlngham 35203. Phone (205) 322·0084.
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Frt_ >dcrit;k 8. BenSOn announces the opening of his office for the practice of I.. w, III the Dr. I.C. Al Stor! Professional Building, H ighway 280 East al I-tlghway 55 Juncti on, p,O, Box 63, Westover, Alabama 35185. Phone (205) 678·8273.
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Josellh D. Whll ehca d, P. A. announces the relocation of lis offices 10 238 NOrth Dillcvll ie Avenue, Dale.ville, A labarna 36322. Phone (205) 598-3486,
AMO NG FIRMS The r"'embers of the flrn) of Miller, Hamilton, Snider & adam of M ob ile and Washington, D.c., announce the opening of an office in Montgomery, Alab<lm ll, and \h", Michael D, Willert will be th e resident pilrtner, O ffi ces ilre located ilt Suite 802, One Commerce Street, M ontgomery, Alabama 313104. Phon!! (20S) 834-5550.
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Jo nes, Day, Rc.wi s & Po gue ilnnounces thar D,w id R. Baker h,15 bci::ome a member of the firm, and Ihat the Nt....... YOrk office Is now loca lcd at 599 lexington Aven ue 10022. Phone (2 12) 326-3939,
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The law firm of Locke, Purnell, Bo ren, Ll ncy & Neely announc~ thai Gary R. Powell has become <l ssaciated wi th the fi rm . ~ II $erved :ts law clerk to the Honor..ble A . Joe Fish, Unit<.-'(J Stales Distric t Judge, Northern Dbtri ci of Texas at Dallas. Firm offices arc located 01 \ 3600 RepubJlcBank Tower, D;l I1 ~ S, Te ~a s 75201-3989. Phone (2 14) 754-7470.
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l.Ialch & Bingham of BirminghtJm ilnd Montgomery, Alab ama, nnnoun ces tha i Mal colm N, Carmit;hacl, Ri c hard l. P('MSc:tn, lam ~ A. Bradford, Dan H. M cCrary, Edw.lrd 8, Parker, II, William p, Cobb, 11, {lr)d Al an T. ROgNS have become partners In the firm.
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Barnell, Tingle, Nobl e & Se)Clon announce that Roger l. !lates has bci::ome a member of the firm, with offices (lr lGOO Ci ty F~e ril l Building. 2026 Second Awnue, Nort h, Blrminghlml, A illbama 35201
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Maynard, Cooper, Fri erscn & Calc, P,C. and Markslein, Mo rri s and Lil es, P.C. (m nounce the combin ation of thei r practices und er the name M aynard, Cooper, Frierson & Gale, P.(., and thilt D.1niel H. Markstein, 111, Curlis 0, liles, 111, Deborah J, Long, Frank D. M c Phillip§ ar)d Malbeth I. Porter have become members of the finn and Ihat Anne Reilly Moses, Luther M. Dorr, Jr., and Alfre<! F. Smith, Ir., have joined the firm as associa te~, Offices are located ilt Twelfth Floor, W.lIIS Bui ld ing. Bi rmingham, A labilma 35203. Phone (205) 252-2/J1J9.
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Ll oyd W. Gathing§, II, formerly of Emond and Vines, and Joe L. Tu cker, Jr., formerly of H olliman & Tucker, announce th e formation of a partnership under the niltlle of GdthinlSS &
luly 19B7
TUcker, and that Timothy C. Davis has become assocl11lt:d wi th the firm . Of· fices are located at 600 farlt.'Y Build· ing. 3rt! A\lCnuc North & 20th Street, Birmingh(lm, Ai(looma 35203. Phone (205) 326-3553.
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I. louis Wilkinson .1nd Virsini,1 A. Vinson announce the formation of a pannershlp under the name of Wllki .... son & Vinson, with offices located at 503 Frank Nelson Building, Birmlng. ham, Alabama 35203. Phonl! (205) 252-4959.
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The nrm of r homolS& Kennedy an· nounces that Stevcn O. Ke rr has become IIssoclated with the firm, with offices at 100 Ga lleria Pilrkway, N.W., Suite 590, Atlanta, Georgia 30339. Phone (404) 951·0931.
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John T. Kirk announces that Janet E. Schrol.-dcr, former assistant diStriCt nI10j!lCY, hns become nS50ci,l1cd with him In the genl!ral practice of law, with offices Ioc:awd at 138 Adams Avenue, P.O. Boo 1412, Montgomery, Alabama 36102, PhOn!! (205) 2&4·1498.
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Stephen J. Flynn and Michncl G. Huf!)' annourlCe the opening of their new office, ~ t 158 South lackson Street, P.O. Or<M'Cr 1806, Mobile, Alabama 36633. Phone 12051433-6622.
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The law firm of Zisser, Kobison, Spohrer & Wilner, P.A" announces thill lohn S. Mordecai and Michael I, Marl'i!S h(I\IC become members of the (irm, and Donilld E. Brown, Robert M. Painl!, Gregory H. Maxwell and Nancy N. Nowlis hallC beconlll associated with the firm ,
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The low (lrm of Pilgrim & Gooden, 600 South McDonough Street, Montgomery, Alabama 36104, announces tha t Kennelh S. Nunnelk-y, former low clerk to the Honorable Richard Dorrough, 15th Judicial Circuit, has become associated with the fi rm,
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Phillip E. Slana, senior counsel for the American Council uf life Insur·
The A/,lbama L.awycr
;mce, announces the council's new address: 1001 Pt.'nnsylll.1nla A\lCnue, NW, Washington, D.C. 20004-2599, Phone (202) 624-2183.
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Thl! law fiml of longshore, Evans and longshore (lnnounces Thomas W, H, Duck htlS Joined the firm , with offi ces at 1900 City Federal Building, Birmingham, Alabama 35203, Phone (205) 252-7661.
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Tho law offices of John W. Parker announce that latlll'S RelH'm:;hak, formerly an assistant attorney general for the Slate of Alabama, has become associated with the fi rm, with o((ices at 4332 Boulevard Park South, Suite 0, Mobile, Alabama 36609.
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Tho nrm of Noljjar, Ikllllburg, Meyerson, Zanaur, Max , Doyd & Schw.srlz announces that the follO\o\lIn8 Individuals hiI\IC become members of thl! firm : Gary S. SchUl, G.K. Fernarnbueq, RichiHd Urieb.ul and Rich.ud D, Greer, Also, Beth Gerwin has become associaTed with the firm with lis omces lit 2125 Morris A\lCnue, Birminghnm, Alabama 35203. Phone (205) 328·5760,
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Bradkoy, Arant, Rose & White, of Birmingham and Huntsville, announces the opening of an additional office at 2000 SoulhTnJst Tower, 420 North 20th Strf!Ct, Birmingham, A)abama. The mailing addrt..'SS of the Bir· mingham offices of the firm eonTinuC5 10 be 1400 Park Place Tov.oer, Birming' ham, Alabama 35201 PhOne (205) 252-4500.
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The law flrm of Caddell, Shanks, Harris. Moores & Murphree an· nounces that the firm name has been chililged to Caddell & Shilnks and that Barnes F. lIWclace, Ir., has become a member of the firm and Rohert R. Baugh has become associated wilh Ihc firm . Offices are ~iII locatt.'d at 230 East Moulton Slroe~ Decatur, Alabnlna 35601.
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Ryan dcCrolffenried, Ir., Ritchie Tipton and $cull Donilldson an· nounce the formation of a firm under the name of dcGrafft.'flricd, Tipton and Donaldson, with ol(ices at 2620 6th Street, P.O, 60x 2263, Tusca loos,l, Alabama 35403. Phone (205) 759· 1226.
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The law firm of Mandell & Boyd annOunC@$ that Celesle W, Salx!l, former low clerk to Alabama SUI>remc Court lustlce Richard L. Jones, be· came assoclat(. d with the firm April 13, 1987, Ofrlccs are located OIl 25 South Court Street, Montgomery, Alabama 36104. Phone (205) 262-1666.
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Harry Pharr long l'Ind fra nk Meinholdl, III, announce a change of addrt.>SS from P.O. Box 519, Anniston, Alabama, to P.O. Box 1468, Anniston 36202, Phone (20S) 237·3266
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George M. Uarnl!1I and C l il~de E. Hundley, III, ofthl! firm or Barnell & Hundlcy, announce thaI Tameria S. Driskill has become a partner of the fi rm. The firm name nem is Bdrnell, Hundley & Dri ~klll , at 431 Gunter Avenue, P.O. Box 93, Guntersville, Ala· bama 35976. Phone (205) S82·0133.
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The law firm of 8ryant, House, Ulmer & de luan announces the change of the firm's name to Bryant, Ulmer & de Juan wilh offices at Suite 1107, Rl\lCrvlew Plaza Office Tower, 63 South Roy,,1 Street, Mobile, Aliiooma 36622; Ihe maJ1lng address s P.O. Dr"wer 1465, Mobile, Alabama 36633. Phone (205) 432·4671.
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Smyer, White, Taylor & Putt announce thaI F. Bra~t on Wolgnon has become an associate of the flrm. Offices are I«ated at 600 Title Building. Birmingham, Alabam., 35203, Phone (205) 323-7195.
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H. Young DempSt.-y announces that w. Beall y PeMson has be<:ome a member d the firm , The nrm will now practice L.J nder the name of Dempsey & I'earson, with offices ;It
19 7
Ilighway 98, The Summit, 1'.0. Box 980, SP<ln sh FQrI, Alabama 36527. Phorl{' (205) 626-2772.
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The firm of Gr.\y, langford, Sapp,
Davis and McGowan annOllllces that Edwin Lamar Oavis hils left the firm to serve as Tuskegee Municipal lucille. The (jrm name hilS been Chilngcd to Grit)', Langford, 5app and M cG owan
with o((ices locilted ilt 108 Commodore Circle, TUSkegee, Alabama, and 352 Dexter A-.enue, Montgomery, Ala· b.lma. Phone (205) 727-4830.
nue, NE, Fayette, Alab.l'Tla 35555.
Phone (205) 932·3281.
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Lanier, Shaver & Herring, p,c., announces tnc association of Ronald
The law firm of Nolen lind Nolen announces that Laura Gunn Poston ha ~ Ue<;ome associa ted with th e firm, Offices are loca ted at 309 First A..e-
F, Suber and y, Albert Moore, wi th o(fjces 011404 Mildlson Street, South, li unlsvil!e, Alab.lmil 3580 1, Phone (205) 533-5920,
WE WANT YOU TO JOIN OUR SPEAKERS BUREAU! The Committee on Lawyer Public Relations, Information and Media Relations is instituting a statewide s peaker's bureau to provide speakers fo r civic organizations, schools, churches and other interested groups. The committee will compile a list of aU lawyers in the slate who are interested in serving on the speak· er's bureau and will endeavor to provide speakers from the same community or general area from which a request (or a speaker is .received. All requests will be handled through the Alabama State Bar Headquarters. If you are interested in serving as a member of the speaker's bureau please fill out the following (orm and re' turn it to the Alabama State Bar, P,O, Box 4156, Montgomery,
Alabama 36101.
SPEAKER'S BUREAU APPLICATION Namo ______________________________________________ Firm Name (if applicable) _________________________________
Addross ___________________________________________ Ci.y _________________ 51010 _ _ _ _ _ _ _ _ Zip _________ Telephone ______________________________________________ Please list subjects on which you are willing to speak: 1) 2)
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July 19B7
THOSE WHO AREN'T COMPETITIVE END UP HERE. 11'5 a foct of life. off the fi eld as weJl as on. The players who .:Ire s trong and skillful; those w ho <lssernble the best team reneh their go.,1. The o the rs watch from the sideline. O ur goa l is to provide you w ith the very best profcssionil i liability ins urimce coverage. A nd we have the tea m to beat. The Alabama Siale Bar. Your associa路
lion. solely dedicated to serving Alab....una attorneys, In touch w ith your need s.
Kirke-Va n Or.;d el Insurance Services. The !lotion's largest ndmin is tfillor of bar-sponsored lia bi lity insuronce p rog ram s. Experienced . Responsive. A compnny built on exceptional customer service. T he Home Insurilncc Cornpn ny. Undcrwrih:or of mOrC professional linbil路
ity insuril ncc plans than a ny o the r. Re now ned os the nation's prem ier liability
insurance C.l rrier. Togeth er, we've desig ned th e LPL plan you\'e been wa iting for. O ne o ( the broades t policies in the Uniled Stal es. Competitively priced . With the mos t responsive cus to mer services anywhe re. You be the judge. Just cil ll Ki rkc-Va n Orsclc l Insurance Scrvic s toll-free, I-BOO44 1-1344 to find out mo re about the Alob.lnlO Slate Bar's new Lawyers Professiona l Liilbility Pkl n. Yuu'll discover that we didn 't
just come to ploy. We ca me to win.
Kirke- V~n
Orsclcllns ur,ulcl! Scrvic'cll, Inc. mTlmd Iw,,'1/ 1 ",MIlin..':o, hm路,I "'tl:ltl':l
The Alabama Lawyer
199
thcy come to Mobile, most people <Ire looking /(lr a good time <lnd, belll"\le me, a good lime can be had by all. M obile ill'ld the EilStcrIl Shore have historic sites, natural [)eauty and activiti es for <111 members o( the (amlly, not to mention some o( the best restaurants irl Alabama ,
MUSEUMS AND HISTORICAL SITES Bdlil18r.lth Gardens and Horne, 65 landscaped acres In the midst of 905 aCreS irl a semi.troplcal setting- The unsur路 passed beau ty of the gardens is world mnowned, In July, the 2,500 rose bu shes
The City MU$f,1Vm, 10Cillfxlon Governmenr Street, is open Tuesday thlu SUIle/.1Y, D ne learure ;$ the Hammel's collecrion of fine women's (,15hions,
rile 19B7 Alabama Stall.' Bar Annual Mcctlng Is Inlhe porr city o( Mobile, The (01/0\",ln8 should corrvince you to /lftend, not only 10 be educllled, btlt ,lisa to be en!erl.~inedl M,lny th,lIIks /0 BarQaM Rhodes of the Mobile Bar for assistan ce with pholograpils,-The Editor by Art hu r 8. Briskm.ln It seems like everyone has a co lorful story abouT Mobile, Some remirll sce about trekking down 10 o ur beaches (or vaca tions; others relate tales of Mobile'~ " unique" poli tical acllvltle s; and, o( (;OU nie, mOSI romcm ber partying at the most festive Mardi Gras ever, The amazin g part , however, is thaI ~ry lhi ng you remember about Mobile sill! is true, Our seil food is sti ll the tastiest and our beaches the most alluring. The exo tic Be llingr,1Ih Ga rden s call be matched only by th e beau ty of the oaks and a7.3leas lini rlg our historic streets. We also have ~ry type of recre ation a\lili lable from golnll!! and tenni s to fi shing and sailing, So wha t betler place for the 1987 anllual meeting of the Ala bama Sla te Bar tLan Mobile, Alabama's most vcrsa!i1c and invi ting Spol? Like any city, Mobile has changed drilmatic.,lIy In the pa st 20 years, GrO'Ning up 11'1 M obile me.1nt living downtown, shopp ing Oil Dauphin Street or Bierwill(> Squilfe <1nd getting your best meals at Consta ntine's or waiting in long 11nes on Sundays at Palmer's Seafood House,
'00
Today, Moblliilns live on both sides of the bay. The new ret;lil centers are in west M obile, circling Airport Boulw,ud, and aiMS the fa shionable Eastern Shor'C! In Fairhope, Daphne and M on trose. And, while we have moved out In all (lir",, (I1on$, hi storic preservation has revitalized P.1lIS of downtown, No trip to M obile Is COmpl!!le with out a ride through the Oakleigh Garden District and Churc h Street areas. Th ..." <Ire truly II testament to the beau ty of the old Sou th , The future of Mobile is an exci ting one, Plans for .. new conven tion center, as we11 as a wa terfront commercia l development I)roject to com p lement the River. view comple)( and newly. restored Ad. miral Semrnes H otel, w11l only enhance Mobile's repu ta tion of being one of Alil1).,1m..'s most desira ble places to live and vi sit. Bu t for today, there is plenty 10 see and do and, most import,mtly, to eat, Wh en
will complement the Sl.lmmer foliage, while ou;;hids and a wide variely of freshly budding p1 . lIIts bloom in th e tropic.. 1conservatory, One 01' Ameri ca's great natural " SseIS. Opell 7 a.m, until dusk , 97)-221 7, Theodore, Al abama, Battlesh ip M emorial P""k, The USS Alab.1ma and Ih(! Submarin(! USS Drum provide a unique e~perlen ce for explor. ing one of the great vessels of the VVorlcl War It Pacific Theatre, alMg wi th a variety of military exhibits, including the "Calamity Jane;' a gigarltlc B-52 bomber, Its loca tion on thl! Battlesh ip Parkway pro路 vldes an (!)Ccellent o pportunity to see this populilf attrJction and be close to some great seafood restaurants for lunt h. O pen B a,m. to sunset. l:lauJe!hlp Parkway.
July 1987
f ine Arts M useum of the South in picture sque Langon Park. Slgnlflcant early 20lh cen· tury American, 19th century Europeiln, Orient"I lind southern Con temporary Illeces, ilS well (IS photography, will be on display in July One of the best Cr,lfl collections of sou thern artisans also Is housed here. 343-2667. Open Tuesday through Sunday. 10 a.m. to 5 p.m. No ad· m ission charge. ( fA MO S)- Loca~(!d
Oaklelgh Mansion-Mobile's historic sites and restored homes are one of its grea test assets. A stroll throu gh the
1
Mobilt' Is home o( Ihe or/8/n.1/, and possibly tile most festive, Mard/ Gras /l clly/ries in the COUn/fy.
matfne, and Chappo Geronimo, son of the Apache leader, Gl!ronlmo, who wa s imprisoned for a l!rl le in Mount \It!mon, AI .. bama. Alln :lIld VIrginia Str(!CIS.
EASTERN SHORE OAY TRIP As Ihe Eastern Shore has developed the last dec;ade, F.ifhope has emerged as a wonderful shopping area with UI\ique SIOrCS and mQlchandise. A stro ll down Section Street and Fillrhope AYenue can be the start of a fun day trip with lunch, shopping and cocktails. Some highlights: fANTASY ISLAND Award-wlnnlng 10'1 Slore, 335 Fairhope Avenul'. THE COLONY SHOP IMlmell's rclldyto·'Iv'(!lU, 27 South Section OBJECTS Gourmet oolfce lind other Internati on:11 treats. 25 South Section. PACE AND PALmE RegIonal art and impressive selection of books ilnd publica tions. 32 South Section. TH E SILVER MARKET Antique and contemporary sliver collectibles and fine linens, 3S North Sect!on. STITCH IN TYME H:mdmadc smocking. 26 Soulh Section, MARY AN N 'S DELI 302 De Ll Mare Avenue, or WINTZElL'S TUMBLE INN, 312 Fairhope, for lunch. THE G RAN D HOTEL at Point Clear for lunch or cocktails. ~r
I\s good as you remember! Church StrCCl area, which has turned into [l " Inwycr's row; W.1 shinglon Square :m~iI or the Oakleillh District i ~ essential for a true sense of Mobile. Many of Ihe late 191h and eilrly 20lh century homes have been restored to their originalgraodeur. The Oakleigh Mansion is a Greek revlYa l with beautiful grounds. It t!lIempllfles Ike 191h century M obile era. Open dally. 432-1281 , 350 Oaklelgh 1)lace.
furt Condl- Rl>(on>truction of 181h cen tury French fort, also serves as Mobile's official welcome cell ter In dowllt()Y,'n M obile. Open dally 8 a.m. unlll 5 p.m. 438·7304, 150 South Royal.
The h ploreum-'\ children's handS-On must.'Um ~t in a beau tiful pM of Spring. hl1J Avenue in the mid·town area. Open Tuesday thlOUgh Suooay. 476-6873, 1906 Sprlnghl1J Avenue.
Magno l ia Ceme tery-Established 1836. Part of the USS Alabama Historic Trail and designated a national cemetery in 1866. Con tains the Braves of the crew of Ihe CSS Hunley, Ihe world's (irst sub-
The AI,loama Lawver
Cit y Museum-Clyil War exhibits, an· tlque carriages. Mardi Gras disiliay and the Hammel 's collection of fine women's fashions. O l)(!n Tuesday through Sunday. 438-7569, 66 COIIflrnmenl Street.
201
RESTAURANTS Mobile is famous for Its excellent food, eSpt.'(ially its fresh seafood . Most of the hotels have good restaurants tlnel tire Ihe beSt place for br.... akfast. Th e following is a sample of some of the famous and nOtso·famous to give a good crOSS- lion of some of our eating establishments.
MOB ILE'S FAVORITES BLUE G ILL-A cau seYo<lY landmtlrk fOr
a quarter of a cen tury. Gathering place for politiCOS of all Democratic perSuasions. In fact, known Republl car' s should be accompanied by a personal food tast· er. The best fried seafood you will find anywhere. Best fri(.o(l softshell crab in th e world ... served as a sandwich or Pilrt o( a dinner. Start with (rie<! CfilO claws as an appetizer wi th a l)ilCher of ice cold beer. Credit cards nol accepted. Closc<.l Mondays. 62b-9852, Ballieship Parkway.
OaklciSl1 MallSloll, li n e"tl.:ellt'nI clII1mplc of Greek revi val il rch itecture, exemplify. ing 19t1l century Mobile era
ENTERTA INMENT M obile Greyflound Park-Crcyhound racing wi th Ih1r.l!llutulll ~tt ing. Excellent dubhouse dining O\ICrlooklng the track widl convenient betting windO'WS. Exten· sive menu with good sea food entrees. Post time 7:45 p.m. Monday through Sa turday; Saturday matinee posl time 1;45 I).m . For dlnne! roservil!ions, 653·6040. Entert.llner Dinner Theatre-Enjoya. ble buffet dlMer fi nd live rhea tri call>rodllcti on. July l ;t18, 1987, ·'Th'.! $even·Year Itch:' Dinner al 7 p.m.-ShO'W 8:30 p.m . 473.8611 , 421 Holcomoo Avenue.
/Jellingra rh Gardens and Home, wilh OvCr 900 acrcs of world·'"mo u$ Jx.aul y-one of America's gfClIf naftlr,l/
assets
11011. Arth ur B. Brlskman is iI Unite(1
5r.iJtes Bankruptcy Judge for the Southern Disrrlct of Alabama. He is a gr.l dullfc o f rhe University of Alabama arId Cumberland School of Law.
202
t>ILLARS-The fine5 t in conlinental dining. highlights include exc'.lllent seafood, lamb and beef The restaurant is housed in il beilutifully rest o~d tu rnof·thKentu ry Creek r('Vival mansion. Bccl Wellington, scamp en papillotte, silutced shrimp with speci al s,1uce are a few cxam l>lcs of the "Epicurean dinne.," that have made the Pillil~ a /."M;Irite. Proper attire and reservations suggest<.>d. 478-&3 41, 1757 GQ\Il';!rnment Str'CCt.
July 1987
W INTZELl'5 OYSTE R H OUSE-A Mobile landmark and IrJdilion since 1938. Famou s for serving oys ters "fried, S1l.>wed and nude." W;Jlls are plastered wi th over 6,000 quotes ilnd humorous sayings. Cood selection of fried seafood , gumbo, oyster Stew, shrimp loafs and great oysters on the half shell. If you want oys ters on the h<llf shell, si t at the oys ter bar where they will open them for you. (If you order oyster5 on the half shell in tlw 5etltoo "reCl, they <lre previously
, *:i ,
ol>cnt.>d and Iced, nOI opened to order,) Very casual. Open daily except Sunday. 433路1004. 605 Dauphin Strcel. JO H N WORD 'S-Favorite lunch ilnd
Anlique Cllffi,lgCS am IUSI Me? fe?tlruri: of the City Museum on Governmen/ Sireet
ROUSSOS -E J'(iblished
on
dinner establishmen t for dawn town professionals, Scamp Kalnnlclaad, saulced crClb ;lnd catch of lh~ day M~ amOnK ils o utstilnding selection of sea food. Many consider rhe sleilks to be the best in M ob ile. Live jazz nighlly. Gre<lt place 10
the
causeway, th is f<l\lOrlte for seafood re located Irl thc Fort Conde are.. within walk. Ing distance from all d(lwnrown hotels. Wide variety of seafood, broiled or fried, Creek-style dishes "nd sJXlshelt1 and C1y'Slers are especially good. 433路3322, 166 Sourh Roy<tl Street,
WEICHMA N'S ALL SEASONS RESTAURANT-The only restaurant servi ng
Const<lntine's origin{ll recipes. Famous for their SC.1m p almandine, oysWrs bienville and their av.ard-winning crabmeat ~1}(!clalties la Lou slalla, tl la Rector and shriml) and crabn)em au gratin, not to mention iuicy j)fime rib. Live music for listening <lnd d<lncing. Reserv<l tio ns ac路 cepted, 344路3961, 166 Sou th I:leltline H ighway.
The Alaballlll Lawyer
203
go for dessert (tl)' the hot pec .. n pie wi th " scoop of vanilla ice cream), coffee, drinks and jau:. 433·7955, 358 D .. uphin Street.
AMERICAN AZALEA GR ILL-New Springhill neighborhood grill, speciali;ting in light erltrt-eS o f SOups. salad s, sarldwlchcs. poultry al1 d seafood. A gre.. t ..(ter· thetheatre place; ur1fortunately there Is not tOO much great theatre In July. 342·0000. 4363 Old Shell Road . I. PRESTON ' ood selecti on of ca· jun cui sine with seafood paStil, veal Dianne, excellcr1 t bl ackelll.>d d ishes and Sunday buffel. Located 111 the weStern part of Mobile. 344.2790, 6700 Airport Bo ulcvard .
swordfi sh, groul>er, tuna and lobster. Cood choice for those (fo rmer Yankees) who prefer broiled to fried . Fresh ho t bread and 800d salad. Rescrvatlon s suggested. 343. 2524, 3662-A Airport Boulevard. OR I GINAL OYSTER BAR-Very popular fa mily restauran t wi th daily blackened and fried spt.'Ciait ies, including a crea tc-yout-OWII platter of local fa...ori tes with good salad bar. Extremcly bu sy at lunch. 626·2188, BOIttlesh lp Parkway. PI ER 4-\M:)nderiul seafood resta urant with beau tiful view of Mobile Bay. Speciali zing In Gulf se<ioo<l of (III varielil;!S, Snaj)lJer Pontchatrain and shrimp and c r(!bm1.'a t au gr(llin . 626-6710, Baulcshil) Parkway.
SEAFOOD l & N SEAFOOD GR i l l-Relatively
ITALIAN
new restaurant with unique selections of fresh fi sh from all over th e CQ~Jntry, such as dolphin, Nor.vegian salmon, halibut,
and
DUSTY RHOADES-NOiIhcrn italian C(ll'l t ln~rl tal
cul sh1C wi th good sea·
food and veal dishes. Fresh groUI>er with seafood artichoke sau ce (!nd shrimp with
raspberry !)curre blanc sauce. El'l tcrtaln ment nightly, with D usty at the plano. Well WOrth th t! trip to Failhope. Reserva· tions, as well as directions, sugges ted. 928·8637, Morphy Avenue <1' Greeno Road, Fairhope. Rt CAROO'S-Small and quiet ltaHan restilu r,m t with excellen t ...-eal al'ld pa sta d ishes. \k!al Vespu cci wltr. shrimp, cra bIlleal arId mushrooms, and fettuccinl A I· fred o. Several specialty di ~ h es each C\lCn· ing. Good w ine and candlelight illmosphere, bu t service Is incon sistent al best. Tuesday through Saturdil)·. 343-0658, Bit & Spur ill Old Sh~1I Road.
