/
I
'
\ OJ
Commercial M Insurance p::fc~acf;ce
While some malpractice insurance policies can be an incomplete puzzle ... One company puts together all the pieces.
n iii
la ba ma a ttorneys w ant co verage where it cou nt s! Many commercial malpractice policies contain a penalty-for-refusa lto-settle cla use. Thi s cl a us e ca n be used to force an insured to accept an offer of settlement or, if rejec ted, pay the difference between the offer a nd the ultimate verdict. By contras t, AIM's policy gives its insureds protecti on a nd peace of mind . AIM will not se ttle a case without a n insured's consent an d will not penalize a n insured for refusing settlement a nd going to trial. AIM's poli cy eve n gua ra ntees its ins ureds a voice in selec ting defense coun sel. AIM does what mos t commercial insurers refus e to do: Serve the best interest of Alabama attorney s.
AIM: For the Difference!
D
Attorne ys Insurance Mutual of Ala bama, Inc .... 22 Inverness Center PorkW8Y Suite 3 40 Birm ingham, Alabama 3524 2 路 4820
Telephone (205) 980-0009 ToU Free (800) 526. 1246
FAX (205) 980-9009
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· 1988 Evidence by Schroeder. Noffman & Thigpen Cl 1987 Equity 2nd Ed . T,lley's by J-Iansford Cl 1985 Law of Damages 2nd Ed , by Gamble " '988 Limitation s of Action s & Notice Provi sion s by I-Ioff (I 1984 Workm en ' s Comp en satio n by Hood, Hardy & Saad © 1982 • Inc luding Current Supplement, if 8pplicable •
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The A/,lbama Lawyer
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ON TH E COVER - Feawred is Fort Morgan, the last Confederate fort to fall. Ad· miral Farragu t issu ed his famous command, "Damn the torpc<los, .. full speed ahead," during the Ba tt le of Mobile Bay. Mobile is the she of this year'S annual m<.'Cting, Photogr(]ph by Ed Malles, Photo Options Sto ck Agellcy, Birmingham
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Postmaster: Send address changes to The Alabama la w yer , P.O. Box 4 156, Montgomcry, AL 36101.
Setr~wy ,
Fin~ncial St:<:rel~ry
St~'" lI~r
10 19 $(>Ulh Perry SUt:<'I ' M ontHO~ry, Atnbama 36 104 12051 269· 1515
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P.O. Box 67 1 • 41 5 DeMer Avenue . MonlHomcry, AlniJ;Jma 36 101
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Building Contractor's Reco very for Incompl ete Pe rfo rmance - by Christopher Lyle Mci lwain .......... . ........... .
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Environmen t:.1 con Cfl nl~ h,lVfl now reached the judicial arena. In a se ri~i of nx:ent d&l· sion s, the Alabama Supreme Court has ou tlined its philosophy In thi s area .
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220
- by Ray Vaughan . .......... . .... . ...... . .... . .....
G':nO:I~t
Aulstant
CO\mwl Gener~1 Coun~1
Assll1~nl Genc'~1 Coun~1 A'Sllt~nl Ceneral Co~n~1
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Joim A. Yung, tl,! Ate~ W, Jackson .J, AnlhunV Meh in
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Fref!man
Slrlckland
Cheryl II(lMt,;
R ~n lin
M~lfIO'
July J990
President's Page creativity, for reflection and more imporhis i5 my last column, the final tant, for family and communi ty life. So chapler In what has been for me much of the work lav.ryers do today is one of the great experiences of rou tine and mechanical, o~en without my life ... '1at of \'.Vrking with lav.ryers. hilYing ever mct the cllcn! facc.to-face, Not persons with law degrees, but real thus shutting out any chance of estilbllshlawyers whose blood Is the practice of ing a long·term personal relaUonshlp law and whose life Is an el(tcrnal testawhich in turn ensures clicnt loyalty. Toment to justice. day, lav.ryers rt.'Ceive nles c:J work with On this page over the P<lst year I have deadlines attachtod with the only thankanemptcd not to leccure bul 10 share you a mild critique of the bill. In some some candid thoughls on issues I feel large lav.r firms, lime shccts ~re rt.'COrded WOrthy of discussion. My work this year in IS-minute Increments. COurthouses has afforded me a grealer opportunity 10 are now computerized In order 10 meet IIslen and obset'\IC the practice of law lime stilndards which require that ca~ from a perspective I have nC'v'ef' before (!)Care processed within II designated num· perienced. ber of months. Acti~ trlalla'Wyers literal· One obSClV<ltion Is tha t America Is losly willk out of one courtroom and into Inglis profe5Sionllls. The great sister proanother with no limc to ca tch their fessions of law and medicine are CAIN E breath. As one defense lawyer told me experiencing a dropout rate as ncvcr berecently after completing an eMhaustlng week's trial he fore wltnesS(o(j In this cOuntry. We Me told that enroHment called the claims supervisor to tell him tha t the Jury had In our medical schools across the COuntry is on the decline and that a number of the lesser known schools are acquilled their client only to be told that, "He expeeted that result- they didn't h;r.oe a case a~." closing or h;Jlling to lower standards In order 10 maintain My gr<!atC!S1fear is thai the pressure will resul t In lawyetS a student population sufficient to mcct oper.lIlng costs. turning on one another, on the courts and. finally, on themThe basis of discontent seems to lie In the dissatisfaction wI th the quality of life of doctors and with the failed ClI;seIYL"'S. INc now realize that the public image of the legal profcsslon comes mah\ly from how lav.ryers treflt one pcctiltions of young men and women choosln8 medicine as a career. I fill se Ihls COrlcern because I feM a simililr ilnother and the court. PMt of the cure, I believe, comes from acknowllodglng fate for the legal profession. Though low school applications currently are at an allthat the problem exists and that solutions arC out !hcf'(! and relief is in sight. t believe that the Ume has come for time high, larger numbers of prilctlclnglawyers across the country are dropping out of practice and the reasons seem our b.1r to face the problem head on and to do something to be the S<1me. 6ill<lble hours, fal( machines and high of· about It. Many Slate bars are 5P(msoring retreats where lawyers fice overhead all compound the pressures and demands can get I'tW<1Y to think, reflect and openly discuss the Issue of modern-dily lav.r practice. As one lawyer put it, "There of lawyer dissatisfaction. r beli~ the time has come for are no buffoo anymore." A client calls one day and eM· peets a complicated package of closing documents faMed our bar to undertake such a program. Preaching l)rQfesslonalism will not remedy the problem If thf! thorns arc by lomorroYo' morning. As clients become less and less loy;llto certain lav.ryers and lav.r firms, lawyers hay(! to pronot rcmOYt..>d . "nother observ,l\ion is that lawyers tend to take the state duce to remain In bu siness. There Is precious little lime anymore for Intellectual bar for granted. V>k sometimes forgct wh(l! Justice Holmes (contillued 011 page 198)
T
Executive Director's
Report
Law Firms, Retirement and Thanks Law firms
T
he American Bar Mwd"lion
Board of Governors held Its April meeting in Alabama. As Is euslomary, bar leadel'.i from the SurfOunding
area where the
~ln8S
are held were
Invited. The stall! bar leaderships of Alab..lnm, Florida, Gl'Orgla, Louisiana, MIssissippi and Tennt?iSC!e were included on the guest list. as was the Supreme Court
of Alab-1ma. The Saturday morning pro-
gram was II dual
p!'esenlJllon
by former
Dean Robert McKay of New York University and Tom CI(lY of the Altman &
Well consulting firn. These two speakers
addressed thc changes In the way law Is being praClicoo and made suggcstions to deill with thc future thl'Y sec In Ihe prac-
be new emerging
ticc of law, Their comments could
categorized broadly as
II
professionalism. The remarks of Clay. In talking about law Omls, wen:! p.lrticulilrly Impressive 10
me. He mentlon~ six characteristics of the successful law Onll. I had tlCVcr really thought about what a firm does to achieve the "successful " 101001. Clay emphasized thiJt in the 1990s thest! characteristics would be essenlla' for firm survival. Dcan McKay discussed the recent events where the rncg.1-firms ;lfe dissolving into smaller 40- and 50- I>coon firms and noted the difficulties that $QfT1e of these new firms were facing In their fight fOf survival. day noted that those firms that will survive In the 19905 are going 10 need a cui. ture of their own. They will need to define gools and objectives and engage In strall!gk management. He sees these same firmS as being an external force in their communilies and being clientdriven. The final characteristic that I~
The Alabama LaW}'er
survivors will have Is quality from top to bottom. This includes !;lIene, service, work PI'OclUCl, external support and dient relations. Some of IhMe six charaClcristlcs SCf'm so basic to any SUccessful undertaking thaI I had not really viewed their applicability to law firms per~. These six, how. ever, when overlaid wllh fi rm PI'ilClices In today'S legal market, were certainly ilttention-getters with the bar leaders who heard the presentation, Retirement option The Alabama Stale Bar is representoo in the American Bar A~lation 's House of Delegates 0100 because of Ihat (act, oor member firms and their employees are eligible to p.lrticip'lIe In the American Sar Association 's Members Retirement Program. The ABItA Program provides full-service pension and profit sharing plans (Including a 401(k) feature) Ih[ll include a vilriety of funding options. The program inveslmenl (uoos arc as follows: Guaranteed Rate AccountS Money Market Guarantee Accoonl Growth Equity Furxl Aggressive Equil).' Fund Balanced Fund Real Estatc Fund Today, the program has over S 1.4 billion In assels representing over 5,000 law firms and 27,000 ~111c1pants nmienwidc. The Alabama Stalc Bar has 9,000 members, and 257 are presently parti(;ipatlng In the ASA Member Retl~nt Program. The !>fogr.,m is underwritten and admlniSleroo by The Equitable life A~sur. anee Society. For further inform.. tion on the l:N'ogram, you may wrlle to the Amer. lean Bar Retirement Association, 750 North lake Shore Drive, Chicago, illinois
HAMNER 6061 1, The telephone number 15 (3 12) 983-5740. In addition to the address noted above, I( you would like to discuss enrollnlenl in the program, a retirement program specialist would be avail[lble through a toll路free line. You may call 1-8QO.523t 125, extension 1230. This information may be ol some assistance to those of you who wish to estal>!Ish some type ol penooal rcliremt.'nl plan for you and your firm 's employees.
Thanks on behalf of Coffee County lawyers The gcocroslty of Alab.1ma law finns in helping the Coffee County attorneys whose practices were fIoodOO has been deeply appreciated. Your dona tion of books and law office equipment as ~II as assls\ilnce In nle reconstruction have been most helpful and meaningful. Your acts of kindness have helped case the devastilting losses whleh the members of the Coffee Coonty Bar havt!.' suffered.
197
President's Page (conllnued from page 196) taught us-that a fearless and independent bar is Ihe pride ilnd Joy of every ci .... illz.ed country. Throughout the year I h;l\IC heard law\,€!rS across the state ask,
"What eM the slate bar do (or mer" The question is a proper one and must be answered. My response is that the state bar is every lawyer! common ground, an Ofganized effort to be of service t(llawyerS <Ind to the public whose righls we hold in tru st.
The legal profession Is one of the lasl, if nOt the last, cJ the great professions to remain self.regulatlng. I hesitate \0 think of our profession ever losing thi s independence. Law~rs are, and by their very
nature, independent, clOd the stille bar 15 simply an exten.ion of this spirit. Though we may differ in our thinking as to what is the best appro.!!::h to lake In a panlcu1M si w ation, we nC\l(!rtheless started out together- taking the ~me ~'l l h -and we mu~t fini sh the same WJy.
We have In the p~ st and I hope will in the (uture continue to take stJnds on questions touching on the administl'<ltior' of iUMice. Your bar commissioners have never been timid or afraid to speak O~!I when ci reumstilllCes required their \Qice be heard. I beli\M! every lawyer has a right to be proud of our state bar and should continue to support Its e((ons throu gh the giving of their time and energy, The great questions of IJIJpell(lte coun restructuring, non-pani$(ln election of judges and election of judges from single member dlWicts have not yet been resolved. The underlying causes h~ not gone away and SOI'!'le(/ay must be settled. I have faith that lawyers have the talent and ability to find the righ t answer. Your stale bar will al ways be there to provide the common ground fOf this to be accomplished. Our chi.Jllenge as members of Ihls great bar Is to say, "Here am I, send me:' .
Executive Director's Report COlllin{i(~d
from page 197
If others of you have Items which may
be of assistance to members of the Coffee County Bar, you may bring thi s fact 10 my J\lention <lnd I will communiCilte il to the appropri ate persons in Coffee County.
Congratulations Two slJff members of the state bar are due congmtu l<l!ions for Il!(:ent importal,1 events In their lives. Margaret lacey, man· aging editor of The Alabama Llwyer, became Mrs. Kevin Murphy on May 19. Ruth Strickland at the Cenler for Professional Responsibility has eilrned her masto(s dogrCf' In criminal Justice at Auburn University 1It Montgomery. ..ter degree was conferred June 2. Congl'<ltulations to these two fine employees on special hilppenings 11'1 their lives. •
IOlTA Grants Awarded The Alabama LilW Foundation has awarded a tOlal of $525,592 to 40 applicants in its second round of grilntS. The amount aw<!rdcd I~ more than twice that given last year and will be used to help provide legal aid to the poor, Improve the administration of Justice, provide law-related education to the public; and sUpPOr1 law IIbr<1fies. Funds (or grants ~re providl!d through the Interest On L;!W~rS' Trust Accoun ts (IOlTA) program, which allows attorneys to converl their pooled clien t tru st accounts to NOW accounts. Financial institutiolls tnen forward the interest earned to the Alabama law Found'l!ion. Cur!l!ntIy 63 percent d those attorneys eligible to participate in IOLTA (\redoing so. This is one of the hIghest participat ion rates in the country. A total of $83,350 was distributed to 23 law libraries.
I ••
Regarding the Improvement of the administration of Justice, $170,742 was awarded to silt appllcatlts, The Child Advocacy Center In Mobile, the Madison County Coun Appointed Juvenile Advoca te Program al,d the "TUscaloosa Chi 1dron's Center are projects working with abused children. The YWCA Felmlly ViI)rence Center in Birmingham receivt.'Cl fUI,dhlgtO hire an oo\1Xate to help make victims of spouse abuse aware of their rights and to expl3in to them how to pfOo ceed in the criminal justice system. The Mitig.lllon Progr,l m of the Alabelma PrisOn Project elnd the Alabama Capital Representation Resource Center illso received grants In this category. The sum of S164,500 wa s ;!Warded to help provide legell ~id to the poor. The Mobile Belf Association received fund s for ils pro bono program. Logal Services r~elwd funding to hire allorneys for
domestic violence case!, and Ihe Tuscaloosa Sar Association received a grant fOf its mitig.ltion project. In the ca te gory of l;tw-rel;.ltl,>(l eclU( iIlion, $67,000 wa s awarded. The Birmingham Bar Association rcceMxJ funditlg for a phonll'-in law line. The Association for Retardt.'(/ Citizens received funding to hold work shops (or parents and guardians of mentally retarded adults. Other grantees were the YMCM'oung l.awyers' Section Youth Judicial PlOgfilm, the Big Brothers/Big Sisters of Tuscaloosa, the Alabama Center for Civic and legal EduCiltion and the Alabama Dlsablltles Ad· vocacy Program. These grilnts present ~n example of how IOLTA f~md s ,lfe being put to use. If you are not already p.:lrticipating in IOLTA and would like 10, CO!lIact Tracy • Daniel at {800)392-S66Q.
luly 1990
Bar Briefs U niverSity of Alabama Law Students win national trial competition finals in Denver Michael MulVilney, Sid McAnnally, Denise Avery and Andy \Near, students from the University of Alab;lma, won the Na· tlonal Finals of the Association of Trial Lawyers of America's 1990 National Student Trial AdYOCKy Competition, held April 5-6, 1990, In OcnVCf. The students, assisted by advisor ,lnd coach Bob Pri nce, a Tuscaloos0 attorney, were undcfcalt.'d in all five founds of competition. Eight teams from around the country (IU311000 for the finals by winning a regional competitlon against six to nine other law schools, 67 In all. The learns earning bids at the title were the Univer· sity of Akron School 0( law, Akron, Ohio; the University of Alabama School of lllw, Tuscaloosa, Alilbilma; Creighton University, Omaha, Nebraska; Franklin Pierce Law Center, Manchester, New Hampshire; Gon.l!aga L1w School, Spoki.lflt', Washington; South Texas Collegeof Law, Houston, Texas; Stetson University College of L.1W, SI. Petersburg. 1:loridil; and the Univcrsity of Virginia College of Law, Charlottesville, Virginia. Denver district court judges, county court judg i.lnd Colorado Courl of Apo peals judges participated as presiding judges of the competition . Practicing at· torneys did the scoring based upon the students' advocacy skill s. The second placc winner was the Uni· versi ty of Akron. Semi·flnalists VVCrc the Unillersity of Virginia and Stetson Uni· versity. All teams had to submit a trial brlcl as well. The winners of the brief writing competition were "merican Unillersily W,lshlnglon College of I.tlW, W;)shington, D.C., first place; Creighton Unillersity, second place; and \o\btern NI!W England College School of Law, Springfield, MassachusellS, third place.
The competition used the fact p..1Uern from an actual civil ca;e irwolvlng a man who was severely burned when the protective clothing coveri ng his street clothes Ignll/xl .
Sweeney elected chairperson of na· tional school attorn ey group Donald B. Sweeney, Jr., a parlner in the IJlrmlngham Orm of RiYCS & reIerson, has ococn elected 199()"91 chnlrl)erson of the Counci l of School ""orn(1'y1, a major component of the National School Boards Association, headquartered in
Alexc1lldrla, Virginia. He SErved the Pi'st ~iH as first vlce-chalrperson. Sweeney represents 2] school systems in Alabama; he will serve also as an exofficio member of NSBA's 24-membcr board of directors. He received his law degree from the University of Alabama. A member of the Birmingham, Alabama Slate and Ameri. can bar associations, Sweeney also served as president and founder of the Alabama Coundl of School Board Attorneys, He is stale president of the National Organization on legal Problems In Education. •
Letter to the Editor C;mons of ludki,,1 Ethks
funds to the election of the judge than
The Canons of JudiCia l Elhlcs adopted by the Supreme Court of Alabama, Delober 10, 1975, found In 294 Ala. Repons, omit the j}(O'o'islon found In such canons promulgated in over ]0 other jurlsdlcl ion$, prohibiting candidates In popular eh.'Ctlons for judgeships from soliciting or acCt!pting campa ign funds (rom memo berS of the bar. Hl'nCe, I received solicita· tlons for campaign fund s from judicial candidates in the lune primaries, for all of the courts with jurisdiction In Mobile. I now shudder 10 Ihlnk of appearing be(ore the elected judges In cases whef(! opposing counsel cOnlrlbutcd mom
I did.
Since our Canons of Judicial Ethics, adoptf!d In other jurisdictions, prohibit such solicitMions from members ci the bar, why can't our supreme court adopt this j}fohlbition in Alab;!ma? What is there about our popular elections of Judges which makes us dlfferCn! from all of the otherS who are subjOO to the same Code of Ethics?
J. Edward Thornton, Thornton & McGowin Mobile, Alabama
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About Members, Among Firms ABOUT MEMBERS Earl v. Johnson ilnd W. BArtlett Taylor :1rlnounce In(l' the firm of Sikes, Johnso n & Taylor, Andalusia, AI!)· b.lma, has been dissolved. Also, they are "0 longer profession. ally ilssoclmcd and each are engagL"CI In their own priVJ te practice of law In Andalusia. Earl V. Johnson's office Is located at 29 Soulh Court Square,
Suitt! A, ilnd W. Bartlett T<lYior's office Is loc:a1l."CI al 29 South Court SqUiHC, Suite 6, Andalusia, AI!lbamil.
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Thom.15 M. Hails announces the re-
location of his practice to 258 Slate Slrel!!, Mobi le, Alabama 36603. Phone (20S) 432-0457. William
S.
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laBahn, formerly of S6
Thomas Street, New York City, an· nounces the opening of his new offlces;1I 401 East 10lh Awnue, Suite 440, Eugene, Oregon 97401. Phone
(50l) 343·1473. He Is a member of the Ala ska, New York and Alabama Stn11! bars.
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F. Timothy Ril ey, formerly associalL'd with the firm of Carnes & Carn~, now is assis tant district attorney (or Marshall Count y, Ala· bama. His new office is loc;Jted at the Marsha ll County Courthouse, Gun· tersville, Alabama . The mailing address Is Matshall County Obtrict N · torney, P.O Box 458, GUI1lcl'!iivlllc, AIIlbama 35976.
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Mic hael E, W..lllace announces the opening of his office at Brown Mane Tower, Suite 700, 2000 First A~nuc North, 8lrmingham, Alabama 35203. Phone (205) 251·6300
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Milto n G. Gar rell announces the reloca tion of his offi ces to 8rOYo'n Marx T('MICr, Suite 700, 2000 First
200
Awnue North, Birmingham, Alabama 35201 Phone (2051 25 1·6300.
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Mic hael A. NI.'WSOm announces the relocation of his ofllce to Suite 245, 200 Office Park Drlw, Moun tain Brook, Alabama 35223. Phone (205) 879-8559.
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Blake A. C ree n announ ces the open ing of The law Offlc~ of Blake A. G ree n a t 100 Court SUI!<lt, VVcCUml)ka, Alabama 36092. Phone (205) 567-0040.
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l. ScOlllohnson, Jr., announces his election as tOYo'n clerk/court clerk for the bvn of Omnge Beach, Alabama, cifooive April 12, t990. His mailing address is P.O. Boll 1555, Orange Beach, Alabama 36561,
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AMONC FIRMS Martinson & Beason, P.C., o ( Huntsville, announces that Douglas C. Martinson, II, has become associated with the firm . He recei...oo his J.D. from WaSh ington and lee law School and his ll.M in Taxation from 8ostOfl UniVl!!rsity. Offices are loca ted at 115 Nonh Side Square, P.O Box 2675, Huntsville, Alabama 358042675. Pho ne (20S) 533·1666.
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Vaughn M. StlowMt, II, nnd lulian Stephens, III, announce the o llCnl ng of their law offices at 24 East lWelfth Street, Annisto n, Alabama. Pho ne (205) 238-1986.
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Ar mbrecht , lachon , DeMouy. Crowe, Hol mes & Reews announces that Duane A. G rah. m and Robert i. Mullican have become members of th e firm, and lames A. McC hee, Clif· ford C. Brady and Rlch ard W. Franklin ha\IC become assocIated wI th the
fI rm. Offices are locatlXl at 1300 AmSouth Center, 1'.0. BOM 290, Mobile, Alabama 36601.
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The fi rm of Reneau & Reneau announces that lohn R. Thornton, formerly chief assistant d lstriCi attorney, 19th lud icial Circuit, rlCM' Is associated with the firm. Offices .1re lOCated at 114 South Main St/CC!, P.O. Box 160, IM!tUn1llka, Alab.lma 36092. Pho/\~ (205) 567-84BB.
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The firm of Parkman & 8rantle)' announces that l . Sharon Egbert has becorne associated with the firm. Offices are located at 401 North Foster Street, Dothan, Alabama 36301 lJhooe (205) 793-9009.
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Reilms, Vollmer, Philips, Killion, Brooks & Schell, P.e. announces that A. lewis Philips, III, an associate member of the fi rm, is now licensed to practice law in the states of Mississlppl and Florida. Offices are located at 3662 DauphIn Street, Mobile, Alabama 36608. Phone (20S) 344-4n1.
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The firm of Huie, f1!rnambucq & StLowOJrt announ ces that Prisc.. M. Delconardo and David lL'On Smith, III, have be<:omc ilssoclatl>d with the firm . Offices are locatlXl at 8th FlOor, First Alabama Bank 8 ulldlng. Birmingham, Alabama 35201 Phone (20SI 251-1193.
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Richard f. P.lle. p.c. announces thilt I. Barry Abston has become asso· elated with the firm at 5(,..58 South Conception Street, Mobile, Alabama 36602, Phone (20S) 433.0300.
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luly 1990
Ja y E. Emerson has become a part· ner In the firm o f Higgs & Conc hln, and the firm'i new name Is Higgs, Conchln & Emerson. Offices are located at 405 Fr.lnklin Street, Hunty ville, Alabama 36801. Phone (205) 5)3-3251.
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The law OrflcC! o f lo hn W. Parker announces tha t l. Bratto n, III, has joined the firm as an associate, Offices are located at 4332 8oulC\r.lrd PJrk South, Suite 0, Mobile, Alabama 36609. Phone (205) 341·1020.
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The firm of Najjar, Oenaburg. Meyerson, ZMzaur, Max, Wright & Schwartz, P.C. announces that Ma rvin Franklin and Marvin l. Stewart, Ir" have become members of the firm . Offices are located at 2125 Morris A\eo l1ue, Ilirminghilm, Alabama 3520). Phone (205) 250-6400.
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The firm of Simmons, Brunson & McCain, P.A " announces tha t lames T. Sasser, (ormerly a partner with the firm of W:xx:I & Parnell, P.A" in Mool· gomery, has joined the firm liS a p.ut· ncr and that Vl1Ulam B. Ogletree has joined the firm as an associate, Offices arc located at 1411 R.linbow Drive, Gadsden, "'3bama 35901. Phone (205) 546-9205,
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l .l ngc, Simpson, Robinson & Somerville announces that Galle Pugh Gratlon, laml!S C, Wilson and Duncan 8. 81~ l r have become part· ners In the firm at Its Birmingham o ffice; tha t Daniel B, Smith, Richard Eldon D.wls, Michael B. O'Connor, Alice W. Durkee, and Richard TIshler have become assoclmOO wi th the (lrm at its Birmingham oWce; that David R. Pace and Robe rt V. Rodge rs hiwe /.x!come associated with the Orm al iiS Huntsville office; and that los~ph H. Johnson, Ir., and David W, Spurlock have joined lhe Birmingham office,
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Gordon, Silberman, Wiggins & Childs, Poe. announces that John C. Alexande r, Milton G. Avery, Samuel
The Alabama Lawyer
Fisher, Timo thy C. Ga nn and Scony Greene hiM! become associates 01 the firm. Offices ar~ located at 1400 SoUlhTrust Towers, Birmingham, "101· bama ]5203, phone (205) 328'{)640, and 100 W.1Shinglon Slreet, Suite 2, Huntsvi lle, Alabama, 35801. phone (205) 551.()974.
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Bond & Botes, P.e. .m nounces the relocallon of its offices 10 4518 Valleydale Road, Suile 201, Charleston Gate Omce Park, Birmingham, " Iabam;] 35242. Phone (205) 995·6588.
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David P. Shepherd announces thai Fr.lnk T, Hollon has joined the fi rm as an assc;x;i"te. Offices (Ire located al 913 Plant<llion Boult..·\lilf(l, Fairhope, Ala· bama 36532, Phone (20S) 9284400.
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The nrrn of Schoel, Ogle, Benton, Ge nlle & Centeno announces thlll David 0, Upshaw has Joined the fi rm as an associilte. The firm illso an· nounces the relocation of its offi ces 10 600 Financial Center; S05 North Twentieth Street, Birmingham, Ala· bama 35203. Phone (20S) 521·7000.
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Mc David, Nobli n & West an· nounces thaI Stephan l.lnd Mc David and William G. Chl'tley, Ir., bolh members of the Ala ~ma Stale Bar, have become associates with the firm . omCe5 are located at Suite 1000, 5e(urity Centre North, 200 South lamar Sireet, Jackson, Mississi ppi 39201. Phone (601) 948-3305,
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8ar1Jcr Sherlin& Rich;ud E, BrownIng and lay A. York annour\Ce the formation of a firm in the name of Sherling. Browning & York, P,C. Offi ces a re located at 2864·A Dauphin Street, P,O. Box 16207, Mobile, "Iabama 3661ti. Phone (205) 476-8900.
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The firm o f Pope & Nailer announces Ihe relocation of their offices 10 1650 Financial Center, BIr'l'T\ingham, Alabama 35203, Phone (205) 252-8473.
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The firm of Burr & Forman announces Ihat Carol H. Stewart and David D. Oowd, IU , have tx.'CQme partners In the firm , and Wim~m R. Corbell, Hard I. Halkala, Victor L Hayslip and F. Hamplon Mc Fadden, Jr., have Joi ned the firm as associates. The Hunlsville office has added I. lawa n Olive as an associale,
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Farme r & farmer, P.A., annol.l nces that Wallace Davis Malone, III, ha ~ bt'(ome a p.lrtner of the firm . The firm name has bt.'Cn c hongl>d to farmer, Farmer & Malone. Offices art:! loc:llOO al 112 WeSt Troy Strcel, P.e. Drawer 668, Dothan, Alahoma ]6302. Phone (205) 794·B596,
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The (Irm of Rives & Peterson an· nounces Ihat Roberl l. Shields, III, hilS joined the firm . Shields Is a grad· uate oIlhe University of Alabama i1 nd a cum I/lude gradl.l"Ie of the Cumberland School of Law. Offices arc 10. caled al 1700 Flnancl,,1 Cenler, Birmingham, Alabama 35203·2607. Phone (205) 328-6141.
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Wiltson & Harrison announces lnal TllOmolS W. Holley has become a part· ner in Ihe praclice, which wllJ con· linue under Ihe name of Watson & Hilrrison, 1651 Mc Farland Boulevard, North, Tuscaloosa, Alabilma 354062212.
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Vowe ll & Mee lhcim, P.C. an· nounces Ihat D. lewis Terry, Ir., has become aSSOClatl-d with the firm, and the (lrm has relocated liS offi ces to 1900 SoulhTrust TCMtCr, 420 North T..venllcth Stree t, Birmingham, Ala· bama 3520)·3200. Phone 1205) 252·2500.
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The (Irm of Webb, Crumplo n, McG regor, Saner, D.1Vls & Alley an· nounces thaI Craig 5. Dillard has become associated with the firm at Colonial Financial Cenler, One Commerce Strcct, Suite 700, Mon t· gomery, Alab..'lma , The Orm also announces Ihe opening of an additional office ill Interstate Park Center, 2000
201
Inter'S tfi te P~rk Drive, Suite 409, Montgomery, Alabama. PhOM (205) 8343176 and (205) 277·3176.
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The firm also announces that Mark N. Ctt.... mblesS, formerl y a shareholder in Mclnnish, Bright & Chambless, p.c., has become a member of the firm, and A. Richard Pyne, forme rl y counsel for Blount Dcvclol>mcnt Corporation, and William C. Elliott havc become associated wi th the firm .
Vaughan Drink.ud, Jr., Mark R. U lmer, C. Gilry Hicks and Francis E. Leon, Jr., armou nce the formation of a partnership fo r the pmctice of law, alo ng with Rando lph B. W.1lt(ln, asSQdate, and J, Langford floyd, of COurlsel. The firm will be knOY-.'n as Drinkard, Ulm er, Hides & Lcon, and will co ntinue its location at 1070 Covernment Street, M obile, Alabama 36604. Phone (205) 432· 3531.
wilson & Pumroy ,mnO(Jnces thM T, Buice Turner, Jr., has become associated with [he firm. Offi ces are 10ca led at 1431 Leighton Avenue, Anni ston, Alabama 36201. Phone (20S) 236·4222 .
The firm of M c Phillips, De8ardelaben & Hilwlhorne announces that Kennelh Shlnbaum has b~ome a par1ner In th e firm. Offices are loca ted al 516 SQuill Perry Street, p.o, Box 64, Montgo mery, Alabama 36101. Phone 262-19 11.
Miller, Hamilton, Snider & O dorn announces that Roberl Bruce Rinehart has oc'Come il5sod ated with the firm In [h~ir Montgomery office located ;11 Suite 802, One Commerce Street, M on tgOr'r)cry, A labOmiJ 36104. Phone (205) 834-5550.
Charles N. Parnell, III, and G. Barton ( rum , members of the firm of Wood & Parnell, P.A., announce [hat Charles L. Anderson has become i'I member of the (jrm, arId the firm name has been changed to Parnell, Crum &I Anderson, P.A.
Cohon & Boykin announces that Joseph I. Levin, Jr" has become a partner in the firm. Offices are locilted <It 1025 Thoma s Jciferson Street, N.W., WnshingtOn, D.C 20007. Phone (202l 342-5400.
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Th e fi rm of Henslee, Bra dIL-y & Robert son, P.C" announces th at Ralph K. Strawn, Jr., has joined the firm as an associate. Offices are 10ca too at 75 4 Che$tnut Strl!fJt, P.o. Box 246, CiJdsden, Alabama 35902..(12 46-
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The Birmingham firm of Maynard, Cooper, Frierson &I Gale announces that former Chief Justi ce c.c. Torbert lx.'Came a member of the fi rm effective June 1. He is admitted to practice in Alab,una, the Di stri ct of Columbia, and belore the Supreme Court of Ihe Ulllted States. Torbert served as chief Justice o f the Supreme COUll of Alabama (rom 1977 to 19B9. Of(i ces are located at Sui te 2400, t90t 6th Avenue, North, Birmingham, Alabama 35203·2602. Phone (20S) 25 4·1000.
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Jerry w , Kennedy has joined the lirm 01 Duncan, Wtinberg,. Millcr & Pembroke, P.C. in W.lShlnglon, D.C. Kennedy is a member of the Alabama State BM and was a government relati ons advisor for the pa st three years OIl Heron, Burchelle, Ru ckert & Roth-
well.
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Agreement Reached to Form New LEXIS® Membership Croup The Alabama StOle Bar has rea ched an agreement wIth Mead Dnta Cen tral , provide r of the lEX I S~ computerized resea rch servi ce, to es tabli sh a LEXIS. membershi p group for bar membe~.
Most of the A lobama Stale Bar's 6,500 pl(lcticing members are in firms of ten 01· to rnWS or less. Thi s program i~ designed to make the LEXIS. service affordable to those attorneys who cannot pay high month ly overhead charges. It Is al so d benefit for any firm whi ch does not do seilrches on a regular biiSis, Instead of the regular $125 monthly
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subscription chargc, Alabama State Bar members w ill pay on ly $25 per month. Regular use c hargcs will apply, alol1g w ith a s/1'Ia ll membership group search surcharge. This program will provide sma!!er firms wi th the legal rese arch resou rces many large firm s now enjoy. M embt:rs Joining the program by August 31, 1990, wi ll receive communi cation s software, frcc training and fou r hours of (ree usc. Software is normally $25 per package and tra ining is normally $75 per person . Bar members will be receiving additional information by mail On the LEXIS· membership program .
M embers will be able to utilize the LEXIS. servi ce from their emn homes or offices. Usin!! a personal comput er and modem, or MDCs leased equil)ment, the member c:an $!;larch ano reAd Or print the full text of federal and state casc law, statutes, law rC\' /(Ws, AlR arlliotatlons, newspapers and wires, moolcal Journals. SEC filings, po tents, and more. For (urther Info rmation , call Kendall Jones at 1·800-368· 5868. Mead Data Cen tral wilJ h<:M:! a hospitality suite at the annual meeting in M obilewi th computer te rminals set up to demonstrate LEXI S'*' research services. •
/uly 1990
Spring 1990 Admittees James Barry AbSton ...... , , , , .. , , , . Mobile, Alabama Tori Lctetla Adams ....... . .. .. Monrgomery, Alabama John Cary AIC~ <'lr\dcr , ......... . /Jirmin8nam, Alabama
Steven lee 1\111:1 ............... Birmingham, A/'lbama Daniel Tuq>en Bankestcr , , .. , , , . Robcrud<1/c, Alabama Richard Hughes Balsorl, II . , , , , .. Blrmlnsham, AI.lbam3 Ben Mark Baxley ............... Tuu:aloosiI, Alabilmil Robert Leon Bowden , , , • , •••••••• Louisville, Alabama AUson Ann Bridges ............ Birmln8ham, Alabama Hycall Brooks, III .............. Birmingham, Alabama
Gregory DelMa BrQwn ........... Anni5fon, Alabama William Joseph BruckC!l, Jr. ...... 8irm;ngh,lm, AI,lbama John Douglas Buchanan .••. , , , . , , .... Tampa, Florida Michael Wilde Carroll .......... Blrlllln81111111, Alab,lm'l ROSCnlmy CliJfk ....••........... Nunrsvllle, A/abam.l Neil Richard Clement .......... Blrmlnsham. Alabama David Terence Cobb ...........•. ja ckson, Mississippi john Wylie Cowling ......... , ..... Mobile, Alabama Billie Jean Crane ................ Homerville, Georgia PilUl Swanson Crawford ........ MOrllgomery, Alabama Allee George Davidson ......... Birminsham, Alabama Michael Thomas Dawkins ........ . Jackson, Missi5Sippi Sharon Slawson Day ............. Huntsville, Alab,lma Mignon Mestayer Delashmet ........ . Mobile, Alabama Wi lbur Pemble Delashmet .... , ..•. . Moblle, A/abam.l Priscilla Moore Deleonardo ...... Blrmlnsilam, A/flbama Peter An thony dEsarro, II! ....... Blrm/nsh,lm, A/ab.lma Karen Nelson Dice ... . ....••• , • Tuscaloosa, Alabama ..toward Yielding O(lwney ....... Birminsham, Alabama Nancy Diana Duk~ ............... Samson, Alabama John Fergus Edwards •... , ......... Florence, Alabama Usa Sharon Egbert ................ Dolhan, Alabama DQyle c.ulton Enfinger, II •........ Tallahassee, Florida John Mark EnglehiHt ........... MOllIgomery, Alabama Cherie Diane Fecnker .......••.•. • lrondiJlc, Alabama Jerry Douglas Fields, Jr .•.••..... Birmingham, AlabiJma Linda Gall Flippo ... .. ........... Florence, Alabama Ruth Eli ssa FrilXlman .. .. . ........... At/.lllla, Geor8ia John Alfred Gant ....... , ..... . 8irmingham, Alabama James Wyman Gladden, Jr...... Hattlesburs- Miss issippi Jon Craig Goldfarm .... , ... , ... 8lrmlngham, Alabama Cem Samlm Goral ............. Birmingham, Alabama Laury Lea Gordon ..••..... , ...... Vestavia , Alabama William Kenneth Grisham, Jr•.. Lawrenceburg, Tcnneu ee Mary Ena l'leath ............••.. Hunuvl/le, AlalMma Samuel Huntinston Heldman ..•• Birmingham, AlalMma Amy Louise Herring .......... , .. Huntsville, Alabama Linda Carol Hinson ................ . AOama, Grorsla john Thomas Horn ............ Birmingham, Alabama Brockway Jackson Jones .. , .... , Birmingham, Alabamil Donald Rush Jones,Jr... , ... , ... , ,jackson, Mississippi
The Alab.1ma lawyer
Jeffery Wayne Kelley .......... MOntgomery, Alabama AlvlJ Manson Lambe" .............. Dothan, ~/abama John Samuel Langley ....... , , ...• , . Bt'IWnlOnl, Texas William Davis Lnwley, Jr.. . . ...... Pasac/en." (allfomla Deidre White Lee • . . . . . . . . Fairhope, Alabama Rachel Virginia Lee . , . ' , . . .. Mom8omery, A/" OOma M<lrtin Howard Levin •............. Pensacola, Floridd Oliver Winstoo Loewy •........ MontllOmery, Alabama Jan Rl.>eSe Loomis .................. Pinson, Alabama Kate Love Magoffin ....• , •.••...••. Mobile, Alabama Pamela Ruth Marks ..... , ...•••. , . Florence, Alabama Vllnda Mac McCafflmy ..... Farmington Nil/s, Michigan james Terry McCollum, Jr.. ..... Montsomery, Alabama David Elliott McGehee . . . . . . .. Hllntsville, Alabam.l RLllh Elizabeth Mdnlsh ••••••..•••.. Dothan, Alab"m,l Frederick Mitchell McNab .•....... Northport, Alabama Wilson Daniel MlIes, III ........ 8Irmlngh,lm, AI,lOama Andrea Lynne Miller ......•••.... HUrlf$vJl/e, Alabama Christie Carol Morg.ln .......... Birmlnsh.1m, Alabama Michnel "nan Mosley ......•••• Thomasville, Alabama Todd Britton Murrah ....••••.. • Birmingham, Alabama David Buller Norton .......... . Birmlnsham, Alabama Valerie Lynne Palmedo ............ Anniston, Alabama Phyllis Feaster Parke , ........... . Camp Hill, Alabama William England Pritchard, Ul ........ Mobile, Alabama Anna Swindle Ra y ............. /J /rmlngham, Alabama George Dewitt Robinson .. . ....... Anniston, Alabllma Mark "nthony S;lnderson ....... Birmingham, Alab<lma Fritz Eugene ScheU, III ......... . ... Chatom, Alabama Sleven Jeffrey Shaw ...•....••.•. Huntsville, Alabama Donna Richardsoo Shirley ... , ••• BirminghJm, Alabama SlCphen Gregory Shrewsbury .... Blrminsham, Alabama Roland McCreight Slover ......... Madison, Mississippi Christopher Adam Smith ........... Florence, Alawma Emf!SI Wray Smith .. ,"', ..... Montgomery, Alab,lma Gregory Grant Smith •. , •• , ..... Birmingham, A/amma SU5(ln Allen Smith ............. Birmingham, Alabama Robert Jool Solomon .. , , •.•.•..••.•. Tucker, Grorgla Michael Keith Tedder . .............. Atlnllw, Geor8ia Luther Moorman Thompson ....•. ,j,l ckson, Mississippi .MelInda Thompson .............. Hun/Sville, Alabama John Hawthorne Ufford, II ....... Cu nlefsvi/le, i4.labnma Rodney Lawson Ward •............ Gadsden, Alabama Linda Joon Wesl .................. Pelham, i4.labnma Elmer Ellsworlh White. Ill ...... New Or/cans, Louisiana Michael James Wiggins ............. Orlando, Florida Coleman Kenneth wilson •...... MOlllsoowry, i4.labama Lauren Alane Wilson .......•.•.•.. Florence, i4.labama Sharon Ann Woodard .... . .... Raleigh, North CMollna Clifton Earl Wrigh t .•.•........... Sheffield, Alabama Mark Stephen Zimlich ••. " . . .. MOntgomery, AIII/Mma
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Lawyers in the Family
Alina Swindle Ray (1990); Borden M. R.:ty, If. (1989); Martin Ray (19601; Don Madison (1984) (admillCf:!, IlUsbimd, father-in-I,lw, cousin)
David Buller Nortoll (1990); I.e. Norton (1965); lohn W. NOrlon (1969) (adm/tlee,
Marvin A. Wilson (1956); f.aumn A/.lne Wilson (1990) (',liner, I.Idm/flee)
Sam He/(Inlllll (1990); Alan W. Heldman (/96/) (adm/ftC(!, fafnf!r)
father. uncle)
The Alabama Lawyer
205
lohn A Can! (1990); Andrew M. Gran!, Jr. (1965) (admiflee, (,lIller)
Christopher A. Smith (1 990); Cary P. Smith (1960) (admlUec, (mc/e)
A. Evans Crowe (198 9); R.M. Crowe
Fritl. E. Schell, 11/ (1990); SidllC!y H. Schell (1968) (adm i!!oo. ullclc)
Oaniel T. Ba nkester (1990); Claude E. Il'1Ilkcs /er (1953) (ac/mi/[ee, fathcr)
Ruth Eliz,loeth Mclnish (1990); H. D wiS111 Me/nisI! (1 9 49); Peter A. M clnisll (191J3J (ildmittre, falher; brcHher)
(195 4) (admiUce, lalfw r)
February 1990 Bar Exam Statistics of Interest Nu n, ber sitti ng for exa nl , ... , ..... ,........ . ........................ , ... , ... 174 Number certifi ed to supreme court ............................................. 99 Certifi ca tion rate ............. . ...... , ..... , . , ...... , ....... , , . . , . . , ... . . 571>10 Certification percentages: . ..... . .... .. . . 79 % Url ive rsity of Alabam a ................. • .... . ....... • . . . Curnberland , ....... , . , . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .. . .. 65% Alabama non-accredited law schools ..... , . ... , ....... , . , ...... • •. .... . ...... 24 %
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Jul y 1990
Consultant's Corner Tht! following is a l1!Yiew of and commentary on an office automation Issue
Ihal has current Importance to the 11.'8011 community, prCJhlroo by the ofACt 01010m;ltion consultant 10 the slale bar, Paul 8Qrnsle in, whose views ;tre not neettsarily those of the slale bar.
This Is the siXleenth article In our "Consullanl'S Corner" ~r ies. We would like to hear from you, both in critique of the article written and suggl'Slions of topics for futun! .. rlleiM.
The small urban law firm- wha llies aheadl Small (with len or ft.'wer tawyefS) urban law fi rms need to ,.. ke a hard look at where they are going In the '9Os. Unfor·
tunately, there is no single
s 'rat~
- Increasing competition from the major firms and - the specter of certification. Sm;:lll urban firms traditionally have selWd many individuals as \YCU;u some small corporate dienCs. As Individuals drift (ffl;fy fr(lm ma~r urban areas to suburbs. they are increasingly likely 10 seek out prcwlders In the suburbs, not doNnlown. Sad to say, many law firms are more loyal 10 lheir diems than ctlents are to the firms thilt served them (or years. In the subu rbs, these former dlenlS of the dO'olllltown fi rms ilre within arms reach of Ihe chains Uoel HY.:l1t, for eX-1m· pic) which typically open offices In subur· ban strip malls alld provide what is reputed to be vcry good 1cg.11 service In the areas where they practice. They are
that
win suit everyone. One must dl sl in8ul~
bcl'M.!ell a so<alled smJlI firm In " minor urban area (where they are, in fact. a big time firm) and th e small firm in a major
urban area (where they are just iI small firm). DnC! nC<!ds to g~neti.lli7,e ,md the
other needs to specialize. The small firm in a major urban area I will undoubtedly stir up more than a few cl'h1m!>ets or commerce I1)Ilrylng 10 define "minor" urban areas. Therefore, I will try 10 dodge the Inevitable bullet 11)1 soryi ng IhM Blrm l~am, Mobile, HunTSville and Montgomery <Ire miljor uroon areas and all olher urban areas arc minor. The small firm, in a major urb;:ln arci!, Is at risk In the '90s If it conlinues 10 perceive Itself as a general practice firm. 1115 probably doomed to be a jack of all lrade5 and maSTer or none. There arc a number 01 reasons why this is likely 10 come to pass, unless such firms adopt a focu$(.'(j strategy th(11 coocentrales on one major area and one or two minM. There lire al lea" (our reasons (or this gloomy scenario: - population shifts, - inroads of the chains and prcl>"1id plans,
The Alabama Lawyer
BornS!f'in gra.vlng at a healthy clip and might well colonize Alabama in lhe near future. Prepaid legal plans (legal HMOs) are anotller IhreaTTo Ihe small firm, since lhey con· tfilCt 001 with various prOlilders fOf' specialized services 31 fixed (often 1000000rJ ra tes. The major firm~ are not sitting idly by either. Their profiTS are slOlNly eroding
from the pressure of inl'X()r;1bly rising ~rhead COStS assoclatt-'d with urban location. They art! developing market 5tr<ll· egics, CllCn hiring nl3rketlng direcTOrs, 10 go after clients lhey nl".t!r before courted. Some of these targc\S aro presenlly clients of small firms. CeniflcaTion, when (not if) it comes. will be expected by urban clienTele, JUSt as they expect to find iT in their doctors. How can Ihe small genera lSI firm proclaim expertIse In numerous fields with JUSt six attorneys! Will they all be certifiable in multiple areasf Not Ukely. Most certificillion boards wlll111most certainly require substanTial, If nOI 101.11, concen· Il<Ition in the cenified field, Survival and growth strJlegy Is there a place for the small firm In a major urban areal Most definlTelyl As a specialist firm )OU can, first of all, point 10 The specialist dell3rtmenls dille major firms and say, "They h;r,e a depanmenl 10 handle lax work. We have a whole nrml" St'l!Ond, thero are 5ubSliintilli economies TO be achlevl!d In a sllt'CltlliSI nrm whleh allows you to stlll be prontable, while charging less IhJn your malor compelilM. Think, for a moment, aboul library expense. suppo!1 and professional staff interchangeability. Where do these specialil<.llion opportunities Iei WhaT sort 0( secondary focus areas are synersislid - collections and Cr«JIIOf bankrtJplCY rcpwscntatlon; - corporate bankrul>tcy tlnd lax; - commercial real eslale and cnvlro.... menIal law; - dillOrce and t,l X; - while collar criminal defense and l<llI; and - insurance defense and selected P.1. There are other synergisTic combinations thai undoubtedly would \.',(Inc. This brief lisl of possibilities Is Intended 10 merely get the "grey cells \\IOrklng.N Remember, 1he competitIve /actors workIng against you, {Inc! remember the com· petitive factors \\IOrking for you. •
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This is not your Father's old Mobile! hesitate to recruit a prlv.lIe tour guide from the loeill bar aswx:iatlon for more details and person,,1 recommendations.