O RI ENTAL IVORY CH OPSTl CK.§-INonder(ullittie Vietnamese fl.'$tauranl. Fa...orltc with thc Garden District crowd . Excellen t soups and appeti zers and wide variety of main courses Including poultry, seafood, pork and beef. No liquor licen se, so you wi ll have to brown bag it. 476-7139, 2206 Governmen t.
ThiSmonth, numerous rose bushes, orchids ,1nd II wide variety 01 (res/l/y buddlug plantSvie for atlenflOn .'II Be/lln8rtJ lh Gardens.
204
luly 1987
AFFORDABLE TERM LIFE INSURANCE FROM COOK & ASSOCIATES Compl.e tllel& lOW non.amoke. annUli ra to. 10' non· dr!rc' ''tlng g"dld p.emlum IlIe:
. "" ". .." .."
MALl AGES
5250.000
$500.000
......
250.00 455.00 252.$0 255.00 465.00 :130.00 1t5.oo .. t UO 7so.oo 1.01S.00 5"2.50 1.520.00 "0.00 1.:155.00 2.535.00 2.:172.50 " .315.00 (amolt_"a "til Il lglltlr high•• )
'1 1000 ,000
no.oo 177.10
IU.oo ..0.00 1,127.50 t .510.00 2.2'7.50 :1.710.00 5,115.00
R_wable to 811* 100 Female ill" .ame II mare. lour rill .. rounger. "II IXIv,'.ge provided by comp,",u ,"ea .." E~«lIont " by A.M. eeS! co. For II wil nen qUOlation and poliCY dOMirlptlon toJ'ld rour dare 01 bitt" Ind amount or coYOt.ge dulred 10'
COOK & ASSOCIATES 2970 COTTAG E HILL ROAD - SUITE 201 MOBILE, ALABAM A 36606
C&S Signs offers the most att ractive type of sign a round , sandblasted, clear all heart redwood. A professio na lly des igned & exec uted sign says the kind of t hings about your practice, t hat you wan t repeated, For inrol'mation write 0 1' call:
C&S ,SiGNS; r---' "----, (205) 792-8273 Rt. 1, Box 376, Webb, Alabama 36376
C.O.D. -:- VISA -:- MasterCard
PEKING SEAFOOO-Mobile's beSt Chinese ~aurant with a wide volricty of mild to spicy dishes specializing in seafood . Take-<)ut <MIilable. 471-6511 , 2662 Govcmmenl Bouifr./ard.
NEW CHIN .... INN-Inexpensive dovmtown Chinese re>laur.mt open for lunch only. Ol.llstilndlng won ton soup and Inexpensive lu nch specials. 432-2288, 555 Government.
CHEA P EATS DEW DROP INN-Io. Mobile lradilion since 1920. Famous for hot dogs and 00ion rings, but also good seafood sand. wiches and Ice cold bott led beer. 4737872, 1808 Old Shell Road. FlETCHER'S-Moblle's best.known barbc<lue estilblishmcnt for more than hidf a century. El((;e lent ribs and chicken. Big breakfast buffet and large children's menu. 666-1426, H ghway 90 and Azaleil ROild.
ZITSOS CAfETERIA-Pete Zitsos and his f.lmlly have been serving Mobile good hom~lyle (ood at reasonable prices for more than 40 years. Now 10Cilted in the basenl(!nt of the First Na· 1I0nal Bank Building, ZJt!tOs offers breakfast i1nd l(ltlch to the dovmtown community. A wide variety of salads, soups, outslandlnH gumbo, entrees (with som~ of Pete's Grf!ek specialties) and freshly baked breads, biscuits, pies and cakes. 438·8127, 31 North ROfal Street.
MICHAEL'S MIOTOWN-One of the best rcstaurilnts you will ever find In I.l (ormer gas Stiltion . Ciljun, Jamaican and other ethnic specialties, including red beans and rice, crawfish etouHe and jambalaya. If the cuisine Is not agreeable, T.P. Crockmiers (see BARS) Is rlghl across the Street. 473-5908, 161 South Florida Slreet.
BARS
The AI.11)ilmi/ lawyer
THE ACAPULCO ClUB-Mobile's premiere nightclub , , , according to r'ny secretary, and she should knOYt'_ Enjoy delooable buffet and happy hour prices until 9 p.m. Monday thrOugh friday. Fun place to meet wilh friends and dance to contempofJry music and "the classics."
Minimum age 21. Modest dress code. tocatL'll In IM:st Mobile. 3679 Airpon Boulevard. T, P. CROCKMIER5-Ma nSl.ly hangout (or Mobillatls for more than a dccade. Comfortable bfilSS and glas5 bat with wide volfic:ry menu of 5llndwlch~ and light entrees. Very pleasant environment. 476-189O, 170 Sooth Florida Street. THE lUMBER YARD CAFE-Good neighborhood btlr thaI is ~ ry popular with the Yuppie set. Make sum you gel into the right BMW or Volvo statIOr\wilgon when fellving ... ll1ere can be confusion on occasion. Good after-YlOrk cKM"d of professionals. Ugnl menu of seafood, sandwiches and traditional bar munchces. 471-1 241 , 2617 Dauphin SHeet. TRINITY 'S-After-work till/ern fOr dOYt'ntown lawy(!1'S i1nd hottest spot In Mobile laler in the evening with live entertainment and dancing. Munchees and menu Include Teriyaki cl1icken, seafood salad and local specialties. Good place for a laIC afternoon drink . 432-0000, 45& Auditorium Drive. • 205
The Impact of the Tax on Small by Sandra L. Randl eman The T3~ Refo rm Acl of 1986, Pub. l. 99路 514, enaCIS numcmus changC1lo tax laws 3ffecting small bu sl nt'Sscs. ,A.hhough the ilel I~I'$ t~ tax rales Imposed on both COrpClrnlions and Individuals, it also eliminates and limits a number of tax benefits Ihal Wl!re used frequently by smil ll bu sinesses under prior law ilnd adds some accoun ting requiremen ts which small business ov.mers may find burdensome. As a COnSC(IUenCe of the changt'S cnacted under the ad, the relatl\'(! tax: consequences of operating a small business :'5 a corpor,Uion' , partnership or 5 corporation l arc (llIer(.>d . P.m 3ge of the (lct may result in the op!!ralion of more businesses as partnerships or 5 corporations rather Ihiln as corpor" lion$. This article summarizes the provisions of the act having Ihe most direct Impact upon businesses.
Income tax rates One of the most significant changes to the Internal Revenue Code' under the l\ct Is the re<hJction In Income t<lX ra tes Imposed on both corporate and Individual taKable Income. The maximum tax r,lIe iml:lOSed on corporate h'ICome Is reduced from 46 percellt to 34 pen::ent, while the malClmum tax r.:ue Imposed on indlviduallncome is reduced from 50 percent to 28 percent. 80th co rpor,lIe and Ind ivldu31 ta x "'tesare relevan t In evaluating the relative tax advanlages of operating a busin($s as a co,por,ltlon, parlner. ship or S corporation, P,ior law tollCed corporate taxable Income under a flve-slep graduated lalC rate schedule, with a tOI) ratt! of 48 percent Imposl..>d on taxable Income over 5100,000. An additional 5 percent was imllOSed on t.llKllble Income between 51,000,000 and 51A05,000.
206
For tilx
years beginning on or after July
I, 1987, a thrce-slep graduated I'iIte schedule is substitvted fOr the five-step rale
schedvle. SeCtion l1(b) d the Code The corpor,lle lax lale schedule under the .leI is as follows :
luly 1987
Reform Act of 1986 Businesses Taxable Income Not over 150,000 OVCr $50,000 but not (M!r $75,000 Ovcr $75,000
Tax Rale 15 l>erccnl 25 percelll 34 percent
phase-out of dle benefit of the IWO lower rates of ta)( occurs through the imposition of an additional 5 percent ta)( on taxable income between S100,000 and $335,000. Income In t,lx.,ble years that begin before and include July 1, 1987, will be t.lxcd at blended rates undl.'f the rules oISection 15 of Ihe Code. Prior law ta)(ed Individuals under as marly as 15 tilx brackets ranging from 11 l>ercent 10 SO percent. Under Ihc act there Is a tv.()-bmcket rate system: 15 percent and 28 percenl. Section I of the Code Beglnnlngln 1988, howewr, two 5 percent sur1ax~ arc imposed on high. Income Taxpayers and, In effect, reduce the benefit of the 15 percent brackl.'I. Seclion t(K> of the Code As a result of the surtaxes. high.lncome t.l)(~fl will pay '1Il effective lax fale of 28 percent on all taxable income. For milrried individuals filing jointly, the first 5 percent surtax begins at laxabla Income in excess of $71,900 and ends al $149,250. The second 5 percent surt.l)( phases oul the lax bencflt derived from personal and deIlCooency exemptions, and for married Individuals filing iointl y, begins at talCJble Income In excess of $149,250. For any taxable year beginning in 1987, a fivebracket blended rate $(hedule will be used with a ma)(I'1'Ium ta)( rate of 38.5 percent. In evaluating the relative ta)( advan. t.lgcs of operating as 11 corporation, p.1fl. nership or S corporation, it is Im,>ortant to anticipate bolh lhe level of company earnings and the likelihood that com· pany earnings wlll be distributed to the shareholders or partners. If the business A
Tile Alllb<1ma LaIVyer
operates {ISa corporation, then the earnings are 5ubject to double taxation: first, 10 the co~tion and then to the shareholders as a dividen~ . If the business operJtes as a IJartmmhlp or S corpor,l' tion, hOWCVf:r, tMn the earnings will be taxed solely at the partner or sharehold· er 1C\e1. A pal1ner or S corporation share-holder gcner.llly is not ta~ wilh reSpect 10 a cash distribution unless the amount of the distribution exceeds the partner's odjusled basis in his partnCflhip interest or tho shareholder's b.lsis in his stock (provided lhe 5 corporiltion has no earningsand profits). Sections 7'31 and 1366 of the Code Alternallvc minimum 101)( The act repeals the corporate add-on minimum tax after 1966 and enacts an alternative minimum tall (AMD for cor. porations. The ahernative minimum tJ~ for Individuals Is exp3ndcd. The ahernatlve minimum taXclble in· corne is composed of (1) regular taxable income, plus (2) ta)( prefereoccs less (3) certain deductions. Section 55(b)(2) of the Code In cal<:ulating the corpor.llC AMI, the alternative minimum taxable income Ihen Is reduced by Ihe excmp-
lion amount, which Is $40,000 less 25 per(Mt of the excess 0( alternative mInimum taxable income oYer $150,000. Section SS(d)(2) and Il) of the Code The lax rate under d'lC AMT Is Increased to 20 percent of thc c)(cess of .. hemali.¥\.!mlnlmum la~bl e IncomeOYer thc CKCrnl)li()(l IImounc, less thc AMT foreign tax credit. Sec1ion 55(b) of the Code A corporatlorl must pay AMT \0 Ihc extent the ICnt.llive mlnlmurn lax
exceeds Ihe regular lax. Section 55(a} of the Code
The act adds cenain
ta~
preicr('(lces
and requires certain IIdjuSlment5 under the corporille AMT which do nOI apply to S corporations and OIre not t.lK preferences under thc AMT imposed on indio IIlduals. s..'Olons 56(0 and (s> 0( Ihc Code fot lax.lblc ~ars beginning In 1987, 1988 or 1989, aitcmatlYC minimum taxtlblc In-
come includes one-half of the C)((CSS o( adjusted net book Income over <Jl1erna· tive minimum tJlCablc income. Section 56{f) of the Code For t~ x.lble yeaB beginning after 1989, alternative minimum taxable income Is IncrcaStod or decreased baSl,od on the corpora!lon's earnings ond profits. Section 56(gJ of the Code
S,tndra L. Randlcm.m b all assocliJlC wltll the 81rminghiJm firm of I.ewis, MMin. 8urlll!ll & Dunllle, Poe. She received her unckrsradu.lfe clegrCt', with hOnon, and master's degree from SamfOfd Universi· fY, her law cJcgrw from Vdnderblll Univcrs/ty and ,1n iI(lvanced degree In l<1xation from New York Univcrsily. She 15 a mcmber of Ihe Alaooma, 50ulh Carolina and "'merlCdn bar associatIons.
207
The act modifies several pl'O\lislons of the prior law treatmem ci the Individual .....MT. The talC f,Ue is increased (rom 20 I>crtent to 21 percent. Section 55tb)(10) of the Code In compu ting the alterna· ti~ minimum taJtable Income of an in· dlvldual, there is a limitation on Itemiz· cd deductions and Ihe dedlJction of P.1Ssl~ activity losses is disaU~ . Sections 56 and 58(0) of the Code Thl!r(l Is an exemption amount of $40,000 for Joint returns, $20,000 fOr trusts and married persons filing separntely and $30,000 for single 1iI1Cpay!!r5. Section SS(d)O) of Ihe Code The exemplion amount is reduced bv 25 percent of the alternative minimum taxable income In excess of (1) $ISO.ooo for joint returns, (2) $75,000 for trusts and married Individuals filing separately; and (3) $ 112,500 (or single taICp..'lyCrs, Section 55(d)(3) of Ihe Code In selecl lng the (arm of business enti· ty, the Impact of the AMT on both cor· porations and Individuals should be considered and COfllJ)Jred. This comp.lrison requires a prediction of the potential .....MT Ii,lbility which may be Imposed on lhe corporation. In addilion, the In· dividual taK situations of potemlal part· n('rs and Scorpol"iltion shareholders must be reviewed and the taK effec:t of rt.'(:cl .... Ing allocations of income, deductions arid credit s frOIll Ihe entity should be evaluated .
Passive loss rule Under prior law, partners and shllreholders In an 5 corpora tion could apply losses and credits (rom the partnership or corpora te activity "Silinst income derived from other sources, such as sa· lary, in1(m..>St and dividends. Business owoc", for (!Kampte, could own the firm's buildings (either dircctly or through parllll!"hlps or S corpora tions) and then lease the propeny 10 the company. The business owners then would use the losses derived ffOlllthe ownership of the fCill estate, such as depreciation deductions, to offset olher income. The act appl es a passi~ loss rule to Individuals, Including partners In a part· nershlp and shueholdoo in an 5 corporation, as well as closely held C coqx>ril' tlons (generillly, when five or fewer individuals own dlrec:tly or indirectly more
208
than 50 percent ci the stock) and perSOnal seIVice corpora tions (unless the employee-owners (MIn less than 10 percent of the stock). Section 469(a)(2) of the Code The passive loss fule provides Ihat losses generated bv a ~ p.lssive activity" can offset only passive incomtl. Sec· tion 469(a)(1) and (dl o( the Code DisalloYJed 10ssL>S and cf('(!lts Me carried for· ward and treated as deductions and cwdhs from passl~ activities In the neMt liI"'1bl(' ye:<tr. Section 469(b) o( the Code Disallowed losses from a passIve actlvi· ty ilre allowed in full when the taKpaycr disposes of his entire Interest In the activity in a taxable transactIon . Section 469(g} of the Code A closely held corporalion (other than a personal seIVice corporation), howt"t('r, r'llay use passive losses and credi ts to offset "nct acti~ In· come," defined as tilKablc incomc of the corporation other th~n passive Income or loss or portfolio income or loss. Section 469{e)(2) of the Code A passl~ aCllvity is ilny activity which Invol\ICS the conduct of iI trade or bJslO('Ss In which thl! tJKp;lyl:r does not materially p..lnidp'lIc, Section 469(d){1) 01 the Code In addi· tion, a rental acti vity is a passive actlvlIy. Section 369(c)(2) of the Code A taxpayer Is trea'cd 05 r'llilteri ally par. tidllating In an activity only if the taKpayer Is In\l()tved in the operations of the activity on a basis .... hich is regular, con· tlnuous and substantial. Section 469(h)(l ) of the CQdc Neither th~ act nor the commi ttee reports, hoY.'C.'VCr, specincally dl,.'I1ne what cOnS tiUCCS "regular, continuous and substantial" In\l()l~ment In an activity, hcept as otherwise provided In regulation s not yet promulg.ltt'(l, a taKpayer owning a lim ted partnership interest will not be trea:ed as materially parlidl)ating in the ilc:ivi ty. A closely held C corporation or 1x.-'f"S(Jnal scIVice corporillion is Ireatoo as materially Ilartlclpa. ting in an activity if one or more shareholders holdIng more than 50 percent (by value) 0( the outstanding stock materially paniciPilte in Ihe activity. Section 469(h)(4) of the Code In addition, a closely held C corporation will nleelthe material pilrlicipatiori i( (f) during the prior 12·month period, the corpora tion had at least one full-time employee 'NOrking (ulilime in the active management
of the activity; (2) during the prior 12·month period, the corporation had at least three full-time, nonowner employees working full time in services directly related to the activity and (3) business deductions (under Sections 162 and 404 of the Code) attributable to the activity C)(ceed 15 percent of the gross InCOrlle from such business. Section 469(h)(4)(B) of the Code A limited e~ception to the dlsallovr "nce of passive activity losses C)(lsts with respect to losses and credi ts Incurred by Individuals from ren tal rcal estate activilies in which the tilKI~ acti~ly par· ticip.<ltOO in the taxable year In which the loss or credit arose, Section 469(1)(1) of the Code Active particip.ltion requires an Interest o( lit least 10 percent (by value) in the renUtI real estate acti vity. Section 469(i)(6)(A) of the Code There Is, hOY>'CVCr, no aClive parliclpatlon requlremenl with respec~ to the lowIncome housing and rehabilltJtion investment tax crrtll ts. Section 469(i)(6)(6) of the Code Tilt:' losses and credits are allClWlo'd in dll amount 1'101 10 eKCeed the equiVollent of 525,000 in losses, with a phase-out of the e>ICmplion for taICp.1y(!" with adjusted gross Income in excess of $100.000 or $200,000 in the case of lowIncome hOUSing and rehabilitatIon in· vestment taK crt'dl ts. Section 469(i)(2} and ()) of the Code I( it is possible that a business will generate losses in eKCess of income or credits in excess ci tax Il<l','ilble Oil passive incofllC, then the It.wl of p;lrtidpatlon ci each owner should be ev.lluated to dC!tC!rminc whether It Is likely that the paniclp;ltlon will constit!,.te material P<lfticlplltion In the business or active participation In a rental real est.lte activity, whichever standard 15 relI;Nimt. l1usinC!$S owners who rerlt Ilroperly to their busi· nesses may choose to rccei~ larger (('nl' al P<lYnll~nt s (lnd thus reduce or eliminate a passive loss. Yet, C!VCn If a p..1Sslve ac· tivity generates losr.es, an Individual can dcduct his share of the passive losses generated by the business against income generated 1yt' otllt:'r passive aClivlties. In addition, suspcndl.'CI pa5si~ 10s$eS may be dL'tluCtiblf! In future years against income from p..'ssl~ activities or upon lermination of the taxpayer'S in·
July 1987
lerest in the bU5iness In a taxable transaction. Therelore, despite Ihe enactmeot of the l><tssive 1055 rule, passive losse§ may slill be of benefit to It poutner or shareholder In an S corporation. The passive loss rule generally tlpplies 10 tax years beginning afier December 31, 1986. There is a fivc-year phase-In rule for losses or credilS from passive activities held on October 22, 1986. pro.tided that Ihe p.lsslve activ ty was cooducted on that date, the conSirul..1ion of thc property used In the ilctlvlty began on or before AuguS! 16, 1986, or the property used in the activity is ilcquired plH'Suant to a written binding Contlilct in e((ect on August 16, 1986, and al a I limes thereafter. Soction 469(1)(3)(B)(iiil oithe act Repeal of Investmenl lax credit The tlct repeals the regular investment tax credit for properly placed In rorvice after Decem~r 31, 1985. Secllon 49(a) of the Code This provlsioo will adversely affoo small businesses that Invested heavily In property eligible for the Ill\Gtmen! tax cn..'dil.