The journey can be half the fun For those who hil'o'C nOl eJ<perienced it, Amlrack's "Gulf Breele'" rail service 10 Mobile Is an unparalleled advenlure.
Cr.lfI(l Now/III Polm CIe."
by fum'S! S. L.11I,l Welcome <tgilin 10 Mobile! To those of you who have fC~S lcd on Ihe abundant local Sf!afood, sippt.'tI your favorite nectar under the ancient oaks or danced beneath the stars on thc USS A/I)oom.l during past bar corwentJOns, Mobile n!.'Cds no infroductloo, Bar members and
gvests .lttendlng the 1990 AlaOOm3 State Bar Convention on July 19.2 1 ag.lin will experience thc SCnlcet charm reminiscent of c;enlurlc, past, still preserved
a loog Mobile SIrct.1S that Vot.'fC nrr.t caM!<! from the river blinks by French Colonials who settled o n the present sitt! In 1m duri ng the rei gil of King Louis XIV. Fort Conde, on ROYill StrCe! onc block from the hotels, is Mobile's "Omclal ~I · come Center." There, on the site of the first colonial fort, onc Cil n glimpse Ihc 18th cen tury lifestyle of French ;md S p;1ni ~ h
colonization ilmidst OJ full·scale reconstruction of the for!. Fort Conde Is an cXCCIlCllt nrst stop for visitors wishing to load up on brochulCi describing ac· tlvicles and landmarks In the Mobile area. As you soon will diSCOllCr, Mobile Is sUIl "as good as you rcmember." What the infrequent visitor may not realize, hCM'eVer, is thilt Mobile has en· tered a nt.ow era of economic growth i1nd revi talization sparked Iyt' n<.ow local goycrnment leadership and a dynamic Chamber of Commerce which has achieYed nationwide acclaim, Mobile's 208
new W,lter(ront COOl:entlon Center will soon begin cQnSlfuclion, with site prepara1ion alreilcly visi bleilcross W,Her SU·cel from Ihe Riverview plaza Hotel. Plans have been finalized fOr a new Interstate spur from 1--65 ~u lhwa rd .110ng lhe river to downtown Mobile. And a new Navy homeport, which will service ships fmm the USS Wisconsin bailie group, Is SO percent completed and awaiting nnal funding. Mobile currently lexts the state in pri. ""te business ..00 industrial growth. In dddition, one of Ihe fastest growing and most fashiooilble places 10 live continlll.'$ 10 be Ihc beautiful Ea;tern Shore area of Baldwin County, Includ ing Spanish Fort, Onphne, Montrose, Fairhope and Point Clear. It nlso is home to the intern<1tlonal· Iy re nowned United SI<1tes SI)orts Academy. And Mobile was cited this l);lst April by U.s. News ,10d It\k)rld Report [IS having the fourth best housi ng milrket in the nation. Such progress has sparkt.>d a new spirit of local pride, prompting today's Mobilialis to modify a popular ad· vcnlsing slogan: "This Is nOI your father's old Mobilel" It Is a WOlldcrful plnec 10 live, and an especially CKcltlng plnce to visit! .....s milny stilte oor members have discOYered, the convention in Mobile makes for a perfe(1 "mini·vaC.lIliOl'l," beginning early and eKteooing th rough the week· end, Here are a few suggestions of loeal attractions and places to eat, bot do nol
Bomd In Birmingham or Montgomery and the train will deposil)'Ou althe foot d Government Street dirooly across from Ihe Stouffer Riverview Plaza Hotel. Scating is more spi,ldous tl1nn a first· class airline cabin, ilnd the tri p is thomughly enlOVilble and reinKing, The cluh car, which serves s<r ndwiches and snnck food, offers a great place for con· vcrsntlOll and Ilew acquainta nces. Round.trlp fnrc from Birmingham Is a rea.sonable $60. A ticket from Montgomery is $10 less, and (rom other towns It Is b,m~ly the price of cab fare. As you will 5Cil below, the trip from Birmingham takes approximately SiK and on~half hours, with Montgomery two hours closer. It sccms tMln shOrler, because of the ability 10 read, relax and moYC around, and you will be positively enlranced by the windows. Here is the daily schedule: Tflln 520 Lv 1,,",0 "ITI. 81rmlnsham AI. 1:31 p.m. Lv. 2:12 p.m. Monl~ry t:.I 10:54 a.m, Lv. 3:16 p.m. G_ille Lv. 9:55 ".m. lv. 4:05 p,m, [~rs'een tv. 9;OJ a.m. l .... 5:105 ,~m. Atmore l.... 1:56 a.m, A!. 6:21 I~m . MObIte tv. ':00 a.m. Any travel agent C,ln nrr.nge Amtrack tickets. There is open seating and ni l bag. gngc is carry-on, 50 pack ,1ccordlngly. Call1hc hotel In advance and a bcllmnn will meet yuu r train to transfer baggage siraight 10 your room. AU aboardl
OininK In·lown Regilrdless of your transporlation mode you will be filmlshed whC!n you arrive, so begin milking your 'Irst night'S dIning plans now. Here are some suggestions, wllh due npologies 10 loe;!,1 colleagues whose personal favorites may be omined. Bi~ nYili e
Club Spectacular panoramic view of Mobile 8ay from the 34th floor of the first Na· Jufy 1990
tlonal Bank Building. Coumtet beef, seafood , fowl and lo'I:!al. Members of uffillated clubs in HUlltsvllle, Birmingham and Montgomery can make reser. Viltlons directly. O thers will nt'e(i a local member to make the arrangements. Proper attire and resefVatlons suggested. RevJ1 Street one block north althe Ri~r view. 4))·49i'i'. Roussos One of Mobile'i oldest ilnd best all. around seafood rec;tilurants (or lunch or dinnN. Formerly on the CauS(.'W.'Y before the hurricane. C~k·style di ~ he s are among the speda ty. Next to Fort Conde, two blocks (rom the RivcfVltJw and Admiral Semmes. 4))-))22 . Wlnlzell's Oys"!r Uouse An CMlr-popular landmark since 19)8. Legendary (or seNIIlS oysters "(rled, stewed and nude:' Over 6,000 placards 01 humorous quips and qUOtes cover the walls, Good selection o( (ried seafood, gumbo, shrimp 100'Je5 and, of course, at sters, For oysters 01'1 the half-sheJi, sit al the oyster bar where some of Mobile's finest lawyclf'!. hold r('(ords (or oyster con· sumptlon. Closed SundilY. 605 Diluphin Street. 4)3·1004. The Pillall Regarded by many as the finest dining In Mobile. Excellent continentJ I culsirle, including se,l(ood, beef nnd lamb. The restau rJnl Is housed In a beautiful lurn. o(.Ihe-century Greck revivJI mansion on Government Street across from the COIn, non I'll Memorial Park, The "Epicurean Dinners,~ which include a recommended appetizer, entree, side dish and dl!sserl, are poptJlilr. Proper attire and reseMtions suggested, 1757 GOV<!rnmenl SIreet. 478·6341. Rulh', Chris Steak House Originated in New Orleans. with loeatioos in HOuSton, Beverly Hills. Palm Beach and numerous other cilies. Bcli~ me, the best steak you have ever tJsted, bastccl In seasoned bUller and served on a sluUng platter. All prime cuts thaI melt In your mouth, Filet mignon and thick tib-eyes are fil\lOrileS, with great baked potato. Reservations sugg~led . One block off Airporl BQulevard ncar ~the loop" In midtown. 271 Clcnv.tOOd Stll..>eI. 476-0516. Tile Alabama' Lawyer
Weichman's All Se.uons Restaurant A nJtiooally recognized f,lvorite, and the only Mobile restaLlrJnt servIng Can. st"ntine's original recipes. Filmous for crJbmeat specialties la Louisiilna, a 101 Reclor and Shrimp and crabmeat au grJlin, as well as Juicy prime rIb. ReserViltioos accepted. Neil' Airport BooIl"Vard at 1-65. 168 South Bchllne Highway, nexl to the R.1mada. )44·3961 . HemingWay's A trendy upIOWn c~fc (emuring gaur. met seafood and beef prcIMrt.'d In New O rleilns haute cuisine style. Several di ~hes created t". Eddie Prudhornmc, the late chef of Gulf Shores' Hemingway'S and cousin of New Orleans' "K.Paul" Prudhomme. Creat gourmet desserts include bread pudding ,md chimtilly. Just off G~rnmelll Str«!1al the intersection of Airport Boulevard ~nd Old Covern. ment. 479·)514. S,S, Milfina Feasl on fantastic GLlI( seafood as you wiltch the shrimp oo.lts and pleasure craft 1>"1SS through the drawbridge al sunsct. Outstanding fried seafood In a secluded and superbly relaxed 1ltrflosl)here. Ask for a Mble by the window, Dinner only. Off Daulmin Island Parkway I'll Dog River. Drive past the Mobile Yacht Club Mld across the drawbridge, then look for the signs directing you 10 the s.s. Marina at Grand Mariner Marina. 44)-5700. Michilel's Midtown CJfe "One o( rhe best re~taurant s you will C\lCr find In an old gJs station:' Relatively new and quite popular among the young lawyer crowd. Cajun, Jamaican and other ethnic specialties, the menu generally reflects the inspimtlon de la cher, who is no r(lrlously Spontilneous. 161 South Florida S l~ , across from T. I~ Crockmier's. 473·5908. American Steamer The new Mobile cOt. nte'l)art 01 Wlnt· lell'5 Old Bay Steamer in FJlrhope (sc@ below under CausewaylEastern Shore DInIng) featuring the Silme fabulous sleamed seafood. Creat stCilllled snow crab with drawn butter. Also SCIVeS raw oystCf'S, steaks and cold beer. SI>eciais In. d ude the Bucket Deal, lealurlng a bucket full of shrimp and four Ice cold ~rs. One-half block soulh of Airport Boulevard at 364 Al illeJ Road. )42-9622.
Cdu~ewdyl Easlern Short di ning
Caplaln's Table Adjacent to the Batllesltlp entrance, owner John Word personally I)resldcs over one of Mobile's favori te seafood restilUrJnlS In a nautical atmosphere. Life presclVCfS from ocean ",,"'Ssels around lhe world adorn the walls. Also known for eyc-popplng huge rilH¥! steaks, of which John takes greal pride. For appetizers, order rhe V\.i!sl Indies Salad, a bowl o( delicious mnrinalec:i CrJbmeill. Bmtleship P.ukway. 4)3·)790. Pier 4 FCJluring Ihe largest menu of 5eilfood C1ltrees on the Gulf Coast. se~ in a dining room overlooking Mobile Bay. CocktJlls In Ihe lourlge or dining room. Greal fried cr.lb claws, stu(fed shrimp alid broill'd sellfood . Alligator slghllngs not uncommon. AlwilyS crowded. Battleship Parkway. 626-6no. Blue Cill An ever pof}Ular no--Irills Causeway restaurant, oozing with local color. known for Its great fried seafood, and also serving excellent broiled selections. RegJrded t". many as the best Irled seafood anywhere and especially popular among the local democratic politicos, who repair here to unwind over a pialtllr 01 (ried crab daws, soft shell crabs and a pitcher of Icc cold bei!r. 'i\1J known Republicans should be accoml>"1nied by a personal food lasterl" Dinner only. Credit C.lrdS nOlaccepted . Bank-ship Parkway. 626. 9852. Original Oyster Hoose IncfCa singly popular seafood restau· ran t featuring 87-item seafood menu as w<!11 as chicken (lnd steak, Speci alities are seafood gumbo lind bltlckcncd or broiled fish , with the recent addition of a steJmoo seafood menu cb.vnstairs in ForreSI 5. Lalla i$ a 1983 sradwue of Cumberland School of WW lind II parlner in Ihe Mobile firm of Barker '" /dnecky. He presently serves on Ihe editorial bo;Jrd o( The Ala~miJ
I..1wyer.
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clan s, who often stage kl ck-Off rallies and fundriliscrs here, Breakfast and lunch on· Iy. 416 North Wolter Street. 432-4159, Dt.'w Drop Inn Claiming the distinc tion of "Mobile's oldest rCStilurant." A traoi tionill fil\lUritc with the lunch cl"O'Wd. World famous hOI dOBS, cheeseburgers and onion rings, along wi th good seafood sar\dwlChes and lee cold drinks. 1808 Old Shell
ROild. 473·7872, P,lrt 01 Aml/'il/.:!i
the H:tlf-Shell S:eamer and Oyster Bar. ExcellCrl! «!afood pla tters for Ihe indecisive. Casual. Ilattleship Parkway. 626· 2188. Cl)ck of lhe W,llk Enormously popular and entertaining reSl"aul(lnl Spec:i,lllzing In hUBe 1)lalters of fri ed frcshw(ller cmflsh nielS, t hicken filets arld hush pUI>pies, The oriKlnal resUlUrant In Wesl Mobile became so POP' UIM, a seCOnd IOc.llion wa s o~ned in Daphne. C reat homem;lde cornbread, whlt h the wahcr1 will flip high in th e air and catch in an iron skillet. (Cautiondon't si t under a ceiling fan .t Try the fried di ll pickles on the sidc. JUSt off the 1·10 bayway at D<lphne exi l. Open daily (or dlrlncr. 62 1-0006. Nautilus Popular seafood restau rant wilh great shrimp spaghetti and other seafood past;"! dishes. Extensive menu rca lums daity seafood specials, prime rib, lobsler ,md th e Nautilus' famous seafood scampI. Tr,lnquil bayview dining room Is great for lunch or dinner, Highway 96 In Daphne at 1-10 exi \. 626JJ763.
~GuJf Breeze"
5l!fVice.
Budgel dining ("cheap eats" Morrison's Cilfetcrl a MObile i5 the corporat e homelov.tn of Morrison's Cafmerias. whi ch now boasts O\ICr 160 cafeterias nill ionwide, not to menl lon Ihe oth'" Morrison-owned res. taurant divisions. The "hig bosses" ea t here, so it's a guar.lIltecd good meal. Air· port Boulevard at 1·65 Ir\ Ihe 'Nest parking 101 of Springdale Mall in (rom I)f Gayfet's. Open dilily, TornmY'$ Terminal Reslaurilnl Just north of the In lerniltional Trade Center, and across from Ihe C M&O r"iI· road terminal Or\ Wa ter SIrL'e\, a M oblle landmark since 1917. Favorill! of both the business crO'Nd i"lf\d Ihe! hard-hats. Also popul<lf among local judges and politi-
The Back Porch l'loused In :t histOric cotl(lgc on Royal Street, onc block south of Fort Conde. Muffalellas, shrimp poboys, red beans arrd ri cl! ,lnd O!her cret)le spcd:tltlcs. A favorite o(state court jurors when courl Is in sessior\. VVcekday lunch only. 200 South Royal Street. Open 10:30 a.m. 10 3 p,m. M onday-Saturday 432-5876, Entcrl.linmcnt & nighllife
Mobile C reyhound Park The birthplace of parimutuel grt..')1hound racing In Alob.,rna where "Casey,H named after a legendary Mob!!e Bar member, win s every race, The clubhouse dining room (reservations suggested) has an excellent reputation, especiilily for seilfood . Post-time 7:45 p. m. MondilySa turday with matinC(!s Salurday at 1:45 p.m. 1-10 West at ThcodorelDiJ\'IIt!s Exit. 6S3-6040. Enterlal!\ cr DlMcr Thea tre Featuring the live musical comedy "Lucky Stiff" during the b~r convention, Excellent buffet dinner begins serving at 7 p.m" show stilrts at 8:30 p.m. Reservations 473-8611, 421 1'lolt;omlX! A\lCnue, one-half block off Covcrnm(!nt StfL'Ct just beyond Dauphin Island P,)rkway In the loop ama.
Wintz cll '~
O ld Say StCilmer O wned by th e Winlzcll family, a unlquc and cozy restauran t specializing In, you 8UCS~ It, fabulous steamed $Ct!food spiced with Old Bay Seasoning. Atmosphere rcminiscent of upper Atlan tic coast. Favorites include the Big Steamer, an unbelievilble 1)laller piled with $!(!amec! OYSlers, .hrimp, sn(M' crab legs, king crau legs and crilb cl aws, with po· tatoes arId (Orn Or\ Ihe (ob. A wond~ r (ul escape In dcmn tawn Fairhope. ~12 Fairhope AIICnuc. 926-5 714,
' 2 10
Trlnltys Perennially popular lavern for after· noon drinks, or nigh11ime d~ncing with live music from the loft. Favorile "meeling" plilce of the Mobile young lawyers t rOwd. S.R.O. after 10 I).m. Across from the Mobile Civic Center, 456 Auditorium Drive, 432-0000. lumber Yard C.lle Th e favorite ";liter work" Wiltering hole for the profeSSional crowd, espedill1y on
luly 1990
Thursdays aoel Fridays. Frequently hOSl5 live rock and R&8 bands from the '60s and '70s. "Make SU!I! you gCt Into thc right BMW or \bIWJ when leavlng...there can be confusion." 2617 Dauphin Street 471-1241. lvanhoe'sJG.T. Hf!nry's Mobile's n~sl and hottest nighttime taverns, featuring live rock'n'lOll and your favorite cold beet one-half block ap..lrt in two hi storic bUildings on Dauphin S1fC<lt, sl)< blocks west of the Riverview. Just IiSlen for Ihe music w'lfting through the stfC(lts. 450 Dauphin and 462 Dauphin. tvanhoe's 432-0400 and C.T. "Ien-
ry's 432-0300. ludge Roy Bean's No trip to a bar convention would be complete wi thout (1 visll to Judge Roy Be,IIl'S on Scenic 98 In O;mhne, just across the bay. There one can relax and enjoy a favorite refrcshment in a ruStiC setting, amidst the folklore of the most notorious judge west otlhe Pecos. It Is the honest place around on Sunday afternoon IImongthe pilgrims returning from the Gulf,
Sijothlw{'in)l. .lllr"llllll1\ BaUI($hip Memorial P,u k-Thc statc's 11 tourist anracllon fea tures the banleship USS AlabalThl, the submarine USS Drum, and a gigantic 8-52 Bomber, II10ng wilh vMious other <Iin;r.}ft nnd military ex· hlbits. Site of numerous HolJy'NOOCl nlm scenes from m(Wies such as "Toral TOfal Toral~ and " War and Remembrance .... in· teresting gift shop fOr souvenirs. Located across the river from the downtown
hotels. take the tunnel to Battleship P;trkwcry, which illS() is home to some great seafood reMaurants fOf lunch or dinner. Open daily 8a.m, 'til sunset. Admlsslorl charge. 43)·2703, Bellingralh Gardens and HOnle-July is thc season o( roses at the world famous Bellingrath, a 9OQ-acre estate once t~ flshlng retreat of a Coca·Cola magnate. Its 65 beautifully landscaped acres fea· ture 2,500 ro~ bushes In a scmi.troplcal setting along Ihe Dog River. BeUlngfalh also is home 10 onc ohlle world's IMgcst displays ot priceless Iklchm procel(lin art O l>cn daily, Bellingralh 15 a great pl.;tce (Of children and takes about one-half day to tour the gardens and home. Excellent gift shop. Admission charge. T,1ke I-tO to the Theodore South exit, then Highway 90 to BelHngrath Road and follow the slgl1s, Ot>cn 7 a.m. until dusk, 973·22 17. Mobile River Cruise Enjoy a mOfniRg or ~fternoon slghtsee. ing VO'i.lgc on the Mobile River abollrd the tourboat Comma"dcr; opetattXi by Alabama Cruises. FasonOltlng llCr'SllCdive of the Mobile Bay and rivcr delta, as well as ships from around the world docked In Mobile Harbor, Daytime cruises take one and one-hillf hours depafling throughout the dcry. An evening dinner cruise departs at 7 p.m. Nlmission charge. Board at Battleship P.lrk. 433· 6101.
The "'lien home
Museum of the City of Mobile Housed In a gracious Itali,'tnate town. house construded in 1872 , the Mobile City Museum features historic exhibits spanning all periods of Mobile's fasThe Co/em.Jn
nome
The Uucl/e home
The Alabama Lawyer
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clnating history from pre-colonial days, to the Civil War erJ and through the present. Interesting Jrtifacts, historic maps and numerous displays. No admi ssion charge. 66 CO\.'errlmenl SIn.>c1. 438-7569. Oakleigh Mansion Magnificent Greek revival antebellum m<msion loca ted on three and one-half acres in the <;enter of the historic OJk. leigh Garden Di stri ct. Beautifully furnished w ith finl! period colloctions of furni ture, portr71its, silver, china, Jewelry, Interesting kitchen Implements, and toys. DJily tours, admission charge. Just off GOYernment Street near dO'Nn tO'Nn. (fake a walking tour of the Oaklelgh Garderl District while you are there.) 432·1281. The Royal Street TrQlley/Cn:yline Tours O pen-ai r sightseeing tou ~ through dowrllown M obile arid the hi Stori c districts. Dcpansdally from Fort Conde, one block from the hotels, 1r\lCr'esting and Informative ridi ng tou rs of the area's oldest streets, churches and homes. Reservd' lions reque sted , 432·2229, Bragg-Mit<;hell MiH1Sion and " Exploreum" Museum One of M obile's most Impressive e)(amples of arl tebellum l'IrchltOOure. Con· structed In 1855 by Judge Joh n Brags on Springhill Avenue, the Brass-Mitchell has recently been re stored ;md beau tifully furnished with period antiques. Open for tovrs. Admission chMge. 471-6364, Lacatl;.>d on the grounds of the BraggM itchell Mansion you will find the b ploreum, a children's "hands-clIl" mu· seum where kid s can experience the fascinating world s of sclerlce, technology and Ihe humaniti es. Admi ssion charge. 476-6873. Historic Mobile churches OrlC of Mobile's 8rc:rtest a $~t~ is its historic chu rches, some dmlns back to the early 19th Century, The well-known Cathedral of the Immaculate Conception is il minor basilka constructed in 1835 and best known for its 5t<linOO glass windows and polished ma rble. Doily t ou~, t.oc:ll tOO at th~ corner of Dauphi n and Claiborne. 434·1565. A beau tiful example of Greek revival architecture Is Christ Episcopal Church, constructed In 1838. Contains Tiffany stained glass win· dows in ,,(I(lil1on to Cenw windows de-
212
pkting Ihe b"ptism of Christ. Church Street, one: block west o( Fort Conde. 4 33-18 4 2. Other hi stori c M o bile chutches Include Government Street Presbyterian Church, <;onstru<;ted in 1831; First 8i1ptisl Chur<;h of Mobile, <;onstruCted in 1909 and adiacent to the home o f Admiral Raphael Semmes; and Government Street United Methodist Church, known as the " Beehive" (or Its unique archi tectural style, conS1fuctl!d In 189a All three are located along Government Street in the h islori <; downtown area. (NOTE; The Mobile Bar Auxiliary is pla,,n lng a tour of four local hi storic homes follow«! by a Ivnd 'lcOil at the BraggMitchell Home on Friday, July 20, duro Ing th e b<lr convention. TIckets arc $25 (or the tour and luncheon, with bus tra nsportati on provided from the Riverview.) Golf, filnt'~' .1n(l reuctllion f itness Do no t mi ss a workout. Bring along your gear bag and enjoy the ex tensive f;acUi tles of the modern Downtown Mobile YM CA, w here many " Mobile lawyer combines work lInd workout. Some ~n say there are certa in l:rwycrs you can find at th e " y " dUringlurlch wilh whom telephone ConlaCt is impossible! Ambitiou s ioggers can get directions 10 the Azalea Tr.-:rll 10K r.-:r ce COUf')C. Alt non-Mobile YMCA members heM guest privileges, as do guesls of the Riverview, Admiral Semmes and H iltOn. The Downtown YMCA is two b locks (rom the Riverview on Water Sireet. 438·1163. Tenni s The Mobile Tcnnb Cenler, owned by the City of Mobile, features 34 competi tion-grade lighted cO"'rts. Grass, composite and hard suria<;es. Call ahead at least four hou rs and try to re$(!rv(! "Cen ter Court." lJx:iltOO on Cai liard Drive on the western sid!! of Langan Park, <lccess via Springhill Avenue te) LOilgan Park and dri ve around the lake to 851 Gaillard Drive, 342-7462 , Mobile Golf For tho~ wh ose sti<;ks are standard a luipment, the M obile .-:rrca fC!atures S<.'VcrOll cxcellcr)t dally (cc golf links. The city-owncd Azalea City Golf Club, on<;e
named among the top 25 public courses In the country, is situated on the western side of Langan Park on GJiliard Drive. Tee times 342-4221. Th e newly redesigned Springhill College Golf Course graCt.'S the hillside iusl belCM' the college, with the ma/rl cl ubhou se entrJl\ce on D.-:ruphln Street just west of the 1·65 over· pass, 343-2356, The Gulf Pines Golf Course offers several ex<;ellent holes directly on Mobile Bay, lo<;atec/ inside th e Brookley r:Qmpl~ off 1-6 5. 431-6413. And The Linksman, owned by the Edwin Wa tts golf compllrly, features a fine pro shop and Interesting l.-:ryout among the backwa ters of Dog River where many a golf b(lll has found ilSt'in,,! resting place. Take H alls Mill Ro"d to Riviere Du Chien, I ~rrn It.>fl Clnd foll(Mi the signs. 661· 0026. Eastern Shore Golf The town of Fairhope rECently opened Q uail Creek, .-:r sprawling welt.kept 18-hole layout generously dE.'\Uid of sand bunkers, but beautiful und challenging nonetheless. 990-0217. The Lakl!View ( ountry ( Iub in FoI....,.., home of golf prO Ralph DeROy formerly of Mountairr Brook, features a Bruce Devlin l.-:ryout remin iscent of SI. Andrews In Scotland, Open to public, Just off Highway 59. 943· 6000. Arnold Palmer desi gned the Cotton Creek Golf Club at Cwft Farms ilnd considers il one of his fines!. The Gulf Coost he"dquartcf"S of '''-rnie'SArmy," this course illways is in g~il t Cllndition. 9687766. One of Alabama's l"I'Iost beautiful ( Ourses is nestl ed among the oaks and plnl!S at Gulf State Park, where wide (air· Wdys and generous greens keep the tourists coming back, 948-4653. Saltw"ter fi shins Charlers Landlocked anglers with a ft.'\Ief for saltwater adven ture may find a fi shing trip JUSt th e Cure. Both Dauphin Island (home of the world·famous Dauphin Islal'ld Deep Sea Fishing Rodeo) und Orange Beach (wi th II fast growing rodeo of its O'Nn) have eKCelient f,shing <;h<lrtef"S, which generilUy tilke you 10 their (MOn $C<;ret reefs fOf a bountiful ca tch. I-Ialf and fvll Oily chilrterS iln! available, usvally carrying Sroul)Sof four-six, Check wi th any Mobile or Baldwin County lawyerl flshcmlan to help arrange an outing wi th a favorite charter captain, or <;,,11 the marinas and chMer services for a r(!Com-
Jufy 1990
mend'llion. If you are nOI wllh a groop, they often Ciln make room for you. Rates indude bait, tadle, ice and, for a nomInal fl.oe, your fish will be cleaned and flielLod for the trip home. David McKeithen's Gulf CharteN, 981-4470; Hobby W.llker's Charier Hoats, 98 1-6159; Orange Beach Marina Charters, 9814510; Perdido PMS Marina Charters, 9816481. Antique hunting As onc might expect from a port city, C;lrgo conlaincrs of period European furniture and anllques arrive fairly regularly via ship. Mobile is blessed with an abundance of e),cellent antique shops, which almost are as prevalent as law offices. Atchison Import!! A charmingly restored historic W(lrehouse full of French and English pine antiques, iron beds, plaster pedestals, garden accenls and other interesting pieces. DaUIJhin Street one-half block west of Broad. 921 Dauphin Street, 4384800. Antoinette's An tiques tn the heart of Springhill adjacent to Springhlll Colleae on Old Shell Road. Beautiful English furniture, porcelain, silverplate and (i(;cessorics. 4401 Old Shell Road . 344-7636. (Have lunch at Hello Dell next dOOr or UnknO'>'ln Jeromes across the strect.) Plantation Antiqul.'S Hugh selection of linen presSl!$, I)riental rug5 and other period pieces of excellent quality and condition, (Please dl) not Invite my wife!) 3750 Goycrnment Boulevard. \/okst d 1-65 on the right. 6667185. Yellow House Antiques Superb 18th and 19th century furni ture, accessories, silvef and porcelains of in~tment quality. On GOYCrMler'lt JUSt beyond the c"nnon, 1902 G~rnmcnt Strcct. 476-7382. Plunderosa Antiques Along the Highway 59 beach route jt.JSf south of Loxley, two enormous buildings 01 W(l11.to-wall, f1oor.ta-celilng European and Scandin(IVian antique furniture, accessories, Sfiii ned glass, books, photo-
. The Alabama Lawyer
graphs, etc. Highway 59 In Loxley. (An unusual herb garden across the road.) bl~lern
Shore/Gulf <;hor('\
~Ide
trip
Gell ing there If you Me going straight 10 Gulf Shores, and wan t to enjO't' an adVl!nlufOuS Journey off the beaten path, consider the Mobile Bay Ferry between Dauphin I$land and Fort Morgan. Excellent perspec· tlve of Mobile Bay where Civil War sea battles wmc fought bctv..oeen the twin (ort· resses o( FOrt Morgan ilnd Fort Gaines, This Is where Union Admiral David FarrJ8u t shouted his famous orcicr, NDamn the torpedoes, full speed aheadl The ferry departs approximately every one hour 20 minutes between 8 a.m. and 6:40 p.m. 1·800-634-4027. The usuiil four-lane rou te to Gulf Shores (01l00'S 1·10 to the loxley exit, and then southward on Highway 59 through loxley, Robertsdale, Foley and Gulf ~ hores. Another popular route Is Highway 98 Ihrough Daphne, Fairhope, Magnolia Springs, afld foley, then southward on Highway 59 to Gulf Shores. If ti me permits, take the scenic route along the beautifu l eastern shore of Mobile Bay all the way to Point Clear, and then cu t O'Y'er to Foley. The bayfronl cottages and homes neaf Montrose, Fairhope and Point Clear are where many Moolllans spend leisure time "(M!r the bay:' One may also wJn t 10 explore MaSnolia Spring s, a mossy village along Fish River where most rCS'dcnts' mall Is deI1vered via water route, and Bon Secour, a charming fi shing ~l1Iage known in many parIs of the world. N
Eastern Shore shopping The mai n focus of shopping along the Easlern Shore lhese days Is In two main orcas. DO\Nntown Fairhope, home to one of the south's large.t an5 and crafts shOO'S during March, always offers eKCellenl shopping with unique stores and bouti· ques. Highlights are described In Judge Arthur 8riskman's article In the July 1987 Mabama Lawyer. Be sure to drive dO\Nn 10 lhe F'lirhope pier If lhe weather Is nice and take a $lfl)ll. The newest shopping " mecca" is Ri viera Centre, a gUlly neoN fashion outlet mall on Highway 59 betwccn Foley and Gulf 5hora Riviera Centre features more than two (lozen faclory outlet stores, Incl uding Bass Shoes, J.G. Hook,
Eagles Eye, Oneida, Toys L.nlimitcd, Calvin Klein, Dansk, Guess, liz Claiborne, Oshkosh B'Gosh, pfaltzgraff, PololR.11ph lauren, and many others. One of the Interesting things about 1111 of southern Baldwin County, of course, Is that one may happen upon a quaint boutique, antique shop or art studio nearly anywh re, so keep your eyes open. RestaurantS(al$O see Causeway Easl ern Shore dining) The hottest nf!W Gulf Shores restaurant Is the West 8each Cafe feilturlng chefs Eric Reser and Ikrn MOntgomery, formerIyof Highlands Bar & Grill In Birmingham. The menu, which features grilled and sauteed specialties, changes daily according 10 fresh seafood ilVilllabllity. Fabulou s desserts, Reservations ac· cepted. Top floor of Gu lf Shores Surf & Racquet Club on ~st Beach Boulevard In Gulf Shores. 948-3085. The main dining room of Marriolt'$ Grand Hotel at Polnl Clear hosts a truly magnificent Sunday brunch featuring a buffet that one might e~pect to find aboard the Queen Elizabeth II. Almost CVCI)' kind of food imaginable, beautiful· Iy prell..1rcd and displayed amid Ice ca"" ings on a 5C(!mlngly endlms buffet. You will gasp with delight when you see it. Reservations unnecessary. 928-9201. Other f<Mltltes In the FolcylGulf Shores are,l Indude Vorolf 8ay lodge, Hemingway's al Orange Beach Marina, the Perdido PMS Restaurant, Ihe ~rdldo Beach Hilton Dining Room, ;10(1 the Gift Horse In Foley. Also. Birmingham resi(lents may fondly remember Ni"i's, which now features tv.-o locations In Gulf 5horC$ specializing in Gulf seafood, Finally there is, of course, the obligatory stop at the FlorilBama Lounge, home of the annual muliet-thrO\Ning contest {lnd other un· usual events, where one can "straddle the line" with a foot in each sta te. NeoN boardwalk and beachside bar features homemade burgers and munchees, afld your favorite cold drinks. • Sonwr
of/he .cooro,Q;ln~lf18 p/IQ'(Ij co."t~~ 01 J7,j/ll)tfi rholotJriIfIhy 01 Mobile.
fOOTNons 1. MlIny flliln'" W Hon. Arthur B. B·ill<man. U~lted SW~ ij,,,,kfllPl(y J!Id~ for !1Ie Sou!lIern DI~rkt of "tibalN, wllOMllNMe t n!~ lilly 198:' A~. I»~ ~~ eflli!kod "Mobile-a- Good t i 'lbu ~ p!(\'"1dtd !he foundillorlior this If'
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2t3
Building Alabama's Courthouses by Samuc! A. Rumore, Jr.
The (ollowing ((JI1linuc5 a history of Alabama's county courthouses-their ori· gi ns and sume 01 the people w ho con.ributed to their growth. Tbe A/"b,lm,1 Lawyer
1>lans to run one cOuoly'5 slory
in each issue of the mag'H:lne. If you
have any pho'ogr'lflh~ of earl y or pr~' en! coufthouses. please (orw,ud them to: Samuel A, Rumore, Ir. Miglionico &, R\lnlorc
1210 Brown Milrx TIJI','t·, Birmingham, Alab,1m., 35203
Blo unl County On August 30, 1813, Creek Indians <Itlacked Fort Mims. In what is now soulh·
ern Alab.1Ola, and rnasSllcn.-'d iiSg.'1rri$OII, In response to this atl,lCk and after ap. [>cals for help, Governor Willl,un G . Bloum ol 'knnes5ee sent Andn.w Jackson with nearly 2,000 Tennessee volunteers into the territory. jackson dcfea1cd the Indians In 1814, and forced them to give up much of their land. M :my of Jackson's men wcrc hnl)ressed with Ihe country~idc they saw during thi s expt.'<iition. They would later come back to make homes on the "soulhern frontier:" Two mthe earliest seulers In Ihe area thM became Blount Coun ty were John Jones and his brother-In.law, Caleb Fryk..,.. They carne from Madison County. Jones se ttled in whilt becilm(! known as Jones Valley ncar prescnH:!ily Bessemcr. rryley took up residence in a valley nonh of Jones 111 the abandoned cabin of an Indian chief thought to be named Bear Meat. HiS selliemenl became knCMIn as Bear Me.lt Cabin. In Ihe next few years mnny former soldiers from Tennessee returned to the arca. By February 7, 161 8, there were enough people Ihal the AI;'li>ama Terri· loriai legislature creatccl a new coun ty. It W<l Snaml,.'(! Blount ;n hOllOf of the Tennessee Governor who aided the pioneer scttlers during the Creek Indian War.
214
When it was created, Blount County a much greater area Ihan today. And lhe aCI establishing the county provided thai courts would be held at Ihe home of Major Mo!e~ Kelley in Jones V.llley, ;'l I)att of presenl-day Jefferson County. Ills interesting 10 know that this sill' is within tWO milts o(the present Jefferson Coun ty CourlOOusc. Thu~, it can be said that the fi,..;t CQurthou'il' in what is nCMI Jeffe~r County w.'~ Ihe Blount County Counhou!>C. On DL'Ceml~r 13, 1819, Jclferson County wa~ cmated. Since the designated county sec) t for Blounl County wa s located within Jeffer. son, the Blount courthouse had to be mO'Y'Cd. Another intcrc<itin g ~idcnot(> is Ihat Ihe ('arliest records 01 Blount CounIy Me m,llntaincd today .11 the Jefferson Cnunty Courthl)u S(!, havil18 been retained in the IlCW coull ty. In February 1820, ~ meeting W,15 held at the home of Colonel G.lbriel Hanby ne.lr pre~nt day locust r'Ork, at whi ch a commis<;i on was appointed 10 choose a new coun ty sca t (or Blount County. On December 18, 1820. Bear Meal Cabi n Wol S sciccted as the !i' e, and the namc of the settlement was changed to Blountsville, again in honor of Governor William Blount. It IS believed that a wooden cOllrthou~ wa~ first built, and then a brick courthouse 'lOd jail were conStrUCted in 1633. In the years follOWing the Civil War, the cOurth ouse at Blountsville felt into disrepair. There was al so a movement to remove the county scal to a more centrali1:cd location The GoYernor of Alabama appointl"ti a commission 10 solve the problem. These commlsslonoo awarded .1 contrad (Of a new courthou se in Blountsville Ihat cos t 516,200. It was completed in 1888. The courtho\lse was a two-story brick Slru( ture thi'lt contained first ,1nd second floor porchl,.'S. The pC<)I)lc in Blount County wcrc upset ~r Ihe dcdsiC)tl made by the appointed commission. They fei llhal they should have been given a voice in the COllt'red
location of the courthouse before a nl'W one was buill. An enlcrpfl!oing cdndidate for the I louse of Representatives In the State Le8islature reco8nlzed the dlscon· tcn t of thc rural Blount County ci tizenry and he campni8ned on the platform of Ictting the people vote on the locillion o( their courthou ~. Hc won the election and the legislature 1)a~S(od a bill selling up a vote. The first election took place In Augusl 1889. The question W,I~ " Removal " or "No ReIllOV,ll." Rc mOVill
woo. A second cit-'(tiQn took place in September 1869. Nine comrfluniti~ had their ¥ on the prize of becomi ng the Blount County S("lt. They were Blountsville, On{'QIlt.l, Bangor, Blount Springs, Chcpultl'l)C(, Nectilr. j rood ') Store, Brooksville, and Anderton (now Clevetnnd). No place received a maJority. Thc runoff election Wol S held In Octobe, 1889 between 8I011ntsyil!(' ilnd
S'lrIw('1 A Rumore, Ir., I),J graduJte of /he Ullly{lr~Ily of NOire D,lmc and thc Umvc"lty of Alabama School of l.dW. I-Ic served 115 foundins ch,lirpcrmn of rhe Alilb.lma Slale Bar'j r.lmily Law SectIon ,1nd Is m pr,lcllce In Blfrnmshilm wrlh rh(' {lfm of Mis/ron/co & Rumore.
/vIy
1990
-p•
810unl (oumy Couf/house
Oneonta. Oneoma \YOn by a margin of 368 out of the 3,052 votes casl. Unfortunately, the bill sening a coun ty election did not contemplate all contingendcs. No I)rovision or deildllne was made for the removal of the courthouse to its nOW location. Oneonta had the title of county St!ilt, but no building. Blountsville had a new building but had lostlhe title. There was stili strong OPllOSition to the m<We. It Is said thOlt the Bloum County records were furtively removed to Oneonta under C()\.1!r of dilrkness. Tht! courthouse building ilt Blountsvi lle soon OOCame Blount Collcge. This building burned In 1895. The l &N RaiJro.ld pl,l)ICd a major rolc In establi shing Ihtl lown of Ont.'tmta. An ore branch line wa s built frOIll Birmingham to the Chapmall Orc Mines In 1888. loiS were plalled near the tracks, ilnd this settlement became Oneonta. It was nilmed by William Newbold, superinten· dent of the l&N Railroad In Birmingham, who declared that the mountains around the town reminded him o( his boyhood home of Oneonta, New Yurk. When the coul thouse w.u m(M!d to Oneonta In 1889, the town consisted of a tr.1in dePOt, post office, telegraph ofOce,
The A/.lbama Lawyer
three stores, '2 hOIlle), and the Farmer's Alliance Warehouse. TIte warehouse was the only building suitable to house the county l1.'Com.s, and it was rented for counly use on October 24, '889. A courthouse wa s built in Oneonta in '890. It was a three-story brick building topped "" a lower. This building was reo modelf!d in 1935, At that time Its plain brick porch WilSreplaced by a Greek Reo vlVilI portico wilh Corinthian columns. In Febroilry 1891, Blount County estil!J. li shed a branch CO\lrthou se in the town of Bangor. This wa s done to serve the weStern s(.oction ()( thl'! cou nty due 10 poor roads and Ihe distance (rom thaI section of the COUllty to Ollool\la. Bangor was named far Bangor, Maine, the city (rom which Its dCYelapers C3me. This branch courthouse wa s a two-story wooden bUilding that served the county until 1910. By 1954 the Oneonta courthouse w.lS no longer adequate (or the nC«ls o( Blount County. The county needed more SlhlCe and the building had been condemned as unsafe. A new structure was built on the site of the former courthouse. Birmingham architect J, Manin lide de-
slgnf!d the modem office-type building. The con tractor was Andrew, Dawson & Shenescn, The courthouse wa§ dedica ted January 8, 19S5, by the Governorelect 0( Alabama, lames [, Folsom. The cost of the building was appro".!m<ltely $1,000,000. Hov.cver, Blount County had to be creative to build its new courthouse. The County Board of RCYenue wa s without funds for the pfOo jt.'CI, and Ihe co\mly i1Jre;,ldy exceeded its debt limit so a bond issue could nOl be
"""'.
An <let of the lcgislnturc authoriZed the COUllly to deed the cou rthou se property to 3 group of private ci tizens who in turn mortg.1ged i! and sold bonds to rai se moncy for a new structure. The sixperson committee, knQ\Yn;lS the BIOl.lnt Counly Public Building Authority, owned the building. Rent payments from Ihe CQUllty v.<!rc usro to pay off the debt. The local legislation precluded the coun ty (rom using any other building for county g<Wernmenl. An addition to the col.lrlhouSt! was CQIlstructed In 1964, The contr;Ktor was Stone Building Company. Project a((hUoo WilS P. lauren Barren 0( Birmingham. • 215
Opinions of the General Counsel by Ale" W. Jackson, assistant general counsel
QUESTION, Is il a violation of Ine Code of ProFessional Responsibility of the Alabama State 8ar for a lawyer \0 file a lawsuit in one county when he knows Ihal venue for the aClion docs nOI lie in that coun tyl
ANSWER: This question has bL>cn previously considered by the Dis. dptinary Comm l~slon and mosl recently O pinion R0-84-102, II copy of thill opinion being attached hereto, was decided
by the Commission. In Opi nion RQ.64·102 the Commission held as follO'NS: ''There is nOlhlng unethical, per SC, In an attorney knowingly filing II J(lWSuil in a wrong Yeflue. Howt"o'er, It is unethical fOr a lawyer to rt.'quire a party to present test imony or e-li· dence in sum)Or\ of a sworn plea in abatement or motion for change! 01 ~nue where there i$ no genuine issue of any ma terial fact concerning proper venue. H
On J'OO)nsider.Jtioo we hereby resdrld Opinion R().84-102 and once again endorse and adopt tile conclusion of ABA Informal Opinion 1011 thal h Is unelhic.,1 to knowingly file a lawsuit In the wrong v(!nue if it is done 10 harass the derendOlnt or take advanta8e of the absence oIlhe opposing party. Disciplinary Rules 7-102{A)(1) and (2) proYlde as follows: "DR 7-102 .... (A) In his represental ion of a clien t, a lawyer shall not:
f ile a suit, assert a posltlorl, conduct a dcicnse, delay a trial, or take other action on behalf of his client when he knows or when II Is obvious that such action woliid serve merely to hMass or malidously InJure <lnother; (2) Knc.rwlngly advimce a claim or defense that i5 unwarranted under l!Xistirl ij lnw, exceptthOlt he may "dvance such claim or defense if it can be suppone(! by good faith a r~umen t fOr an extension, modification, or I('\ICrsal of e<lstlng law." (1)
In our opinion Disciplinary Rule 7-102(A)(2), as set hereinabooJe, when read together with the prt7>'isions of Rule 11 of the Alabama Rules of Civil Procedure and Rule 11 of the federal Rules of Ci\lll Procedure, clearl y Indicates that tnc higher Slandard set forth In ABA Informal Opinion lOll is the appropriate standard, Rule 11 01 the Fcdcml Rules 01 Civil Procedure says in pertinent part as follows:
216
"The signature of an attorney Of PM..,. constitutes a certifi. cilte by the signer that the Signer has read tile pleading. mollon, Or Other papers; that to the best of Ihe signer's knowledge, Information, and belief formed after reason, able inquiry it Is well grounded In fact and Is warranted by eJ(lstln8 law or a good (;lIth argument (or the ~ ten slon , modification, or reversal of ~Isting law, and thal li Is not Interposed for any Improl>er purpose, such a5 to harass or to cause unnecessary delay or needlessly increase the COSt of liTIg1"llion ...." Comments to the Federal Rules indicate th" , the reason;;lble 1n<lulry requi red by the Rule may depend on such factors ilS: ". , • how much time (or h"MlSligatlon W.lS availabli.' for the signer; whether he had to rely on a client for Information as to the facts underlying the pleading. motion, or other paper; whether the plelldl ng, motion, or other Pllpcr wa~ based 011 a plausible view of the law: or whether he depended on forwarding counselor another membf!r of the Ba ~
Rule 11 of tile Alabama Rules of Civil Procedure differ iOmewhat from the Federal Rule. Nonetheless, Rule II oflhe Alabama Rules stili proYldes that: "The si8nature of an attorney constitutes a certlncate by him thJ t he has read Ihe pleading. motion, or other papers; that to the best of his knowledge, Information, and belief, there is good ground to support It; and that it is not Inter· poSt.'CI for delay." Elhh:nl ConSideration 7-10 prO\lldcs as follows: ''The duty of a lawyer to represen t his client wi th zeal does not mllltme against his concurrent obligation to trem wi th consldcr.l tlon all persons IrNOl¥ed In the legal PlOCesSand to avoid the Infliction of needless hafm .~ It is our opinion that when an attorney who knows, or reasonably should know, tha t a lawsuit has been filed in one tOunty when that is Ihe wrong venue, the attorney has, in fao, counseled Or assiSted his client in conduct that the lawyer knows to be fr.ludulcn t and that he has knowingly made a f.llse Slalcnlcnt of law 01 fact fOR 7-102(.\)(5) and DR 7-I02{A)(7)]In the Coorse of his representaUon of the client.