Businesses will wa,t to avoid placing In service during the last three months 01 the lax year personal PI'OI)(!rty consti tuting more than 40 percent of the a8grt!gatc bJses of illl the persorllli property plnct.>d in service by the business during the yeilf. The aCI provides thllt property aSSigned to lhe three, fi\/(', seven, ten, 15 or 2~ar classes generally are depreelated under the half-year convention, Section 168(d)(1) of the Code Under the half.ycilf convention. all propert y is trCilted as plJced In service or disposed of in the middle of thc year. Secllon 168(d)(41(A) of thc Code If, however, the aggregate b.1ses of all property (Olher Ihan nonrcsidl!Otial and rcsldcntial wntal propenyl placed in service ~ Ihe t'lxpayer dllring the last three months of the lax yearexcecd 40 perccnt of the aggregate bases of alilhe prOI)(!rty (olner than real property) placed In service during the year then Ihe laxpayer must use the mld-quilller convention for all properly (otner th.:ln real property) rather Ihan the half~at convention. Sec-
tion 168(d)(3) of the Code The mld.quarll..'f Cl)rM.!ntion l'CQJires thaI property placed in service du"lng a quarter be treated as placed in service on Ihe mld·polnt of Ihe qua rter. Section 168(d){41(c) of the Code lJuslnesst.'S will nl..'I..'Cl 10 maintain c.lreful records of their purchases of peoonal propeny to avoid apl)lkatlon of the mid-quarter conven· tloo to all property placed in service duro ing Ihelr tax year. Instead of depreciating property under Ihe Ilccelerated cost recovery system as modified ~ Ihe act, taxpayers can elect to currently deduct all or PUI of the cost o( cerlain peoonal property bought for use In the aCtive conduct 0( a trade or business Section 179 0( the Code For quallfylng prOperty placed In service after 1986, the cxpensing dl!duction is equa l to $10,000, and In the case of a 1)1Irlncrshlp, th is IImltalion applies wi th rcspect to the partnership and each partner, Section 179(bl(1) and (dl(8) of the Code Thc expensed amount is deducted from the property's basis. The expensing deduction Is subject to scvcrailimitil-
Modifi ca tion of depre cia tion provisions The act modifies the acceleraled cost rec~ry syslem of prior law. Personal properly is dcpreciated oYer a three, five, seven, Icn, 150( 20-year l)Criod, depend· ing Ul)On Ihe type of property. The depreciation method for proPt'!rty In the Ihr(.'e, five, seven and tcn-year rccovery periods is the 200 percenl declining balance method, swilchlng to Ihe straight line method al a lime to maximize Ihe deduction. Section 168(bUlI and (e) of Ihe Code The dcprl..'Cialion method (or prOI)(!rty In Ihe 15 and 2().ycar recovery periods is Ihe 150 percenl declining bJlancc, Switching to the straight line method at 11 time to maMimizc the deduclion. Section 168lb)(2) and (e) o( thC' Code Under priOl' lilW, personal proper· ty was recovered undC'r the 150 percent declining balance method ewer a three, five, Icn or 15-year period. The act, hOY.'l..'\ICr, shifts some types of prOl:lerty to longer cI,lSS lives than under prior liIW. Cars and light-duty 'rucks, (or exnmplc, are shifted from the three-year class to the five-year class. Seclon 168(e)(3)(b) of the Code
When you have to keep a real estate project moving, that's a sign you need Commonwealth James K. Merrihew. Jr. State Representative 164 St. Francls St" Mobile. AL 3660Z (Z05) 433-Z534
Ii6 LAND IIIi; COMMONWEALTH TtTL£ INSURANCE CQMMNY AMra~t~~
209
tions. The amount expensed cannOt ex· ceed the taxable income of the taxpayer derived from the acl1Ye conduct of a trade or business durJnglhc tax year. Sec· tlon 179(b){3) of the Cooe If the aggre· sate COSt of (1u<1Iifylng p ro~rt y pl<lC(>(! In service during the t.1X year CXCl't.'dS $200,000. then the deduCilonls reduced by the COST of Qualifying properly in excess of $200,000. Section l791b){2) of the Code If The expcnS(.'(! property is nOT used predominately in a trade or busl· ne~s <It any time OOfore thc cnd of the property's rec~ry period, the taxpayer must J'('Cognllf rec<lpture Income. Section 179(d)(10) of the Code The act has considerably slO'.'.'ed and lenglhened the depreciation ol real prop. erty. Under prior law, real p!'operty WilS recoverilble over 19 yeilfS under the 175 percell1 declining b<ll<lnce method. switching to the s,riligh t.!ine method ill a time to maxim lO the depreciation de-ductlons. The <lCI extends Ihe recovery period of residen tlallal property to 27.5 years and ol nonresidential real property to 31.5 years. Section 16B(c) of the Code The depreciation method Is the ~tr<ligh l.llne mmhod wi th a mld·month cOllvcntion. S«:tion 168(b}(3) of the
Cod, The modifiCillions to the dt.opreclation system enacted by the .1CI generally are eff(!ctive for propefly placed In service 'Iher December 31, 1966. As <l consequence of rhe changes in the deprecia· lion rules, some buslnen owners will have to dcprecl.1tC thcir propert y undcr three mcthods d del)reclatloo: (1) prOperly pl\lee<! in service bL>foro 1981 and ~ l)Crty cO'v'Cred by Ihe antichurnlng rules are deprcciaf(od undcr the uselul life system; (2) properly pl<lccd In service aftel' 1960 and before 1987 ilnd property covered by tr"nsition rull'S rind 'IIltlchurn· Ing rules are deprecl;twd under the ac· celerated cost recowry ~ySl em; and (3) prol:terty placed in service aller 1967 and not c(M!red by transition rules is depre-dated under the modified accelerated cost J'('C(M!ry s}slem pursuMt 10 the act. Business mcals and entert ai nment deduc t ion Under prior law, Ihc cost of food or beYerages which constitutes ordinary and
21 0
necessary business expenses WilS deductible If furnished Llldcr circumstances which are conduchc to business discussion. 5ectlon 274(e)(l) of the Inwnal Revenue Code 01 1954 Under the act, businesses will nnd that their business meals and entertainment deductions arc subJecl to stricter 513n· dards and only a portion of such ex· penses may be deducted. A business meal is deductible only if it is directly related to or associ.1ted with the acti Ye conduct of a taxpay!!r's tr.lde or buslncss, ilnd the taxp¥r Sulislarltlates the deduction. Section 274 of the Code The cost ol The meal Is not deductible if it is liJViSh or l'Xtravagant, and [he I.1xpayer (or iln empla,-ee olthe ta xpayer) mUSt be pres-ent at the meil!. Section 274(k)(1) of the
Cod, The deduction forothcrwlsc allowable business me'l ls ilnd en,ertalnment 15 lim· h(!d to 80 percent of the COSI, Section 174(n) of the Code There are a number of exceptions to the 80 percent rule, in· cludlng an exception for qUillifying ban· (Iuet meetings during 1987 lind 1988. The act limits deductions lor Ilckets to cn tertilinmcnt CM!nt, [0 60 percent of the fil CC value of such Ilckets. Section 274(1){1) of the act The act disallows a port ion of tnc amolXll allowable ,15 a de-duction for skybolOes leilsed lor more than one event fOf business entertainment purposes ilnd I}hases in Ihe disal· lO'NilnCe (M;lf iI period of three years. Sec· tlon 274(1)(2) of the act liquidation of a corpo rati on The act has made substantial changes In the manner in wt-ich corporations and their shareholders are taMed upon the Ii· quidation of the corpofiltion. Under prior law, a corporation generally recognized no 8aln or loss (except for depreciillion recapture and simi lar Items) as a result of a distribution ol H5etsln compl ~te Ii· quldation (Section 336 of 'he Internal RcYenue Code of 1954) or, if ccrt"in con· ditions W\'!re met, on a liquidating sale of Its assets (Section 337 ollhe Internal R(.'VCnue Code of 1954). Under new section 336, <l corpora tion must recognize g..l in or loss on the distribu tion of property In coml)/e[e liq\Ji da. tion as If the property wefC sold to the distributee shareholder for ils fair I'Mikel
v.llue. If the property is distributed sui> iect to a liability, or a liability Is assumed in connection with the distribu tion, then the I>roperty is deemed to have a fai r market value at least equal to the liability. Sect ion 336(b) of the Code The act re-peals Section 337 ol lhe Internal Revenue Code ol 1954 SO that liquidating sales are Ireated no differently thafl other 5illes by the corpora tion. The aCI provides sever~1 exceptions to the general rule Ihat gJin or IOS$ Is recog· nlzed by 1\ corpomtion on a distribution of property in complete liquidation, Under one exception to the general rule gain or loss will nOt be recognized with respect to any diSlributlofl of property bv <l corporalion to the extent that there is nonrecognition trealment to the recipient under the reorganizal ion provisions of the Code. Section 336(c) of the Code A socond exception to the gcneral rul e provides thaI under regulations to be issued by the Internal RtM!nuc Service no gain or toss will be recognized upon the sale, exchange or distribution of a controlled corporation's stock by the parent corpotiltion If the l)atEnt corporation elects to tre"t such sa le, exchange or distribution 01$ a disposition of all of the assets of 'he controlkod corporation. Sec· tion 136(e) of The Code A corpor.llion Is a controlled corpora tion If a parent owns 60 percent of the value and \.Otln8 poYIer of the corpora tion. A third exception provides th at no saln or loss is recognized by a liquidating subsidiary corporation on the distribution of prol)Crly to an "60-percent distributee." Section 337(a) ol the Code An "60-perC(!1l1distributee" is defined as a corpora· tion which meets Ihe 80 percent slQCk ownership requiremen ts 01 section 332{bl of the Code. Section 337(c) o( the Code A fourth exception to the general rule of 8<lln or loss recognition contains two provisions deslgfll><1 10 linlit the ability of taxp.lyers to HcrealC anl(/cI.1llosses .11 the corpomte I~I or to dupUcate sharehold· er losses In corporate solution through contribu tion o( built-In loss property." ConI. Rep. No. 641, 99th Cons., 2d 5ess. 200 (Sept. 16, 1986) The first provision states that no loss may be recognlled (In the disllibulion of any property 10 a related person (within Ihe meaning of
luly /987
section 26n if the distribution Is not pro '<lUI or the propeny 15 disqualified prop.. erly. Seclion 336(d)(1)(A) of the Code "Dlsqullilfled Property" is defined as ilny property which is acquired by the liqui. dating corporation In a sectloo351 trtlns.. adion or as a contribution to caplt<ll, dur· inH the five-year period ending on the dllte of distribution. Section 336Id)(1)(B) of the Code The sccond provision provides that If property 1$ acquiroo by tlll~ liquidating corporallon In a transaction to which section 351 npl)UeSor as a con· trlbutlon to capital, and the IIcqulsltlon wa s part of a pl"n in which a principal purpose was to recognl1e loss by the II· quldating corporatioo in connection with the liquidatiOn, then for purposcs of determining loss on the sale, exchange or distribullon oflhe property, the adjust· ed basis of the prol>Crty musl be reduced (but not belQ'W zero) by the Cltcess of the adjustf...d bilSis over the fair market value of the property on the date of the con· tribution. Section 336(d)(2) of the Code Any properly acquln.!d during the two years prior to the adoption of the plan of complete liquidation In a St.'Ction 351 trans.l ction or as a contribution to capital Is presumed to have been contributed to the liquidating corpor-llion with the prohibited purpose. Section 336(d)12)(B)(ii) of the Code The act con tains a special provision dealing wUh the Iquidation of certain S corporations. An S corpor;l\lon Ihal wa s formerly a C corpora tion generally must pOly a corporate level tax at the highest rate specified in Sectioo II(b) of the Code on the lesser of the "re<;ognized bultt-in galns or the corpora tion's taxable in· come for the year If It \oW!re not an S corporation. Section 1374(a) and Ib) of the Code "Rccognll ed bul lt·ln gain is built·ln gai n (the excess of (air mmket val ue of the aS5eb over the aggregate ad· Justed bases (If $UCh assets) as mthe lime of conversion 10 S CClrporation status which Is recognized during the ten-year period bcgll'rning on the first day of the first taxable year for which the corpora· lion was an 5 corporation . Sl!ctlon 1374 Id)(2) of the Code Gain On thc diSposl. l ion of any a ~set within the tcn·year JX!rlod will be presumed to be built-In gain unless the S cClrpora tion can establish that thc asset was acquired or the al>" H
predation accrued after thc corporation's convcrsion to 5 corpora tion status. Section 1374(dI(2) of the Code The rule is applicable to corporalions electing S cor· poratlon status after December JI, 1986. Section 633(b) uf the act Although the act generally applies to liquidations completed aftcr Docember 31, 1986. the act con tains numerous transitional and gral'd(ather provisions. A transitional rule allows small, closely held companies to apply prior law with reSI>cct to sale and distributions COnl· Illeted befOre ji,lnU,IIY 1, 1989. Section 633ld) of the act The transi tional wle does not apply, ~r, to ordln,uy In· come and short-term capital gain proper· ty and gain recogni zed on dIsposition of an Installment oblig.ltion pursuant to Section 4538 of tnc Code. Section 633(d) (2) of the aCt A corpor,1 tl 011 Is ellglble for the tr,lr\sl tional rule if (1) on August I, 1986, and al all times thereafter before lhe corpora tion I§completely 1i(lI.Iidated, more than 50 percem (by value) 01 the stock is held by ten or fe-wcr individuals and (2) the Vtllue of the corpor:llion does not (!)(cee<i $10,000,000. 5e<:1lon 633(d) (5) of the aCt Relief is phrased out for corporations with values between $5,000,000 and $10,000,000. Section 633(dl(31 of the act In addition, the le8islative history in· dlcates that the stock must haYe been held (or the lesser of the flYL...,.car period ending on the date of adOI)tion of the plan of complete liquidation or the perIod during which the corpor<lIlon (or any I)redccessor) was in e)(istence. H. Con. Res, 395(74)
Capilalizal ion rul cs for i n"cnlory, consl ructio n and development costs Section B03 of the act <tdds section 263 A to the Code, which j)r(JYldes uniform calli tall:wtlon rules for cos ts incurred In manu(acturlng property, cons tructing property or purchaSing and holding property for resale. Prior law required all direct production COStS and certain in· dlrt!Ct production costs to be Included in inventory COSt and deducted as COSt of goods sold as the Inventory Is sold. Other Indirect costs were treated as I>crlod cosls and deducted at the end of the accoun t· Ing period, The act generally requires more indirt!Ct costs than uncler prior law to be included in irlVt!ntory COSt and dcducti.od as the product Is sold rJttler than deducted althe end d the account· Ing ~rlod. Section 263A(a)(2) of the Code Indirect costs aff(,'Ct(Xll7y" this Iilw include costs (including gcneral and ad· minlstrillive costs) iltlributable to pur· chasing, proce!>slng and storagc of goods and a portion of pension dnd fringe benefit COSts. Coof. Rep. No. 841, 99th Cong., 2d Sess. 303 (Sept. 18, 1966) Similar in· direct costs incurred wi th respect to non· Inventory Items must be caplt,1l1zed. The uniform capi talization rules apl)ly to rl:',11or tangible personal property produced by the taxp.lyer and prOI>crty ac· qulred for rl'S3lc. Sectioo16J!,(b) of the Code Inventory acqul~ for re5011e that is personal property Is excludl>d from the lmiform capita(lzatlon rules If the I)ro-pcrty Is acquired by a ta~payc r having .!Vcrage annual gross rccell)tS for the three prior taxable yeMS d $10,000,000 or less. Section 263A{b)(2)(B) mlhe Code
H
Tim Ai(lbllma Lawyer
Forensic Meteorology & Oceanography NASH C. RO IlERTS, JR. CONSULTANTS, INC. haa oyer 40 yeM. experltlnceln lorenaic meteorology and lorenslcoce~n· ography. We have a slall 01 mature and experienced scientists wilh im· peccAble credentlal.ln 811 of lhe atmoapheric and oceanographic disciplines. These naUonally rtcOgnlzad protaSilonals ara cepabla 01 conducting Involved investigations, reconstructing weother and marine condition •• ny. where In the world, and are amlnanlly qualilled to appear In expen teatlmony,
Air Q uality -- Waler Qualit y •• Hydrology 1040 Nonh RI:l1)1rt. SL
New OrlclIIJ. LA 10116
(504) 581·1688
211
The new uniform capitalization rules will require mos.! busihesses to maintain additional reco rd s ilnd generally arc ef· fective for costs incurred 1Ift~r OecCr'llber 31, 1986. Section 803(d)(1) of the act Several exceptions and tran sitional rule s apl)ly. however. If " ta)(payer is requ if(.' (1 to change Its method of accounting for Inventories to comply with the uniform capitalization rules, then the JX!riod for taking into accuunt the adjus tmen t will not excood four years. Section 803(d) (2)(B) of the act. Simplified dollar-value LI FO inven·
tory method for small businesses The act allows eligible smilll business-
es to elect to use simplified rules for usIng the UFO inventory method . Secti on 802 of the act, amending Section 474 of the Code Under prior law, a Simpllfit:!li LIFO method was availtlble for busi nesses with il\lCr.lge annual Kross receipts of $2,000,000 or I~ss. The act provides a new simplified dollar-value method of pricing Inventories for purposes of the LIFO meth od to (1 business if Its ilverilgc ilnnual gross rece ipts for the thr(.-e precooing taxabe years do not exceed $5,000,000. Sect on 474 (:1) and (c) of the Code The gross receipts of commonly controlled en titles must be aggregated in applying thi s test. Section 474 (d) of the Code The LIFO method can be an advant.,· geaus melhod r::J ilcco~m \in g for inventories, p..",icularly in inflationary periexis, since' th e costs of the most recent addition s to inYentofies :Ire I'I1dt~hC1d against sales. Many smaller busines5(!s h,lYe not used the LIFO method because of the complex and costly accounting methods required by the LIFO melhod. The simplified dollar-\lalue l,lFO method will make th e UfO method economically feasible for r'I'Ior"e Sr'I'Iall buslnl!sse:li.
Tax year The ilCt limits iI tax ildvi:mtilge of usinll the corporate fonn available under prior law. Under prior law, owners of 11 busi!lI!SS would defer taxes Orl SOr'l'll! of thl!i r business Income by putting the business entity on a tl scal year and using 0 calen· dar yeilf for their personill ta)(es. Income
212
reillized betw(.>en the end of the fiscal year and the calendar year would not be included on an owner's tax return ulllil the end of the calendar year. The act providl'S that a professional ser· vice coq>ora tion and an 5 corporation generilily must use the cillendilr year as its taxable yeilf. Secti on 606(b) and (cl(J)(i) of the act In addition, the act strengthen s Ihc priQf law rC(l ui~ment thm a partnCfship n'lUst conform Its tax· able ~ar to the ta:<abie year of its owners. Section 806(0)(1) of the act An e)(ceptlon to the generill rules e)(ists if fhe en· tity can establish, to t ~e satisfaction of the secretary of the treasury, a business purpose for having a different taxable year. 51'!CtiOn 806(a)(I), (b:{2) and (c)(l) of the act Thu s, the act narrows oPpo!lunil les for ta)( deferral by ()Y,ncrs of professional service corpofmions, 5 corporations and partnerships. As il business cOnYerts to a calendar year in 1987, its pre)ent fi sCill year will end in 1987 and iln addi tional short t.l)( yeilr will end Decem~r 31, 1987. Thi s process will recluirc partners,S corporation shtlreholders and professional ser· vice corpora tlorlS to Include more thall 12 months of Income on their return for t987. The iJct [lilows pilrtners and 5 cor· poration shareholders to spread the income in cxcess of expenses from the short tax ~ar OV(!r four years. SectiOll 806(e){2)(C) of the act Professional ser· vice corpora tions, hClWCV(!r, will be Ie<Iulred to recognize all of the additional income in 1987. Limitation on u se of cash method of accounting Section 801 of the aCI adds Section 448 to lhe Code limiting the la)(pilyers who Ciln use the ca sh method of ac· counting. Section 448(a) provides that the cash method may nut be ust:!li by II C corporation, a p.1r1nershlp which has a C corporation as a partller or a lax shelter. There are c)(Ception s to th e general rule for farming businesses, qua· ritled personill servi(e corporiltions and a C co,!)oration or p,v1nership which has a C Corp(lr<ltion as iI p.'Jrtner if the ~raSe ilnnual gross receipts of such entity for the pre<:edlng three t.lX years docs not ex· ceed $5,000,000. Section 448(b) of the
Code The prOliisions of Section 448 generally are ilpplicilble 10 taxable years beginning after December 31, 1986. Section 801(d)(1) of the act A la)(payer may eiL>(t to apply Ihe cash method to any loan or lease or any Irilnsaction with a related p.uly entered inlO on (,ir before: September 25, 1985. Section 801(d)(2) of the act Employee b en efit s under qualified plans The itCt en(lctcd nUmefQ\ISch(lnlll'!$ to the prOliisions of the Code dealing with qualified retiremen t plans and statut ory employee benefit plalls. n tle XI of the act Al though a decision of such modiflca· tion s under the act is beyond the scope of Ihis article, some of the chilnges which will have an imp..1l:1 on the plilnsof qlliJlitled small businesses include~ new contribution and benefit limitmions for defilled cOrllributiOll plMS arld defined benefit plans; redu ctions in the amount payable from a defined benefit plan; rev ised rules g<Nerning the Integfiltion of qUillifred plan benetlts witrr social securi· ty benefi ts; new nondiscril1inil lory t~ts; minimum C(1v'Crage requirements for qUillifil.>d plans; ilCCclt!r.1tcd vcStirlK schedules; modified restricti ons on defer· r;ll s under and withdrawal s from ciJsh or dderred arrangements; and uniform dis.tribution rules for a(l qUillified plans. Plan amendments (Ire needed to comply with the I)rovisions of the act and must be made no Illter thall Ihe! last dlry of the first Il lan year beginnIng on or after January I, 1989. Section 1140 of the act A qual. lfied plan must COrllply III oper.lIIOrl, howevcr, with Ihe new provisions of the act (I S of the effcctive dille of c(lch provision. The acl also modifies the rules for the simplified eml)loyee pensiOll (SEPl. whi ch are designed to allow small em· ployers \I) pr(lvide pen5ion plilns for their employees without the complCl<itie5 ilnd COStS norm:Illy associatl'Cl with qualified pension plans. SlM!ral ch anges to th e SEP requirements decrease the adminis.trative requirement s <lpPUc<lble to an employer maintaining a 5EP. The act adds an cli.>c:tive 5<lJiJry redUdion arriJngement to SEP~ under whi ch employees may elect to have the employer make PilY-
July 1987
mems to the SEP or to the employee In cash. Section 408(k)(6) of the Code Elective deferrals by an employee generally are limited to S7,ooo of his annual salary, Section 402(glll) of the Code Contribu tlon s ~' an employer on behalf of;m emplC7)lCe to a SEP currently me not taKable to the empl~. Section 406(1'1) of Ihe Code The elective salary reduclion feature is available only if the employer has no more thlln 2S employt.'CS;11 any time during the I>rc(edlng 'y'CM and the election is made with respect to not less than SO percent of the emplO)'t'eS of the employer, Section 406(K)(6) of the
Cod, Conclusion Prudent management requires t."o1:!ry small business 10 review the possible impact the lax revi sions enacted by the act will have on both the business and Its ownell and 10 cvdlualc methods of makIng Ihe new prO\'lsions of act work to their adv,lntage. The rev iew should indude not only an <lnalysls of the polenlial lax liability of the bush\css and ils owne~ If 100 business continues in 115 present form, but also the COSI and consequences of corNcrl inglhe business to anothC!r entity, The cost of liquidating may be less for small corporil l ions that qualify for alrilOsitional rule Ihat allows certain smal1 closely held COmpanies to enjoy bcncncialllroviSions of prior law with respect to Iiquida1ions completcO before January I, 1989. Under the act, Ihe nature of a taKpayer's income and the manner of oper31lnS the activity Ihal produces the income Is significant (or taK IlurfX,lSes, Taxpayers with pas5i~ losSC5 and crOOi ts will want 10 seck means 01 generaling passive income or of tranoform lng .1 1),lSsive activity to a business (lClivlty through material Ilartlclpallon in the activity, It may be beneficial for a taxpayer to meet the actiYe particlpatlon Standard with r~IJCCI to rental real estatC!aClivities, Iv:qulsition of pcoonal proj>crty should be timed to avoid the mid-quarter convention which Is applicable when more Ihan 40 percent o( the aggreg.l1e of all thc personal prop!!rly placed in service by the business during the year is placed In service during the last three months of Ihe tax ~ar,
Several proviSions of Ihe itCl 'NCte Included specifica lly to assis t small busl· Ilesses. Small businc!scs may be eligible (or thc simplified rulcs for using the LIFO inventory method and may be excluded from the requirementS of the uniform capit(lllz<ltioll rules for personal property accluired for resa le, Cerlaln small businesses will not be required to use the cash melhod of accoonl ing if the avc.>rage annual gross recejpt~ 0( such entity for the preceding three tax ycall do not e,,ceed $S,OOO,OOO The modifications to the ru les for SEf'5 may make these pension plans more attractive to small employers. Thus, carefu taK and business planning Is required to lessen any fX,ltential advcl'SC consequences of the act and
to determine the proviSions of the act which are advan t "8t.'Ou~ to a small business and Its owners. • FOOINOIU ' ThoIte<m "COoOOolllon" •• uwd In Ihlunlc:loI N!Ien 10 C torpOr,llon.1I/ rll/poIOioon'lh~I.1t POOl S rotlllllOiIon .. \\on "5 (lI/poI"Ion," ""meet.tlll< ,hoi ",beliali''' oi lhe In. 1t'r",,1 """"'... Codo lS«t~ 1)61 Ihrouth 079llh.ol e_eo S (OOPli".-i()nj" It • h<rbrId tnIIl'f w~h ~ d boIh 0 ~ and • CO<!IIII.torI T"" UoMM In. comI
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The Alabama Lawyer
2J)
Introduction To Lender by Grc-gory H. HilWlcy
corporalions and corporate owners In reIntroduction For those who adhere to liml!-'NOrn cliches about b.lnks foreclosing mort路 gages on widCTM and orphans, there arc n(7oY legal rl!mcdies \0 curb the poo.YCr of credi tors. Court~ across Ihc country hiM::
rendered Judgments <ll!illnsl lxtnks under the brood rubric of "Il!ndcr liability" to
compensate debtors who prove that ICrldcrs hllVC improperly meddled h'llhe debtors' j1(falrs, Thus far, hoY,.ocver, the new theories of liability have not helped
,lOY widows or orphan ~, but have assisted
covering millions of clellan In business losses llrisln!! (rom concerned lenders w ho intcrferlXl with coq)()ralc gtM!rnilnee or management 10 protect their loans. (For example 1\.\0 cases filed In federal district courlln Texas by Wllllam I-Ierbert l-l unt alXi Nelson Burlkcr Hunt against 23 lenders allege搂 $13.8 billion In damages). Although the term "lender liability" may be new, the theories of liability are not. Most of ~h e lender liability cases al路 lege commoo law causes of action such
as fmud, duress, breach 01 good faith, tortiOlls intcriCf'('nce with bustJlesSrelations, Instrumentillity, princip.11-agent and bteilCh of fiduciary duty. Some cases also aSSCr1 St,11utory claims under the Uniform Commercii' I Code, fedef'dJ securities 1ilW'i, the RacketL'Cr Influl'oced and Corrupt Org;m llations (RICO) slillule or Ihe fL>d cral envlronment,,1 sUlleriund sta tut!!. To date, the seminal lend!!r liability cases have occurred in jurisdictions outside of Alabama, but ~hev hm,'l! traveled under theories rccognizt>d by Alabama cour1S, COnSC(IUCnlly, it seems only a
.' . ,.1 .....
( "
,
214
July 1987
Liability
the clements for mlsrepresentational fraud as follows: (1) the making of malerlal misrepresentations; (2) which arc fal se;
(3) with knowledRe of Ihe f.115I1y;
matter of lim(!, blofore Alabama banks and otner lending Institutions encounter lender liability liMlSuits in Alab.1m .... This article will outline the most significilnl theories of lender liilbility, descrioo the leading Cilses In those MeilS and give (In account of the present stille of the law in Alabamil.
Fraud In Ihc celebrated decision of Slilte National Bank v. Farah ManuF.1 Ctllrins Co., 678 S.w. 2d 661 (Tt:JI. App. 1964), the Tex路 as Coun of A~als upheld Ihe trial court's $18.9 million Judgment against
the croollOrs of FarJh Manufacturing Co. (FMC). FMC instituted Ihe acllon against
four creditors based on the CredItOB' aclions surrounding 11 management changc clause In <I $22 million loan Ilgreement. The management changc clause im. posl.'d defau lt If any cl<!Cllon \0 Ihe office or preslder'! and chicf ex(.'cuti\.'l.! officer was considered by any tWO of the four m .oditor banks to be adverse to the interests of the banks. Wllliam F.lrllh, a descendant of FMC'S founder and a former CEO of FMC, in(licated an Interest In I'Cturning as CEO. ~ritl of the banks, through their lawyers, ~ to members of the bo<ard of direetors that they would "padlock the company's doors and "bankrupt" the company if Farah were installed as CEQ. To the con1f<lrY, hOWt.,"Yf,!r, the evidence showed that the banks had decided tha t they would not declare default if Farah called their bluff and ~re elected. The board heeded the threats and fillle<! to elcct Farah. Con~uently, when FMC's flnandal condition became desperate, Farah successfullv ini\i;ned a proxy fight for return as CEO and, after engineering a slgni fk,lIlt economic upturn, instituted a fraud ilction against the lending oonks for th eir threat "10 bankrupt" the compm\)' and for the damJge5 resulting from thc 5ubst.'Quent dCM'nward slide of FMC before Farah regained conlrol as CEO. The TO)('15 Courl of All l>eals enumerated H
(4) with the Intenlion that the misrepr~ntatlon will be acted upon; (5) aClUal reliance; and
(6) injury.
The F.vah coun held that where a promise regarding future acti on Is made with the Intent that it will not be per路 formed, and Is made 10 deceive a per. son, then it is ilctionable as iI frildulenl repmsenlalion. The court found the cr(!(lltors' threats consti tul<.od a mlsreprescntatlonal fraud. (The court also Slated a variety of ailerna!<! holdings which will be discussed Infra.) As previously noted, Ihe trial court assessed damages at S18.9 million (while on appeal to the Texas Supreme Coort the parties souled the case, reportedly for S12-13 million). A(abama II/W is in accordance with Farah's lntl:'rpretation of fraud. The Alabanla Supreme Court, In Haddox v. First Alabama Bank, 449 So. 2d 1226 (Ala. 1984), statoo that "whether a representa路 tion is made willfully, recklessly, or mrs"Ikenly, the critical elements of fraud include: (I) a fa lse reprel>enlation, (2) concerning a malerial facl, (3) upon which the plaintiff has relied, ilnd (4) has Ix>en dam<lgecilis a proximate result:' 449 So. 2d at 1229 Further, an A(<lbarna (eder<ll court, In l<lnguilge that could ~ pply equally to the threats to H p.~lock the dool'$" in Farah, maintained Ihat "[tll-e only basis upOn which [stall!ments promiSSOry or Ihreat-
I:'nlng future action) could wppon a findins of fraud would be a ihowlng thai at the time the promise of future action was made, the promissor did not have al\)' Inlention of carrying out the promise as made and InsteJd had an actual Intent to deceive:' Smith v. Chase ManhalliJn Corp., 458 F. SuPp. 740 (N.D. Ala. 1978) (dtlng Shepherd v. Kendrick, 236 Ala. 239, 181 So. 782 [1938禄 Thus, Farah's holding on the fraud COlJnt clearly is In accordance with Alabama 1;tW.
Economic dur(!Ss In an alterna l i~ to Its holding based on fr.'lud, lhe Farah court also maintained th.u FMC had successfully proved damages under a thool)' of economic duress, and d ted Williston on Con"acts~ "[ conomlc dlJfCSS (blJslness c()(!rcion) nlay be evident by forclrlt II vlctlrll to choo~e between dista steful arld costlv shuatiorl5. i.c. Ixffl 10 dull.'Ss or face bankruptcy, toss 01 CredIt ,~t lns 01' loss 01 pl'Olits flQrn II ~rltuu~~ \3 INIII'SIOtl Otl COtlrraclSS t(.l7 (3d ed. t970J The elemerols 01 du~s ~arcd by lhe fimh
court ~11!: mIhe th,e,u 10 do an act the lhrealenlng party has roo flghl to do, (2) of iI nnlure to deslro,' Ihe free agency ill lhe [""ty to whom It is cl ti.'CIl-d, (]) the rewillnl c,lvsed by the Illfeal mlr51 be emlnerll. and (4) the pefSOf110 whom Ih~ threat Is made must I1<M! roo ~1 mearos 01 protection. Thu~, lhe SIln'lfl r"l<:ts u~ 10 f}I'OYe f",ud also suppoocd FMCs theory that Ihe credl'~ had commlucd ecOrlomlc durt'ss In interferInS with I'MCs election 01 clfkms. 678 S.W. 2d m 684 like Ih~ Ta.as Court 01 Appc~ls, lhe Ala. bilm~ Supreme Court also hu e~p.ililded the cOtllmonl_ doct.iroe of duress Into Inc doc::liine 01 ecoroomlcdure!>s, 'nttrnal/on;J1 f',JfJCr v. Wh ilden, 469 So. 2d S60 (Ala. 1985); Ralls v. rim fMt'ral ~vinBJ and loan. 422 So. 2d
Gregory H. Hillvley;5 II sradua/C of NiI(viJrd Col/ese and the Georg(llown Unive~it y /,illY Center. HI:' clerked for the Honorable U. W. Clemon, U.S. dis/flci Judge, and now 1$ an assocl.lle With tile Birmlnsham firm of Maynard, Cooper, Frierson and Clle, P.C. Hc also serves on the editorial board of The Alabama lawyer.
215
764 (Ala. (982); ArlCora Corp. v. Mrller Oil Purchasing Co. , 396 So. 2d 672 (Ala. 1981}, McElrath v. ConsolidJee<i Pipe and Supply, 351 So. 2d 560 (Ala. 19m In /nremiltiorwl PdP(!( II Whrldcn, sUPlt"- lhe Alab<!rml Svpreme Coon OOoploothe Resral<!ruenr (Second) of Conrfacts 搂 115 (1915) definillon of economic dure": Hlf a pa"y'~ maf'lIl'estOitlon of assent Is Induced by ;m Improper threill by the Olher p.1ny I h~t leaves rhe victim no reasonable altcrnatl~, tOe contrM:1 Is widable by the viCtim." 469 So. 2d ill
562 further, the court found th e legal elenlenlS of the economic duress to be: N(I) wrongful acts orthreilts, (2) flnandal distress cilused by the wrQngful acts or (hre;)ts, (3) the absence any reasonable alternative to the terms presented by the wrongdoer:" Id. at 562 The Whilden court Invalidated fin in路 demnity agre<!ment bet-..vecn th e plaintiff and the defendant because the plilintiff had been coerced into signing the agreement by defendant's refUSing to pay plaintiff $7.000 for work already performed unless tnc Indemnity agre<!menl were executed, lind ddcndant's nlls!'epre5eming (by minimizing) the potential liability under the Indemnity agreement. Id. at 563 Under the circumstan ces of Ihls case, the plaintiff hild no option but to Indemnify thedefendilnt_ConSt.'<!uentIy, the court found duress. The Alabama Supreme Court also has addressed economic duress In the contexl of b;lnk loans. In Ralls v, Flrsl Federal 5avinS$ and loon Amxiallon, 422 So. 2d 764 (Ala, 1982). In this case, the plaintiff was granted a construction loan guaranteed at a to pen:cnt interest mte, When the closing was postponed thwc months by constructiorl delays, the defendant ~nk al1umlllcd to raise the interest rate to t2 percent. The Alabama Supreme Court fCV(!rsed a directed verdict for the blink and remanded tnc case for jury consideration of plaintiffs claim thaI ceonomic duress forced him to occede to the higher IntereSt rate. 422 So. 2d at 766
or
Bilsed on these Cilses, Alab.1ma courtS would be inclined to consider Icndl..:.rllability cases on the economic duress theory.
Torlious interference In Its third <llternativc holding, the Farah court found Ihat fMC had proved damages under a cause of action for tor-
21.
liouS inturference with contractual relations. Such Interference inciudud the forcing out o( farilh, the installation as CEO of persons <tfflll.ted with the banks, the interference wilh Farah's a\lempt to usc the proxy system to regain control of FMC iIIld the Insistence that FMC hire a consultant. 678 S.w. 2d at 677 Further, II was proven tha t the b.lnk's consullar't WilS Inexperienced in Ihe mens' appmci business and that many of his " improvements" in FMCS operations ~re ~too expensive, poorly I>rlced and contrary to market demand." 678 S,W. 2d al 6"" In addition, thc banks Insisted that their consultanl be named CEO and. from thi s posi tion, Ihe tonsu Iilnt sold assets of FMC, the proceeds of which were used to make rep.-tymentson FMCs loan. 618 S.w. 2d at 678 The common I<JW clements far a cause of action (or tortious Interference are: (1) existence 0( a contract; (2) Ihe willful ilnd Intentional interference with the contraCI; (3) tne intentional act as ilpproxlmale cause of the damilge; and (4) actual damage. The FJrJh court seems to have focused more on Ihe bank's Inlerference with corpor~ t c governance tniln on the Interference with an aClual contract. N~rtheless, their altemiltive holdIng in this regard was based on the cause of ilctian for tortious interference of con trilct. In 1986 th e Alaba'l"la Supreme Court expanded the cause of action for interference with con tractual relations to Incorporate Ine torI r:J. interference with business relations. Cross v. Ibwdcr Really, 494 So. 2d 590 (Ala. 1986) Breaking new ground in this area, the Alilbamo.l Supreme Court held that the requirements of the tort 0( ntention,,1 interference with business or contractual relations requires: (1) the existen ce of a contracl or business relation:
(2) defendant's knowll..-'dge of the contract or business relallon; (3) intentional lntcrfcrcnce by the defendant with the contract or business rclo,1tlonj (4) absence of jusrification for the defendiln t's interference; lind
(5) damage to the plaintiff
of defendant's Interference. 494 So. 2d at 591
as a result
Thi s recent Alabama case dearly hilS formulilted a ciluse of action suffiCiently brood to incorporate fJet situiltlans such as those 0( Farah without relying on the more narrow tort of Interference wi th contractual relations. Breac h of good fa ith In most Slales, the common law 1m路 plied a duty of good f.,i,h In contract. l.<lter, this common law concept was incorporated in the Uniform Commercial Code 搂 1-203. Conwquently, ler1der liilbility cases Involving allegations of bad [Jlth m<l)' invol~ both COn\fflOn law alld statutory allegations. The Sixth Circuil "-'cently uphold a trial coun's $7.5 million judgm(!I1t against Irving Tru st Co. in a case that focused pd. milrily on common law bad failh , In KMC Co. v. Irvln8 Trusl Co" 155 f. 2d 752 (Six th Clr., 1985), KMC, a grocery wholes-ller and retailer, entered into iI financing agreement whi r:h providi1d KMC with a $3.5 million line of credit and gave Irving Tru st a security irll(!r{>St in irM!ntory and accounts receivable_ KMC brough t suit for breach of con tract agilin$t Irving Trust wherl the bilnk refu sed without noti ce to advance $800,000 re<luesled by KMC d~p;te the fact thaI the req uest did not exceed the $3.5 million limit on the line of credit. The Sixth Circuit appfOll!.'d the trial court'S instlu Clion to the jury that there is "in every can tract an obli8atlon of good fai th :' ld . at 159 lciling Klrke La Shclle Co. v. ArmstrOng Co., 263 N.Y. 79, 87 N.E, 163) Further, Ihe appella te COUlt implied rhill the r;l pid turnl)VCr of inventOry in the grocery wholesale business created a constant ne<..od (or outside financing aod asserted that "good faith would require a I>crlod of notice 10 KMC to allow It a reasonilble opportunity to seek alternatiYC financing. absen! valid bus;neSJ rea sons prec/udrng/rving from so." Id. ilt 759 (emphiiSiS.,dded) The f.lCIS developed at Itlal clearly (iivored KMC. Irving Trust conceded tha t at the time 0( the termination of the loan, the b.,nk Wil5 adequately $t.'Cured. Further, an execuliYC vice president and manOigcr of S(."Curcd lending activities for Irving Tru~t "acknowledsed tha t Irving awed Its clients a duty of good (ilith, that il was not a policy of Irving to lerminatu financing without notice and th at if SaJuly 198 7
rokln (the loan officer) believed that I,.... inH was adequately secured he would not hiJYe been acting In accordance with that dUlY of good faith to have refused without notice 10 ad"'.l"Ce fund s to KMC.~ Id. at 761 Without hesitation, Ihe Silcth Circuit upheld the Irlal court's judgment, Thus far, Alabama courtS~ been reluctant 10 find a C.1Use of action for bad faith except in the field of Insurance law. The Alabama Suwemc Court, in Kennedy Electric Co. .... Moore-Handley, 437 So. 2d 76 (Ala. 1983), a brcach of con· tract case, stilted that "[aJlthough every contract does Imply good faith and fair deilling (see § 7·1·203, Code 1975), it docs nOt carry with il the duty imposed by ItlYi which we h<lVe fOUlld In the cr;mtext of InSura nce cases. \oVc are not premired to extend the tori of b..ld fa ith be· yond the area of insurmlCe policy cases ilt this time:' 437 So. 2d at 81 In 1984, Ihe court reaffirmed the validity of Kennfldy Electric in Dickey II; A/aooma Farm Bureau i05 ufancc Co., 447 So. 2d 693 (Ala . 1984).
IV. the same time hOWt.'Yer, the door to be opening In banking cases in-
5eCmS
volving the common ItlYi and uce breach of good faith , For ex.1mple, in B,own·MlJrx Associ;Hes. LId, v. Emigl,wt Savings Balik, 527 F. SUI>P. 277 (N .D, Ala.
1981), aff'd. 703 F. 2d 1361 (Eleventh Cir. cuit 1983), tile cour! noted that the AI(I· b.lma Supreme Coun had nOi recognized an ~ implied duty in 1.Jo,.y, as distinguished from an implied c~nant , olgood (allh eXCel)! in an insurance contrad context." 527 F. SUPI). OIl 28) The court added, hOV>'i!\'Cr, that "the long·standing legal principle In this state holds thilt t.'\I'ery conHJct carries wIth It an Implied lilW duty of good I.lilh and fair dealing" ld. at 278 lciting (havc'S II; National Secu· rity Fire and Casuillry Co. , 405 So. 2d I (Ala , 1961) Further, the court noted "that this dut y may 00 impoSt.'<i bv the IJW is t.'Vldenced by II line of cases in this state allowing an adion in tort '1'1 Insur,lOce cases:' 1£1. at 278 The opinion seems to Invite funher consideratiOn bv Ihe Ala· oonla Supreme Court of duties of 800d fa ith In Ihe b.lnking context. Most oflhc
other cases that seem to urge teCOOsideratlon of Alabama law on this point, h0wever, focus on the Uniform Commercial Code rather than on common law,
ucc good
fai th In First National Bank v. Twombley, 689 P. 2d 1226 (MOllt. 1984), the defendant had taken a promissory note of $l,5oo and grJnted a security Interest In rest.luranl kitchen equipment. WhCf1 the defendant left the restaUr;lnt business, the 10,1n officer at First National 8allk agreed !O restruCture the loan with a $500 payoff and cOnverK>r;I the $3,000 obligation to an Installment loan. Untortun.. tely, the loan officer left town for SC\'Cral weeks and when the pronllssory note came due, the bank did not know of this agreement. When the oonk sued to recover on the delinquent promissory note, the borrower counter-claimed for breach of good faith . The Montana Supreme Court found Ihat the bank had breached Its duly of good faith imposed by law (under the
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UCC), and not JUSt lIs duty Imposed by contract Based on this distinction, the Montana Court remanded the case for further consider..tion 01 d<tmoilgcs i\'Vail· able In tort thaI were inapplicable under the contract cia m. 689 P. 2d at 1230 Specifically, the court noted that pUl)ITI~ damages might be available If malice, oppression or fraud were shQY.In. Id, ilt 1230 Alabama cases seem to be moving In the direction of finr;ling <t t:oiIl.lse of action for breach of uCC good faith. In Moseley v. W,Jshinston COunty Stare Bank, 491 So. 2d 229 (Ala. 1986), rhe Alabama SI.lpreme Court ~rsed the trial court'~ dl· rected verdict and held that the plaintiff had offered sumclenl e-.oldence of a duly of due care to merit jury t:onsidefiltion. 491 Sn 2d at 232 Moseley Involl1::d a ~uit by a bank depositor whose iu;;oounl was aUlomatic<lUy debited month l ~ to pay the depositor's mortgage. The bank In lum Issued a cashl<>r's chock to the mortgagee. On Fi!bruary 23, the dcposlter deposited suf. ficlent funds to make the necessary payment, but the bank did not prepare and mail a cashier's check until March 1, ..... hlch was receil1::d Man:h 3. When the mortg.,gee instl:ufed foredosuru proceedings, the depositor/mortgagor commenced action ag<linst the bank for negligence. The Alabama Suprt!ITl(! Court relied on articles one and four of the UCC to remand the case for jUly consideration. First, the COUrt noted the commentary to § 7+10): ~Under this article banks come under the general oblig;lIions of the use 01 good faith and tne exercise of ordinary care:' '191 Sn 2d 231 $e(;ond, the court IndlCilted that there also was sufficient evidence for the jury 10 find that the plaintiff ;lI1d dcillndant had an "agreement" under the UCC through their "course of de<lllng" In making mortgage payments to the mortgagee. Id. at 232 See Ala. Code § 7-1-201 0). Consequently, the court held that Mosef,.." PfCSCflted sufficient evidell(t! to sha.v that the W.1Shington County State Bank owed a duty of ordinary care in prep.ulng and delivering the cashier's checks a'nd that this Issue should go to the jury. Id. at 232 Based on the rC(elll AI"b<lm(l casl.'S (ooth the Moseley UCC case and tne Brown M;1f)C common law ca~), it seems eIIldentthat the Alabama Supreme Court is prep.1rec/ to U!oe the UCC as a vehicle
"6
to extend liabilities lor breach of good faith in the banking context. Principal.agcnt Frt!qucnlly lender I ability arises In the contex t of the lender's con trolling the operations of the debtor to the extent that courts find thilt the debtor bt!(omes the mere Instrumentillity or Ihe agent of the lender. The most extreme examl)le of the prin. clpal.agent thOOf)' oi lender liability Is A.c. Jensen Farms Co. v. Cargill, Inc., 309 N.W. 2d 285 (Minn. '981). In this action a company represent n8 a group 01 individual farmers brought action against (;lr~iII, ..... hich had lent money to WMren Gr'din and Feed Co., a failing com· pany which had outslar'ldlng obligations with the plaintiffs. Initially, Warren had obtalnt'd open account financi ng from (;.lrgill up to $ 175,000, but <is Warren's financial can· dltlon grew worse, Cargill gradually took greater measures to proK'Ct its loan. Over time, Cargill requirod WMren to grant a right 01 access to examine W,men's books for audit and inspection, reQuired Ihal no c<1pital Improycmen:s of over $5,000 would be ma(!e ..... ithout Cargill's consent, rt..'<luired that no dividends would be dt!clared dnd required that rm stock would be sold or purchawd wi thout Car, gill's conwn!. The Minnesota Supreme Court coneluded that Warren had become Cargill's "gent for the purcha<e and sale of grain for market, for the pun:hase and So,le of seed grilin and for tl-e StofiliW of grain. 309 NW. 2d at 290 Thus, the court held Cargill liable for the outstanding obllglllions of Warren tow,lrd the plaintiffs. In addition, the court delineJted the Indicia of conl rnltha t 1l.'Ci to Its principal. ngent holding: (1) Cargill's conStar)! recommenda tions to Wurcn; (2) Cargill's right of first refusal on graIn; (3) Warren's Inability to purchase stock or p;ly divl· dends; (4) Cargill's right of entry to check records lind audit accounts; (S) Cargill's criticism of Warren's finilnccs and salarrcs; (61 Cargill's determination that Warren needed "strQl1g paternal guidance"; (71 Cargill 's provision o( forms on which Its name Wi15 printed; (8) Cnrgi ll's (in(lnc· Ing of all o(Warren's pllrchnses: lind (9) Corglll's poY.'Cr to disconlinue the finane· ing of the operation. Id. at 291
Alabama l;r,y also
embodl~
theories
based on such Indicia of control. The most significant Alabama case Involving princip;il-agent or Instrumentality concepts Is Krivo Indus"lal Supply Co. v. Na· tiOnJI Distl/lel'5 "nd Chemical Corp., 483 F. 2d 1098 (Fifth Clr. 1973), a federal case involving Alabama Inw. Th.:) Fifth Circuit noted that '''Instru· mentality' 15 perhnps the lerm most frequently employed to describe the relationship between a dominant COrporation and its subservient corparalion, and Alabama law follows thl~ characterization:' Id. at n03 Funher. the court deline<ltoo the instrumentality theory under Alabama law: "'The noIlon eX ~p;lrat(l c.orperJr(l exl... lenee will not be rec.ognllec:! where a eoq)()t<JtIOr' Is $0 organized and controlled and Its buslnes1i Is conducted In such ~ manner as to rnake It merely lin instrumcnt~lity 04 lII'DIher... ," td. at 1103 (quoting Forest 1-liII Corp. v. LaUer &. Blum, Inc., 249 ..... Ia. 23. 21) So. 2d 296, 302 1..... la. (94 7)) Stressing that "(acts are critical In cases under Ihe 'instrumentality' rule" the court held that the Ifial court'S "motion for a directed verdict In favor of defendants N Wi!S properly gran ted. 483 F. 2d at 1107·1109 The coun also enumerated th!'! l!Jements of Instruf'llcnt(llity: "The colltrol required (or liability unde, the Instru· mentality rule amounts 10 total domina· tlon of Ihe subservient cotj>OIation ..." and Nrequircs that fraud or injustice proximately result from a misuse of this con trol." '183 F. 2d at 1106
Breach of fiduciary relationship MO!ot 0( Ihe recent lender liability cases do not Invol ~ allegations of breach of fiduciary rela tionships. Nt.'V(!rtheJeS$, in Alabama this tHea mily be ferti ll! ground for lender liabililY casc.'S. Alabama courtS NhiIVQ tradilionally viewed the relation. ship bct~ tI bank and ItScustomer as a ct1!di tOf-debtor relationship .....hich docs not impose a fiduciary duty of disclosure on the bank. A fiduciary duty may (lrise ..... hen the cus tomer rel>05e'.i trust in a bank and relies on the bank for financial advice, or in Orh!!f spec/Ill circumSlilnces.~ Bilylor v. /Otr/,m, 445 So. 2d 254, 256 (Ala. 1986} (emphasis addt>d) AlabalYla couns have not yet defined the "special circumstances" that may gi~
luly 1987
risc to a (jduci~ry relationship, Consequenlly, is bank's dose Il'M)lvemenlin the day-Io-day o~r~tions of a 10.11'1 workout or other similar financial advice may well Impose upon the bank the obllg.ltions of a fiduciary, In Ihose clrcumSllmccs thl.' creditor must disclose all material facts relating 10 the lr.mSilcllon and will be subject to Intense scrutiny by Alabamil courts. 'Where confidential or (jdu(;iilry relations exists, which afford the power ,lnd mcans to one party 10 a transactiOn 10 take undue advantage of the other p.~r Iy, Ihen jf there 15 Ihe slightest trace of undue Influence or unfair advantage, redress will be given to the Injured party:' &ylor v, Jorddn, 445 So.. 2d 256 (quoting Brasher v. First Nalional B.lnk of BirmInsham, 232 Ala, 340, 168 So. 42, 46 (1936)
Statutory li.lbility issues A more complete review of lender liability theories wruld include more extensive discussions of follOWing federal Statutes:
RICO The R.lckctcer Influenced and Corrupt Organl2:mlons Act (RICOI, 18 USC § 1961 et seq., generally l:H"ohlblts Nracket· cering" and pronUns from racketeering activity, As interpreted by till! United Slates SUJ)feme Court, racketeering activity also may Include Sj)(!Clnc acts, Such as counterfeiting. embculement, mall fraud, wire fraud and fraud in the sale of se<;urities. Because eX the broad Interpretation of the RICO statute, bank regula tors now frequen tly use RICO In bank failure cases, and /(''CIeral prosecutors frequently add RICO coun ts to indictments in business CMes. RICO also outhOl"l z~ 11l.....,le damages, plus costs and reasonable attorneys fees, Feder.. ' $".'curities li.bilities The Securities Ac1 of 1933 and the Securi ties Exchangl! Act of 1934 Include a provisIon on "aiding and abening." whereby lenders sometimes are held II· able for sccuritl~ laws violations of a borro.Yet Under aider and abener liabili· ty, a bank that merely R.'commends a se-
curtty or an entily offering a security may be d~med an "abetter" if the se<;urity ultimately viola t~ securities laws. Superfund lenders also may Incur Significant ri sks of nobility under federal environmental laws such as The Comprohensive Environmen tal Response, CompenS."ltlon and liability Act of 1980, 42 USC § 4607 (superfund). If a lender obtilins control OYer a bor~r'$ property (through foreclosure or othetwisel and the prol>crty has an environmental problem, 5uch as a chemical waste site, k-deral laW$ will impose on the lender the duty 01 clc1'inUp anellor di sposal. Conclusion While lender liability haS come inlo the national spotllttht over the past two years, It Is a trelld whose IrllpaCl has not yet been fel t by Alabmlla courts. Never. theless, because lender liability theories sencrJlly follow comnlon law concepts as they exist in Alabama and elsewhere, the dl..'VClopment of lender liability law In .-\lab.lma is only a mailer of time.•
Rent with Avis •••
and iudge for
MEMBERS OF THE ALABAMA STATE BAR At AvIS,)OtI can choose any available sUbcomg:!c"uough lull SiZI, 4·door group car and enjoy speclll lOW daily rates, jusl tot Bar Illtion mem,*" YOU can renl an Interm&dlale,group car, like the Pontiac Gh,nd Am, lor just $39 1 diy, Avis oilers members a lO~ discount on Avis Supt1VaJue Week~f Rales, aOOI '''' discount on Avis SUpetVlIlue W"kend Rales, And these Avls (lIKountSllre &ood _n when you' rl YlCaliMins, FOf ell other car Stoups, or where spe<:111 Bar Association rites lire noIlVllilllbte. members receive a 10% discount on Avis SuperValue Daily Rates. On rentll!s not retumed to the lime city, Avis SuperValue tnterclty Rates apply, less II 10% diSCO\ln t (plus IIny applicable one·way service lee). Tne next time you wllnt protesslonal rei'll a car seNlcl. ull Avis...and fudge tor yourSlIl . 1-100.331.1212 And be ~fI to mentlon)'OUr AyiS Worldwllk! Oiscount number: AL..A530100
ma·
TIIC A/lIlliJm.1 Lawyer
219
ele opportunities 17 friday UPDATE '87: RECENT DEVELOPMENTS IN THE LAW Riverview Plaza, Mobile Alabama STille Bar Young lawyers'
Section Credits: 6.0 , Cost: included in convention rt!gi strallon
21 BASIC
tuesday
uee SKillS-ARTICLES 3
AND 4 Peat MalWlck Professional Developmenl Centcr, New York PracliSing LllW Institute Credits: 6.6 Cost: $225 (212) 765-5700
roc
(lOS} 269·1515
10 friday TAX REFORM ACT OF 1986 Civic Centcr, Montgomery National Business Institute
Credits: 7.2 COSI: $96 (7IS) 835-8525
13-17 LAW OFFICE o\t\ANAGEMENT
19-25 ANNUAL MEETING
Marrloll Marquis, New York National Bar ASSI)(:i,l tiQn Credits: 14.4 (202) 797-9002
20
monday
BASIC Uee SKILLS-ARTICLES 2
AND 2A
22 BASIC
wednesday
uee SK ILLS-ARTI CLES (,
AND 8 Pc,l! MalWlck Professional Developmenl Center, New York Practising Law Insti tute Credits: 6.6 COSI: $225 (2' 2) 765-5700
23-24 BASIC
uce SK ILLS-ARTICLES 5
AND 9 Peat Marwlck Professional Development Center, New York PraCliSinR Law Instilute Credits: 13.2 Cost: $390 (212) 76S·57OO
leLE of Micnig.ln Credits: 14.9 (313) 764·0533
Peat Marwick Professional Development Center, New York PraClising Law Institute Cost: $225 Credits: 7.2 (2 12) 765-5700
14-15
20-27
23-25
CIRCUIT & DISTRICT JUDGES'
TAX I ACAIN
EDUCATION LAW The Knickerbocker l"iolel, Chicago National Organization on Leg31 Problems of Education Credits: 13.2 Cost: S60 (913) 273·3550
Inn on
the
P"rk, Toronto
ANNUAL CO'lFEREN CE
E.H. Myers Civic Centcr, Gulf Shores
Alah.1ma Judicia! Collcge (20S) 834·7990
16 thursday ANNUAL SEM INARS Riverview Plaza, Mobile Alabama Slale Sar Sections Credits: 1.0-3.0 each Cos!: included in cOfwemioo registration
roe
(lOS) 269-15 15
220
Law Center, Tuscaloosa University of AI;lbana School of Law Credits: 31.2 Cost: $350 (20S) 348·6230
25-26 ANATOMY FOR ATTORNEYS(PART III Hotel Intercontlnental, Hilton Head Medl.Legal Institute Credits: 13.S Cost: $425 (8 18) 995-7 I 89
luly 1987
23-28 PERSONAL INJ URY LITIGATION Marriott's Mark Resort, Vall Association o f Trial Lawyers of America Cos!: $550 800-424·2725
ESTATE PLANNING Hilton Inn, Dallas Southwestern legal Foundation Credi ts! 33.0 COSt: $82 5 {2 14} 6'3().2377
29-31 TRIAL EVIDENCE, CIVil PRACTICE & EFFECTIVE LITIGATION Eldorado Hotel. Santa Fe American Law Institute-American Bar Association Credi ts: 23.'3 Cost: $495 (215) 243· 1600
31
friday
DRUG TESTING: THE l EGAL ISSUE H yatt Regency, Nashville Irwin Associates, Inc. Credits! 7.8 Cost: $ 150 (9 19) 229·9 184
6-7 INTRODUCTION TO QUALIFIED PENSION AND PROfiT SHARING PLANS Ambassador West Hotel, Chicago Practising Law Institute Crcel its: 14.4 Cost: $390 (2 12) 765·5700
13-16 SUMMER SEMINAR Perdido Beilch Hilton, Culf Shores AI<lbJma Trial l,lwycrs' Association Cost: $95 (205) 262·4974
20
thursday
COLLECTIONS Riverview Plaza, Mobile Alabam<l Bar InsTitutC for CLE (205) 348-6230
20-21 ACCO UNTING FOR LA,WYERS The Halloran House, New York PraCTising Law Instltutc Credits: 13.2 Cost: $375 (2 12) 765-5700
CREATIVE REAL ESTATE FINANCING The Mark Hopki ns, San Francisco Practising lllw Institute Cos t: $42 5 Credits! 13.2 (2 12) 765-5700
21
friday
CO LLECTIONS Birm i n~ham-JefrcrS(ln
Civic Centcr, Blrmmgham AI <lbama Bar Institutc for CLE (20S) 248-6230
INTRODUCTION TO TRA '86 R<lmada Civic Center Plaza, Birmingham Cumberland Institute (or CLE Cost: $90 (205) 87()'286S
CONSTRUCTION LAW Ramada Renai ssance, Jackson Mississippi Continuing Leg.11 Education Credit s: 7.2 Cost: $90 (60 1) 982-6S90
CRIMINAlllTICATION M arriott's Mark Resort, Vall AssociaTion of TtlalLawyers of Amcrica COSt~ $550 800-42 4·2725 COMMERCIAL LITIGATION Marriott's Mark Resort, Vall Associa!ion of Trial Lawyers of America Cost: $550 800-424-272 5
24
monday
uce
BASIC SK ILLS-ARTiClES :2 AND 2A Hyau Regency, San Francl~co Practising law !nSTltute Credi ts! 7.2 Cost: $225 (2 12) 765·5700
24-26 PRODUCTS LIABILITY M ,mioll'S M ark Resort, Vall Association of Trial Lawyers of America Cost: $275 600-424-272S
PROOF OF DAMAGES MarrloU M ark Rcsort, Vail Association of Trial Lawyers of America Cost: $275 600-42 4·2725
25
tuesday
uec
BASIC SKilLS-ARTICLES 3 AND 4 HYoItt Regency, San francisco Credits: 6.6 COSt: $225 (2 12) 765·S7OO
221
de opportunities 26
wednesda y
28
friday
W ltl O RAFTI NG
INTROOUCTION TO TRA '86
Admiral Semm~. Mobile Cumberland Institute for
elE
Cost: $90 (205) 87()"2865
Blrmlnsham-Jefferson Civic Centcr, Birmingham Alabamil Bar InSlitUie (or ClE (20S) 348-6230
18
friday
FAMilY LAW
B i rmln~lmm-Jc(ferson Civic: Center,
Ul rmlnghilm Alabama Bar institutl! fOI ClE (205) 346-6230
uee SKillS-ARTICLES 6
BASIC AND 6
t-Iy<lll Regency, San Francisco Practising law InstltulC
( rlXllts: 6.6
Cos!: $225
3
thursday
(2 12) 765-5700
REAL ESTATE Civic: C~nt~r, Montgom~ry Alabama Bar Institute for Cl E (205) 346-6230
26-28 COURTROOM DYNAMICS
Marrion's Mark Resort, Vail AssociatIon of Trial Lawyers of America COSl: $275 8(l()-424-2725
thursday
WILL DRAFTING
Civic Center, Montgomery Alabama Bar hlSlituic for elE (205) ) 48路6230
uee SKILLS-
10 thursda y
ARTICLES 5
thursday
REAL ESTATE
Civic: Center, Montgomery Cumberland Institute for ClE COSt: $90 (205) 870-2665
TORTS Von Braun Civic Center, Huntsvi lle Alabama Bar Insti tute (or elE (205) 346-6230
Decatur Alabilma Bilr Institute for Cl E (205) 348-6230
25
11
ESTATE PLANN ING UNDER TRA '66
friday
REAL ESTATE BlrmintfhJm-jc{ferson Civic Center, Birmingham Alabama Bar Institutt'! for ClE (205) 346-6230
27-28
24
ESTATE PLANN ING UNDER TRA '86 Mobile Alabama Bar Institute for ClE (205) 348-6230
Martioll's Mark Resort, Vall Associa tion of Triell Lawyers of America Cost: $275 600-424-2725
BASIC
friday
REAL ESTATE
M EDICAL NEGLIGENCE
27
4
ESTATE PLANNING UN DER TRA 'B6 R;mw)a Civic Center PlaIa, Ilirmingh<lm Cumberland Instilul(! (or ClE Cos t: $90 (205) 670-2865
17 thursday
friday
Admi ral Scmmes, M obile Cumberland IllslltutC (or CI.E Cos t: $90 (205) 670-2865
ORUG TESTI NG: THE lECAl ISSUE Wyn(rey, Birmingham Irwin Associates, Inc, redi ts: 7,8 Cost: 5 150 (919) 229-9184
TO NTS
AND 9
Hyall Regency. S.m Francisco
FAMilY LAW
Birmin~hilm.Je((erson CiVIC Cenler,
Practising law Institute
Civic Cen ter, Montgomery Aldbamil Bar Institute for ClE (20S) 346-6230
Birmingham Alabama Sar In~tltute for CI.E (205) 346-6230
Credits: 1).2 (2 12) 765路5700
222
Cost: $390
July 1987
Attorneys Admitted to Bar, Spring 1987 leonilrd QuindeU Arringlon ..... Montgomery. Atab..lma Michael Evan Au((cnorde .. " .... Birmingham, Alabama
Harry Bell Baill.'Y, 111. ....... , ... ,' ,Mobile, Alabama Sharon Spence Bailey .. , ....... Birmingham. Alabama Rebecca TUlnipseed Bergqui st . .... Huntsville, Alabama jefry Lee Biddi x ............... Birmingham, Alabama Rebecca Joyce Knowles Blglx-c .. Mon!80mery, Alilbama
Belh Allison Blackburn ............. Dec,l1ur, Alabama SuS.1n Lynn Blake .,.",., .•••• ,PhCtlix Chy, Alabama Thomas Oclbel1 Bobill, II ........ Tuscaloosa, Alabamil John Robert Bowers, Jr.. " " " , . Montgomery, Alabama Sherry Cameron Broyles .......... Huntsville, Alabami'J
Robert Earle Burney. II .......