/uly 1990
Certain proo..-isions of Disciplinary Rule 7-102tAJ make special reference !O fa lse representa!lons regarding the residency of p.1rtles to suits for di\.1)r'(e in Allibama. Disci plinary Rules 7-102(A)(9) and 7-102(A)(10) state as follO'NS, to-wlt: "DR 7-102 .H (A) In his rcprtlScntatlon of a client, a lawyer shall not: (9) file or prosecute or aid in the fiI· ing or prosecution of any suit, cross-bill, or proc«!dings seeking a dl\()rce In a court In Atab.1ma as i1 t10rney or sollcUor for a complainant or CrosS-COffiplainanllherein or serve as referring or forwim;llng attorney for such complainant or cross<omplalnant with knowl~ gl: or rcJsonable cau~ to believe that
Riding the Circuits
neither party 10 such suit, crossbill, or proceeding Is ilt the time of the filing of Ihe bi11 of complaint or cross-bill of complaint therein, a bema lide resident of the State of Alabama; (10) While acting as allOmC!y for either party In any suit for divorce In any court In Alabama, represen! to the court or conspire with any party, attorney, or person to represent to the court that either party to such is a bona fide resident of Alabama, Imewing such representation to be false
We fccl that the same standard Is appropriate In other civil actions and adopt the result In A8A Informal Opinion 1011. fR0-89-117] •
Ra ndo lph Co unt y Bar Associalio n The newl.,..formed Randolph County 8ar AS5OCialion elected offlcers. They are: President: W. Patrick Whaley,
"""""""
Vlcll-I>l'Csldent: llwis Hamner, Roanoke Secretary/Treas.: Oliver Kitchens, Roanoke
Robert S. Vance Memorial Fund A fund entilled the Robert S. Vance Memorial Fund has been established at the University of Ala bama l aw School, the Judge's alma maIer. In order to endow an aClldemic chair in the Judge's name, the fund must raise $600,000. Contributions 10 the fund arc tax deductible. Checks should be made payable to the University of Aiabtunil law School foundation, ifldicating on Ihe chuck and the cover letter that the check Is Intended for the Vance Fund. Contributions should be m.. iled to: Alyce M. Spruell Director of Law School Development UniverSity or Alabama law School P.O. Box B70382 Tuscaloosa, Alabama )5487'())82 Questions about the rund may be dirt.'C tOO 10 Spruell, al (20S) 348-5752, or to Mary Nell Terry, al: Chambers of the Honorable Roben S. Vance 900 Unit(,>{j Slales Courthouse 8irmlngham, Alilbama 35203 (20S) 731 - 1086
The J\/abama Lawyer
Request for Information The Supreme Court 01 AIIIb"m.a, In Its tf·
Ion to p~ ludiclal hlslory, Is anempdng to lderu,fy the J)Or\r.lil'l d all put chief jUSlices and as~late JuStices. \.".'e find that we aft!
without the following ponr"hs for paSt chief
juSlices and ,usociaHl justi ces:
Chief lust Ices E. W>I~ Peck .... , , .. , ... u:166-73 Samuel D. Weakh•.., ........ 1906 Associate lustlces Henry Y. 'M!bb ............ ~ Ichard Elhs •... , , • • • Ande~ Crenshaw ••. Hen')' MlnOl' .. John White . . ... )Ohn M . Thvlor , .• , .. Sion t. Perry .. Perry I. Thornton . .. .... lohn I. Ormood , , ... , . , .. , David P. lISon , , , , ........ Lymnn Gibbons ",."., ... Richard W. W,llker ..... , ... ........................ ThOr'rlas J. ludsc . " "'" . . .. . .. .. . Amos R. Manning ........ David Clopton •. •. Thomas W. Coleman w.s. Thorington .. , . ," I.B. Head .. , IOnathan Haralson . . Henry .... Sh;lr~ •. ..,. .. N.D. Denson ....•....... 1.1, MayOeld .............. A."'. Evans ..... , , , , .. , , ,.
1820-23 1820-31 1821-31 1823·31 1825-31 t8 25-34 1828-31 1834,)6 1637.47 t851-54 1852-54 1859·64 1891·9~
1665-66 1874-76 1674·80 1664-92 1890-98 1692
1892-96 1892-(19 1898-06 1904.()9 1909020
1909·10 S.M. Miller .... ,., ,.,", .. 192J.27
Norman T. Sp.lnn . ""'"
1956-57
The supn.'mf! court ~uests that If JOY hiM! any Information 01 these past Justices or of their families, pl('ase noI,fy the Clelk'~ Olfice 0( the Supreme Court oI ... lab.lma, 445 Dexler ~vt', Monlgomerv, Alabama 36130. or phone (2051 242-4609, ~obcrt G, EKiaie Clerk Supreme Coort of Alabama
217
ele opportunities
12 thursday ALABAMA SALES AND uSE TAX HunrsviHe Nation,,1 Business Institute, Inc. Credits: 6.0 COSt: $98
16-19
27 friday
SUMMER CON fEREN CE
CLOSELY HELD BUSINESSES
Perdido Beach Hihon, Gulf Shores AI;:1bama District Attorn eys AS$(Iciati on (205) 261-4191
Harbert Centcr, Bimllr\sham Birmingham Bar Association
Credits: 3.0 (205) 251·8006
19-21
(7IS) 635·8525
ANNUAL MEETING Ri verview Plaza Hotel, Mobile!
AVO IDI NG ENVIRONMENTAL
(20S) 269-1515
Alabamil Stil le 6Jf
LIABILITY IN COMMER CIAL REAL ESTATE TRANSACTIONS IN ALABAMA Birmingham
9
National Business Institute, Inc. Credits: 6.0 Cost: $98 (715) 635·8525
FIDUCIARY LAW INSTITUTE
13
Institu te of Continuing Legal Education in Georg a Co st: $ 145 Credits: 12.0 (404) 542-2522
St. Simons Island
friday
AVOIDING ENVIRONMENTAL LIABILITY IN COMMERCIAL REAL
ESTATE TRANSACTIONS IN ALA8AMA Mobile National Business Institute, Inc. Credi ts: 6.0 Cosl: $98 (715) 835-8 525
23-27 ESTATE PLANN ING SHORT COURSE Westin "Iorel, DJll as Sou th~s tem legal Found atio n (2 14) 690·2377
26-29 ATLANTIC BANKKUPTCY LAW IN· STITUTE The Brcilkcrs, I'illm Beill;h NOrtOrl Institutcs On Bil nkruptcy L,.lW Credits; 16,0 Cost; $550 (40 4) 535-7722
21'
thursday
LABOR & EMPLOYMENT LAW IN ALA BAMA Birminghilm Nati Ona l BusineSS In ~t i tu lC, In C, Credits; 6,0 Cost: $108 (715) 835·8 525
10
friday
LABOR & EMPLOYMENT LAW IN ALABAMA Huntsville Nati Onal Bu ~in(!ss Instit ute, In<;,
Credits: 6,0 (715) 835·6525
Cost; $108
16-18 ADVANCED SEMINARS The ~s tin , Vail Association of Tri al L~wycrs Ameri ca (BOO) 424·2725
or
My 1990
17 friday
7 friday
COMPUTER ASSISTED LEGAL RESEARCH
WILL DRAFTING H arbert (emer, Birmingham
Civic Center, Mobile
Alabama Bar Institute for elE
Alabama Bar Institute for CLE
Credits: 6.0
Credits: 1.5 (205) 346·6230
(205) 348-6230
BANKR UPTCY Pickwick Center, Birmingham Cumbcrlilnd Institute for elE
20-21
Cred its: 6.0 (20S) 670-2865
LEGAL SEMI NA R XXX Ol>ryland Hotel, Nashville National Rural Electric Cooperiltive
AssociOllon
Credits: 10.3
13-14
Cost: $500
(2021 857·9652
BANKR U PTCY LAW AND CO R·
24
COVERNANCE 'M!Slin Hotel, Dallas Southwestern Legal Foundation (2 14) 69().2377
PO RATE AND PARTN ERSHIP
friday
20
thursday
DIVORCE LAW Riverview Plaza, Mobile Alilbam'l Silt Institute for CLE Crooits: 6.0 (205) 348·6230
21
friday
GOVE RNMENT CONTRACTS Botanical Gardens, Birmingham Cumbcrlilild Institute for
elE
Credits: 6.0
13
thursday
(205) 87().2865 DIVORCE LAW Civic Center, Huntsville AI"b"ma Bar Institute (or CLE Cn:.'tIits: 6.0 (205) 348·6230
14 6-7 ANNUAl REVIEW SEMINAR Convonlion Cen ter, Memphis
Tcnness<.'C Law Institute Credits: 12.0 C()st: $275 (61S) 544·3000
?'fw AI'lbama Lawyer
friday
DIVORCE LAW Civic Center, Montgomery Alabamil lJar Instit\Jte for CLE Credits: 6.0 (205) 348-6230 PRACTICING BEFORE lEGISlATIVE AND ADMINISTRATIVE AGENCIES Pickwick Center, Birmingha'l' Cumberland InSTiTute for (I.E Cred its: 6.0 (205) 870·2865
DIVORCE LAW Harbert Center, 8irmingham Alabama aar Institute (or CLE Credits: 6.0 (205) 348·6230 S CORPORATIONS Pickwick Center, Birmlllgham Cumberland Institute for CLE Credits: 6.0 (205) 870-2865
21.
The Hawk Outside the Judicial Building: Recent Environmental Cases in Alabama .. ..j. " ,
;";;'; .;.---
there to look (or squirrels and I,igoons to eat; il had been there 011 $CYCml Olner occasions Ihill winter. NOOCllheless. I~
hawk was a welcomed symbol, and after the arguments were oYer, It left.
Overview Concern wi th Ihe environment ;md the
problems human beings haYe OC'tln caus-
lly Ray V,luglmn On December 14, 1987, Ihc Supreme Court of Alabama heard oral argum(mlS
lice's office in Ihe fmn l of the Judicil'll
Building; there in downtown Mont路 gomery was II powerful cmbodinlen t of
in one of The first major environmental
the wild. Some canslder<.od Ihe hawk to
cases 10 tome! before that court. Prior to
be an omen, a harbinger of good fortune
the 3fHumcmls, a red-t.liled hawk perched in Ihe pecan tree outside the chief jus-
for Ihe case and for Alabama's environmerlt. In all likelihood, Ihe hawk was
220
Ing our ei1r~ h ha~ increase<! dramlltically in ~he laSI few de<;ades, and Aillooma is no stranger to Ihis ~rend . H~r, In ~he area of cnvin)nmen'<I11aw, Alabama's al>' pel late courts have only r(!(emly hOld the opportunity ~ o become Involved. While the federal Judiciary and ~he courts of many of thc largcr Slilles hllYC been deillIn8 with environmental Cil~S for S(M!ral decades and developing a large body of environmental jurisprudence, aCllve litigation over environmental Issues has iust begun In Alaooma. During the last
lul'l 1990
few years. the <,ppell3te COUtlS of Ala. bama have deal! with a number 0( envlronmerllal cases 1rM:>lvlng a wide range of Issues; hO'NC\lCt most of the important cases have been decided In tho last few months. This article will review Ihese Alabama environmental cases and Iheir Impllca. lions and hOY! Ihey fi l into the background of federal emirunmenlallaw. Tile teglslml\.'C Cl'lacting of envi ronmental laWS, both at Ihe slate and the federal level, is an or' going and evur-t.'VOlving process and has a great Imp.1CI 0 11 evl:'ryThing in America. Ha.vever, It is the interpretation 01 the statules bv the courtS tha t gives guidance to the agencies charged with administering the acts and to the public In thelr cfforts to protOO the environment.
Early cases The COU rt~ of our state hilVC had to ~a l occasionally with various health statutes and with erwlroMlenlal problems ad· dressed by the torts o( nuisance '.Ind respass. See Rushing v, Hooper-McDonald, Inc., 293 Ala. 56, 300 5o.2d 94 (l974) (n tre spass can be commlued by disch," ging pollutants at a polnt bcyond the boundary of the realty), and Borl:lOd v. Sanders Lead Co., 369 So.2d 523 (Ala. 1979) (compliance wilh Ihe AI'.Ibama Air Pollution Controllo.ct doc'S not shield a polluter from liability for damages under the tons of trespass and nulsilnce). H(1Never, cases under the modem federal and stil te errvlronmental statutory scheme arc a recent development . In Stilte ex rei. CriJrkJick v. Icbsen S. (U.K.) Ud., 377 5o.2d 940 (Ala. 1979), the St<lIe atlernl)\ed to colloo a civi l penalty proYided "" the Alabama W.lter Imprt'.JVement Act' for an Intentional discharge of pollutants inlO state walers wl lhout a permit. The court held that thc Slme had f'.lilt.'(i to state a claim upon which relief could be granted for the facts alleged in the coml)laint cleiJrly showed that the discharge was ac(idental. Indeed, the discharge was due to a ship colliding wi th a terminal arld thereby St."v'ering pipelines that discharged IlOlIuwnts into the waler. Since the statute was penal In n'.lture, the court strictly construed the language of the statute to limit Its appll. cation to intention,,1 conduct. A differ· ent section of the act provided for re<:QYery for accidental discharges of IX>I. The Alabama Lawyer
lullon, but lhe State had not elooed to proceed under that section. In Ross Neely fxpre>s, Inc. v. Alabama Dept. of Environment,ll Mill'lil8cment, 437 50.2d 82 (Ala. 1981), the supreme court held Ihat l\'.(l Alabama OcpM m~nl 0( Errvlronmental Management ("ADEtvI', regula tions were unconstitutionill. The regulation s at Issue dealt WiTh (ugilive dust emissions from roads. Ross Neely trucks using an access road malnlalned by Ross Neely were throwing dust Into Ihe air, and ADEM rought an Injunction to pr("YCnt those dust emissions. In findIng both regulations lIIlreasonably (Nerbroad and ~rly restrictive of a property OY!ner's righ t 10 use his property In a reasonable manner, the court stated: 'While the abcMl mat1ers are dear· Iy subject 10 Ihe policy power, and while the control of air IlOliution is greatly to be d~ired, we find thaI the restraint imposed by the two regula tions before us, as written, Imposes a ~trillnt upon the use of private property that Is dlsproportionme to the amount of evil Ihat wll! be corrected. Thus, they f.,11 the test of constitutionali ty under City of Russel/vj/le v. Vulcan Materl.lls Co., [382 So.2d 525 (Ala. t980)]." 437 So,2d at 85·86. The court of civil apl>C'.Ils ruled on the constitutionality of the aPl>cals procl.,<lme In the Alabilmil Environmentill Management Act', the act thaI cre'.l ted ADEM, In Dawson v. Cole, 485 So.2d 1164 (Ala. Clv. App. 1986). Oawson appealed a National Pollution Discharge Eliminalion System (" NPDESi permit that had been issued by ADEM to a developer In 8i1 ldwin County, and Dawson w.l rU oo to enjoin the commencement of the administril tive hearing by attacking the constilutiooillity of the procedures ror that hearing. The court hdd that the lack 01 any mechanism to postpone the W commencement" of a hear n8 on an appeal from an ADEM decision does not make the slatute and the corresporldlng regula· tion violative of due process. Finding that the 45-day deadline for the "commencement" of a hearing was designed to ensure an aggrieved party a timely hearing, the COurt nOI<.>(I thaT ADEM regulations provided for a continuance of the hearing once It had been commenced,
should '.11'1'( party so require. Dawson had also attacked the lack d prehearing discoycry in the appeal process. followIng federal InTerpreta1ion of admlnlst"'tlw l)rocecdings, Ike court held that there Is no basic constitutional tigh t 10 prehearing dlscQYery in such a sltua· tlr;m. Further, Ihe act did Indeed provide for some disc<M!ry. The merits of Dawson's appeal of the permit Issu<.>(l to the 8aldwin County developer were addressed In Dawson II. AI.1bama Depl. of EnvlronmenUJI MilnIIgement, 529 So.2d 1012 (Ala.Clv.App.), <:en. denied, Ex p;Jf{C DJwson, 529 So.2d 1015 (Ala. 1988). There, the court set forth the rules that '.I decision of the Ala· b.~ma Errvironmentill Management Com· mission ("A EMC"J, which oversees ADEM, be taken as prima I.l cle Just and reasonable, Ihat a presumption of Correctness attaches to thaI decision, and that a reviewing court may 1101 substitute its judgment (or that of AEMC as to thi! weight of the evidence on questions 0( facl . DclerringlO the expertise of ADEM In CrWlronmental matters. the court upheld the Issuance of the I>crmit. The cou rt also upheld AEMC's inwrpre\lulon of the sta te's water antldcgradatlon pol. icy. In denying certiorari, the supreme court staled that the denial should not be construed as approving statements of the court of civil appeals rcg.lrdingthe scope of rt..... iew. The denial of cenlorari was based upon the fa ct thai Dawson was rai sing constltu tionil l claims In the peti!iorl for ccrtiorarllha t wcre laist.od for the first time on appeal. The fact that the supreme court denied CCrtiorari for some reason other ,han approval d the reason· Ing of the court of civi1 appeals would I"ter become Cri liciJl, because the l)Ortlon of Dawson upholding AEMC's Inter· protatlon of the Willer antldcgr.ldation polky would I)C overrulr..d In the later
Rily V,lUshan is Sf~(f aUOrn~ to Senior ASsociate Justice HUSh Maddox of the S\lpwme Court of Alabama. l ie Braduated from the Univcfsily o( the South anellhe Universil y o( Alabama School of /.<IW. Prior 10 his plY!senl position, v,lUshan was <11'1 <lrSS/Sla nt allOIflCY gen· eral, Presenlly. he Ie<lrches tnvlrOnmenlol l law ,lt Jones 11Iw School.
case of f1c p;Jf/e Fowl River Protective Ass'n., (Ms. 6&561, May 25, 1990] ~.2d __ (Ala. 1990) (discussed below). The Shell Oil Drilling Mud Case The first major environmcntili CilSC to gain much Slate-wide publicity was Ex
p;Jrte Baldw;n Coonty Comm'n, S26 Sc.2d 564 (Ala. 1988), the case where thc hilwk was outside the judicial build. inK during or<ll arguments. This case began with the decision of ADEM 10 Issue to Shell Offshore Inc. (a subsidiary of Shell 011) an NPOES permit. Required by the federal clean Wilter actl and the statl! cleiln "'<Iter act~ ,1n NI'OES permit Is a necessary rt.'quisite for any dlschargc In· 10 Willer. The name is somewhat 01 a misnomer, for although the system is called " POliu tlOn Discharge flimlnillion System" It prOYldes a vehicle for 1lCI-V pollution sources to begin legilily. Such "'<ISthe application from Shell; II sought the firsl permit todischl1rge drillin!! muds from an offshore drillillil rig Into Alabama W.llcrs. DUl! more to Interagency confu· sion than 10 dl'Sign, Alabama had main. talned a "n<>-dlscharge" IlOlicy as to drilling muds lor approximately len years. After the consolldi)1ion o( the various st.lle env ronmental agencies In· to ADEM in 1962, Shell WOl S the ArSt applicant to ask that thc nO-discharge policy be aboll~ cd . After many mOflths of study, ADEM decided 10 abolish the no-discharge policy and grant Shell a permit to discharge drilling muds and other wastes (rom Its rig. This decision was al>lXlaled to AEMC by the Baldwin Cot.Inty Commission with support (rom the Alabama Chapter of the Sierra Club. Aller a hearing officer rC(ommended that ADEM's permit to Shell be adopted by AEMC, on AUgUST 5, 1967, AEMC voted 4·3 to disapprove ADEM's action, and an omer denying the l)Crmit was entered August to. Shell filed a motion (or retonsldcriltion, and on SCI)tcmiJcr 8, 1987, AEMC decided 4·] thM it had the ~r 10 reconsider Its prior decision and then votcd 4·) to reverse its prior order and to approve the issuarlCe of the permit \0 Shell. Intertwined with the actions of AEMC was a lawsuit filed by the Baldwin Coun· ty Commission In Montgomery Circuit Court to prevent AEMC from reconsider. ing its dunial of the permit. The circuit
222
court ruled prior to September Sthat IIw issue was not ripe, as AEMC h11d no\ yet decided that it could conduct il rehear· ing. On September 8, once AEMC had dcc:idcd that I! could reconsider Its prior action, Baldwin County (ill>d a petition (or a temporilry restraining order with the circui t court minutel later. Ra.her than "'<lit for tnc court to hold a hearing. AEMC went ahead ilnd reconSidered Its prior dl'Clslon ilnd rC\lCrsed II, Only hours later, the court enlered an order enjoining AEMC from continuing. Shell petitioned the court o( civit appeals for a wril of mandilmus to the Montgomery CirClllt Court.o 1)r£.'VCrH the circuit court from conSidering Baldwin County's petition. The courl 01 civil al>peals granted Shell's petrtlon and held that since AEMC had already reconsid· cred Its prior actlor, then the prOI>cr method (or Baldwin County to procl'Cd was (or it to appeal 'he gran ling o( the permit. Baldwin Coun ty petitioned the supreme court for a writ of certiorari, which was granted. In a 6·) decision, the supreme court reversed thc decision o( the court of civil appeals and held .hat due to the unique statutory design of AEMC (svch as its ex· emption (rom portions of the Adminlstril· live Procedure Act'l, "EMC was without jurisdiction to recon ~l der its order deny. ingthe permit. The court's holding was: "AEMC W;!s who Iy wi th()ut any authority to grant. rehearing or to lilke further action of any kind in the matter. All actions therea(ter taken by AEMC, Including its order of September 6, 1987, were null and void. Since there was no appeal [by Shell] from t~ Qrder of August 10. 1987, t!'c order denying Shell a permit to dump dr1U1nS WilSIe Is reinStated as the final or. der of AEMC." 526 Sc.2d at 568. While n~r reaching the ~ubstil ntlVtl issue of the propriet'y of a permit for the dischaIKl' ()i drilling muds Into Alab.lma's coastill waters, the dtdslon represented the flr)t major court victory for 11 8rOUI) sceking to prolect the environment In the appellate courts of Alabama. An Ironk note to the case is 1I1,1t Shell h(td nearly fini shed its drilling o!X!fatlons prior to the date of thl' supreme court's decision; thus, most o( The drl!1ing muds and other
w,lStcs that Shell had "'<Inteel to dischilrge Into the water h3d 111reooy been dis· chalKed. Even though Shell discharged Ihese wastes without a permit, as .nc suo preme court'S opinion held, no state ageney or environmental group hilSever sued Shell for those unpcrmillcd discharges. Therefore, while the proenvironment side won in court, the victory was a p<!pcr one. Now Shell and Ex· xon have both applil>d ADEM (or St.'V(!ral mOil! permlts.o diSCharge drilling muds (rom other rigs In Alabama coast. al waters. Those permits are preseotly beIng contested, and thus, the SUI)reme court may yel have the opportunity to rule on the merits of grill1ting a permit to discharge drilling muds intO Alabama's coastal waters.