. .. Opellka, AIJbama
Lindsay Clay Callaham, Jr......... Wctumplca, Alabama Alber! Harvey Casey, Jr...... .. . Birmingham, Alabamn Patricia Lynn Clem •..•........ Birmingham, Alabama ROHer Edward Cole ..•...•.... ' •.... Mobile, Alllbama Phillip Ted CQlqucn ............ Blrmlnghl!m, Alabama Neal Presley Conner .. , .. , , , ••••.•• Decatur, Alabama Bi lly Earl Cook, Jr. . . . . . . . . . . . .. .. Decatur, Alabama Cynthia Slate Cook ........ , . , , , , , , Decnlur, Alabama Lynn Angle Crosson •..... . . Palisades " ark, New Jersey Duncan Rei d Crow , , .•........... Semmes, Alabama laura Ann McDonald Dahle , ... , ... Fairhope, Alabama Pamela Giorlando Daniel ....... BlrmlnHh,lm, Alabilma Eiben Allen Dodd, Jr., .. , • •• •. Birmingham, Alabama Rodney Dixon Dorand ........ Mont8omery, Alabama Holly Stewart Green Dunlap , .•. Birmlnghnm, Alabama Charles Wyatt Edmondson ...... Montgomery, Alabama Regina BO;ltright Edwards ... ... ,. Wetumpka, Alabama Thoma s Randolph Edwards, ... . .. Wctumpkll, Alabama Jerry Edward Farmer , , , ........ Birmingham, Alabama Michael ,~eph Gamble , , , , , , .. Montgoffi(!ry, Alabama Charles HenlY Giorlando "" .. , . Birmingham, Alabama Rober! MarCus Givhan ......... Montgomery, Alabama Stevan Kent Goo:tee .. , .. ,.", , Birmingham, Alabama Norris WaJtOfl Green .......... Montgomery, Alabama Norma Ruth Haas, . " " " , . " .. " .Moblle, Alabama Dale Mire Hebert " " " ..... . ..... Helena, AI;lbama Aubrey Jefferson Holloway, Jr,. , .. Birmingham, Alab.lma Bobby Joe Hornsby, Jr" , , •• , , , , • , , . Dothan, Alabama Ralph Wyatt ,·towell, Jr, ... , , , ..... Hamilton, Alab<lma Russelle louis Hubbard , . . . ," . Blrmlngh.1nl, Alabama Telry Glen Hutcheson ............ Mentone, Alabama Timothy Clark Hutchinson ....... Birmingham, Alabama Susan Graham lames , •........ Montgomery, Alabama Amy Williamson Jones .... , ... , Montgomery, Alabama George B(!ni~min Jones " " , ••.. ". BOUlder, Colorado John Harvey )onllS ........ ,. .. livingston, Alabama Wayne Michael Jones ..•.• ,., Birmlngh:am, Alall<lmil Michael Cameron Jordan ....••. Montgomery, Alabamil
The A/Db/HIM LalVyer
Walter Charles Hayden, III .......... Clanton, AI:abama Melinda Ruth Julian , ••••••.•.. MOntgomery, Alabama Edward Joseph Kennedy, III ...... Birmingh:am, Alabama Thomas Bailey Klinner •• " " , .• Mont8omery, Alabama Alice Marie Kracke . " , ... "., . Montgomery, Alab.lma Dalton Kelly livingston ....... " • Fultondale, Alabama Edwin Jean McArthur, Jr.. ...... Montgomery, Alabama Gail Smith McCollum ..... .. ....... Opellka, Alabama Ciltherine l eah Mcintyre ............ Mobile, Alilbama Edward lemuel McRight, Ir....... TUSCiltlJOS,j, Alabarnil Terry Fitzgerald Moorer , , , . , . , , ... Enteq)rise, Alabama Jim Lt.'e Mysinger ." .• " " , ... Morltgomcry, Alabama Marla Yvette Newman ...... " •.•. , Dothan, Alabama Thom:as Newlon Nickles ...... , , Montgomery, Alabama Kimberly Alane Norris . . ........... Florence, Alob:am:a Barbar" Rushing O'Caln ........ Birminghanl, Alabama Michael lewis Odom ........... Wetumpka, Alabama David Bruce Petway ,., ....... Birmin8hilm, Alabama William Maurice Pompey ....... Birmingham, Alabama Mary Hunter Reaves " " " . , ... MOntgomery, Alab..lmil Gregory Scott Reese .... ,.,",." .. Mobile, Alabama Peggy Gene RI..'eve$ ., .......... BirmlnBham, AI,IOami! Ph11l1) MeltOn Rl:.~v\Js .. , ... ",." .Jackson, Mississippi Deborah Smith Seagle .............. Dothan, Alabama Thomas lawson Selden •..•..... Birmingh<lm, Alabama Sara Micelle Scliko(f. ...... , ... Birmingham, Alabam.1 Ralph Wendell Sheffield ••.......... Pelham, Alaooma Richard St<lnley Sheldon ... , , •••.•.. Mobl1(>, Alabama Frances Haner RobertS Smith ••• Montgomel)', Alabama lauric Newman Smith ........... Huntsville, Alabllma Marvin Nell Smith, Jr..... , . , . , , , , , Pel! Clt~·, Alabama William Glassell Somerville, III. .. Birmlngham, Alabama Matthew WIllis Sowell , ..•... , ... Northport. Alllbarna Stephen David Sprln8er , , . , ......... Mobile, Alabama Bryan Allen Stevenson , , ............ A"ant<l, Georgia Blew\JlI William Thomas." ....... Jackson, Mississippi "Ierman Young Thomas •• , ••........ Mobile, Alabama Clint Patrick Thompson ..... , . , , , , , . Trinity, Alabama Marlon Whi\(! T!lson, ........ , , Oirmlngham, Alahama James Edward Tolleson ........... Huntsville, Alabaml! Pilmela Wilkinson Tuckllr ., .. " .. Stevenson, Alabama louie Harold Turner, Jr............ Anni ston, Alabama William Sidney Underwood, Jr.... Birmingham, Alabama ElIzabeth Claire Vickers . , , •• , . , , .. Enterprise, Alabama Foy BraJCton Wagnon, Jr......... Birmingham, Alab.lma James Armor Wagoner, III .,.,.,., ... Mobile, Alabama Paul Stephen Ware ............ BirmIngham, Alabamn Brenda Dunn Watson ..... ,.", ••• ,Auburn, Alabama Frances Angelyn Well s......... Birmingham, Alabama Sharon Woods Woodruff. ....... Birmingham, Alabama Keith Richard Zind~r ........... Birmingham, Alabama
m
Lawyers in the Family
Marla 'rVc1lt.' Newman (1987) and Malcolm R. Ncwman (1981) (adm;lfee and husband)
8. Allison Blackburn (19871. 1. Gilmer Blackburn (1954), Cay Blackburn M,l/oney (1980) and Mark Dan iel MJ/on£'y (1979) (.ldm ;lfee. (mile" siSler and bfO{he,. /n· /lJw)
Winter 1987 Bar Exam Statistics of Interest Nu mber si tting for exam ................... , .... , • , ....... ............... ........ , .. 188 N umber cert ified to Supreme Court ..... , .......... , .. , , , , .......• .
Certification rate ..................... .
Certification percentages: U n ive~ il y of Alabama
. ......•.••• , •• 10 1
. ..... . .... ,., ....................... " .. , . 54%
,., ... , . .......... . . . . .. ,." .. "., .... .
........... " " , 69%
Cumberl and .............. .
. .••..• • " " , , 76 %
Alabama nonaccredited law schools
.. , , , ' " " " , , 36%
The Alab.lma Lawyer
225
Norris W Creen (1987) and B. Klnccy Creen, Jf. (1978) (ad-millce arnJ brother)
/..Ilurie Newman Smith (~87), ThonliiS A SIIl/lh, /r. (/957/ and S!Cven C. Smith (1986) (admillL'C, father-In-law Md /lU$oond)
/Ylph ~nck>1I Sheffield (1987), L.lwrence 8, Shcfftcld, 11/ (1981J and Lawrence B. Sheffield, Jr. (1955) (adm/llee, brolher :Jnd f"ther )
Norma Ruth I 'aa5 (l9B7) <1nd I,'arry 8. Bailey, 11/ (1987) (wife and husbMd Co-:Jdm /uccs)
226
W,llic r Hayden, 11/ (1987) and Judge Wil/fCr C. Hayden, Jr. (1955) (admitlcc and fJther)
Ju ly 1987
Charles H. GiOllando (1987) and Pamelll Giorlando Daniel (1987) ((a ther and daughter co-admiuccs)
I Mary HUn!cr RCiWeS (1987) and Preston C Clayton (1931)
(ad-
mince and Brandfather}
Michacl/i!1.vls Ddom (adin;l!(~c
(1987) and
I.t!w;s C. adorn, Jr. (1949)
and ;'lIhcr)
Amy Williamson JoneS /1987) lJrld /. Fletcher Jones (1953) (admitlce and (ather-in-Iaw)
The Alabama hwyer
Billy E. Cook, Jf, (1987), Billy Earl Cook (1977), Cynthia Slate Cook (1987), Ralph E. Slate (1949) .1nd Beth Slaw Poe (1983) (acimilfcc. f<1thcr/(,1Iher-in-law, adm/lICe, flltlwl-IIl-lawlfather "nd sIS(Cf-ln路law/S;SlCr)
227
Neal P. Conner (l987) and luI/an Harris (1927) (admi/lee and ('!fller-In.law)
1 ElizaOcfh Claire Vickers (l987) and David Windell Vickers M8S} (ildmiffee and brofher)
Timmhy C Hutchinson (1987) and Rick /o/utchhson (l983) (admWee and brofher)
Wayne Michael/ones (l987) iJnd Donald HuSh /ones (1968)
(,ldmiflee and filflllJr)
"8
Resina 8. Edw;uds (1981) and Thomas R. Edwards(1987) (wife and husband C<Hldm;fWCS)
luly 1987
MeLE
News
Ethics Education Committee. where possible malldak>ry ethics education was discussed;
5.
6.
7.
by Mary lyn Pike!
Commission rtlCi!ling At Its April 3, 1987, meeting the Man. datory elE Commission:
1.
Received the administrator's report 00 1986 compliance- liS atlorneys certified to the Disci plinary Commission for noncompliance, 134 de(lclency plans <lPI)r()YOOi
2. RQCeiYf..od the adminl str;JIOr's report on 1986 (;ourses accmdllcd- l,590 3.
101al, 318 in-Slate, 1,272 out-of-state; \Uled 10 amend Regulation 5.1, as (ollows: On or before January 31 of
each year, each ""orocy subject to the elE rC<l ulrcmenl Imd each at· torney exempl from the «!(Illirenll~ n'
who wishes 10 receive credit for courses attended will submit a I'Cf)Ort on a form as the Commission shall provide concern ing such allornc.y's completion 0( !!lie"'l,)!i",n He~ era~ 1H900'ed SllbStjl~lI! fat the minimum hours of instruction, Including reference to hours carned during that ycar and hours to be CMricd forward to the nCKt year. 4.
Considered, but voted aga inst, eliminating the evaluation requirement (or out-of·state progr;lms at· tended by (eoN, If any, .....,abama bar members;
Established a CLE recogn ition award to be giVl.'Il to allorneys attending 25 or more hours of approved Instruc· tion In one ~ar. Beginning al the close 0( 1987, such allorneys will ll,.'Cci...e a cert lOcate and their names will be publlsh(od In Ihis journal; 9, \.bl(.oQ 10 certify 10 the Disciplinary Commi ssion an attorney who had an app~ deficiency plan but earned his credits after Ihe M arch I dead. line; 10. Denll'd three requests by atlorneys subject \0 the ClE requirement for walllCr of the I(lte nllng fcc; 11 . Authorl ted a refund of a late filing fee p;lid by an attorney {'l(empt from the Clf requ irement;
8.
....sslstant Exec uti ve Director
Received Commissioner Harris's report on his attendance of the .....merican Bar Associ ation's con. ference on lawyer competence, where law office management as a competence issue wa s discussed; \.bted to amend Regulation 3.6, adopting a 60-minule Instru ctional hour, as have the rest of the southeastern stall..'S, and eliminating the SQ.mlnute hoo r, effCCfi...e January I, 1988;
12 . Considered I\O,Q complaints from aTtorneys whose proposed deficienCy plans were mall(>d by the January 31 deadline bUI recei~ on Monday, February 2, and thus not accepted. vowd co interpret Rul e M as requlr• Ing rece ipt 0( such plans by the first business day following January 31, j( January 31 fall s on a 'M!t!kend or holiday; 13. Conslderod an inquiry on accreditation of a law firm's monthly revit"N of cascs decJdl'd; referred the nrm 10 RCl!ulalion 4.1.14, approval of In· house seminars; 14. Considered a request thilt the com· m ission (!)((Imine closely ilnd con. sider d enying approval of " psychodrama!soclodr,lfna In the courtroom" courses; 15. Authorized apPrOYill of a course designed for attorneys, municipal court o(ficials and police officers (hIminiSlraliY(! Office of CourtS); 16. Denied approval of law student seminars for whleh no written materia ls were prepared or provld. ed OOnes School of Law); 17, Authorizl..oQ half-credlt for half of 72 workshops scheduled as a law office m,lnagement institute (lCLE of M ichigan); 18. Apl)rO\led two 1986 courses submitted after the March I deadline, so as nOT to penalize bM mcmbers for sponsors' dilacory handling o( the applicaTions (National tnstitute of Munk ipal law Officers, ..... ,abama Trial lawyers),
coming events: 1987 Annual Meeting, Mobile-July 16-18
Board of Commissioners' Meeting-July 15 1987 Alabama Bar Directory
published-August
Rccelved Cha i rma n Huckaby 's report on his meetin!! with Ihe bar's
Tho A/ilbamll Lawyer
229
Recent Decisions by I(lhn M. Milling, Ir., and David B. Byrnt, Ir.
Recent Decisions of the
Supreme Court of AlabamaCivil Civil procedure .. . juvenile court discovery methods esta blished Ex pane: M,lrsha ll CounlY D PS (RE: M,mhal/ Covnly OPS If, Rives, 21 ABR 211 5 (February 20, 1987)-ln this Ci'lst'! of initial Impression. the supreme COurt grarHOO Certiorari to determine wh ich method s of discovery arc available In all juvenile courts under Rule 26(a), Ala.R.Civ. P. The p..lrlies were involved in a child '~JstQ(ly dispute anel notifi(,,(! OilS th~ intendt.'(i to take i'I DPS case worker's depoSition. The case was Ix!ing heard by a district court Judge. DPS sccured a protcctive order based on Rule 26(d). This rule leaves the availabili ty of deposition discovery to the discrelion of the court or by <lgrCf.l!l1cnt of Ihe p."ties, and also prohibits physlc:;al and mental exilminations. The diStrict judge gr:mtt>(l th e protective order and the court of civil apl>Cills rewrsed. The supreme courl affi rmed the coutt of civil appeals nnd held Ihal: (ll the juvenile courl, whether It isa circuil C(ll.Jrt or a district court, has authority 10 granl a motion to compel adisc(M!ry depoSition and
230
(2) physical and menial examinations
also are available. Discovery In the Juvenile courts is not dealt with specifically in lhe Alabama Rules of JUVIilnile Pr(l(edure. The rules simpl y defer TO the Rules of Ciyi l Procedure. t-I~r, d i~overy fOr circuit ilnd distriCTcourts Is slight. Iy different and. the refore, Ihe Supreme court had to resolve this apparerll connici . in doing so, th e supreme court noted that Rule I, Ala.R.Juy.P., provi des th e same d lsc~ry shall be available for all juvenile pr(l(eeding5, wh~ther In circuit or di strict courts. Consc(lucntly, the undcrlyhlg questiOn wa s whether to restrict dlscovcry or broaden discovery. The supreme
lohn M. Mil/ins, Ir., Is a member of Ihe firm of lilli,
Hill. Carler, Fran路 co, Cole & Blilck in Montgomery. He /$ a gradutlle (jf Spring Hill COIICSc ,'Ild the Unlvroily of Alllbamll School of l.aw. Mil/ins COVCl'5 Ihe ciyil porlion of Ihe decisions.
court chose the Iilller and reasoned thill sinCe juvenile coun cases Involve child custody, and the wellare of Ihe child is parMl'Iount. the Slate should have avai lable to it every meth od by which It can fully discover Ihe true filet s ~\I)d circumstan ces.
Defamation ... discovery
dcfamation-defendanl 'S rights y. psychiatrist-pa tie nt's privilege Ell. parte: Or. William f-i. Rudder (RE: Rudder Y. Universa l Communications Corp.), 21 ABR 172' (February 30, 198')- The supreme court was asked to decide whelher a news media de/cndant in defense of an action for defamation brought by a psychiatrist (or olher physici,lO) has a righT to
D;wld B. Byrne, If., is a graduale of Ihe Un/vers/w of Ala路 bama, where he received both his undergf1ldu,lle and law degrees. /-Ie is a memb~r of 'he Monlgomf.'rY firm of RobiSOrl & Belser and covers the criminal portion of the decisions.
luly 19B7
disc~r
that doctor's privileged medical rC!Cords pertaining to one of his patients. The SUI)reme court answered the question In th e negative. Rudder, a psychiatrist, sued WALi\-TV in Mobile for libel based on a broadcast of an invcstigiltive report of alleged abusive p wscriptivc prilctices Involving Chri s Galrmos, th e M obile distri ct attorney. WALA sought production of Rudder's record s concerni ng treaTment of Galanos. Galanos asserted his psychiatrist·patient privilege, Section )4-26--2, Ala. Code 1975. Rudder objected to pR> duclng The recOids. The trial court over· ruled Rudder's obiection ilnd held the psychiatrist.patlent privilege must !live way to WALN.s FirST Amendment guarantee. The supreme court recogn ized thm there wcre three competing Interests: (1) the public's interest in protecti ng the psychiatrist.patient privilege; (2) the defendant's discovery rights to prepare a defense of its ca~; ilnd (l l the news media's rl ghl to fret' speech guaranleed by the First Amendment. The supreme court stated th at prol(.'C· l ion of a patJeMs and society'S Interesl in preserving the confidentiality of a psyc hlat dst·pa ti ent'~ rela lionship is of suffl· clen! Import<Ulce 10 generally warrant CK' elusion from discovery. The supreme court also noted that while frL'edom of the press must be strongly defended, It (locs not inelude access to Information neM generally ava lable to members 01 the public. Inform ation recognized as pri .... iJeged Is nOI available 10 the public. The SUI)reme Court, however, recognized there may be Instances where the psychlll1rlst.patienl privilege will yield to il defendant's right to dlscOV(!ry or the mc..... din dt.)fen(lanl's right to frcc speech, but th ose cases wcre not before the court.
Insurance ... Strother Y. Alabama Farm BUN!<lU overruled Howton v. Sl.1tc Farm Mutual Aulomobile, 21 AOR 2334 (March 13, 1987)The plaintiffs appeal~ from it 5ummilry judgment granted In favor of Slate Farm. The plai ntiffs' claimed that State Farm bwached Its ilgreement to pay for the cost of re l)"lirinK their automobile which
The Alabama Lawyer
was damaged in an accident with State F.lfm's Insured. In Its order granting State Farm'S motion for summary Judgment, the trial court found that Slate Farm had agreed to have the plainliffs' automobile repai red, the plaintiffs delivered the autonloblle 10 the agrt:.oed,ullOn rep;!irman and afler Ihe re p." rs were made, State Farm breached Its agree mont. The trial court, relying on Slrothe r v. A/Ilb.lmll F,lrm Bur~u, 474 So.2d 85 (Ala. 1985), held ThaI an insurance carrier nt!gotiating with a third party on behalf of its insured cannOI be directly liable for tort s or breaches of COll1raCI commi tted during the negotllllions. On appeal, the supreme COUI1 expressly overruled Sl rother and held that lin Insurilnce cal"1ier may be directly liable to ;!n Inlurecl third party where the Insurer underlakes a n(....... and Independent ob1Ig.'\tlon directly with a non·p;t rty to thl! insurance con tract in Its efforts to negotiate a selllemCllI of the third party'S claim. HOM.'\oer, it iSllili well-eslabllshed Ihat ;"10 accident victim (a third parly to a liability insurance contract) cannot maintain a direct action against the in· surer for lhe alleged liability of 'he Insurer where the legal liability of the insured has not betn determi ned by judgment. Insurance ••• contractual duty to defend inlcntional wrongs not void as againsl public policy Burnham Shoes, In c. v. West American, 21 A8R 1862 (January 30, 1987)- ln a case of Orst Impressiol', Ihe supreme court Wil5 <lsked to decide whc1l1l!r an insura nce policy which obligatcs Ihe insurer to defend Ihe Insured In a lawsuit based upon inlentional wrongs Is void as against I)ublie policy. The supreme court said "no" and d(.... clined to follow 51. p.wi Ins. Cos. v. ·r.llladcsa NursinS Home, 50S F.2d 6) 1 (Slh Clr. 197'9). In this case, the inwrance company covcr<:d 8urnham's shoe bU5iness. Burn· ham was a defendant In an anli-tru st suit and sued for conspiring to drive II competitor out of business. The Supremc courl stated thai it found no authorilY concern ing Ihe public polley aspC!Cts of
the insurer's duty to merely provide its iI defense 10 such claim s. II is well-Mlabllshed thaI the duty to defend is more extensive than the duty to pay. The supreme court failed to perceive how requ iring anlf15Urer 10 meet its con!raeluill oblig.llion to pr(Nlde a defen se 10 cl aims alleging Intentiona l acts violalcs the public policy or Alabama . Th e InsurallCe con trOle! cJl.press/y provides for such coverage, an(l the insurer collected a premium therefor.
in sured
Recent Decisions o( Inc Supreme Court o( the United States The Demise of fnmund Y. Florida rison V. Arizona, 55 U.S. lW 4496 (April 21. 1987)- May persons who did not actually commit a murder ;lnd who ncycr intended that a killing occur neYerthcless be ~ntenced to dea th if they played a maior P.lrt in il crime resulting in murder and displayed a reckless indifference for human lifel The Supreme Court, five to four, said ~. The defcndants, !'NO b'Others, along with other members of their family, plilnned ;Hld effected the escape of thei r fat her from prison where he was serving a life sentence. Th(.'Y cntcr(.'Ci the prison with a chest filled with guns and armed their father and anoth er convlcll.."C! murderer. Later, the brothers helped to abduct, detain and rob a family 01 four, and WJlched their father and Ihe other con· vie! murder the members of that fami ly. Although they both later stated they were surprised by Ihe shooting, neither of the defendants madc ;my effort to help the victims, but drove away In th o victlm5' car. M ter the AriZOna Supreme Court affirmed their Individual conviction s for capital murder under the state's FelonyMurder an(l Accomplice-Liability statUles, the defendants collaterally attacked lbeir death sentence In poSI<onviction procCL'Clings alleging that Enmund v. Florida, 458 U.s. 782 (1962), requ ired f(!-~rsal. The Arizona SUI>remll Court deler· mined that they should be exC!Cuted, ho lding Ihilt (;nmund re<luires a finding of " inlenl 10 kill " and Int(!q>rctlng that I)hrasc to include situations in which the
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defendant intended, CQlltemplated or anticipatf..'CI that lethal force would or might be used, or that life would Or might be taken In accomplishing the underlying felony. The Supreme COUrl, in an opinion deIIvcrt.'d by Justice O'Connor. held that although the defC!ndants neither intcnd",ocI to kill the victims nor Inflicted the f"tal wounds, the record SUl>POrtcd a find In!! that they had the culpable mental state of rockless indilTerence to human life. The Eighth Amendment does not prohibit the death penalty in the case of a defendant whose p.uticiP<1tion is major in a felony that results in murder and whose mental Slate is onc of r«kles$ ind ifference. Justice O'Connor, In a survey of state felony murder laws and judicial decisions "fter Enmund, noted that a societal consensus held that there were a combination of factors .....hich might justify the death penalty cvm without a specific "in· tent to kill: Reckless diSltgllrd for human life also represel'llS a highly culpable menial stale that may support a caplt;11 sentencing Judgment In combination with major pJrlidpalion in the felony resulting in death. This ruling consider,lbly dilutes the Suo preme Court's l'ilrlier decision in Enmund Y. Florida, 458 U.S. 762 (1982), which outl:l\o\lt.'d the death penalty for a "non.triggerman" who did not Intend to take P.lrl In a killing. but whose crimes resulted in a death. Bruton revisited Richardson Y. Mllrsh, No. 85-1433, 55 U.s. lW 4509 (April 21, 1987)- May I)rosecutors uSC a non-testifying co-dcfcndanl'5 con fession if all references 10 the clcfend;ull Mil C'xclscd and j\lrors arc told not to consider i1 when determin· ing the defendant's guilt Or Innocence? The Supreme COUrl, six to three. said ws. Justice Sc,llia, further refining the decision In Brulon v. United 5ul/es, 391 U.S. 123 (1968), said that such a confession may be admittQd If it contains nothing to incriminate the defendanl and jurors are told it should not be u$t.'CI against the defend.:mt (<1 cautionary limiting Instruction). Richardson and Williams were
232
charged with murder, robbery and assault. At their joint tllal, Williams' canfe55100 was admitted OYer objection by Richardson's counsel. The confession had been modified toomit all reference to the dcllmdant Richardson- and, indeed, the confession did nOllndlcalC thaI anyone other than 'A111 lams and II third accomplice participated In the crime. At the lime the confession w.1s admitted, the jury WClS admonished by the trial judge not 10 use it in any way against the defendant Richardson. Williams did nO( tC!Stlfy, ~r, that Richardson's trial testimony Indicated that she had been in the car with Williams and the third accomplice, but had not heard their conversation. She insisted that she had not Intcndl'CIto rob or kill anyone. Richardson was convicted of felony murder and assault to commit murder. "'tN exhauSling the $tale IIPpeliale process, the defendant filed a writ of h,lbe,1S corpus maintaining that she was entitled to a new trial under Brulon v. United 51i1fe5, 391 US. 123 (1968). The Supreme Coorl in Bruton had held that a defendant is deprived of his rights un· der the Confronlalion Clause of the Sixth Amendment, when his non-testifying co-defendants' confeSSion, nllming him as a p.1rtlclpant In the crime, Is introduce<1at their joint tllal, l'Ven If the jury Is Instructed to consider that confession only against Ihe co-defendant. Justice Scalia held Ihal lhe confron tation clause is nol violated '" the admission of a non-tesllfylng co-defendant's confessiQll with a proper limIting InSIIUCtion when, as he'e, the confession Is abrldSlod to eliminate not only the defendant'§ name, but any reference to her exISlence. Justicc Scalia critically 110llod thaI the 8ruton court recognized a V(!ry narfCIW e~cePlion 10 the almost Invarlablc assumption of Ihe law lhat jurors follo.v their instructions In the situation when Ihe facially incriminating confession of 3 non· testifying co-defendant Is Inlroduced 31 a joint trial ilOd the jury is instructed to consider the confession only against the co-defendant. There are two Imporlant distinctions bct'Nt'!en Richardson and Bruton which cause It to fall outside the norr'Ow exception Brulon created. ~irst, in /Jrulon, the
co-defendant's confession expressly 1m· pliated the defendant as his accomplice, whereas in Richardson, the confession was f'IOtlncrimlnatlng on Its face, but became so only when linked with other Clildence Introduced by dlC defendant at trial . The justices noted tnllt where the necessity of such linkage Is InYQlved, there does not eKlst the overwhelming plCibabllity of the jury's being unable 10 disregard incriminatinglnlercnces 11'1.11 is the foundation of Bru:on. Second, evidence requiring IInkll8C diflcrs from evidence Incriminating on its face In the practic.11 effects which application of the Bruton exception would produce.
fourth Amendment-within the curtilage "br ight line" l eSI Uniwd 51,11es v. Dunn, 55 U.S. lW 4251 (March 3, 1987~l rl 1980, DEA. agentS lracked Carpenter to Dunn's ranch '" placing tracking beepers in some of his equipment. Aerial photographs of Dunn's ranch showed that Carpenter's trud: w.l5 backed up to a bam behind the ranch house. The ranch W.l$ completely encircled by a perimeter fence and conlained 5e'VCral interior barbed wire fences. including one around the house, 1I1)pro)dm1ltely 50 yards from the bam, and a wood(m fence enclosing the frOnt of the bar with an open overhang and locked, waist-high gates. Without II walfant, agents crossed the perimeter fence, several of the balbed wire fences and the wooden renee in front of the barn. They 'NC!C led there '" the smell of chemicals and, while thele, could hear a motor running inSide the barn . Thl..,. did not enter the barn, but stopped Jt thc locked gMe arId shined a flilShlighl inside observi ng whalthcy believed to be a drug laboratory. Over Ihe neKt 24 hours, the agentS erllcred the im· mroiattt area nexl to the barn twice to confirm the laboratory's presence. The 01ficers obtained a search wmant and lOXecuted it, arresting Dunn and seizing chemicals.1nd equipment as well as bags of amphetJmlnes. The COUrl o( appeals reversed the trial cOur1'~ decision holding that the barn WJS within the resIdence's curtllagtt and, therefore, within the Fourth Amend· ment's protective ambit. The Supreme
luly 1987
Court of the Un ted Stat~ rtwr$(.'C:I in a seven-to-two dec:lslon. Justice White delivered the opinion 0( the Court which held, first, that the area neat the barn was not whhin the curtilage of the hOLlsll fOr Fourth Amend ment purposes. and, second, that the defendant had or possessed no expectalion of privacy. The Supreme Court's analysis of the curtilage question was resolved with fl.>ference to the follOYo'ing four factors: (1) the proximity of the ilnM tQ the home; (2) whelher the area Is within an enclosure sutT'Ounding the home; (3) the nature lind uses to which the areil Is put; ilnd (4) the steps taken by the resident to prot&t the Meil from observation by PMsers-by. Applying this four-I)ronll tl..'5t, Justice While cOr'lcludcd that the Dunn barn was not within the curtilage of the home ,\I1d r(M!rsed the court of appeals. The Supreme Court'soplnion, h~r, 'NCOt fu rther and found the defendant's COOlention that the barn was essential to his bUSi ness, and, therefore, he had an expectation of privacy in ii, was without merit, based UI)Qr'l the Court'S prior decisions regarding the government'S irttrusion upon "open fields."