'0
O ther recent ci vil cases White an import<ln! C.lse, fK p;Jrte Baldwin COUnty Contm'n was little more than an opportunity fOf Alaooma'511ppel. late courts to gel their fecI wet in the vaSt sea of environmental law. Other r{!ccnt cases have delved much mpre d<.ocply Irl· to the substanti\lt.! iswes of environment· al milnagCfnl!n1 and protection. In Marshall Durbin & Co. o/Iasper, Inc. v. [nv/ronmcnltJl Management Comm'n, S19 5o.2d 962 (Ala.Clv.API). 1987). the court 01 civil aPI>eals upheld ADEM's 7010 slclndard OYer a less s:rinllent JOQS standiHd proposed by Marshllil Durbin. The 7Ql0 standMd Is used for water desi8n criteria and nmrescnts the minimum scYen-day low thai occurs once In ten years; this sIa1dard Is used to help determine the discharge limits placed on all NtJDES perMit. Uslnll the 7010 standard, ADEM Issued an NPDES permit to the Jaspt..'f Utilities Board for the city's SCWi1ge plant; MarShall Durbin was a cuSlomer of the city'S §(oWcr service, and Its fces for thilt usc would increase in ordel to prO\llde fund~ for the conStrUClion of a new sewage plant that would meet the 7Ql0 standMd. Prior to the Issuance of that permit, MarShal! Our· bin petitioned ADEM for a change In the ildmini stratiYC Siandard from 7010 to )OQS, the mInimum JO.day flow \hal oc· curs once In five years. The court held: ''Thc practical effect of Durbin's petWon would be to permit more pollution to be di scha~ inlO the two streams, whIch result would nOl promote the purpose of the
now
now
luly 1990
Alabama WJter Pollution Control Act, In applying lIs cxpcrtisc to
Dl.Jrbin's petition, the Commission WilS01150 justified In findlnglhJt the petition was not sufficiently supPOrled IytI proper evidence, The Commission WJS further Wilrranted in finding that the rule change from 7010 to JOQ5 would be dctrlmen toll to the Department's (WCrali regulatory scheme. The Commission exercised lis discretion In choosing the method of achieving legislaTive objecTives, A/'lbamil Board of Nursing (v. Ncrrlck/, 454 So.2d 1041 [(AI<1 .Clv.API). 1984)1, <lnd we must give great weight to its decision. Ci!y of Birmingham Iv. Icffcrson CounlY Personnel Bo.lrd/, 468 So.2d 181 J(Ala.Clv.API). 1985)]:' 519 So.2d at 965. Th is holding dernorlstrates the widely accepK'(! rule that matters within the environmental ogency's area o( expertise will be left to the agen· cy's discretion, and It glve$ strong support 10 the reason behind the st.lte's deoln Willer acl: to reduce waler pollution. Marshall Durbin got a second bite al the apple, in e{(e<:t, whcn the supreme court held In Ex ,wrle Marshall Durbin & Co. of /.lspcr, Inc., 537 5o.2d 496 (Ala, 1968), that MarShall Durbin had standing to appeal ADEM's issuance of the final NPDES permit to the jasper Utililil'S 80Md. The court reasooed that, as a customer of the boarc, Marshall Durbin's Increased sewage (ees nCf!ded to pay (or the new sewage facility made Marshall Durbin an ".lggrieved" I)arty under the ilPplic,lble statute and reguilltion .· Thus, Morshall Durbin got to challenge the 7010 standllrd In CI petition for an IIdmln· iSlr<Jtlvc ru lC! dliingC! and in an appcal (rom the actual pc!rmlt Involved. This opinion shows that the SuprC!me Court of AlabJma Interprets the state's C!nvlron· mental statutes llnd ADEM's regulotlons Uberally in gl"in8 those Industries and parties fCgulated thereunder ample opportunity to participate in the decision· making pfoceSSl'S of ADEM. In another case dcaling with NPDES permits, the court ol civil al>PCals had the opportunity to set (orth the doctrine of exh3ustion 01 adminlstfiuive remedies as it applied to ADEM. The court held In Save Our Sfream s, Inc. v. ft>gucs, 541 So.2d 546 (Ala .Civ.App. 1988), that
NPDES permits must ~ nnal bciore ISsues surrounding them are ripe (or Judi. cial review. There, the pla lntl(( environmental group tried to enjoin ADEM from i:'sl.Jing a modified NPDES permit 10 one p.lrly ard from 155\1ing another permil to the Shclll't' County Com· mission. The plaintiffs issul.>$ as to the Orst permit became moot wherl ADEM agreed to suspend the party's original permil and agreed to hold more hearings on the proposed modified permit. As 10 the permit for the Shell7( County Com· miSSion, it hold nOI even been issued whcn the plaintiffs filed suit; thus, ,my Issues surrounding It wcro not ril~. The plaintiff petitioned the supremc court for a writ of certiorari to review the holding of the court of ci"il appeals, but that petl· l ion Wil S denied with an Ol)inlon th<1t pointed OUI Ihal the plaintif( hild fatled to conlj)ly with Rule 39(k), A.R.AI)P.". Ex ptlrlC Save Our Streams, Inc., 541 5o. 2d 549 (Ala. 1989). The SUI)rcme Court's opinion on hCl'N to comply with Rull! 39(k) so that review by certiorari can be had is very imporla nT, because many en·
vlronmcn tal ca!tC5 tn Alab.Yna will be an appeal from an action of ADEM, and thus. as an appeal from an administrative action, II must usually go through the court of civil appeals before It can roach the supreme court. xwral of the permits ill'oOlved in Save Our Streams were lit issue in Water \o\brks & Sewer Board 01 City 01 Birmin8ham v. Alab.1ma Dcpl. of E'wironmenliJl MllntlgcmcflI. 551 So.2d 268 (Ala. 1989). There, a permiT Issued 10 Daniel Realty Corporation WilS Transferred to 0 & 0 Wa tCr Renovators, Inc., and then Shell1y' Counlyagreed to oper;ue tile facility per· mltted 10 0 & D. After Shelby County aStCt.>d 10 be lin as!,)nt for 0 & D, the location of ,h£! faci lity, bUI not Ihe dischM8e point, was altered so th.., Ihe fadllIy W'IS loclllcd In a watershed of Lake Purdy, ,1 major drinking water source for Ilirmln!!ham . The Birmingham BOMd Ilrgued that Shellytl County was operatIng this facility without a I)rope!' permit, The supr<!me court rejectl.'Ci th ts i1'1!umentlYy' holding that the agency relation ship betwccn the county and D & D did nOI in-
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valld ... tc: the J>('rmit held by D & D for the discharge point, and that a change In faci lity IOCiltion will not necessarily Invalidate a permit that W.1 S issued for a faci lity in another location as Ions as the dischilr8c p(}int has not been chi1nSed , The court stated th at a change in facility location could cause II perll1it to be rescinded and would n~ess i t atc tha t the permitting procedure be done again If that alteril tion presented a hazard , An important point in \MIler \l\.brks wa s th at the COurt ~Ir;ltha t ADEM did have the authority to con sider faci lity loc<uion and design In making its deci sion on whelher to grant a permit. Throughout its history, ADEM has always interpreted Its authority in a very narrow way; without specific guidance (rom the legislature or the courts, ADEM has usually declined to act beyond being il permitting agency. In Ihis casc, ADEM argued thil t it could J'IOI C(}nSldcr Such factors as facili ty location and design in its permit decision, It contended that jt could COnsider only the e((ect of the discharge at the discharge point. Quoting ex tensively from the he(lring officer's finding s, the
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court found thaI ADEM's authority is more l..'Xpansive thoo ADEM had interpreted It to be and slated : ''The hearing officer determinl.'(i that ADEM has thl;! ilUthoriry to consider the faci lity loca tion, although he found that ADEM Is nOt under a mMdatl' to do so. What then Is the effect on the perm it of .1ltcril18 something th at may or may not figure Into ADEM's issuance of a permit? Certainly, if the fa(ility location were altered and that al路 tera tion presen ted a hazard to the State'S watN supply, then ADEM would have the authority to resci nd Ihc Issued pcrmit, However, if th e facility location is altered wi th ADEM's knowledge and thill alteration does not prove haza rdous or ou t of line with ADEM regula tions, then 'Nt! a,,~ or thl' opl1110n that the permit is valid," (Emphasis orlgl. nal.l 551 So.2d ~t 271. Th ~ far-reaChing cff~t of th is case Is to show ADEM that II can Im,)lemcnt a more C(pal1sive interpreta路
tion of its authority than just being a permillinH agency, The variou s acts that ADEM operate$ und!!r have rhe express purposes of protC<:llng the environmen t and CO!llprchl'n s l~ly managing tht"! slate's resollrces~ yel ADEN! has long taken the position th at its authority extends only to the strictly tochnicat computations involved in the isolated aClivity sought by an i1pplicant. Thi s case now gives ADEM the guidance it had previously lacked on hO'W its Interl)rCtation of its authority should Ix! broadly del'll1!!d in order to achieve the goals set forth in the stille's environmentill st.ltutes, 'TWo other recent cases wonh noting arc McCOrd v. Green, 555 5o.2d 743 (Ala. 1989), and Rice v. Alabam'l S!,Jrf,u;e M/llins Co mm'n, 555 So.2d 1079 (Ala.elv.App. 1989), Ceft. denied, 555 So,2d 1079 {Ala, 1990}. In McCord, the supreme court ruled on a more traditional areil of environmental lilW: nuisance. An injunction against an anticipated nl,lisance (II creosote plant) was re~rsed for the fai lure of the plnlrltiffs to p~ thlll the plant would be a nuisal1ce per se, tha t 15, at all times
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and under any circumstances. The pi;!in. tiffs hoped to enjoin the plant's construe· tion by illfempling to prove it loYOuld be a nul$.1n(e due to Ihe air llnd noise poilu. tlon It would cl'eille; howcver, their level of expcrttostlmony was not Suffi cient to mllke their cas<>, and they made no at. tempt to prove damage 10 surface and ground Willer. McCord Illustrates the heavy burden il"M:)l..uI In showing environmental cause and effect so as to prove Ihat an activity will be a nuisance. The court of civil i1ppeills held in Rice IhOlt IIgents for slrip mine permittees Ciln be held persorlaJty liable under a section of the Alaooma Surface Mining and Re<;. lamation Acl' for a (allure of the permit. tee to reclaim the land. Such a holding agrees with other jurisdictions In ImposIng liability for da mage 10 the envlrOr\· ment in an expansive manner. Indeed, since no Alab:uTl.i1 court had ever inter. preted thm section before, thl;1 court relied upon the interpretation given the federa l statute' (upon which the Alabama statute was b..lsed) by the Sheth Circuli COurt of Ap~;;r.l s in United StMes II, Olx Fork Coal Co., 692 F.2d " 36 (6th Clr. 1982) .
__ So.2d__ IAla. 1990), a cas.e il1'o(ll .... Ing the constitutionality of the slate's solid waste aCI." hI April 1987, the Laud· erdale County CommIssion authorized W.1S\C Contractors, a subsidiary of Waste M:lOilgement, Inc., to opefilte a solid waste hmdflll ncar Zip City. The commission look this action without any notice to Inc public or opportunity for a hear· Ing. Later, the comm;5slon rescinded its approvJI for the landflll without any notice to W,lste ContrJcto~ Waste Con. I';1ctOI'5 sued, ;rlleglng thaI its due process rights hild been violated and Ihat the
one subsection'! of tnc Slate solid waSle act gilling counties Ihe pa.ver 10 appt'(M!' or d isa ppr~ di sPQSJI sitts was uncon· stltutlonal In that il failed to proYide specifi c guldl!lines or standards for a coullty 10 follow. The Slate soUd Wilste act provides that both ADEM and the COUl'lty inYOlve(! must permit a solid waste land· fl ll site before the landfil l C.1n be COf"lo ilructed; at the time of rh i~ action bv Lauderd.1le County, the ad W.1Sarguably lacking In standards, bul the ael has since been amended to !>,ovlde more specific I!uidcllnes. However, the resolution of
Criminal cases ~ry little enforcement of Ihe criminal sanctions in Alabama's environmental statutes has been undertJken. While a few Indictments h~ been brought In the past ft.>W years, the only case to reach the lll>lXlllate level ha~ bt.'(ln SI.1(e v. Clayton, 492 50.2£1 665 (Ala.Cr.App. 1986), wherein the defendant was ChiHlIcd with c.1uslng the fornhli ion of an "unauthorized dumpN under the Alabam3 Solid W,lstes Disposal Act.!O The district COurt found the statutes prohlbil1ng the (orma· tlon of una uthorized du mps 10 be un. constit utionall y lIagul). ~clying UIXln the rule thllt hcalth rt!gulations adopted under the state's police power a~ to be given great latitude, thc COOrt of criminal appeills reversed and held that the sta· tutt!S \oWre not unconslilutlon.1l1y vagu~, because Ihey did give il reasonable description of whill wastes felt under the prohibition.
The la test cases O ne of the biggest environmental cases to come before the supreme court was Ex parle /A u<rordale County, [MS. 86-557, 88.583, FebruMY 16, 1990J The Alabama Lawyer
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thi s ease turned or\ whether the solid W(lst ~ aCT as it exl>t~ In 1987 WJSconsti· tutional. BecJuse Waste Contra ctors h"d at· ,.. eked thc validity of the solid wilSte aCI, the Sta te was allowed to Intervene to defend the constitutionality of the sta tute.') The Sta te argued before the trial court Ihal the court should not read the one iSQI,.ted subsect'on whi ch Wilste Con· tractors was il!tacking in a vacuum and that although the solid wilStC act was not as specWc as it cou ld be In Its standard s, when read In Its entirety, It did con tain sufficient s\,1nd,lId s to guide a county in its decision.making process on a landfill permit. The lrial court agreed with thi s argument i1nd upheld the act and the ac· tions of the County.
On appeal, the courl of civil appeills reversed because tha t court determined thnt the state solid WilSte act wa s un· constitu tionally vague. After granting the writ of certior<lri, the supreme court reversed and, in an8·0 decision, held Ihill the act did h~ su ffi dli!nt slturdards,
when re<ld in its enlirely and when read in light of ADEM ilnd health departmer\1 rt;!gula tions which a county could not violate. Tht! court W(!nt on to state that the cuumy did violate Waste Contractors' due process rights by rescinding the al>prOll.ll wi thout notice and a hearing; however, the court also nOIOO that the initial apprOllal wi\hOUlnotke rmd Il hearing viOlliltid th(,o public's due process rights. In addition to those holdings, the COurt WCrlt on to uphold parts of the coun ty's sanitary lancfillllcense requirements (adomed after it hild rescinded the flpprovill for Wa ste Contra ctors' site) that the COLIrt of civil appeals had struck down. The~ included the license fcc and the re<luiremerlt that any applicant receive their ADEM permit before it could get permission from the coun ty. The decision in lAJudcrda/c (ounly il· lustr;1tes the suwcme court's indination to Interpret environmental stiltutes so as to fully effectuate the leBislativc inten· tion s of protecting the environmenl and human health and of allewing full l>.1rtlc{I,ation in Ihe declslori .maklng process
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by both the public and the fCgula ted p<lrties. The latest environmental case to come before the supreme cou rt W.1S also its larg(!!;t to date. In Ex fJJrlC Fowl River ProICcl ive Assn., (Ms, 66·561, M(1'f 25, 1990) ~o. 2d __ (Ala. 1990), the courl w;l~ faced wi th an extremely toml>licated f(Jell)a l situatiOn involving the con struc· ti on of an Industrial Sl"'o'>Iage outfall in Mobile Bay, Irwolved In the case wa s an NPDES permit Issued by the Alabamil WOller Improvement Commission (il pre-decessor agency 10 ADEM) 10 the Board of Water and Sewer Commissioners of thl.! City of Mobile for thl'! dl scharg<! of up to 2S million gallons per day of treated Industrial scwilge, Despite the long history of this permit battle and the cOrlll)lexlty of the facts, baSically two issues were before the supreme court~ whether AEMC's inlerpret;1l ion of the state's antidegmdation policy Wil 5 proper ilnd whether the evidence contained in Ihe record warrantl..-d Ihe grarlting of the permit. The Court of civil appeal s had ruled that AEMC's Interpretation of the antidegradation polley was correct ;1nd that the issuance of the permit w;l S proper. In reversing the decision of the cou rt of civil appeals, the supreme COLI rt held that the AEMC's interpretation of the policy was clf)<I riy errOntiOUS. BMt!d upon the fed· eral antidcgr;1dation policy," the state ,)Olley Is ar\ ADEM I'Cgulation that serves " to conser\!(! the waters of the State of Alabama and to protect, maintain and improve the Quality thereof...."'s All wa ters of the st;1te are classified I7y ADEM a~ 10 their q\rality, a(cordlng 10 their uses, and the highest classification ADEM currently gives to water Is publ1c waler supply. ADEM and AEMC had imerpreted the state's anlidegrildation policy to mean that wa ter quali ty could be degmdcd within a classification without any showing and that water quality could be dl.... graded from its present cla ssification to a lower classifiCiltion upon a shewing of economic Or ~oclal necessity. This imer· pretatlon wa s In line with Dawson v. Ala· Ixtma Dept. of fnvironmenlill Manage-men!, supra, wherein the court of civil appeals had upheld th"l inl(!rp n:tiltiOn as rea sonable. Referring to the federa l anll· degradation policy for guidance, because ADEM Imd AEMCs wat", regula tions must conform \0 federal ones, the court July 1990
held in Fowl Rivcr that AEMC's inter· pretation of the policy W,IS Incorr'e(t rind oYerruled D.1'.vson Inasmuch as II upheld thai interpretation. The COlirt stated; "A C<lreful comparison of thc Statement In D,1wson to the alltidc· gradation policy reveals thac they conflict. OaW50n stmes that lhe an· tidcgradation policy allOWS dcgrad· ,ulan of waten within a cla ssifica· tion, but not dcgrildillion from a higher 10 a lower clas sifi(ation without a shOo't'lng of necessity. /11;cordingly, under Dawson, it would 00 permissible to degrade wil tcr from onc wOl tei use classification to anothcr, J( there were a showing of necesshy. The antldegfadation policy, on the othl!r hand, l)fO'Iides that WJter may 00 degraded with· In its closs lflc;Jlion If there is a showing of economic or social nl,.-'(esslty. In that degradation, h0wever, the poliqo requires that the watCr quality be maintained to 'protect existing uses fully.' Funher. more, tile policy in another pl'OVi . sion explicitly commands that existing water uses and the level of WJler quality necessary to prote!;t the existing uses 'shall 00 main· tained and protected.' The policy does not S,lY or eYen Imply Ihat water may be degr,lded from one cla sslncu tlon to anot her, as Dawson 5r.lrcs. Thus, If there is a showing of economic or wei,,1 neceSSity, watl!!' may be degraded within ils clasSIfication, bUI Wilter may never be degraded (rom one classlOcation to a lQY.'fr one." tErn· phasis original.) ~.2daL-.
In ildditlon to giving the stale's Willer :Irltidegradation policy an Intelpretation moll! In line with protecting the stale's wilters, the COlirt roled that a further AEMC Inteq)((lrillion on the polley wa s erroneous. AEMC and the hearing om· cer Involved In the appeal before AEMC in this case had both stated th<ltthe anti· dcg",dation policy did nol ill)ply to waters which were not of n quality hlghllr IhM the public willer supply use cla ssl· ficatlon. Si nce rhe highest classifica tion ADEM currently gives to water 15 public water supply, AEMC's interpretation of Ihe Ilntidegradmlon poliey Inlil it <,pplied
The Alabama Lawyer
orlly 10 WJters higher in quality than public WOlter supply meant tha t the policy atll>lIed to no waters in Alabama. The SUI)ll!me court held thOlt such an In· terpretatlon was a clear violation of the 1)OlIey. After striking down AEMC's interpret,,tlons of the antidegrarl:llion policy, the supreme coun wenl 011 to address the merits of the permit Itself. Finding that the two-dImensional COml)uler model used to pr(.'dlct e(fluerl! behavior and to ~ the permit limits cou ld not predict the Impact of the dis<:hargc on Ihe real.llfe. throo-dlmcnsionill Mobi le BiIY, the court determlfJ(!d from the record thaI ADEM had va stly O\Il!restlma!cd the amount of effluent that could be discharged into the bay withou t dcgrJdina water quality. In particular, rh e court found that the dissolV(.>d O~Y8en WJter (IUtlllty standard most likely could nol be met with the discharge limits in the permit. The fatal flaw in the compu ter model was that ils I'MXllmensional calculations completely ,.dled 10 lake Into lIccount the striltifica· tion of Ihe water In Mobile lilly due to
varying water alld cfOuen t densities, Because the evidence clcarlv shQY.t()(l thill the rllill water was much more dynamic than the simple 1'MXl1mt!n~lon computer model, the computed effluent limits were much too high, and the permit would probably allow watcr qual ity violations 10 occur. Aftcr comingtl) this cooclusion, lhe supreme court reversed thc holding of the coun of civil al)peah that aff'irmed the I>crmit and ordered that Ihe permi t be denied. It Is important 10 note that the court stated in a footnote thar the re'>rrictl...e in· terpretation given 10 slanding under Ala· barna's envlronmenlal I~ws by the EltMlilth Circuit Court of Appeal s was in· COrrt!ct. In Save Our Dunes v. Alabama Dept. of Environmental Manasement, 834 F.2d 984 {ltth Clr, 1937}, the EIC'Jo enth Ci rcuit rull,.'(! that II person docs not have standing, under Alabama law, to ch.ll1enge an action oi AOE"" unless thai person has II property interest directly af· k-'(too by the action. The supreme courl mllde It clear that stalldlng under Ala· b.1ma's (!frVironmentJI laws was not so re-
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stri Cli\'e and that the Eleventh Ci rcu it's Interp retation was erroneous. "[M Jatters o f environmental protection and regu la. tion are of great signi fi ci'lnce to the ci l il:en s fif Alabama, and a cl tizerl'S statutory rig ht toappcal an A D EM deci· slon shou ld be irllerprcted bro adly," ~0.2d
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is J strong statement that the Alabama Supreme Court wit! imer· p ret envi ronmental sti'llUtes and regula· tions broadly so as to fu lly implement th eir purpose of pro rectlng the environ· men t. A dear sigrlal was sent ro A D EM and A EMC that they arc to be vigorous In th eir protcctlon of A labama's envIron· ment and that an~ Interpretatio ns of their eni'lbl ing statutes or regu lat ions shou ld be b iased toward envi ronmenta l prolf.!c· lion and enhancemenl. Fowf River gi ves ADEM unmista ka ble guidance in how it shou ld (,nf(lrce rhe sr<J te's er'lvlror'lr'rlcn tal
10m. Conclu sion A lthough on ly a feow environmenti'll (a~ hM come before A I"bama's appel.
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late courts, the court~ rti.J\IC a1reildy St!Ilhe tone (or how they will handle these kinds of cases in the fu ture. The supreme court htls taken a prog ress~ and reasonable stance that gi\ICs arll!1.panslve Interpretation to envir'(lrlmell\al statutes; the course sct by the court ensures tha t all affecwd parties, w hether the publ ic, f.'nvironmental groups or the regu lated ind ustries, will have a full opportunity to pa rt ictptrte In the decisio n·milking prOCesses of ADEM and of ilny other governmental en tity dealing w ith the environment A lso, the Court has clear ly come down In favor of giving futl effect to the purpose of A labama's environmental liIW$ 10 protect and enhance Ihe slille's environment; the holdings of th e court gi\o1! much needed guid(lIlce to rhe agencil!S charged wi th protecting our environment, Even though environmental casc~ are rela tively neow to Alaba ma's Jud lcial)~ the position taken by the supreme court in jusl the laSI tWO years has established A labamil as one of the foremost jurisd ictions in the hand ling of environment,l l cases. Perhall s the hawk wa s a good sign ,
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"6
l. AI~ . Code 1975. ~22-22·9Iol . 2, /lla, Code 1915, Un-22M. ), r'(.'(h:r~1 WiI!er PoH...!iOn Con:f()1 ACt, 33 u.S.C, 1~125 1 e! R!Q.
~ , Atabalnil W.ltcf PQlhJllon Cori:rol AI;;1, AI ~. c;oo.. 1915, S§22.22-1 ..t wq. W11t.~' a "1Ie~ water !.liIlutei and resu1arlon s afe ''eo1ullr.l ler1~ to tile f('(ler~t Kl>ctTlI! ulldm tho suldchnes of"c Envlf{>llmcnt~t Prol~,<;r lnn IIstney, rht U'I'. wi ll c~nlly 1M! Irdle sdren~, arid an apptlc~nr lot an NPOES pem1lt witt h....,., 10 80 only 10 Ih" JrMC! envil(lnmcnl~1 ~gell(,y fof Ihl!; pe.mll. r~lht' Ihan 10 oolh lhe Siolre and Ih" H'I'.. Alabarna~ Wilter ac1 PfOKlilm 11M been cCftlfied by Ihc EPA., 5. ,II, Cock 1975, U41.22.1 tl .I.-q. 6. /lla, Code 1975, 122·22A-7({I, and ADEM Ad· min , Code lIulu llSo2·I..QJ. 7. Set! AI~. Code 1975, 122-22-2, 22· 22 .... 2, 22·2~40, 22·28·). 22·){I·2, 22·)).-\.1, and nJs.t.
8. /lla . C,,* 1975, !9.16-9J(I).
9. )0 U.s.c. §127I1c). 10. ,II., Code 1975, U22-27·21t) and -4(b). 11, lila, COOO 1915. U22·27.' <:I j('{l. (1"1 .... ro Ih4I 1969 amendml!nril. 12, Code 1915, UH7·Slb). 1)< ... ny timv Ihl: cuo.1ilul i"n~ lily 01 " ;'1.11'; . ',,'U',; Is arUI(~ed IJy a ll.iIrry, Ille 8110flll!!' Sl?ll{'rdl mUSI be
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HI\II!f! o01lceloo mU ~1 be allowed rhc OWOt1umry 10 defend Ih" consli rurlon~llry rJ rhe )I,uure. s.:o: 1I1~. CV<k 1915, S6,6.227, and fMr/lope Slng/e llu Com. v, Relflf'r, 527 $o.2d 1232, t211 (Ai;I, 1987). 14. 40 C.F,R.IUI,12. 15. ... OEM Admin. Code Chap. ~·ro. al 10-J.
•
Affordable Te rm Life Insurance fro m Cook & Associates Compare these low non s moker annual ralel lor non dec: Te3$iog, YClITly renewable te rm in$urllf1(;"· ~l At.E
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f1Im~ as males s;~ YIIII'S younger. All coverllge provided by companies rll tlld "A+" by A,M. Be5t Co, For II wfltlell qu ... t!lI>Orl lind policy de lC ription MOO your 031(1 of birlh and amount of coverllge d~l ired to:
COOK & ASSOCIATES P.O. Box 8505 17 Mobile:, Alabama 36685·0517
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luly f990
legislative Wrap-up by Robert l. McCurley, Jr.
legislative session- 1990
ments approved
10
be voted on by the poople. Of the
ff}-
mlllning bills W!Verill wcre of interest to lawYCf1 and their
clients, Adoption Revision- Act 90-554, effective January I, 1991 One proYision effcctlve June 1, 1990, reduces the Sl.000 fcc previously requ ired \0 be paid the courl for private 1)lacement adoptions 10 a SlOO inve~t jgalio n fce Ihlyable to the Ocparl mcn t of H uman !resources <lnd only when they perform the home study. Sec March 1990 Alabama Lawyer for summary.
Securities Re\'ision- Acl 9(}'527 This act will become effective January 1, 1991. Sec May 1989 Alabama Lawyer lor
a summary.
Alabama Condominium Act- Act 90-551 Th is law l!i a complclC revision of l he current Condominium Act which was passed in 1971. The Act will bocome effeclille January I, 1991. Mechanic or Materlalnlan Llen-Act 9().98, effective February 23, 1990 This f'l'Y£!rses lhe "Douthlr case by amending .... ,a. Code U5-11-2 11 and generally affecli unpetfccted liens at the time of a mortgage foreclosure. Eviction-Act 91).258 This act amends Alabama Cock S6-6-332 and §35-9·82 with regards 10 service of Pr'OCess fOr evictions. This act became effectJ\IC April 10, 1990. District Court-Act 90-382 This act amends Alabama Code §§12-1I-30 and 12·11·3 1 to p/'O'.'lde tha t the diwia court has exclusive lurlsdiction (}JCf clvll actions under 52.000. Previously, lurlsdlcl ion was 5500 and 51,000, respectively, under these code seetlor)s. The change became effective April 17, 1990. lemon la_Act 90-479 This act requires the manufacturer of a molor vehicle to replace the motor \.'Chicle or 10 refund its purchase price
The Alabama La\vycr
the consumer purchasi ng such vehicle in Ihe t.o'lCnllhe vchlcle fails 10 con form 10 the manufacturer's exllfflSS warrJn ty. Exempt ions fr(lm Execution- Ac t 90-56 1 Section 19·]·1 Is amended rdMlng 10 express Irusts 10 exempt from a" .x:hmellt, execution, seizure Of banicruplCY thc debtor's pension and retirement funds. Tax Conformity Amendmenl-Acl 91).583 Secl ions in Chapter 16 oll1tle 41 wert! ameoocd to p/'O'.'lde conformity in the Alabama Income tax laws with the current Internil l Revenue Code. FederJI lien Registration Amendments-Act 90·636 Amends Ala. Code SS35-11-46 and 35-11-47 to provide tha t feder;.llIens will be Indexed in both the rt!al property and personal property records. Oivorce Venue-Act 90-666 Amends Ala. Code §]().l-S and establishes the venue for il broader number of situations In di-.vrctl proceedings nduding post·minorlty benefits. • 10
There vvere 259 general bills passed during the Regular Session with 69 percent of Ihf.!m l'louse bills (lnd 31 per· cent Qrigin,lIilll! In the Scnale. Ninety-six of these bills 'Nere appropriation bills, and 23 were consiliulional amend·
Robatl L. McCulley. Jr.. is the drrfJC/of ai/he Alabama Law
InSlltu/e 8/ th8 UnI\Iers/t'j at Ala bama. He received tis
undororaduale 811d law d6{)roos from the Un/V()lsily.
",
Building Contractor's Recovery for Incomplete Performance
.-
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Chri$/ophcf I,vle Mcilwain Is a pM/llcr wi!" Ihc Tuscaloosa firm of I-I tlbbard, Waldmp, Reynolds, Oilvis & McllwJin ,
..
He Iloids a J.D. desree from rhc Un/veTâ&#x20AC;˘ slly of A/abamll.
by Chri$\ophcr Lyle Mcilwain I. Introduction In Alab<lma, In the absence of contr,let provisions to the contrary, a contr,u:tor's ability to recover compen sa tion for performa nce of construction activi ties. ilS 'M;lll ,lS the lhoory ilnd measure of re-
230
luly 1990
covery, Is determined by the degree to which he has performed his obliga tions under the consuuction con tract. Depending on the circumstances, the contrJctor may be en titled to recover llbsolutely nothing for performance of a large 1),1rt of thc work uncler thc contrtlct. On thl! other hand, the conlrilctor m,lY be entl tlc.od to reCO\lt'!r virtuallY;l1l of the ag(Ced consideration under thc eontrilct l,'ven though he has not cornpletciy performed . Thi s lUlicie analyzes a contractor's remedies wncre he has nOI fully performed a construction contraCl for one reason or another. As will be discussed hereinbelow, the Alabama CQurts hiM! gradually /1\O'.'ed from a position of total ly denying rl'Covery to a contractor who has failed to fully perform a COrls\(uction contract without adequate cxcuse, to a position of allOWing recovery for someWhil1 less than full performance even though the contractor has no adequate excuse for non-performance.
II. Requirement of full performance The longstanding general rule in Ihis SWle Is that unlciS the contractor fully performs his obligations under the construction conlract, the contractor Is not enli tl(.od to recove' lillything for his lobor .mel materials In urI ilction on the el<press contract or even in an action on an 1m· plled-In-law contract or q~lilntum meruil for v.()rk and labor done or materials sup' plied . Saliba v. Lunsford, 268 Ala. 307, 106 So.2d 176 (1958) (recovery d(!nied wncre heJllng s~'Stem did not comply with guarJntee thM it v.()uld heat "sa tisfactorilY'1; Bra swell v. Malone, 262 Ala, 323, 78 So.2d 631 (1955); Becker Roof· ins Co. v. Lilllc, 229 Ala. 317, 156 So. 842 (1934) (fl.'covery denied where Vv'Qrkmilnship on roofing jobdid n(lt comply with guarJntcc that workman ship would be "of the highest gr;~Ie'1; HtlrlS(!/1 v, Tum('r, 196 Ala, 299, So. 658 (1916); M;wVf!/1 &- Delehomme v. Moore, 163 Ala, 490, 50 So. 882 {19091; Papot v. HOW>Ird, 154 Ala. 306, 45 So. 581 (1908); urbon Hill Coal Co. v. CunnIngham, 153 Ala. 573, 44 So. 1016 (1907); Hissins MfS. Co. v. l\>>lfSon, 146 Ala. 528, 40 So. 579 (1906); Aarnes v. Windham, 137 Ala. 513, 34 So. 816 (1903); Kirkland v. a.lIt.'s, 25 Ala. 465 (165 4) (owner tcrmlnated contrJct upon matcrlal breach by con tractor); Hawkins v, C;lbt.'tl '" Maddox, 19 Ala, 54 (1851);
n
Merriwealher v. Taylor, 15 Ala, 735 (1849); Thomas & Troll V. £/lis & Co., 4 Ala. 108 (1642); Oickst:m v. Ala, Mach, &- Supply Co., 17 Alii AI)I). 195, 84 So. 416 (1919); A.P.J.1. 10.20. Th is rule denying re<a.oery in the absence 01full performance Is held to apply regardless of the fact thillthe wolk Md labor was bcncficialto the owner, HMsell v, Turner, 196 Al a. 299, 71 So. 658 (1916). The policy I.x!hind the rule is s.,id to be that: "Any oth(!r rule IoVOUld tend to encourage bad faith and lessen the obligation of contr.lcts Inlo which the parties must be presumed to cnter with a full ullderstandlng of their necess;!ry implications:' Id., 71 So.2d, ill 658. The rcqui((!ment of full I)crfornmncc apl)lles only where the contract Is (!n tlre, as oPJX)sed to being ~rable. II the COntractor COml)letcs a 5CVerJble portion 01 a severable contr.>Ct, he may recover for Ihm pJrt eo.en if he does not complete the (('mainder of the contr.lct. Blythe v, Embry, 36 Ala. App. 596, 61 So.2d 142 (1952). The inequity ilnd hMShfl(..'SS oJ this doctrine r(!qulrlng full performance wa s recognized early Otl and the Alabama courts have devised a Ilmlted number of exceptions.
III. h ccplions A. Acceptance As Indlcaloo above, if Ihe conlrilctor (ails to perform his contrtlct, the owncr may reject the work entirely and escape all liability to pay (or It P.>rkcr v. I.T. I1tw &, Sons, 194 Ala. 693, 69 So. 879(191 5); W,llSlrom v. Oliver-WJItS COnslr. Co., 161 AI(I. 608, 50 So. 46 (1909), M oreover, If he desires to ilvoid li(lbility, the owncr Is required to reject the work if he can do so without d(!triment to hlmst!ll. HMlse/i v. Turner, 196 Ala. 299. 71 So. 658 (1916). Conse<luently, I( the owner voluntarily "aCCCI)tS," Instead of rejecting, partial, incomplete or inadequate work by the contractor, and this work is of some bend1t to Ihe owner. the contractor is entitlt..od 10 recovcr the fair market value of th e work lind labor performLod and miltcrlal supplied in an action for quantum meruit. Mon tgomNy Co, v. Pruell, 175 AI(I. 391, 57 So. 823 (1911); R. D. Bl/wCII CiSM Co. v. Afl Wall PJper Co., 164 Ala.
547, 51 So. 263 (1909); f-1i88ins MfS. Co. v. f\1<1rwn, 146 Ala. 528. 40 So. 579 (1906); Matr~ v. Farrell, 140 Ala. 298, 37 So. 325 (1904); Aames v. Windham, 137 Ala. 513, 34 So. 816 (1903); Flolt'!nce Gas, flee, LI. & Power Co. v. Hanby, 101 Ala. IS, 13 So. 343 (1893); Dtlvis V. Badders, 9S Ala. 348, 10 So. 422 (1892); Bell v. Te,lgue, R5 Alii. 21 1, 3 So. 861 (1688); English v. Wilson, 34 Ala. 201 (1859); f-Iawkin$ v. Gilbert &- Maddox, 19 Ala. (1851); MlJrriwcath« v. TJyIOt; 15 Ala. 735 (1849); Thomas & TrOI/ v. Ellis &- Co., 4 Ala. 108 (1842). This docltlne is s.,id to be " in con· H sonilnce with the principles of iustice. H,lWkln$ v. Cilbcfl, 19 Ala. 54, 57 (1851). Liability rests upon iln implied agreenlent deducible from the dcli~ry and acc(!ptance of a v;'1luable service or thing. Har/$cll v. Tumf'!, 196 Ala. 299, 71 So. 658 (1916). Recovery Is not bJsed upon the terms of the contract, and recoycry on the contract is stili precl\,ded. Id; Merrlwedthe! II. 1.1ylor, 15 Ala. 735 (1849). Therefore, the contractor's failure to comply with a con tractual condition preted(!nt to payment docs nOt prf!YCnt f'CCOYery. Cak1nlllllO v. lackron, 198 Ala. 302, 73 So. 510 (1916) (failure to obtain architect's eertl ncflle of complelion was not (at,ll). Accept..lnce may be expre$S or iml)lied. O,wis v. Bac/(/ef). 95 Ala. 348, 10 So. 422 (1892); 8ell v. Te.1Suc, 85 Ala . 211, 3 So. 861 (1888). A s OJ result, it IS often difficul t to determine how and by whil t circumstances a voluntary acceptance may be shown. H;ltfsell v. TurlK.'r, 196 Ala. 299, So. 658 (1916), Hence, whether an acceptance has occurred is normally a jury question. Aubrey v. Helton, 276 Ala. 134, 159 5o.2d 837 (196 4); Hanse ll v. Turner, 196 All!. 299, 71 So. 658 (19 161; B(!/I v. T!!aSllc, 85 Ala . 211, 3 So. 661 (I888). Use andlor occulJatlon oJ th(! 'M)r\.: efln lead 10 a finding of acceptance. For 1.'.11ample, the owner's use of a ..veil dug by the contractor, even alter rejection Inc well, has been held to constitute acceptance. Hartsell v. Turner, 196 Ala. 299, 71 So. 658 (1916); PJrkcr v. I.T. Law & Sons, 194 Ala. 693, 69 So. 879 (191 5). The owner's moving InlO or renting a house constructed by the conlra ctor and remiliningthere up until the trl.,! has also been held to constitute an IIcceptance. Davi5 v. Badders, 95 Ala. 348, 10 So. 422
n
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(1892); Bdl v. Teague, 85 Ala. 211, 3 So. 861 (1888), However, the mere OCCUI)ancy Qr use of the work does not always warrant an InferencE' of <lCceptance because ~accept· ance within the con templation of this doctrinc, presupposes an option or choice to reject or accept ..." TO'Nn of ctamon ..., ChillOn Co., 205 Ala. 10), 87 So. 345, 346 (1920). This principl", frequently comes Into play in cases where mjcel ion 01 the work would require the owner to virtuillly ilbandon his proper· ty, as where the contrilctor's work in· volves only r",pair, remodeling or modification of an elIlsting filci lity. In such cases, cOnlinued use 01 the fil cillty does not constitute acceptilnce of the contrilCtOr'S work so as to render the owner liable. Becker RoofinB Co..... U/. tie, 229 Ala. 317, 156 So. 842 (1934) (roof on house); Town of C//lmon ..., ChillOn Co., 205 Ala. 103, 87 So. 345 (1920) (road ImprO\lCmcnts); Mountd ln Terrace Land Co. .... Bre<.Yef & /Ones, 165 Ala. 242, 51 So, 559 (1910) (roads, sidewalks and gut· terl); WoII5Irom .... OU ...er WaifS COnSt" Co., 161 Ala. 608, 50 So. 46 (1909); Hig. sins Mfg. Co. .... Pc<'lfson, 146 Ala, 528, 40 So. 579 (1906) (screens on house); A.1rnc$ v. Windham, 137 Ala. 513, 34 So.2d 816 (1903); Kirk/and .... CHtes. 25 Ala. 465 (1854) In addition to establishing a voluntary acceptance by the owner, Ihe COniraClor must prove Ih,l\ the work Is bene1"lcialto the owner. In this regard, the CO!l tractO( must show th;"\l the value of work done or mMerlals furn ishl.>d exceed the d;lm· ages resulting from the con tractor'$ filii· urc to comply with the contrilct , WJlsl1Oll1 v. O!i\l('(·W.IIIS ConStr. Co., 161 Ala. 608, 50 So. 46 (1909). The con trac· tOr also must establish that the ...alue of
Seatlonery for ehe LegaL ProfessionaL
FREE PROOFS For free 1;11111011 0 1' !IClUol
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1-800-633-6050 DEWBERRY E n g rav in g C om pun y
the work exceeds the amount, If any, that has already been (Xlid by the owner. Moun/Olin Terrace und Co. .... Brewer & joncs, 165 Ala. 242, 51 So. 559 (1910). The measure of the contractQr'S recoYCry i$ the (,lir market ...Jlue of the work, labor <lnd rl'J terials. lAmsOn .... Acker, 201 Ala. 300, 78 So. 76 (l917). Thus, the contracto, must furnish some proal of that ...alue Or he is only enti tled to nominol damag~. Gray .... \o\OOd, 220 Ala. 567, 127 So. 146 (1930); Park(>f v.1 .T. I.aw & 50ns, 194 Ala. 693, 69 So. 879 (1915). The contrJctor's recoycry may nOt exct.'<!d the contract price wi th Ihe owner. Hartsell .... Turner, 196 Alil. 299, 71 So, 656 (1916). A finding that the owner has accepted the work does not preclude the owner from recovering damages from Ihe contractor fOr breJch of the contract. Aubrey v. He/lon, 276 AlII. 134, 159 SO.2d 837 (l964); Walstrom Y. On. .er·Wa IU Cons/r. Co., 161 Ala. 608, 50 So. 46 (1909); Aarncs .... Windham, 137 Ala, 513, 14 So. 816 (1903); Florenoo Cas. Elee. L. & Power Co..... /-Ianby, 101 Ala, IS, 13 So, 143 (1893); English .... Wilson, 34 Ala. 201 (1859). The measure of his rec<.I"ICry will be the greater of either (1) the dlffcrence betW(!Cn the "'illue 01 Ihe work furnished 0' building constructed and the value of that contracted for, or (2) the reasonable ...alue of tOO exIra work occ<'lsioned by the owner In making thl! building conform to the contrJCI stipula tions. Bonds .... Akins, 284 Ala. 273, 224 So.2d 630 (1969) ; Aubrey v. Hellon, 276 Ala. 134, 159 So.2d 837 (1964); rOJ( .... \l\t>bb, 268 Ala. 111, lOS So.2d 75 (1958); WaISlrom v. Ollver-W.lIIS Cons/!' Co., 161 Ala. 608, .50 So. 46 (1909). 'rheowner also may reo ~r fOf" any damages cilused bv the defective work to hk other property, Dickson .... Ala. Macll. & Sup. Co., 17 Ala.
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API). 195, B4 So. 416 (1919) (leaks in roof ruined crops stored In barn). 8. Mutual al),mdonment or rescission Closely related to the doctrine of ac· ce,)tJncc is the principle th at II the owner and contrac tor mutually agfl.'C to rescind or abandon the contract prior to completion and the owner agrees that the contractor will be paid for the partial performance, the contractor is entitled to rC(()V(!r ew!n in the absence of COm,)lele performance. If the parties agree on the nmouilt 10 be paid for partinl perfor· mance, the amount agreed upon Is the measure of rCC()P.ICry. Wigfield v. Akridgf!, 207 A)a. 560, 93 So. 612 (1922). If II is nOl agreed, the contractor Is entitled to rCC()YCr the reasonable value of the work j)Crformtod. Wis(ield v. Akridge, 207 Ala. 560,93 So. 612 (1922) (illiowing imposition of lien); Ca lanllJno v. j,lcksorl, 198 Ala. 302, 73 So. 510 (l916J; Andrews .... Tucker, 127 Ala. 602, 29 So. 34 (1900); Kirkland .... Oates, 25 Ala. 465 (1854).