Bu rden of proof-self-d efensc Marrin v. Ohio. No. 6S-6461, 55 U.S. lW 4232 (February 25, 1967)- The Sul)reme COurt held that the fQurteenth Amendment's due process clause does
Richard Wilson & Associates Registered Professio nal Co urt Repo rters 17 Mildred Street Montgomery, Alabama 36104
264-6433
The ",/abam" La..vyer
not forbid Ihe state from pladnglhe burden Qf pfO\Ilng self-(!efense on the defendant charged with !he crime of aggravated murocr. Martin was charged with aggr.:rvated murder, which WJS defined as "purposely, and with prior c.llculmion and design, causing the death of .mother." She pled self-defense and testifii!d th;lt she hild shot and killed her husband when he 31I<lcked her fOllOWing an argument. As to self-defense, the jury was instructed that it could acquit If it found by a preponderance of the evidence that the defendant had pl'C'.'ed (I) that she had not precipitated the confroolalion with her husband; (2)th3t she honestly bellCYCd that she was in imminent danger 0( death or great bodily harm, nnd \h1l\ her only means of escape was to USt! force; and, (3) that she had satisfied any duty to retreill or avoid danger. The jury found her guilty and the Ohio apl>cII:lIe COurtS affirmed. The Supreme Court of the United States In an opinion deli'ICft.'C:I by Justice White affirmed the ( onviction noting: ~ Neither Ohio law nor the abc:lo.le Instruction s violate the Due Process Cliluse of the Fourteenth Amendment by shifting 10 the defendam the Statl;!'s burden of proving the clements ci the crime. The instrucllon s, whel'! read 115 a whole, do not improperly suggcstlhat selfdefense evidence could nOt be considered in detennlnlng whether there was reasonable doubl about the sufficiency of Ihe Stille's proof of the crime's elements:' More IMportantly, the Supreme Court held that It was not a violation of the due process clause for the state to IIIace the burden of proving self-defense on a defendant charged with committing aggraVil ted murder. The Court concluded that there W,lS no merit to Marlin's argument that it was nf!(esS<1ry, uncler Ohio law, for the state to disprove self-defense since both unlawfulness and criminal intent are elements of serious offenses, while self-defense renders lawful that which otherwise l'oQuld be a crime and negates il shOYo'ing of criminal intent. Ultimately, the Supreme Court concluded thai placing the burden of proof upon the
de(~ndanllo go forward by a prcpondet"ance of the evidence In asserting selfdefense does not shUI theCM!rall burden placed upon the state or pr<We each clement of the charged offense beyond a reasonable doubt.
O the r Impo rta nt Fede ra l Deci sio ns Assets marked for atto rneys' fees held not subject 10 forfeiture Un;\ed SLUes v. Harve>l. SS U.S. LW 1145 (4th Cir. March 6, 1987)-The conlrt:Nersy Oller the forfeltablUlY 0( criminal defense attorney's fees under the 1984 Comprehensive Forfeiture Act finally has reached the federal ilppcllatc level. The United StateS Court of Appeals for the Fourth Clrcuil has de idtod that Ihe new forfeiture provisions do, In fa ct, subjecl 10 forfeilure propet'ty to be uSL'd (or legitimate altorneys' fees. As a resul t, the lVurth Circuil ruled thai the proviSions infringe on an accused's Sixth Amendment righ t to relain coun$C!1 of his own choice and cannot be upheld . statutory em;rOilchment UI)Qn a defendar\l's right to counsel 15 100 great to be Justified by any competing gOllernmental interest. Arl accused's abilhy to employ a private attorney-a primary Sixth Amendment right- is severely inhibited by the freez ing 0( his asSCls or C\l(!n Ihl! threat of forfeiture. The court crilically noted that while the alternative right to alJI)Qinted counsel would remain, such fact did 1101 cure the Interference with a defendant's right to hire private counsel.
â&#x20AC;˘
Deadline, The Alabama Lawyer articles, September edition -July 17
213
Young Lawyers' Section
D
uring the paS! yeilr, the YQlJng Lilwyers' SlX:tion has
successfully served the bar
ilnd the public, rh'lnks II) the ICl.Idership and effort s of its officers and executive cummittee members, These
aUDrllCyS have be!"!n «!lflcss In giving coun tless hours of work and truly
have made possible the contributions made by the secl/on. Q((iccrs and el(·
ecutive committee members include Ch<lrlie Mi xon, Mobile, presidentelect; N. Gunter Guy, Montgomery, S(."(;relilry; J(ln1ei Anderoon, Montgom-
ery, !r"'asurer; J. Bernard Brannan,
Jr.,
MonlgomcJ)', Immcdlme past presldell!; Percy Badham, Birmingham, grants chair; Presion Bolt, Mobile, an· nuul SeminM 011 Ihe Gulf, arrangements chair: Laura Crum , Montgom-
ery, bar admissions chilir; Edward A. OC(ln, Mobile, di s(lstcr I~gal ilssiSt.1nce c hair; Ronald Forehand. MontgOmery, Senior bar adminiStrMive lIaiSOr' chair; D. Patric k Harri s, Montgomery, child advocacy chair; 1-1. Thomas Heflin, Jr., Birmingham, Issues a((ectlng the leg.11 pro(esslorl ch;lir; Sidney W . Jacksoll, IU, Mobile, annual Seminar on thc GuU speaker and progmm chair; Frederick T. Kuy· kem;lall, lit, Birmingham, ABAlYLS Ii" ison c hair; Lynn McCain, Gadsden, con stitutional bicen tennial chair; j . Terrell M cElher'y, Blrmlngh:.m, publications chair; Keith Norman, Mont· gomery, Youth legislature judicial prog(;Im chair; John Plunk, Athens, bylilwSchair; Jilmes P. Reil, Birmingham, <litern(lte d ispute rescltltion chair; Stcphcn A. Rowe, Birmingh<lm,
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continuing legal edl.lc.uion ch:.I(; Colleen M . Sanlilles, Birmingham, domestiC abuse chair; James T. Sa sser, MOrllgornery, public rela tions chair; Stephen W. Shaw, Birmingham, Law Week chalri Rebecca L Shows, Birmingham, legal services to th e elder. Iy chair; Amy Slayden , Huntsville, local bar liaison chair; William H . Tr(leger, III, Demopolis, law student liilison chilir; <lnd Iilmes 1-1. Wt!tlermark, Birmingham, meeting arrangements c hair. WithOut thc collective efforts of th is group and their commi tment to the betterment of our bar, the progress enjoyed this year by the YLS would have been impossible. Al so in order ilre th.[lnks to s t;J IC bM '>resident Bill Scruggs, who, in his term of office nevertneless found time to enCOurilge the aCtivi1ies of the YL S, and to the board of bar commi ssiOnerS and Alabllma Stilte Bar staff fOr th~lr SUPl>orl.
HIGHLIGHTS OF 1986-87 YEAR Continuing Legal EdUC<1tion-FOf the fl rsl time, the YL.S co-sponsored with Cumberland School of Law and the Young Lawyers' Division of the AI~A a bankruplcy seminar in Oclober 1986, hdd in Birmingham. Tneannual Bridge the Gap s~mlnar, co-sponsored by the YLS and the Alabama Bar Institute for' Cor\!lnl.llng legal Educalion, wa s expanded to a two-day fo rmat (or tnc March 1967 seminar and included il work shop in whiCh a hypothetical facl situation was discussed
C laire A. Blac k YlS President
by YLS Executive Committee members Tom Heflin and Keith NOr"r"l'larl and 1 h~ topic speaker, Drew Redden, of Birmingham. The Conference of tne Professions was held in Aprill96 7 1n Gulf Snores. YL S CLE Chairman Steve Rowe WilS assisted in the planning and implementation of this seminar bv YL S past President Rimdy ReilVes of Monlgomery, who has been active in p resenting Ihis semi nar since its inCeption. Public Relati ons-Jim Sasser o f Montgomery wa s responsible for d issernlnalir\g In(ormat!or\ about YlS commi llee membcr'§ and activities. His committee also is coordinating e(forts for publlcl:l!ing the various celebra tory events of the bicen tennial of the Constitution, culmina ting September 17, 1967. Additionally, Jim Wil S llppointed to tnc state bar Legislative LiaiSQn Committ(lC, where he Wil S in contaCt with b.1r President B,II Scruggs and bar Executive Director Reggie l-lilmnN, Bar Admissio ns Ceremony-Each year, the YlS spon SOIS the two bar admissions ceremon ies In Montgomery for new attorney admillees, Mont· gomery chair Laura Crum was respon sible for ccordlnil1ing .111 aspccls
July 1987
of both C'o'eflts, ncluding addresses by gu~ speake" at the luncheon folla.ving the Induction o( the admittees into the 1>.1r. In October, Circuit Judge Inge P. Johnson spoke at the iUr'lcheon, while In May, N. Lee Cooper, delegate from Alabama to the ABA, served as speaker. Constitution 8icentennial-Lynn McCain of Gadsden chairt.>d this commi ttee, which set'\lCd as a clearinghouse for Constitution bicentennial activities, Including production o( a play about the First Amendmen t, "There's Trouble Right Here in River Cily.N She was assisted In publicity efforts by publications chair Terry McEllwny d Birmingham, who prepJrcd all of the publicity for use by the media. Annual Seminar on thc Gulf-Cochaired by speaker and progr'lIll chair Sid Jackson {and arrangements chair Preston Bolt, and aSSisted by President-elect CharllL' Mixon, all of Mobile, the May seminar al the Sandestin Beach Resort was wcll-attended this )-1!at. This eYenl W,lS COoSllOflSOred by tlw Alabama Bar Institu te for Continuing Legal Education. In addition to two halfoday seminars, there W.lS a golf tOUfOilment and band pJrty featuring "The Soul Practitioners:' an alllawyer band. Friday, the firm of Hnre, Wynn, Newell and Newton Sp(ln~nxl n poolslde cock tail party, and SalUfday there was another cocktail Pllrty, sponsored by Emond and Vines. Publicat ions-In December, the YLS comple1l..'CI pub! cation of " Law as a Cart.>et:' a brochure designed to In(orm students intercsted in liIW careers, Chair Terry McElheny of Birmingham edited the publication and coordina ted wi th Reggie Hamner to make distribu tion i1vallable through the state bar. Youth l eg islature Judi ci al Program- This year, thanks to the leadership of chair Keith Norman of Montgomery, there wcre a total of 825 lawyers, volunteer Judges, adult sponsors and students partldp.lting In the program. More than 30 teams from ten Alabama ci ties look part in the mock trial competition culmlnatlngln April In Montgomery. By this fall, the committee will distribu te a videotape on the progrilm to be used In recruiting students and prep.lring fOf the mock trials. The vou th Legislature Judi-
The Alabama Lawyer
clal Program has been recommended to the A8A Young Law~rs' Division for its Affiliate Outreach Program to be held In October 1987, and received flrst place in the ABA Young Lawyers' Division Award of Achievemen t in the ~rvi ce-to-the public ca tegory. Grants-The ABA 'fOung LawYL'rs' Division awardC'd Its Affi liate Outrcach ProJect Public Service subgrant to the vLS for the Vouth Legislature Judicial Program, Iilrgely as a result of the combined efforts of grant5 chair Percy Badham o( Birmingham and Keith Norman of Montgomery, YlJP chair. Alan S. Kapit, ABA Young Lawyel'S' Division president, announced the full amount requested by the YLS was approved. legal Services to th~ Elderl y-Birmlnghl1m chilir Rebecca Shows worked with Ihe senior bar commhtee counterpart prel).1ring a resource manual (or the elderly, to be dissem inated to senior cltl:cen centcrs a~ other locatioos in order to better Inform the elderly of Icsal offices in their commun ities In which they can seek assistance. ABA Young Lawyen' Oivision appointments-ABA Young Lawyers' Division chaiq>erson-clect William Hubbard recemly announced that nine of Ihe YLS offi cers and Executi~ CommluL>e members had beeJ"l appolJ"llcd 10 leadership positions In the 'roung Lawyers' Division for the year 1981-88. They are Pcrcy Badhelm, assistant cdi tor, Member Net; Claire Black, vice chairperson, public service sub-grant program ~ffi l i3te outreach; Laura Crum, Barrister and Law Practice Notes, Estate Planning Section; Kei th Norman, vice chairpe"SOn, p~law counseling; Terry McElheny, communlcilUOlls; Steve Rowe, Real Prol>erty Exec u ti~ Committee; Jim Sasset communications; StC\lC Shaw, Law Week: and Rebecca ShO'NS, legal services to the elderly. In addition, Jim Priester of Birmingham will be serving as chairman of the Ethics Commillee and on the National Conference Team of Affiliate Outreach Programs.
UPCOMING YLS EVENTS The YL$ has planned events (or July 16-18, 1987, at the stille b(lr annual meeting at the Riverview Pla:ca, Mobile.
Following the Thursday afterl'lOOn business meeting and election 01 officers. the YL$, in coojunction with the Mobi le Young ~rs. will host a party from nine until midnight aboard the u .s.s. Alabama. The cost Is $5 per l>erson . On Friday the YLS will sponsor Ihe "Update '87: Recent Developments In the L.'lW" seminar. Steve Rowe and Mary Lyn Pike served on the 1)lannlng commit tee for the event, whleh last year drcw more than 700 attorneys. The forT1'lat for this year's eYent witt Include the following speilkers and topics: 8111 Scruggs, 1987 tort reform legislation; ~nden Mitchell, other legisliltive updates: Larry Clark, practical effects of lort reform on defendant's practice: Sonny Hornsby, practical effects of tort reform on plaintiff'S priletice; L.B. Feld, taK reform: what every practitioner should know; Frances Hare, Jr., recent Alabama Supreme Court decisions, civil cases: David 8yrne, recent Alabama Supreme Court decisions. criminal cases; Bob Prince, marital liIW update: child custody and visi tation; Gary Huckaby, a summary of recen t disciplinary actions, rule changes and dcYelop. ments; Clay Alspaugh, Insurance practice (rom the 1)lalntlff's viewpoint; and Bert Nettles, insurance practice from the defendant's viewpoint. Six hours of continulnK legal education credi t will be given (or attCrld.'lOce at the seminar, The cost Is Included In thc registration fee (or the cooycntion and will Include a handout. Charlie Mixon will assume the office of YLS preSidL>nt at the annual meeting. He Is a very capJble, enetgetlc leader and has proved to be of Invaluable assist· ance to Ihe YLS. If you are lInder the age of 36 or ha~ been Ucen)C(i less than three years and would like to playa P.lrt in the YLS. now is the time 10 cont3Ct him for information at 4)2-7'662. •
Give this copy to your secretary.
235
row. left to right: Percy Badham, luhn Plunk ancl Sid 1,1Ckjoll. In the middle row wert!: Terry McClheny, lim Sasser. Cunter Cuy, Amy Slayden, ClaIre Blllck, Rebecca Shows and l..1ura Crum. In (he back row were: Charlie Mi1Dfl, Tom Heflin, Pol l Harris, ,urnes Anderson, Keith NOfman IJnd Bernie Brannan.
AI Ihe YLS Cxecullvc Commillee Mcclin8 In Sandesfin were, frol1l
Among those associated with the \Milker Counly Bar Association's A..>Oplc's Law School wt'TC allorneys lim Brooks (fronl
row.
far left), Chairman IMJrren La ird (Ironl row, center) IJnd Richard Fikes (/rolll row, far right).
236
July 1987
Legislative Wrap-up by Robert L. M cCurley, Jr.
The 1967 IOJ:lular session of the Icglsl:llurl,! ha~ secn tort reform as Its primary interest, The house of rcpn~scnl" l i"'es
ill>l>roved nlnc of the len bills backed by the Alabama Busine5s Council (see Alabamil Lawyer. May 1987). The on-
ly bill not I禄sscd reduced the stJlute of Umi, .. 'ions (or 1983 ilctions. The senate, with some amendments, passed Ihe houS(' bills and returned them (or r<1lifil;ation of the changcs.
These bills make 5ubstanUai chungcs to the exisUng law. Anyone wishing a copy of any of Ihe bills should write
John Peml>crton, Clerk of the HouSe, Room 5 12, Alabama Slate Ho use, Montgomery, Alabama 361 30, or call 261路7637, The bills ;Ire ilS follows:
H. 432- Medical malpractice This bill provides a cap of $400,000 (or pain (lnd suffering and $1,000,000 in wrongful dealh '<ISM. abolishes the scintilla rule and establi shes a ~Iandard of " clear and convincing evidence" as the burden of proof. It l>rovidt.'S that future damages may be Ih'lld in periodic paymerl1S at thl;! discretion of the trial court. This is a very comprehensive bill and con tains additional sectIons. H. 24 15 a constitutional amendment lo .... rlide XII, section 232, provi ding fOr the venue for suits against foreign Corporations that arc nol quaHned \0 do business in Alnbama blll nrc to be trcntc.>d the same as domestic CorporO'ltions. This bill was passed unamended by the senate. H. 25 provides that a judge Is authorized \0 tr,)tISfer a case to another county for the convenience of the parties Clnd wltncsse~ or In the interest of juslil;e. This bill does not apply \0 pending or child custody cases. H. 26 gives Allrbama judges the authority to refuse OUto(-sHlle cases on the basis of convenience or Inconvenience 10 the parties, but once the case Is acccplLod, the Judge C(ln transfer It to the most appropriate court. This bill wa s not amended by the senate. H. 27-PunltiYc damages The bill establishes a cap on punitive damages of $250,000 unless there Is a pattern or practice of intentional wrong conduct or conduct involving actual malice. It further C'Stllblishes the burden of proof to be clear and cOllvinclng evidence. Any poniUve damage award musl be reviewed by the Judge In a postjudgment hearing. It setS forth that there can be no punitive
'I
The A/aOOm.. LDwyer
damages against the Slate of Alabama . This bill is exclusive of the mt.odical malpractice bill and does nOt apply in wrongful death cases. H. 28 aboliShes the CQllateral source rule to allow the jury 10 be Informed of medical bills and lost wages tha t have been paid by a third p.'lrty, It also permit! thc jury to be informed If the Injured I)arly must reimburse any insurer or his employer (or any payments he receives. The bill does not apply to any pcrtding cases. H. 29 abolishes the scintilla rule and substitutes the substantial evidence rule. It also does nOl apply to any pending case. H. 3 0-Frivl)lou~ lawsuits The bill allow ~ the court to assess court costs and iluorney's fees against a party or the party's aUomey If the court determines the ca~ to lack substantial justification. The judge, at his discrerion, also may assess attorney's k>t:S and Coorl costs agajn~t the defendan t for frivolous defenses. This bill will not be enforct.od against Ixmdlng Suits until 180 days after the effective date of the act. H , 81-Structured settlements This but gives the judge the discretion to spread the payment of future damages oycr a period of years, but does not apply to wrongful death. H. 82 ellminat{!s the 10 percent penalty imposed ag.llnst defendants In civil cases who appeal and lose in the appellate court.
Aooerl L. McCurley. Jr.. is the dlftJCtOf Of/he Aleb8m. Lew InslrlUIO 8/ IhO univel$ity 01 AlabBm8. He received his undorQr8duaie and 18 ..... degrees lrom Ihe UniV/1rsily,
237
These tort reform bills bil<:ked by the governor, lieutena nt governor and speaker of the house are not the only bills limiting rIJCCl'.'ery. Other tort reform bills introduced include a statuTe of limitations against architects, engineers and builders, and another provides basically th e same limitiltions ilSilinst materialmen. Addi tion.;!1 bills introduced prO\'lde prott"Ction from suits agaln~t offi cers, board of directors and trus tees of nonprOnt corporations and org.,lnizatlons; Umlt liabili ty agai nst state employees; and amend the Good Samaritiln Act to prOVide (;ivl l immunity to physicians, medi(;al and nursing sta ff and hospital s in emergency siluatiMS arId provide immunity to school pc~onnel. The repeal of the dram shop Inw and limitations on recovery againS! the vendor has been proposed, while there is 1:1 bill providing for civi l immunity (or Ore marshalls actIng within th eir duties. A legal malpractice bill has been introduced prarallCling the medical malpractice bill.
law Institute bills The Alabama Law Institute has the (ollowing pending bills befall;! the legi$lalure (See Alabama Lawyer, May 1987): The Uniform Guardian and Protecti ve! Proceedings Act, S.B. 134,
1-1.8. 233 Tradesecrets, S.B. 83, H.B. 333 Deeds in Uell of Foreclosure, S.B. 141, H,B. 107 Redemption of Real Property, S.B. 14 2, H.B. 111 P(1.vers C(lnt~ lncd 11'1 MOrtgages, 1-1.8. 143, N.B. 284 L.awye~
assisllegislalive committees Kei th Norman and Will Givhan have
servt.'d as St,l (( ~ 11Orneys to the House Judiciary and House Ways and Means Commillces, respectively. The legis lii t ur~ continually has had the assistan ce of the legislative Reference Service; however, Ihls Is the first l ime In recent history that house committees obtained outside counsel. Keith Norman is "on loan" from the law fi rm of Balch, Bingham in Montgomery while Will Givhan is from the Mobile law firm of l"iand, Arendall, Bedsole, Greaves and Johnston. •
"8
Introduce Your Clients to a Valuable Service. Ri:fcr them (0 Business Valuation Servi ces for expert deter\~l.llU! of businesses, :lnd fin:mcial analysis and consulrarion in ca~:s of:
mination of fuir market
o Estate plmming o Estate settlcmcnt o Marital dissolutions o Recapitalizations o Employee stock ownership plans
0 Bmlkntptcy proceedings 0 Mergers or acquisitions 0 Buy-sell agn.-clUents 0 Dissident stockholder
suits
Contact Or. John H , Davis, ill 4 Office I'ilrk C irCle. Suite 304 • Binninghrun, Abba.m., 35223 1'.0. Box 7633 A • Binningh:un, Alabama 35253 (205) 870-1026
BEABUDDY Wllh th" nllmber of rMlW Ul1orneY5 ulCr"nsu,!! !md 111e nurnber III jobs d'-OCreIlSnl[l. mIlre Imd mIlre ul1orney~ <Ire gains into prlH;lice on Iheir own und mrSf thu oone fit of II"" cOu ,~Iir.y of mort;!
IlKp!;l,iiln~ild
pm.::t ,tioners.
The Alabama 5u)!\! Bar Commitlee on Loc::al Bur
~
Activilies und ~rvic", It 'I)OnSOrl''9 {' "Buddy Pro· grllm" 10 prO\lide tlI!W(! r bar members II fellow;J lawyer lhey ma~ con&ult if thuy con/ronl (I probtem, rleW 10 Mk II qucstioll. or simply Wllrlt direclions 10 lhe cour1house. If you ~rt,l 8 Iav.y\i'r who IWI rilcenlly begun 11 prac trce unci would like to moot a lJwy(lT m yuur ilreilto c(ll1 on
I
1
occlIsio,..~11y fQr II hand, or II yOtJ IIfIl lilt;! mote expe· rienced proctitioner with valuable mform,:.lion unci oov,,"e you'T(l w,lIing 10 , h.(ue. pj<:lISe complett;! {md r.;tlt"rl rhe for m below YOIlr partie jp;!tion in Ihis llrogram will ceT1l1inly benelil rile bar as n whol\!.
Local Bar Activities and Servi<:es Buddy Program Application Nume
Firm Name (if ;:applic lIble) _ _ _ _ _ _ _ _ __ Addre5! _ _ _ _ _ _ _ S tille _ _ _ _ _ _ _ Zill _ _ _ __ C it y Teleph"nll _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
D New LaWYll r
Please re turn to: Alab"lllil Still!:! Hilr, P.O. Ho~ 4156, Montgomery, AI" Q;lIn,l 36 tOl,
July '987
Bar Briefs Sweeney eit.ocled oHice r of National School Attorney Board Donald e. Sweeney, Ir., a Il..lrtner In the Birmlnghilnl (trm of Rives & Pulcoon, has been elected secretary-trea surer of the 19-nlCrl'lbcr boilrd 01 directors of the Council of School Attorneys. The coun-
ellis a major Componenl of the N:nional
School Boards Association, head(IUa~cred In Ale:<andrla, Va.
Thcoouncil has 2,100 members ;md 21 affiliated state councils, and selYl}~ as II fo rum on practi c~llcgal problem s faced by attorneys w ho <Ire retained or em-
ploy('(! by local school diSlriClS. A l1'If!mber of the Birmingham, Ala-
Corley
bama and American b..lr aSsocialiollS, Swccnev also is presi dent and founder
of the Alabama Counci l of School Board Attorneys [lnd sta te chaIrman of the Na路 tional Org;mi1.iltlon on Legal Problems of EduCiltion (NOtPE). He recci'oUl hi$ law degree from the Unlven.ily of Ala-
bama.
550,000 schol.lI'ship fund honors Cumberland Dean Donald E. Corley A $50,000 endO'Wt.'(\ SCholarship fund honoring the late Cumberland School of lllW Dean Donald E. Corley has be(!n established at Samlord University. Cumberland alumnus Steve Whicker Ilresclltcd the c;:he(k to Jeanette Corley, widON of the dean, during a Cumberland Nlllional Alumni Association luncheoll ilt the school In March. Corley served as de~m of the law school during 1974-84; he died Del:ember 1986. Interest on the $50,000 prinCi pal , which was contributed by alumni and Cumberland faculty members, will be used to provide scholarships for Cumbedarld stud(!nts. lerry w. Powell named general counsel for Cenlral Bank of Ihe Soulh Jerry W. Pov.-ell recently was named general counsel for Cermal Bank of the
South. In addition to his responsibilities as lIl!rHl rill counsel for the direction o( the! compll1lY's 1C!g.11 and regula tory aff.. lrs through Its legal division, f'tMoell ..Iso will sUIX!rviS(! the bllnk's ri sk management arId complianct! St!Ct ons. Pawell joined Central Bank in 1981 as counsel and assist,lnt secretary; in 1986, he WolS named associate general counsel of Central 8ilnk and Centrall1ancshares of the SoUlh, Inc. A muivc of Montgomery, Povvell received his undergraduate degree from Birmingham Southern College and law degree from the University of Alabama, He served as a clerk to the Honomhle Scybourn H. lynne, ~nlor United Sta H~S Db trlct Judge, ,lnd as an assoclme In a Birmingham law firm. He Is a member of the American and ,\Iilbama State bar associations. Dawson named 10 lOP While House poSI RolX!rt K. Dawson, ~S5jStant secretary of the Army for Ci ... i l Works (ASACW), has been apl>olnted to scrve as associate dlrC(;lor o( the Qrlice of Managcml!nt and Budget for N3Iur.l1 Resources. Energy and Science <ltthe White House, and a ~ sumed his nev." position May 4.
Da\YSon will be responsible for the mill11'rgcmcm and budget of thc OCllartments of Agricuiturc, fncrgV and Intcrior; the fnvlrOllrncnlal Protl,.'(tlon Agency; the Council on Environmental Quality; the National Aeronautics and Sp.l ce Admini stration; the Tennessee V,llley Au. thority; the Nuclear Regulatory Commi~ sion; and other ilgencles. Dawson also will be responsible for his present agency, the United States Army Corps of En81nce~. In all, he will have responsibility for IS agencies with a tot,ll budget of over 550 billion and staffing IlM!ls of more than 200,000 positions. ASACW since May 198", Dawson is the youngcst person {''\ICr to hold that I>osition and has served in the Office o( thc Assistant St"CI'Ctilry of the Army (or silc ~ars, longer than any Prt'Vious OCcup'lnt. He Ilreviously scr.ul as Deputy Assistant St."Cretary of the Army. Prior to his service with the Army, Dawson was AdminIS,,"Itor of the Committee on Public \M:}rks and Transportation in the U.S. House of Represcntiltives, ilnd WilSlegislative assistan t to U.S. Rcpresentative J..lck Edwards.
law school gives Prince lOp award Tuscaloosa attorney Robert Prince recently was named l'l'!'Cipient of the Uni.
239
vcrshy of Alabama Law School's most prestlgl()\IS <.I wilfd, Prince wa s presented the Bench al\(I Bar MOSt Outstanding Alumni Award, based on COn tinuing (;ontrlbutlons to the legill commwlity in Alabama. He al so was presented th~ Dean's Award for hi s work wi th student tri al adVOCiU;y te(lms. UA law School (acu ity members wh o received awards included George Peach Taylor, who wa s 8i~ n a spedal trial ad. vocacy award presented by the Birmingham law firm of Hare, \lVynn, Newell and NeYlton; Frances M cGo--,.ern, w ho recel .....>d the Dcan Thomas W. Christopher Award, presented to recogn ize lasting <:Ontrlbutions to tnc benermem of the law school; and Nathaniel Hansford, who recei~ the Sludent Bar Associ<ltion OutsHlnding Faculty Award.- The Tuscaloosa News
Cumbe rland sludents lake top in nalional mock Irial competition
honors
su mmer Institute al PrinCfl ton Unl~rsl Iy June 21-July 31. The sl1(-wc<!k insti tu\(!, Rc!1igi on and Western Political and Ethical Thought, Is supported by the National EndO'Wment for the Humanities. The insti tu te assists college teachers in integra ting the insight of major WHslcrn rellglous trad ltions into courses in poli tical theory, \NeStern clvllizatlon, intellectual hi story and ethics.
AI Cumberl'lfld, M anning leaches a law and religion seminar, and has taught a law and morality seminar. An ordained minister of the Uhitl;!d Church of Chri st, M anning holds advilneed law and theology degrees from Boston University. He also hBs a master's degree In I........ ilnd society from the University of Denver, and has been a member of Ihe Cumberland facu lty si nce
1973.
•
1987 Bar Directories to be publi shed in August $15.00 per copy Mai l check to: 1987 Alabama Bar D irectory p.o. Box 4156 Montgomery, AL 36101
Students representing Cumberland School of Law, Samford U niversity, placed first in national mock trlil l COn'lpetition sponsored by the American Trial 1.1~f$ Associa tion In Washington, D.c., in April. Thc Cumberl ~ nd team, coached by Judge lames O. Haley and Michael V. R.c15musscn, defcated law studcllIs from the University of S~ n Diego in the fina l round of the competi tion . Cumberland had qualified for the national event aflcrwinnlng regi onal eliminations. The eight regional winners were narrowed from a field of 87 te(lm s vying for the nal lonal title. During the natiOnal finals, th e Cumberland team arguc!d both sides of a ,:atif.! involving a suit filed by a college bdseball plil)ler who had been hll in the heild by a baseballthra.vn by a player from an opPOsing tl.'<lm.
Cumberland professor chl)sen II) alte nd Princeton institute R. Ki!nn eth M anning. Jr., a professor £It Cumberland School of l aw, S(lmfom University, wa s among 24 coll~ge teachers selected to partici pate In a sl)(,.>(ial
240
July 1987
Riding the Circuits Auta uga County Ba r
Association The Autauga County Bar Associa-
tion observed law Day by sponsoring a poster contcst for all fifth. graders of AulllUga County. The theme of the conlcst was "\PVc the People." In addition, the bm presen ted 10 the Aut:lug!l.PrJl1Vllle
Public Library an updated IICrslon of the McGraw-Hili Encyclopedia of Science and Technology in honor
of Bill Newby, a member of the b.lr for many years, who recently passed away, and also In observance of Law Day, The bar association, under Ihc guidance of Cindy Funderbunk and
with Ihe assistance of thc bar auxl· liary, held Its fi rst arlnual cook-oul and softball game on thc night of April 30 at Newton PJrk In Prallville. The members, ((lmilies and guesls of Ihe bar associ(l!ions of
!\u!iluga, Elmore and Chilton coun· lies (19th Judicial Circuit) gJlhered aI the Ramada Inn In Praltvll le, Alabama, In honor of retired preSiding Circuli Judge Joe Macon. Judgc Macon was hOllored fOf more thun 20 years of scr.lce 10 Ihe circuli. Those auendln8 the C\lCn! Included retired presldln8 Judge Joseph Mullins (lnd the cur· rent presiding judge of the circulI, Walter C. Hayden, Jr., as \.\ell as Ihe entire famil y of Judge Macon.
•
ludse Ferrill 0 McRJle, U.S. Deputy ~fomey Genera/Arnold to Burns, U.s. Auorney kif Sessions and MBA Prcsidem Ma rshall J. DcMouy (Mobile Bat ..... Uoci3fion)
The A/,1bama Lawyer
241
Colbe rt Count y Bar Association
Thursday, July 16, 1967
Mobile
SECTION MEETIN GS SECTION
TO ~,m,·nQ(ln
I.OCATIO N RIVERVIEW PLAZA M errimac I
Environmental Law Family LlIw
Alaball1~
II & III
Labor Law
Alab<lmo III
Lillg1llion Oil, GM and Mlne",1 Law
Planlallo n I Alabamil I Merrimac I & II
Ali1bama II
tnw YOUrlg Lawyers'
Pl anl alion II Mcrrim'lc I & II
Al ilbnma I
2·5 p.m, Adminhlralivc Law
ADMIRAL SEMMES Cryml A
B~nkrulll Cy
Crystnl C
;md Commercial L"w
Torts nnd Antitrust Law
e l f credi t: T.O-J ,O c~c h
Sheffil!ld Vict-Pres ldent; Terry L. Mock, Secreta rylTreasu rer~
In celebration of
John Kenn emer. Tuscumbia !..lW
Oily '87
and the Bicentennial anniversary of
3:45·S; 15 p,m . Corporai lon, Banking and Bu~im!SI liIw Criminal Law Real Property, Probate ~nd Tru st
6uslnes~
Presi dent: Gene Hamby.
Tuscumbia
2-3:30 p.m.
T:a~mlon
AI the February 1987 mL>(!ting of the Coloorl Coumy Bar Assocla· ti on, th e following o((icers were elccted for Ihls year:
Crystal B
the United S tdt~ COnStitution. the Colbert County Bar Associa tion sponsored a mock trial enlitled "SI.1Ie 01 Mellow VS. Elslon Ncddy." Honorable Inge Johnson, circuit Judge of the 31st j(Jdici(l1 Circuit. presided over the (jctici ous murder trial. and $eniOr high government! economics students participated as wi tnesses and Jurors. The event drew a capacity crOYld of students from aU six ~hool sys tems In Colbert County, Bryce Graham. Sr., former clrcuil solicitor for Franklin ;lnd Colbert County. p;lrtici pated as prosecutor and Jim Stansell, ilttorney in Muscle Shoals, represented the defend,mt, Elston Neddy. The Law Dd)' Comminoo wa s comprl ~ of Terry L. Mock, chal rmarl, JOhrl Kcllr'lemer. Steve Gargis, Billy U nderwood, Bobby Baker, Alan Gargi s and Jim Stanscll. In addition, many members of the Colbert County Bar Associalion 11m sooking 10 hOlve leglsl:llion passed providing the Colbert CounIy LIlW library with additionill funding. MemberS of the Law library CommittL>e arc Gene 11amb')!. John Clement. H OII. h'lge Johl\sol1 arld Vll\ce McAllister. The Colbert County 83r Asso(iIJtion ;llso is pl<ll1l1il1g to hold 11 continuing lega l educati on semi· nar during the summl,lr month s.
Huntsville·M adison Count y Bar Associatio n The Huntsville-Madison County 8M Association and the North Ala -
242
Ju ly' 987
bama Chapter of the FederJI BJr i\ssoclalion celeblated Law Day having the Al abllma Supmme Court, en bane, be a part of the festivities.
u,.
Thme was a reception honoring the court the l'VCni ng Qf Th\JfW(lY, April 30, 1987, at Huntsville's Von Braun Civic Cenler, and the receplion WJ S attended the Justices, bar members and their guests.
u,.
On the mOl'nlng of May I, Douglas C. Martln5Oll, presideot-eloo of the H untsville-Madison County Bar Ahoclatlon, welcomed the court and then .1 civil ilnd a crim inal case were argued before the courL There wa s a large audience of lawyers, sludcI\\s from Jurllor civic clca sses of alt local high schools and th e general public. Upon completion of the oral arguments, a rell&ious ceremony was held at HUlllsville's First B<'lptiSt Church with scriptures read Justice Corm,ln Houston and an Inspirational talk I:Yy Reprcscn tmivc Ronnie Flippo. United States Represelllative for th e Fifth D istri ct of Alabama. A barbecue dinner fo llowed In the fellowship hall of the church.
u,.
Mobile Bar Associati on
Walke r County Ba r Associa tio n
On Friday, May 1, the Mobile Bar Association celebrJled Law Day with iI Red Mass, luncheon and open house In both floderal and state courthouses.
The Walker County Bar Assoclalion held annual elections April 24, 1987, and the new officers are: Prcsidenl: 1Ce,,1 J. Wllwn, Jaspcr Vlce-presltJent: G. WJnen Laird, Jr., J/lsper Secrt.'lary: James Piltrlck Thomi15. III. Jasper Trcil~urer: RIc;h.1rd £. Fikes,
The RL'Cl Mass W.'IS conducted by the Archbishop OSCiH Lipscomb, and ilppro)(lmillely ISO attorneys, federal and stille judges, filmllies and friends PCIrticip..lted in the celebration deSigned specifically for l udg~, lawyerS and court of· flclals 10 Invoke God's blessing and guIdance on th e admlnlstraUon of justice. Ovcr 250 auorney5 and guests attended the lunch(.'On to hear Deputy Auorney General Arnold I. Burns. Burns is the >econd highest rank ing offlclal in the United States Department of Juslice. From 1960 to t985 he was a practicing allOrncy and chairman of the Management Committee of the 2()().memoor Willi Street law f'irm of Bums, Summit, Rovln$ .5< Feldesman.
Guided lOUrs of both federal .md SltlIc courthouses were conducled In the afternoorl, concludlnH Law Day '87 in Mobile.
,..""
•
SENTENCING ALTERNATIVE PLANNING Our Oolonle Pro-Sen tllnce In~e1ltlgjlUone:
Carry fl~o rl b tlw elgh t In thO slIn toneIng dect~lon. Or 85iMo 01tho ludgel who reed them • Mlntml ze polen l l~1 polt·con~lctlo n problema ' IncOfP<Hatl 'IIltlCll)eted c hing •• In f. dl ' I ' "lntl nct ng prllctlce, • tnctude e .entenclng recommendation and. wilen apprOl)rlllll. l " l rnltl'l" 10 Incarceration
•
Sentencing and Parole Consultants Nallo"lt Leo,1 S'I'IItcel 710 Lak. VI. w ... ~."III. Altl"'l. GA 30308 CrI ll now: 1 ·800·2 ~ t.Q09&
M
b 2. .
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The Alabama Lawyer
243
Memorials
These
n olice~ are reporl~ of
ately lifter
I)ublished immedideilth are
recei~.
Blographicallniormal ion nOl appearing
In this Issue will be published al a latcr
)'QU
to promptly report th e death o f an
Alabama allorney to the Alabilmil $ tll l e Bar, and we would ilPpredate your assist-
dale If inform ation is accessible. \/lie ask
ance in providing biograph ic.11 infor mation for The AI"bllma /.:Jwy{'r.
Albrillon, James Marvi rt-A ndalusia Admitted: 1950 Died: March 26, 1987
Molloy, Daniel Wilson, Jr.-Mobile Admitted: 1976 Dierl: Mart;h 22, 1987
Gibson, While Edward, lr.-Birmingham Mmined: 1930 Died: April 30, 1987 Hall, PC!\Cr Alfonso-Birmingham A.dmilted : 1948
Died: August 1, 1986
Herbert, lule Remberl- MonlgumNY Admitted: 1936 Died: Februilry 17, 1987
Hines, lJmes A.-LaFayellc Admitted: 19J8 Died: M arch 18, 1987
Lee, Alto Vela, III- Dothan Admhwd: 1937 Died: May 8, 1987 Lindsl.1', Wallace Henry, Ir.-Butle r
Admillcd: 1932 Died : January 18, 1987
2<14
Perrine, Kenneth Tilcy-8lnl'linghan"l Admilled: 1928 Died: April 9, 1987 Reese, Charles Thcodore--OatC\lille Admitted: 1948 Died: October 31, 1986 SanSOne, Aldl, J a m~-Mont g(lm li ry Admittt.'(/: 19(i8 Died : June 14, 19B7 Thrower, lames Tennyson- Dothan Admitted: 1938 Died : May 5, 1985 Traeger. James Watson- Montgomery Admitted: 1979 Died: June 11 , 1967 Winston, William Overton, Ill- Vernon Admitted: 1976 Died: March 27, 1987 Zeanah, Olin Weatherford- Tu scaloosa Admi\led: 194 9 Died: March 18, 1987
\IIO \
IIIIU
AI"b"ma losl a giant in the legal pro(C!ssion when Alto V. Lee. III, passed i.tNiJY May H, 1987, after a lengthy bout with carl cer. A dCYOted alumnus of the University of Alabama and Its law school, Lee bcg.1ll his lifelong practice of law In his homt"!town of Dothan in 1937. He served in vir. tUil JJy every important leadership position in the state and local bar aSS04;ial ions. I-Ie wilS a past president of the Alabama State 8ar, Ihe Houst6n County Birr Associa tion and the Alabama Defense Lawyers' Associa tion . While maintaining a general prilctice of law, his t)el'5onill preference lilY in the arena of the courtroom . He was a skilled orator and a ma51er of trial ta ctics. tee"s Skill s h:.>d to his induction as <I Fellow in the Amerlcall College of Trial Lawyers and membership In the International Saciety of Barristers. lee's strong advocilCY of his I>rofession wa s no less zealous than his devotion to publk service. He served as a member of the state I~gl s l a ture and chairman of both the Alabama State Docks Board and the Alabam a Ethics Commission. Service to his community was exemplified by his membership on the Dothan Board of Ed-
July 1987
ucation, the Dothan Recreation Board, the Dothan Rotary Club, Ihe Dothan Chamber 01 Commen::e and !he National f'eilnut Fe5!iVilI. Lee wa~ immediate past prC!Sldcnt of the board of directors of the Alabama~t FIOI'ida United Methodist Foundation, Inc., and honorary member for life of the adminlstrJtive board of the First United MctiYxllst Church of Dothan and had served as pre5ident of the board of directors of the Dothan BenEM)lent Association, a local charitable foundation. lee Is survived by his wife, Rosa, and three children; Mrs. Heldt F. Neal, ttl , (Elizabeth) 01 Columbus, Georgia; William l. lee, III, of Dothan; and Mrs. B. Michael Watson (MargareO of Dothan. The sta te, his community and ovr le8<ll profC!Ssion has lo~ a d~led $ervanl, but his lesacy and service to mankind will endure (or years to comc.
violation of the Alabama Corrupt Practices Act. The case finally wound up in the United Slates Supreme Court where that section of the act was declared unCOflstl tu tional. Perrine was it SunQiIY school teacher and lay preacher for Handley Memorial Pres~terlan Chur(h and iI co-founder of lind teacher at Shades Valley Pr~byteri a n Church. He I<lter became a member and teacher at Mountain Brook Baptist Church. Survi\(1)r$ Include his wife, Martha PerrIne; sons Kenneth t PI'f'1'ine, Jr., of Jasper, and Dr. George Perrine of Birmingham; and a daughter, Martha HCM'CII, of Cartersville, Georgia.
KENNETH TILEY PERRI NE, SR. Kenneth T. Perrine, Sr., it Birmingham attorney for allnCKt 60 years, died April 9, 1987. ric was a mCllllJcr of Ihe firm o( Kracke, Thompson and Ellis. Porrine grilduatcd from Phillips High School and attended Rhodes Collcgc In Meml)hls. In 1928, he graduated from the University 01 Alab,,'1m.l School of Law. He was one of the original boord members and secretary of the Birmingham Downtown ImproYCment Associiltion, which formed Operation Nc.'W Birmingham, and was active in many civic 01'8<1nIZatlons, havIng been a member of the Downtown YMCA since 1915. Perrine also was a member of the IJIrminsh<lm B<lr Association and thc AI,tbama State B<lr. Among the most well-known of his cases involved a l1lW5uit brought against Ihe Birmingham Prm-Hefilld (or publishing a IlOtltical editorial on election day, November 6, 1962. The paper endorsed a switch from a commission TO a mayorcouncil form of ga.ernment fOr Birminghom . Perrine rcpre$entcd the paper, which was accused of electioneering. a
The Alabama lawycr
' \\11 " \I,~\t'
""~tlll"
James M.1rvin Albritton, a prominent attornl!y In And .. lusia, died Mar(h 26, 1987, at the age of n. 80m In Andalusia In 1915, he was the senior partner In the firm of Albriltons, Givhan & Clifton, foundl.od by his gr'lndfathcr In 1687, Albrl tton was a graduille of the Unl· verslty of Alabama. ~n d following his discharge from the Navy 11f\l.'1' 'MJrld W.u II, he returned to the slate to begin his study of the law. A nlenlber of The Farrah Order 01 Jurisprudence and an cditOf of The Alabama Law Review at Ihe Uni· versity of Alab..1ma I..lw School, he recci\ll..od hi s law degree in 1950. Active In Ihe legal profession on both local and state ILwls, Albrlnon was
known and respected as a man d integri· ty and Intelligeno:!. He WojS a past president of the Covington County Bar Associa Tion, ~rved two terms as a delegate from Alab.lma 10 Ihe House of Delegates of the AmCfican Bar Association (lnd three tC!rms as a member of the Board of CommissIoners of the Alilbama Slate Bar and the State Bar Grievance Committee. A Fellow in the American Bar Foundation, hlil also was a member of Ihe Alabama Defen~ ~I'S' Association, currently rorving as a vlce-prC!Sldenl and director. He WilS a member of the International Association 01 Insurance Coun· sel and the Alab.lma Court of th~ Judiciary. Albri tton C)(emplifkod a family belief that service to one's church ilnd com· mUnity, as well as to one's profession, W,l Sthe fou ndation upon which to build a successfu l tife. He WilSa member of the First Pres~t ertan Church of Andalusia and the Alldalusia Rotary Club. He was an active member of the oo.lrd of John Knox ManOl' and seM;!d on the Alabama CommisslOfl on Higher Education, having been appointed by Go>.emor George wallace. The law fi rm d Albrlttons, Givhan & ClifTOn (Iillebrated its centennial March 21 of this year. The tOilst given by Albrl t· ton's daughter In honor of thc Orm and its senior panrlcr follows: ';.\5 a chi ld, I always felt a speciill pride In my heritage. Even though It WilSnever loudly proclaimed, I, as did all the child· ren 01 the firm, shared a special knowledge 01 being surrounded by good men -strong and decent men. Their quiet actions shapi,od our 11\II.'s, and, If we are suc· cessful adults, it is because.they gaYe us the tools 10 build good IJ'JC!S. "This law firm has always stood for Integrity, honesty and c(lun l Justice undflr the Iilw for all men, no matt!!r wha t their Sf.l tion in life. To that 1would propose a toast. "I also offer a lOOSt 10 my father, Marvin Albritton, a man to whom Integrity, honesty and equal justice under the law were alw.lyS black or whit~, and never shade5 of gray." S\,!rvlvors include his daughter, Emily Albrinon Hill; son·in·law, Dr. Kenneth li llti fin d t¥.U grandChildren, Alice and Bcn I·iil l.
245
District Judge's Education Committee. Winston also Wil Sa member of the Lama.r County Cattlemen's Association, the 24th Judici,,1 Circuit Bar and the Al3bi1m" Slate 8ar. He was a member of the ~r· non First United Methodist Church. Among his survivors are his wife, Beth Etherton Winslon o(Vernon; a daughter, Allison Win ston, also of Vernon; stepmother Maxine Wins ton of DcKaIb, M ississippi; one brother, Charles Anthony Win stl)O of Mon lgom~ry. Al; tWO sisters, Matg.ltet McGough of Houma, louisiana, arld P.llrlcla Ann Win ston of Mobile, A labama; and five nieces and two nephCW5, •
\\1111\\\ () \\1""10" III
Former L,.l mar COUlllY DiSirlct Judge w ill iam O. Wi nsto n, III, died Friday, M arch 27, 1987, d uc 10 Injuries recei'.'ed In a Imffle aeeldcm ncar Filyettc. Winslon, 37, WilS a gradu;l1e of Ihe Uni· versl ly of Alabilma and Auburn Unl· versl ly. He seM!d one yetlr as " sslSliInt d istrict "ltorney for Ihe 24th Judicial Ci r· cu it comprised of Llmilr, Fayel1e and Pickens counlies in 1977, and wa s al>poin ted diwlel judgc for lamar County by then Gov. George C. Wallace in 1978 10 fiU a v.lean~ He wa s eledcd 10 a fu ll slx-year term In 1960, He served two lerms as president of the Lamar CounlY chapter of the University of Alabama A lumni Association; W.lS a past p resident of the ~rnon Kiwanis Club; and had served as vlee president of the Alabama Juven ile Judges Associ,,· tlon and as cl1alrman of the Alilbilma
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July 198 7
Alabama State Bar
BOARD OF BAR COMMISSIONERS' ACTIONS April ), 1987, Montgomery, Alabama Present: Commissioners Thornton, L. Jackson, Ret.'Yt!s, Hamner, CrownO'Y'er, Coleman, F. Hare, Hill, Cassady, J. H. Jackson, Harris, CIIl, L. Manin, Milnley, Ba)(Jey, Garrell, .... Ibrltton, Huckaby, Vinson, Brassell, Chason, McPherson, Knight, Bedford, 0, Martin, Mams, Proctor and Alexander; paSt President North;
-
Secretary Hamner; General Counsel
-
Morrow; staff members Jackson, Pike and lacey. A!)sen t; Commissioners liJrncr, Love, Watson, Laird, Head, Casa, C. Hare,
-
Wood, Jones, Boswell and Owens. The board: -
aPf)fOYl!d a~ wrincn the minutes 01
-
hs FeblUDry 6. 1987, rnci:fing; -
admlnis!cn:ld one private repflmaoo
-
by a \()Ie d 1410 ll, tOlbilod II resolu-
lind one public censure; tlQn exp~lng WI>l)()f1 fof the 1Mlil· ability of legal ~rvlces and for can.
-
-
tloucd funding for tho lellal SerYlccs Corpor"lon; authorized l7intin8 of II drug abuSt'! i\W~rcness b'OChure for U$ll In the Uni ted States Attorney's ~Northern Di)trict) PI"OIrilm; accepled a resolution mourning the death of Mobilo bar member WII. liam E. lohmton; Instructed that a rtl'SOlutlon moornIng the tk>ath of former booltllTl(!ffi. ber J. Marvin AllHitlon be prep.lred: rt«i~ The !!!port of the Permanent Code Commission recommeocllng
The Alabama Lawyer
-
adoption, in who'e and P.lrt, of the American Sar IInociation's Model RultM of Professional CondUCT; \/Ote<! thoUcertain changes be made and the rt'jlOrt reconsidered at Its May 15 rr.e.!ting: received the final draft of II p~ posed uni form arbitration act, amended seakm 210 and toolc no fUrlher actlOfl; received a report on the le3i~lati"" FliCal Office's eva uatlon of The Ala. bama If'\digent defen5l! s~tem; If!Ctti'R<i copies 01 billS known as the ~ciYil justice reform padQge" aocl dec;1ded to meet again on April 15 to esfablish The bar's positiOfl on them; lC.'Ceived the secretary's rt!pOI1 that preliminary second quarter figures Indlated the bar's rwenues were $49,628 over pro)ooions and ex· penditures were $34,)93 uoder Ihe amO\lr\l budseted: received the report that 110 pOlicies co.oerlng 278 attOm(."fS ~re written by tIll! bar's endQrsed professional liability carrier be\'M!e1l December 5, 1986, a!'ld Marth 2S, 1981.
April 15, 1987, Monlsomery, Alabama Prescnt: Commissioners TUmer, Thorn· ton, l , Jackson, RceYes, Hamner, Crown· over, Coleman, Watson, F. Hare, Hili, Cassady, Harris, laird, l , Manin, Mtlnley, Head, Baxley, Garrcll, Huckaby, Cosa, Vinson, Brassell , C. Hare, Chason, Wood, McPherson, Jones, Knigh t. Ow-ens, O. Martin, Ada MS, Proctor and
AlcxMder; x'CfCtary Hamner; p<lSt Presi. de nt North; Yl S Preside nt Black;
Lcgls)ntlve Counsel Mitchell. Absent: Comrnlsslonc~ Love, J. H. Jackson, Gill, Albritton, Boswell and Bedford, The board: - apprO'o'ed IS written th@mlnutesol its APfIi 1, 1987, meeting; - etected QtlCOIlt.1 lolW'rti Hugh A, Na~ to the Coun of the ludiCiary; - accepted lI!SOIutlons mffl\orialrling deceased bar mf!mbf!rs ZI't;:k Rosers. Ir.. and w,JllilCc H, lindsey, Ir,; - u,. voice VOle, expressed Its lUWOf1, III prlneh)!e, of modillc.tlon of the doctrine of klrum non convMiens: - fC(eived reportS from Chief Justice TOlbert and coun~ admlnl ~t r,llOI llapley on m~ttelS 01 mutual Interest to the bench al'ld bar; - by \/Oice vote, gave the preslder'lt Iluthorlty to speak and act In the mlltter of tort reform, authoriled him to consult the ei«!(vlive com· mlth.:e lind others deemed Ilppra. prime and rcquestL'(1 th~t he com. munlcate nllY ncgotlmed position ~hlfts to the board In wrl rl ng. for 3d. Ylce nnd consent; - unanimously COnlern:<! upon the president authority 10 allCml11 to inIlucnce ton reform legtsiJllon In 3(. coltlilnce with the Ylews and com. menlS of the ~1tI: 1.
The leglslmlon mLST 1M! con· STITutlonal, both ~s to the United Slates Conr.titution and
247
2. ).
the Constitution 01 .... Iabama; The leslslallon !hould not unnecesl;1filv oYerlllP Into other existing ~Iiltules; Tho !esislation shooid U~
lantlulgc already defined un· 4.
der prior Cilse decisions In Ihe Slate 01 Alabama; The Itglslmlon should be In
d.
harmony with the Alabama ~uk'S of Civ il Procedure and
the Alab., ma Rules of Appel. late Procedure as es\~bjl5hed
e.
under the Judicial Anlele of the Constitution
S.
01
Alabama;
The Jeslsl3110n Is 1M most technical, brQllOOsI and mosl selioo~ kind oIlesl~lal lon Ihal can be Imalli/lCd because "fleets e.<ery cl!l~en, and eYefY citizen is bOIh a poIential plaintiff and a potential defenc'arlt; The social costs of Injunes lind ffilu ds afll always paid by somebody; ei ther the victim, the llu1hy Jwty or the public thtoogh welfare and charhy; Arf<I changes by the legislatum Inv.lrlooly mu~t lake Into con· slder,arion the Imp.l(I of the legisla1ion on all pans of thl! clvlllu~ice ~yslcm in Alabama; The presem Constilulion, !datula and rules should remain al tht'Y are. e!cepIlor the foUGPoYlog chllngt5: a. Sc:lnflllalule The sc;Jnlllla rul~ should be abolished In f,IVor of a substallhal evidence rule. b. ~nue Venue ShfWld be proper only in a county where lhe CONnt occu,red, an IndlYldu.a1 defendanl IiYeS Of a deleodanl COl" por;ltlon doM business by agent. el«:ep( IMI an oot-o(· stale cOlpotatlon which h.a5 falltd to qualify with Ihe ~lI!t;lry 0( ~Ic to do busl· ness In Al:!bl.Ima could be sued in any county as long as ~\al non-<lualifiLod cor· por~Ilon Is and remains Ihtl only defendan t In Ihe CII!te. c. Forum non cOrM!n/ens If I case could be b,ought in mOle than one county. the trial court should h:Ml the authority to fl'KM! the caloe 10 aflOlhef l>rOPer COUnty lor the cOflYE!fllence 01 the partL'" The COfM'nlence 01 Individual IAlrties should be glYl.'fl some preference ~r the cOflYCnlence of COlpo. r,llC Pilrtles. AI.so. If a case arlsts under Ihe laws of another state fOI an £!Yellt that occulrLod in another
't
6.
7,
8.
".
f.
wate. the courts In Alabama should ~ II'oe authority to decline to hear Ihe ca!te at all, unless the plaintiff agrees 10 ha-.<e the cas<! tried In the most COlMl'fllenl county In Alabama. Stalulc of Limilatlons The ~UIIUII.l of limi tations for ciyiI righls claims should be reduced 10 two \'I:arS. CoJlalcr~I.source rule ThIs rule should be abolished In part and modified In part, t:xctl>l n wrongful death cases ... here II should remain as Is. The amount the plalnllff h~ s been paid or will cerulnly rccelYe In the future flOl1l outside parrlet !.hould be admls~lblll in the I,lal of the c~, bUI only If the plaintiff claims thlll Polrlicular type damage. The COSt to the plaln!llf of obmln!ng such oulslde Parments also would be mlmlr.sible at the Illal 01 the case. The fl..>deral and staHl income ta~ Impllc.llions 01 11 damage;r.yard to Ihe plain. liff should flO( be ildmltted inlO evidence unless d\C Wlt Implica tions 01 a damage aYlard asaln~ the defendant also are ildmilled Inlo cvj. dence; SlXlal security benelits or paymen ts neYel should be admissible. frlv%uj (faims, dc(c:nsm and IlpPNls There shoold be both ~ statute and a rule of Ciyi( procedure and a rule 01 appellJtc procOOure which will provide, In esr.coce. lnat the trial coon 01' Ih(l aPPl'Umu coo t! may assess ~ COSI$ and penal. lies to p.lrtles If they file or pursue frivolous claims. d&lenses or alJPCals. II the coun assesses penalties or the carre Is dismissed by agrCem('nt of thtl partieS, or If Ihe (;~~ IS $(lllled, Ihen thill should (;on<:lud(l Ihe m:lllel; on OIh(lr hand. If the trial Of' 3!>PCllate court has nol Imposed penalties and the case has not been setlled or di$ffllssed, then Ihe dal'Nged p;lrty should haYe the right to fiII'l a ~ral(l suit if a <:Ialm 01 a defenloe or an appea l haS been frl volous or ground· less. Fif;:rI!ious /Jarly prac· tlce The pre~l!t rule of fictitioUS parties should be abolished, and a new lule
Inc
8,
for uniden tified palties should be .adopted , In essence, ~ny PolITy to ~ 1;IWo sull should haroe a period c:J 001 less Ihan one .,,:~, flOl1l Ihe filing of lhe cilse In which 10 add U'/>I additional pilrty dl scOYln'd to haYe btoen IflYOIYI!d In thc cla im, This would help provent ex· tra parties from being addL'<I In Ihe Inl tlol suit. h. PuniliV(l comaSi'll' All yc(. dlcts for punl!lYe dama!j.es should be seplfale ycrdiclS ('0m ~ny COmpenSlllory damages. There should be no caps. ehher In dollar fo,m or /annulas. but the meaSU/tl of,>rOoi requ ired shou ld be fa lsed from lhe p~nt Hreasonably !Olti~ fied " ~tandard 10 a "clear ,1Ild cOI'IYl f'lCl n; proof" stan· dard (beilr In mind the scin· tilia ru Ic also is abol ish(od). Additionall y, all punltiYC domage awards should recelYe a neulral I1lYlcw, both by Ihe trllll (Curt and ap. pellale COUrl wilh the pow. el o(bofh the trial cOUll and appellate COin to modify any punltlYl:l ~m;t8e 1IWJ1d.
The pIt!St'f1t la.v In Alabama thaI any lury \erdlct is pmsumed 10 be completely COlrett unless It Is "patent. Iy obYloosly" wfOIlg should be abolishLod In f,lYO! of the nC\ltral rt.'''''cw system. Afler Ihe lury YCrdlct of any PUll' ItlYe danlagcs, both the trial COUll and the ilppt!lIate courl lhen can fretly reaS5/lSS Ihe n.lliJft', extent and Imp;tCt 01 such an ;J¥Iilrd, I. MedlciI' malpraClke There is no nc.'Cd for a law Ihlll giYeS specIal pi lvlleges O( special SlilM 10 the medical profession, esPL'Cially in Vl tlW of the fact thai olher ( hMBcS In Ihe torI IIIW ob~Iously will apply to doc· 101'\. To curc soma abuses and l)roolCflli III malprac· tlce claims ~galnSl traditional professlomls ldocl~ dentists, ~nDlneys and CPM), the following ~Id be adopted: A sertCfi'l1 S1~ lute 01
IImllatlons oitwo (2) ye~1'J, sb (6) month5 after dlKOYery or fOUl (41 ye~rs malll· mum; IIl1rrllatlon on thc number of IlIler. rollatOlles ~nd deposilions; a sequential
luly 1987
d ,~ry rule senlnll out th e order In
.... hlch diKC:M!ry Is dont: by lhe plain tiff and the defendant; and ~ sener-II Statute ~;\bllshlnlllhe qU;\j.
I.
- rev iewed tort reform legl,Jmian passed by the Alabilma Senate; - adopted 11 ~utlon memorializing the late Honorilblc \o\IIlIam 0. \o\IInSian, III; - aPf)f'Q'led the bilr's 1988 Ir;wel pro. 813m, to be offered by INTRAV; - chose two bar members to ~i\OC Ihe !xl!", 1988 awards of merit; - adopted the [(!port 01 the Commit· tcti on Progrilms and Priorities, di scontinuing three comml ttel!~, changing "task (orces" to ~actlon groups,~ ~qu l rlng board apprQY;l1 prior to establlshnlCnt of any comminees and action IltOUps, allowinll the Incoming presldcnt-elect to appoint vice chairmen, changin\! the committl!e"S nilme to "Committee 00 Continuity, Progfilm; and Prior· ities" and reducIng its membership to n\OC; - elcv;,tl'.'d the "President's Nlvlsof)' Task Force" to a standing commit·
Icy, Carrett, Albritton, Gosa, Vinson, Brassell, C. Hare, Chason, \Nood, McPherson, Jones, Knight, Bedford, D. Marlin, Adams, Pl'OCIor and Alexander; 1m· mediale past President North, Secrelary Hamner, staff mem~ Jackson and Pike.
Ifico1lloos of expert .... lltleSscsln all mal· Il'ilctlce claims.
Absent: Commissioners Turner, Rccvcs, Hamner, F. Hare, Gill, Huckaby, Boswell and Owens
Com rlbulOry negligcnce
To put Alaooma in line with we should ab olish "cont ributory nellllllence" as a dcfenHl and iKloptthe well·known ~i1ndilrd of "comparative negligence." - discussed personnel 'Nners In an l!XeCutllle session _ unan l mou~I ~' adopted a resolution requesting the gowroor, lieutenant goYefoor and speaker of the house 10 llive audience to the positio n of the Alabama Stme 6.1r as articulated by Its president.
The board - obHlrved a moment 0( silence In memory 0( /XISI president "ito V. lee, III, who died May 8, 1987; - administered lour private reprl. mands and two public censures; - ap"f(M.-d as wrinen the minutes 0( Its April IS, 1987, meeting; - electOO Michael D. WdIL'f1 as baretamlner lor o ne UnlfOfm Commercia! Code 5CClion and aulhorlzed Ihe exec\ll ;~ committee 10 atl for the board In nominating alld elect· Ing an additional UCC l'x.1mincr and an (:quily jurl!prlJdence ello.1m· Iner; - adopted the AlT\(!rlcM Bar Associ· ation's "Model Rules of Professional Condvct,~ with amendments 10 Rules 1.5(a) lind 15(e), and fotwafd. cd them 10 the s~eme court;
Olhe r ~W le5,
Ma y IS, 1987, Montgomery, Alabama Presenl: Commissioners Thornlon, l. Jackson, Crown(M!r, L.o.oe, Coleman, W.n· son, Hili, Cassady, Harris, Laird, I.H. Jackson, L. Martin, Manley, Head, Bax-
Il't!;
- learnLod Ihat the prtsld~nt had apPQinted Commlsslonen John Hoi· lis Jackson and lynn Robertson Jack· SOn to certify the resUltl 01 the upcominll commissioner election; - conducted an execut l~ sessioo where peoontICl mattet5 were di scussed. •
MEMBERSHIP REGISTRATION ALABAMA STATE BAR- FAMILY LAW SECTION The Family L.w Section of the Alabama St(lte Bar is commi tted to Improving the practice of filmlly ilnd domesti c rclllllons low in Alabama. Plcase join us by regi stering tod.1Y for membership. (Section duC5 ,Ire $15,) 1. ___________________________________________________________________________ N~me
:
Addren: Telcllhone Number: ______________ 2.
Arc you willing to assist in monitoring Ihc Ilrogrcss of pcndlnK leglslillionr yes' -_ __
No' _ __
3.
Are you wliling to write art icles (or th e section newslenerl
No, _____
4.
On which committees would ~u like 10 scrw? (Program, Legislalive, Nomillatlng, Membe~hl ll, NLwsleucr, ContinuIng Leg,ll F.duc;.lIion) _____________ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ __ __
S.
What SOiIls or alms ~houtd thc section havel
6.
Other comments and suggestions: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Yes
PLEASE MAIL THIS RESPONSE AND YOUR CHECK TO: Membership Commlut'e-Famlly taw Section State 8.1r . P.O. Sox 2141 • 6Irmln8h~m, Al 35201
"Iab~m~
The Alabama Lawyer
249
Disciplinary Report Te mporary Suspe nsio ns • Mobile lawyer Samuel Roberl Urooks, III, W<l5 orderoo temporarily su~pended (rom the practice of lilW, under Rule
3(c), Rules of Disciplinary Enforcement, dfL'CIiVl! April 23, 1987.
Public Censures • Birmingham lawyer ChiUk'S Eugene Caldwell was publidy ct.'nsured I)n AI)ril 3, 1987, (or havll18 engaged In
willful misconduct and conduct adversely reflecting on his fitness to practice law, In violation of the Code of ProfCH/onal
Responsibility (J( the Alabama Slale Bar. Ca ldwell pleaded guil. ty 10 (1) havins ass..lulwd two fcllOYo' lawyers, on I'M) occasions \lna (2) having threOlcned to kill one of the ilSS<lult victims,
who had filed a civil suit against Caldwell for ass(luit and bat· tery, if the victim did no1 drop Ihe I~uit. (ASe No. 84-1991 • On May IS, 1987, Mobile lawyer M ajor E. M adison, Ir., was publicly CensurL'd fOr willful neglect, and for Intentiollal failure to seek the lawful objectives of a clien t through reasonably available means, by having accepted a reminer to represcnt a client In a civil matter, and then having failed to file suit on the client's behalf within lhe lime allowed by law. M adison pleaded guilty to hewing violated Disciplinary Rule 6-101{A) and Dist;lplinary Rule 7-101(A), of the Code of Pn)fC5sional Responsibility of the Alabama State Bar. [Ase No. 85-4891
• Boaz lawyer larry W. Dobbins waS publicly censured for willfully neglecting the handling of an es tate mailer, In violation of DR 6-101(A), despite having beell previously censured bot the bar. on NO".'Cl11ber 30, 1984, in case No, 84-53, for willful neglect in the $all1e mauer. [ASS No. 85-1371
Private Reprimands • On FridilY, May 15, 1987, an Alabama lawyer received private reprimand for violation of Disciplinary Rules 1-102(A)(4) and 6-101(AJ. Tht:! DiSCiplinal'Y CommisslOl"l dmermlnctJ that the lawyt!r had undertaken employment In a cer· ;1
tain matter and failed to timely file a lawsuillO protect his client'$lnlereSI and h"d misled the cllent as to the actions actually taken by the Iawyl!r. The commission dclermlned that th e lawyer should receive a private reprimand for willful neglect and mIsrepresentatIon. [ASB No. 86·2611 • On Friday, May IS, 1987, two Alabama lawyers, practic' Ing together. received priVilte reprimands for Violation of Disciplinary Rules l-l02(A)(4), 1·\o2\A)(S) and 7·I02(A)(5). The Disciplinary Commi ssion determined thilt the 1(IW)\!rs In question hild improperly obtained an ex parte adjudica tion of a motion pending before a circuit court in the Slat!) and had, with kn(PNledgc that the ex ptlrte order WilS Improperly entered, afflrmatively pled Ihat order In a related proceeding in another county. The commission dcu:mnlned that Ihls conduct Involved diShOlll!Sty, fr£lud , deceit or mlsreprescntatlOlI, wa s prejudici al to the administration of Justice and that Introducing the improperly obtained order In a I)arallel proceeding constituted a fal se statement of law or fact. The Disciplinal)' Commission determined the lawyers should receive a private reprimand for these violations, [ASB Nos. 86·119 (a) & (b)] • On April 3, 1987, a lawyer was privately rellfimanded for conduct advcIWly reflecting on his fitness 10 practice law, for his failure to pf(lVid(! the Disciplinary Commi~sion wilh a response to a complainl thaI a client had filed against him, alleging, in essence, a breach of confidence Md neglect of a legal mattcr entrusted 10 him, despite his having received IhrC!C scpara te written requests from the sla te bar, asking that he respolld to the complaint. [ASB No. 86-187] • On May 15, 1987, an Alabama lawyer received a priVilte reprimand for violation of Disciplln<lry Rule. 6·IOI(A), 7· 1OI{A)(2) and 7·IOI{A)(3) of the Code of Professional Responsibility. The DiSCiplinary Commission determined that the attorney h"d dismissed a civil <lction in feder<ll cOurt withou t obtiliningthe I)rior consent of his client. The commission further found that the attorney faih:.>d to adequately advlS<! his client itS to the stalus of the case during his rcp.'eSt:!l1Iatlon of her. [ASB No. 86-644] •
Update '87
RECENT DEVELOPMENTS IN THE LAW Alabama State Bar Young I1twyers' Section 8:30 a.m.·4:30 p.m. Plantation Ballroom, 2nd Floor Riverview Plaza CLE credit: 6.0 250
luly 1987
Classified Notices FOR SALE FOR SALE: Xerox 400 Tctccoptcr (manual machine). Uses normal telephone standard three-prong receptacle. XeroK 400 designed primarily for general of· (jce use; hOWC\er, small enough 10 be
porlable. InquirIes call Laura Bush, (20S) 262-1&00, or write P.o. Box 1402, Montgomery, AliliJilmil 36102. FOR SALE: Complctl.' sct of Mertins Law of Federill InCOme TaJlMlo"; exceUent condition and up-to-date. Con-
Christy Cubclic, (205) 322·0616, 1100 p.uk place Tower, Birmingham, Alabama ] 5203.
CAPITAL CITY LEGAL PLACEMENT, Suite 200, 133 Carnesie Way, Atlanta, Georgia 3030J. ATTORNEY IOB S-NlIt ionaJ <lnd Federal Legal Employment Report: highly regarded monthly detailed list· Ing of hundreds of attOrney and IIJWrelated Jobs with U.S. Government, other publldprivate emplO\-1!rs In WashIngton, D.C., throughout U.S. and abroad . $30-3 months; $50- 6 months. Feder.ll ReportS. 1010 ~rmont Ave., N.W., 1t40s.AB, Washington, D.C. 20005. (202) 393-3311, Visa/MC
til!:;!
FOR SALE: Alabama Reporter (So. 2d) Vol umes 33 1·493 In 55 books (1976·1987). Contact William E. Skin-
REfERRAL ATIORNEYS: probate, emphasizing aUlomarion, fees tommensurate with time. Send resume to David Scull, B401 Cunnecticut Ave., Cht.'Vy Chase, Maryland 20815.
ner, Suite 501, Hill Building, 73 Washinglon Avenue, '4ontgomery, Alab<'lma 36 104, (205) 265-0201.
POSITIONS OFFERED MEDIUM·SIZE ATLANTA, Georgia, law firm seeking an attorney with two to (our years' cxperiem;:e In Iitlgiltion. V\brk wllllrWOll1:! rC!pf\.'Scnt in~ defendants and Insur~nce carriers. Must assume file hand ll n~ responsibility and work directly with clients. A,l,llicants must be graduated In the top 20 pertent from an accredited law school. rorward resumes to Rell Perkins, Bavls, Kyle & Burch, 53 Perimeter Center East, Aliantll, Georgia 30346.
ATLANTA Openings for nnorrl(YS with 1-5 years' excellent experlence In: Com· mercial and Residential Real Estate, Tax, ERISA, Llbor, Securilies, General Cor· porate, Commercial litigation. Candi. dates must have outstanding academic and professional credentials. Strictly confidential. Susan Penny Cohen,
The Alabama La"yer
SERVICES EXAMINATION OF QUESTIONED Documents: HandWriting. typewriting and related examinations. International· Iy court-QlJillified expert witness. Diplomate, American Board oT Forensic Document EXilmineBo Member: Amer. Ican Society of Q uestioned Document E)(amlners, the International Association for Idc!ltificatior\, rhe British Foren· sic Science Society and the Niltlonat Association of Criminal Dcfen~ lawyers. Retired Chief Docurllcnt Ex..1mlner, USA CI Laboratories. Hans Mayer CI· dion, 218 Merrymont Drive, Augusta, Georgia 30907, (404) 860-4267. FIRE INVESTIGATIONS (or attorneys and insurance companies. Our firm specializes In fire, (rilud, ilfSOfl. subro-
gation and surveillance. Insurante background. Qualified in state and federal coul1. Rc!(ere~~ and rates will be furnished upon request. lames E. Posey, Jr., and Linda F. Hand dJbJa Investigative Services, 4849 10th Avenue,
N., Birmingham, Alabama 35212 (20S) 591·1164
VALUATIONS/fAIRNESS OPINIONS Closely-held Businesses, Banks, Pro(esslonal Practices. For ESOPs, GIfts, ESlale Planning, Shareholder Disputes, D is~ lutions, Economic Loss. Experience with hundreds of Cases and many in· dustries. LiIIg."tion Support. Court Testimony. Calilwrite (or our Newsletter, Mercer Capital Man.:lgement, Inc., 1503 Union Ave. 1201, Memphis, Ten· n(.'sst.'e 38104 (901) ns-01S2 BUSINESS APPRAI SALS Expert, professional, confidential. Expert testimony if necessary. for details contact: Donald F. Richards, RA Financial Serllices, P.O. Bux 7016, Greenllille, South Carolina 29615. Phone (803) 292·1450. MEDICAL MALPRACTICE and per· sonal injury: record review, investiga. tion and medical illustrations: Peggy Smith Anderson (a professional corporation) can proYide a detailed report on the strengths and weaknesses of your personal injury and mediul malprac. tice record. Fourteen )'Col,!' medical experience with risk management ",nd quallty assurance traIning (or the health care proYlder. p.o. 80x 19598, New Or· leans. louisiana 70179, (504) 4840;1'5 18; 1203 7th Aile., Laurel, Mississippi 39440, (601) 649·5916
LEGAL RESEARCH HELP EXI>erienceQ attornt.'Y, member of AI"buma Bar since 1977. Access to law school ard ~til t~ liM' libraries. lAl'SIlaw available. Prompr deadline service. $3SlhoLlr. Sarah Kathryn farne ll, 112 Moore Building. Montgomery, Alabama 36104, 2777937. In Jefferson and Shelbr counties, call free: 322-4419. No represenl.Jfion is made about the qualify d the legal services to be performed or 'he exper· tlse o( 'he lawyer performing such services.
251
Classified Notices NOTICE POSITION AVAILABLE FOR FULL-TIM E
UNITED STATES MAGISTRATE The Jud icial Conference 0( tile United
Stmes of America has upgraded the part· time position of United States Magistmte at Hllntsvllie. Al abama, to a full-time posi tion effcctive raU 1987. Accordingly, there w ill
be II Wicancy for the poslllon
of (ull·time United Slates Magis trate In Ihc United Slates District Court for th e Non hern District of Alabama with an of·
ficla l duty station a l Huntsville, Alab..1ma. The person appointed will serve an eight. year term commencing in fa ll 1987.
Duties of the oIfi(e ~f(: both dern\lnd· Ins lind w lde-rllnglng ilnd Incl ude: {I}
the conduct of all initial prOCI!(.'<iings includinll actcPl"nro of complaints: 'S-
suance of mrest warrants or summons-
es; IssuanCI! of search warrants; co n·
duct of Initial appeara ncll proct.·....dings for dcfcudants. luformlns them of their rights, I m posl ~g conditions of release and admlnlng defendants to bail; ap. polmmcm d anorneys for Indlgcm defend:'r'l ts arld conduct of preliminary trulmlnatlon proceedings; (2) the trial and disposition of federal misdemeanor cases wi th or without a jury where
the dcfcudant COl'!rems 10 trial before the maglstr'l le; lind (l) accept.lnce of grand Jury returns, conduct of arraignments and hearing all prt1rial m(lltcrS llrld motions. In civil cases, the dUlies Include: (1) the service as a special maSter In appropriatO civil casts; (2) the reo,.lew of appeals from finnl detemllnMlons by admlnlstralive agencies, such as tho§(! under the Social ~'curi ty Act and simIlar stmutes, and Suumiltlng a report and recommendation a~ to disposition of the case to the l.JIlited St.1tcS District Judgl!; (l) to oondutl hl!aring$ and $ U~ mit recommend~Ilons In h/lbeas corpus a"'ons and prisoner pe,itlons chalienglng the coodltions of their confincmcnt; and (4) the conduct of preIrlal and discovery proceedings In any ci vil case on referonce from a United Slille~ Distria Judgt. The b<i~lc jurisdiction of the United State5 MlIglSlrate Is spec;lfled In 28 U.S.c. § 616. To be quali fied for appointment an applicant must: m be a member In good standing 01 the highest court of a state for at least five yt!ars: (2) hiJ\IC been engaged In the 3ct l~ prac· tl, e of l:ow lor a period of at least five years: (l) be cOmllCll!nt to p(!rform alilhe duo ties of theofflce; of good mOf:.1 characler; IlmQlI(lflaI 'Y ~tilble i1nd milture;
commitwd to C<luallustlce under the law; In goOO heallh: patient arld courtI!OUS; and capable of deliberation and d~isi"Cnt>SS; (4) be teu Iha'l 70 ~OIrs old; Hnd (5) nOI be relHled to a Judge oIlhe disIfie;! court . A merll Selt.'c:l ion pa nel composed of anorneys and other mcmhcr!l of the oommunity w il l r/o!Vll'!W aU appllcal\t§ and r{!Commend, In contidenC(', to the Judges of the distri ct court the fl vc persons whom It considers best Qua lified. The court will nmke the appointment, following an FBI and IRS investigation of the appointee. An affi rmatiYe effort will be made to gi~ dlle consideratiOn to all qualified candidates, Including women and members of minority groups. Th e salary of the posi tion is $72,500 per year. Application forms and further information on the magistrate position may be ob'ained from :
Clerk, United Statt.'S District Court NOrthern District of Alabama 104 federal Courthouse Birmingham, Alabama 35203
Applit;illions must be submitted per· $onaJJy by potcnli<l/ nominec$ iJnd ft... ceiv(}d nO laler than AuguSI I, 1987. •
1987 Bar Directories USED LAW BOOKS We Buy' Sell· '!rade L\~sl
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252
To be Published In August
Mail check to: 1987 Alabama Bar Directory P.O. Box 4156 Montgomery, AL 36 101 july 1987
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