C. Prevention of performance Where the contractor's failure to com· plete l)Crformam;e Is CilUSed by Ihe owner's breach of COntract or other wrongful ilCt, the con tractOr Is not bar~ from recovery. Bra swell .... Malone, 262 Ala. 323, 78 So.2d 631 (1955); Maxwell & Delehomme .... MOOIe, 163 Ala, 490, 50 So. 882 (1909); Carbon 1-111/ Co.ll Co. .... Cunningham, 153 Ala. 573, 44 So, 1016 (1907); Hates Y. Blrminghllm Paint & Glass Co., 143 Ala. 198, 38 So. 845 11905). EKamplcs of such sltUiltions would include where the O'Nner lails to make p...."ments called fOr undCf the contract withou t adequate e}(Cuse. Braswell .... Malone, 262 Ala, 323, 78 So.2d 631 (1955); Hilker Sand & GrJ\'C/ Co. If, Rogers Plumbing & /-Ieating, 228 Ala. 612, 154 So. 591 (1934). Under these circum· stances, the contractor may either sue on the con tract, Or treat tnc contract as rescinded and sue on a quantum meruit. Hc;l'NeVCr, he may not re<:Oo'Cr under bOfh theories. H,lAA1\vay-WrIBhl Co. .... Bradlf!y Bros., 163 Ala. 596, 51 So. 21 (1909); Smith Y. Dilyis, ISO AI(I. 106,43 So. 729 (1907). The Alabama COurtS hilVe developed two measur'M of compenSdtory damilgl.~ applicable to the contract thoory, bQth 01 which attempt to place the contractor in the position he would hOM occul>ied had the contract been fully performed.
luly 1990
Under the first m~s ure, the contrac· tor Is entitled to J'(!Coycr: (1) Han amount equal to a proportion of the con tract price which he has eJrncd,H (2) losl profits on Ihe uncompleted portion of the conl~l, (.)) plus interest, (4) less any P£I't" menl$ received by him. Braswell v. Malone, 262 Ala . .)2). 78 So.2d 6)1, 636 (1955); Danforfh v. Tenn. &. c. R. Co., 9,) Ala. 614. II So, 60, 63 (1891). The desir· ability of using Ihis approach will be determined by the degree of difficulty of C<lkulilling Ihe "proportion of the con· tract earned." For eJo:ample, whcl't! Ihe performance called ier under Ihe con· tfilctls divided Into urtits, with each unit having been assigned a particular value under Ihe con tract, thi s measure o( rcC()l..'ery could be used with relative ease. Absen t such diviSibili ty, proof of this measure may be difficult . Under the second meilSure of dDm· C1gt.'S, the C(;lntractOr mDY recover (1) the expenditures actually made in part per· formance, less the value of mater!Dls on hand but unused, (21 profits, I( any, he would have earned 'Cl't' perfornllng Ihe whole con tract and Il) Interest from the date of the breach, (4) Icss any payments recei~ by him. Cooos v. Fred Bu'SOs Consu. Co., 477 So.2d 335 (Ala. 1985) (profits); Bates v. Birm ;ngham P,lln! &. Glass Co., 143 Ala. 196, 38 So. 845 (1905) (profits); A.>ck·Hammond Co. v. Heifner, 136 A)a. 473, 33 So. 807 (19031 (eJ<penses, profllS, InleresO; Danfollh v. Tenn & c. R. Co., 93 Ala . 614, 11 So. 60 (1891) (ex· penses, profits, Inle~O; /.8. Anderson & Co. If. 8rammer, 4 "I~ . API). 596, 58 So. 941 (1912) (pronts); U.s. 1'. Bellan, 110 U.S. 338, 4 S.C!. 81, 2B L.Ed. 168 (I884). hI calculating the eXllCnses rmd losses recoverable, Ihe contractor Is not entitled to recover expen ses Incurred by him In securing or obtillnlng lhc conlract. Peck· Hilmmond Co. v. Heifner, 136 Alii. 47), ).) So. 807 (1903). The ContfilClor Is also not entith.>d to recover the "lost time" after the breach, such as where the contractot Is unable 10 secure other work for a period of lime. /.B. Anderson & Co. v. Brammer, 4 A)a. APP. 596, 58 So. 941 (19 12) ("the question of plaintiff's being able to secure or not to secure worle could hoiM! no pn;>~place in 6timating the damages he might be entitled to recO'JCr (or a breach 0( contract"). In the alternative, the contractOr may treat the contract as rescinded and sue
The Alabama Lawyer
on a (TuMtum meruit and rec~r the full reasonable value of thai work and labor done ilnd the materials furni shed. Bras· well v. Malone, 262 Ala. 323, 78 Sc.2d 6)1 (1955); Carbon Hill Coal Co. If. Cllnningham, 153 Ala. 573, 44 SQ. 1016 (1907). RL'C()I..'ery on a quantum meruit Is nOllimited by the con tract price lind the contractor may selt!Ct the thoory of rtlC()l..'ery, breach of con tract or quantum meruit that is most advantageous to him. Braswell v. Ma/one, 262 Ala. )23, 78 So.2d 631 (1955). for ex<Imple, if the con· traClor would have suffered a loss on the con tract even in the absence of wrongful conduct by the owner, It would normal· Iy be more advantageous to the contractor to proceed under a qU3I\tum meruit theory.
HUSINESS VALlJATIONS employ" .lOCk oWfltuhip plans aoq IIU it iolUJdl yull Met .lOtkbolder dUll'l'" djyorcu • ch.itable lifl.
'IIIIU • inllll1,ible UII!IJ COntIlCt; Mllchell Kaye, CFA. ASA 800 888·KA YE (52931
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D. Substantial performance " he final exception is the sonn:whal nebulous doctrine of subst"ntial pt.1rformance which provides that where a contract Is made for an agreed exchange of two performances, one of which Is to be rendered first, substantial performance rather than exact, strict or l iteral perfor. mance by the firsl parly of lhe terms 01 the contract is adequate 10 entitle the par· ty 10 ret:oYer. Brown-Marx A$socio1les, LId., v. Emigrant Savin8s Bank. 70) F.2d 1361 (11th Cir. 1983). This doctrine was first Introduced in Anglo-American jurisprudence In t 777 In "land sale case, Boone v. Eyre, 1 H. BI. 273, 126 Eng. Rep. 160 (K. 8. 1777). 8runer v. Hines, 295 Ala. 111, )24 So.2d 265 (1975). Although alluded to in some early "lab.1mil cases, the doctrine was first appJled in a cOl'IstruClion con tract context In Ihls state in 1911 In the case of Alexander 1'. Smith, 3 Ala. App. 50 1, 57 So. 104 (1911). 5ee also, walSlrom 1'. Olivcr·waus Conslr. Co., 161 Ala. 608, 50 So. 46 (1909); TllomiiS &- Tro(/ v. fllis &. Co., 4 Ala. 106 (1842). The policy COl1siderations underl ying the doctrine give some insight into its l>arameters: "The doctrine arose to mil igate the harsh results that could flow from constructi ~ conditions of ex· change in those cootracl5 which requ ire one pi'rty to ren(!er performance before Ihe olher par· ty's reciprocal promise is enforceable. I( cons tfucti~ conditions had to be literally performed, the I)arty
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whose duty b enforceable only i1ftcr his promisor's perform;)nce is rendered wou ld have an absolute defense to an action on Ihe conIr;)et when(.'VCr a triviill portion of hi s promisor'. performance Is InI;ompll,)te. 'i\ good e1t."lmple of hOYi the doctrine of subWlntial pcdorm3nce opcrJ tes to prevenl such injustice is found in the building construction silU3tion. The doctrine is es· I>ecia ll y u se ful in b u ilding conlracts b~~use of the difficu lty of reproducing on the construction site thc prL'Clsc speclficJtions of b lue prir\l dfJwings. Often com· l>arJb le maleri al s of diffl,)rent brJnd s will h)vc to be substituted (or specified but unobtainable brands, and foundl1\ion specl fl ca. tio ns on drawins~ will bend somewhat to thc rl,)alltics of pouring concrele. If the owner's duty to P.lY were stri ctly condllioned upon literal compliance with the contract, con sttuc tion co ntractors wou ld r.Hely be paid because dissa tisfied owners could usually point to some d iscrepancy between the conl mcl speci fi cations and the fi nished produc t. Under the substan tial performance doctrine, the builder may be held liable In d 3mages for any d is-Crel>illlCY, but if his performilnce substantiJlly fulfill s the main purpose of the co ntract, he ca ll (!flforce the Q"Wner'S promise to pay. "The doctrirlc of substJntlal perf(lrnlanCe is Il n& essa ry inroad on the pure concepl of freedom IJf contracts. The doctrine recognizes
Richard Wilson & Associates Reg istered Pro fessiona l Co urt Repo rt ers 17 Mildred Stree t M o ntgomery , Ala bama 36104
264-6433 234
countervailing inlereSIS of priv<l te individuals and 5ociety; ilnd, to some ex ten t, it sacrtnccs the preclsen~s 01 the individual's contractual (.'Xpcctations to society's need for facilita ting economic exchange. Thi s Is not to say thm Ihe rule of sllbst(ln\ial performance constitutes iI morill or ethical comprom ise; ra lher, the wi sdom of its applicatibn add ~ legal efficacy to promises by enforci ng the essential purposes of conlrac ts and by elimina ting trivi al excuses for nonperformance. " Becau~ both the indivklU(l1ilnd societal interests ilrc vital coordin;)tes in a priVol tE! enterpri se syit(:om, thc c(lmllro mlse o f full performance should be kept minimal, and compensation should be paid whenever a pany's bargained . for exchange is not fulfilled," Bruner v. HineS, 295 Ala, 111 ,324 So, 2d 265, 268-269 (1975). " The Intent of the doctrine is equitable; to preven t unjuSI enrichment or the ineq uity o f one I>any's gelting the benefi t of perfo rmam:;;e, <llbeit not striCtly in accord with the contract's terms, with no obl1g.1tlon in return ." Brown-Milf)/ Assoc., Wi., v. Emigtiln! $av. Bank, 703 F.2d 1361, t:~67 {11th Cir. 19B3}. Given the equi tllble basis of the doctrine, it may be und~st al\dable that the Alabama courts have nCVCf enul\ciated II pmctica l, "bright-line" test (ordetermin. ing whether a contractor has subst(lntia lIy perforllled his contrilCl. The only guidelines usually given ilrE! thilt: "Substantial perforlllance dOt.'5 not contemplirle a full (If exilct performance of every sligh t or unlml>ort;'lnt deta il b ut performance of ,,11 Inrl>ortan t parts."
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Miles v. M oore, 262 Ala . 441, 79 So.2d 432 (l955). See also, Mac Pon Co. II. Yinsan! P.lin!ing & Dec. Co., 423 5o.2d 216 (1 962); Br(lner II. I-lines, 295 AI ... 111, 32 4 So.ld 265 (1975); Wilson \I Williams, 257 Ala. 445, 59 So.2d 616 (1 952); A.P.J,I, to.21. Moroover, It Is said thaI "im· material" deviations (rom the contl1lCl will not pr<..wnt J recovery. Hu(fm,lIl-EaSI Dev. Corp. v. Su mmers flee. Sup. Co., 268 Al a. 579, 263 So.2d 677 (19721; Alexander v. Smirh, 3 Alii . API>. SOl, 57 So. 104 (1911). From this, It appears thar In o rder to show a substantial compliance with the contr.let, the contractor must prove tha t he has substall tlaliy fulfilled the main or essen ti al purpose of the contrilct. HI'.! must further show that he hM performi!d all of the important l)..lrts of the con tract. Finally, he mUSt estilblish that any dtNiations from the contract are immaterial, Slight, unimportal1 t ilnd trivial, as oj)I>osed to being material. Hurl/svme and Madison County Railroad Authority II. Alab.1ma Itldustrial Railroad, Inc., 505 So.2d 341 (Ala . 1987). Alt hough Ihere is some ind ication in the Cilse l<rw rhat th e con tractor must also show "acceptance" I:1y the owner, no Alab.1ma Cilse has bt..~ n fOll nd Ihat denied recovery based ul>on a failure to prove acceptance. Compare Miles v. Moore, 262 Ala. 441, 79 So.2d 432 (195 5) ("we hold that where a contr.lct is substJnlially performed by o ne porty and Ihe benefi\5 Ihert.'of retain ed by Ihe other.../ and Cray v. 1Abod, 220 Al a. 567, 12' So. 146 (1930) (where Ir building Is Ni'lCCeptOO as In substan tial compliance with the contracl. . .'? with Wi/SOli v. WII/lam$, 257 Ala. 445, 59 So.2d 616 (1952) (substDn tlal l)Crform<lnce foun d although no ev,dence Ihat OYiner accepted house); Nelson II. Limell Lumber Co., Inc., 512 So.2d 1340 (Ala. !967) (S<lmel. In ilccordance with the equitable ba sis of Ihe doctrine, the Alabama courts have Irld !cated th i'lt the contractor's (alture to render complete l)Crformance must have been In good fai th and not due to bod fai th, willfulness or gross negligence. Huntsville and M'ldison County R1.lilro'.ld Authority v. Alilbama tndllS triill Rililroad, Inc. , 505 So.2d 341 (Ala. 19871; Miles v. MOOre, 262 AlII. 441, 79 So.2d 432 (195 5) (finding thaI con tractor acted In good faith); Brown-Marx AssociJ lcS, LId" v. Emi8ran! Sallin8s Bank, 703 F.2d 1361,
lui,! 1990
1367 (11th (ir, 1983) ("The courts will allow re(ovcry under the contract, less allowance fOf dL'Viations. where a party in sood (allh has subslJntlally performed its obllgation'1; 13 Am,Jur. 2d, BuildinS arid COrlSlruction (aofraCls, §42 (1964). Whether the elements of the doctrine of substantial performlll'lce hiM! been Siltisfied is generally a lury question to be determined with reference 10 the facts and circumsIOInces d the caS(!, Mac Pon Co. y, Vinsant Painting & Dec, Co., 423 So.2d 216 (Ala, 1982~ Silverman v. Char. mac. Inc., 414 So.2d 892 (Ala, 1962); Bruner v, Hines, 295 Ala, 111,324 So.2d 265 (1975); Wilson Y. WiI/i.lms, 2S7 Ala. 445, 59 So.2d 616 (1952); A/exiJnder v. Smith, 3 AliI. App, SOl, 57 So. 104 (1911). A review of the CiJses that have applied the doctrine of substantinl performance does not rcvcalany consistent, tangible, common thread supporting the dt'Clsions. Although some may be said to be attributable to a comparison of the contract price of the entire work to the cost of remedying the ddt>(ts, l-iu(fman-East Dev. Corp. v. Summers Clcc. Sup. Co., 288 Ala , 579, 263 Sa.2d 6i'i' (1972) (substantial performance of npanment construction contract found where COSI of completion was only 51.0001, Miles v. Moore, 262 Ala. 441, 79 So.2d 432 (955) (substantial perform.nce of house con· struction contract found where conlrad price was 511,960.36 and the cost of remedying defects W<lS only 5100), WI/son Y. Williams, 257 Ala. 445, 59 So.2d 6\6 (1952) (substiln!iill performance 01 house construction contraa found where contrJCI price W,lS 510,000 lind the cost of corroction was 5300), other cases look at the percentaijc of completion, Medical Clinic 8d. Of Ihc City o( Blrm/nBham. emslwood v. Smelley, 408 So.2d 1203 (Alii . 1981) (finding d substantlal j>Cffor. milnce where subcolltractor had com. pleted 90 percent of the work), or \0 a determination of whether the purpose of the contract had been fulfilled, Mac Pon Co. v. Vinsant Pdinting & Dec. Co., 423 So.2d 216 (Ala. 1982) (substantial perfor. mance of paintinij COntract found), Saliba v. Lunsford, 268 Ala. 307, 106 So.2d 1i'6 (1958) (finding of substantial perfor. mallCe 01 contrac1 to instJIl a heating system in a residence held not warranted where the contractOfhad guaranteed that it would heilt ~satisfactorily" and there was testimony that it did not); AICXiJndcr
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If. Smirh, 3 Ala. App. 501, 57 So. 104 (19m (substantial performance of ditchdigging contract held 10 be a Jury 'lues-tlon where ditch was dug deeper than specified but there wa ~ evidence that this did nO( affect the utility 01 the ditch), and it Is apparent that the Opinions in these cases hiM;! ~n ch;nClcterh:ed by an un· fOr1unate lack of precise, Jogical analysis and a clenr statement of rationale. See, e.g., Gray II. 1MJod, 220 !\la. 587, 127 So. 148 (1930), Where the doctrine of substantiill performance is satisfied, the contractor is not relcg<lted 10 ret"QVt'ry of the reasonilble value of the work on a quantum meruit tht'Ory. Gray v. Wood. 220 Ala. 587, 127 So. 148 (1930). Rathi"r, the con trilCtor Is entitled to recover the con tract price, less the amount required to indemnify the owner (or dilmages caused by deviations or lack of full performance. Hu((mlln·EaSI Dev. Corp. v. Summers flee. Sup. Co., 266 Ala. 579, 263 So.2d 677 {l972}; Grily v. \<\bOd, 220 Ala. 587, 127 So. 148 (1930); Alexander If. Smlrh, 3 Ala. App. SOl, 57 So. 104 (1911); AP.I.1. 10.22.
IV. Conclusion If a con tractor full y completes his con· struction contract, he may re(QVt'r the price in an action on the contract or he
may rocover the rea sonilble value of the work In Qunntum meruit. With ccrtain eliCept lon~, a contractor Is not entitled to any recovery if he f<lils to fully complete a construclion contract. These exceptions Includc acceptance. mutual rescission, p~ntlon and substilntlal performilnce. If the owner voluntarily accepts the work and it is of value to him, the con· tractor may re(over under a quanlum meruit theory the fair market v.due 01 the partial performance. The awncr would be entitled [0 recoupment for the dam"8M he suffered. Similarly, the contractor 15 entitled 10 recover for partial performance If he and the owner mutually agree to rescind or abandon Ihe contract prior [Q fun l)I"r· formance. Rt..'<:overy for partial performance Is also allowed where the owner prcvcr\t~ full j>cr/ormance. In this case, the con· tractor may recover on either a breach of COntr.1CI or qUilntum meruit theory. Finally, substantial performance in good faith of the contract will entitle the contractor to recQYCr the contrOl" price, less the damages cau~ by dcviOitlons from the contrOiCl. •
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236
July 1990
Recent Decisions lJy lohn M. Milling. Ir., D.wid B. Byrne, Ir., and WillJur C. Silberman
Recent Decisions of the Supreme Court of Alabama Civil procedure ... Denial of motion to compel arbitration appealable wi lhin
42 days Thompson v, Clark, 24 ABR 931 (January 26, 1990). Clark, a Siock broker, sued Thompson, a fellow stock broker, alleging defamation b.lsed on comments made by Thomp$On 10 Clark's dlents. Crllrk hild signed an ,1grccmentl0 arbitrate any dispute between him and anolher broker, Thompson mOIled the trial coun for a stay and lOr an order comllClling Clark to consent to arbi''''Ilon. The trial court dcoied the motion, Ilnd Thompson appealed. Clark moved 10 dismiss the appeal, claiming the appeal was from an Interlocutory order involving an Injunction which must be filed within 14 di楼- The supreme court disagreed. In a case of first imprcssl()(l, the supreme court held that tile 42-day time limit for an appeal is al>Pllcable to ap!>Citls from 1m Order denying 11 motion to compel arbitration under 9 U.S.C. SIS. The court 110led that Il denial of arbitr,ltlon Is not an interlocutory order regarding an injunction and fhat Ihere i$ a strong federal policy favor-
The Alabamil .Lawter
Ing ilrbitralion. The court also notoo thai 9 U.s.C. SIS is a recent amendmcot to fhe Federal Arbitration Act which 8i~.'s thE.' right 10 (lppeal the denial of a motion to arbitrille, and therefore mandamus is no longer available to challengl' a denial of " mOl ion to compel arbitration. Insura nce ... UM 5taddng limited State Farm Mutual Automobile Ins.
Co. v. faught, 24 ASK 1192 (February 16, 19901. Fitught wa~ Injured when the Sobaru In which he was a passenger, which was (Willed and operated by WJil$, wa~ hit by a car driven by PrescO". WJits' 5u~ru was Insured by State hrm. Prescolt's car was in-
John M. Milling. Jr., Is a member the (lrm of Hili, Hill, C.wer, FranCO, Cole & Black in Montgomery. He Is a gr,lduare of Spring Hill Col/ege and the University 01 Alabama Sc.hool 01 Law. Milling co.-crs the civil portion of the decisions.
0'
sured by Hartford. Both State Farm and Hartford offered their policy limits. W,liiS h(ld a second policy with Stale Farm c(M!rlng a Toyola. McMurray, a relative of Waits who resided In his household, owned 11 Buick which WilS also Insured by Stilte Farm. ScC,lUSt! WJits' medical expenses eIC(ceded Ihe limits ofthosc policies. he soughl to recoycr under poliCies cOYCring his Toyota and McMurray's Buick. The Irlal court Jllawcd Faughl to stack all three StOlte Farm poliCies. The supreme court rf;:!'.lersed. The supreme court found thai Faught was not insun_'Cl under either of the two Slate Farm policies. He was not named in thedeclarallon; he was not the spouse or related to arty per-
David B. Byrne, Jr., Is II grlldulltl' o( the University o( Ala路
barna, wnl're he received bolh his undcrgr.ldll<1le and I.1W degI'CCs. He Is a member of the MOn!gomery firm 01 Robison & 8e/$cr and CCNCrs the criminal portion ofthl' decisions.
son named in the declaJ<ltions; ilnd, he w.... s nOt occuJ>t'lng either the Toyota or the Buick at the time of the w~k . Bec. . use the cal was owned bv Waits . . nd McMurray was not covered under one multl-vehicle policy. and bee.lOse Faught was not . . n H lnsured~ under the other I\oYO State Farm policies. Filught was not en· titled to stack those coverages.
Municipal c orporations .. . city no t liable unde r §11-47-1 90 if
employee not liable Gore II. CifY of Hoover, 24 ABR 1262 (February 23. 1990). Vining. the magiSlrille for the City of Hoovel. roccl"""" a compldint from a r<!prescntall~ of Westcrn Supernlarkets requesting a w. . rrant for the arrest of Carrie J. Gore. Western alleged that Gore presented a worthless check dr.lwn on Insufficient funds. Vlnin!:! used computer informittlon ilVOlililble to her and obtilined an address for il Citrrle Core In Lanett. Alilbama. Informalion on the check rev(!aled that Gore lived In Sirminl:!ham. Alabama. Vlnlnl:!lssued a warran t for the arrest of the plal",lff and when II became clear ~ was not the pefSOf'I who presented the che<:k. the chalKes were dropped. Plain· tiff sued Vining, allegIng negligence. and the City under §11·47-190, Ala. Code (J 975). The trilll court !:!ranted defendants' motIon for summary judgment and plain. tUf aplX!aled. The supreme courl af· Ormed . The court held that the magistrate was clothed wi th limited Judicial Immunity and was not liable on plalntiff's negll. gence claim. The City could only be II· able under §11·47·190 bv respondeat superior. If the agent is not Hable, thc principal cannot be [jabl/!'. either. If the judicial omeer cannot be held lii'lblc as a matter of public 1>oIIey for negligent acts. similar considera tions o( pub!!c polley dictate that the municipali ty Itself cannot be held Ilable.
To rts ... §518 Resta tement of To rts King v. Breen. 24 ABR 1423 (March 9, 1990). King. a minOr. was billen on the filce brt a dog belonging to a neighbor. the Breens. The Sreens Chained the dOl:! to an old automobile and allov.-ed the neighborhood children to come O'Y'C( and play with the dog. The chilin coll<J' had Injured the dog'S m.'Ck. King wandered
238
Into Sreens' yard and hugged the dog's neck. The dog bit the boy and caused permanent scars. King sued the Breeos for negligently Ccuing for and mi5lrealing a dog. so as to cause it to haw dangerous pfOl)Cnsities that caused injury. The trial court granted BrCtms' motion for summary judgment and King appealed. The supremc court reversed . The courl recognized §516, Res'lll~ menf of Torts, as SlJting it cause of aCt tion in AI<Jbilma. Section 518 provides: Except (or anImal trespass, one who possesses or harbors a domestic <Jnimal that he docs not know or h;we reilson to know to be abnormilily d'lOgerous. Is $ubjed to liability for harm done by the anImal if. bUI only If {a} he Intentionally cauS(S thll animal 10 do the harm, or (b) he I~ negligent In failIng to prevent the harm. Thc Court noted Ihm the dog owners should recognize Ihe normal lendency of dogs to react awesslvely to. or to at· t....ck. the person touching It in a Pollnful area . In this case, they knew they had chained the dog ilnd the collar became embedded in its neck. There Wil S evi. dence that they had .. Iso mistreall-'d the dog by nQt feedin!:! it properly. Thus. 11 jury question is prc5(!nted as to whether a reasontlblc j)CrSOn In the t!)(crdse of ordinary care \.\IOuld h<l\lC realized the con· dition of the dog and kept It (rom coming into contact with children . Tori •••
Civil Da mages Act a nd Dram
Shop Ac t discU5Scd Pinker v. Barbara Enterprises, Inc., 24 A6R 1013 (January 26, 1990). Parker's minor daughler. Small. attended a party hosted brt tWO other mi nors. Those tWO minol'5 purchased beer for a party (rom Barbara Enterprises. Inc. The beer was distributed by the Supreme BCI'Crage Company ,md manufactured by Miller BfC'Wing Company. Small became Intendcaled at the party and attempted to dril'e an autC)fnObile. She lost control and was fatally Injured. P.lfker O1ed suit under Alab.:mw Code (19751. §~5-70 (the "Civil Oamages Act", §6·s.n (the "Dram Shop Act") andlor negligence. The trial court gtntltf.od Rule 12(b)(6) motions 10 dismiss for illl thrt!e dl!fcndants. I'mkcr Ill)pcaled. Thl! supr'Cme COU(t affirn)ed.
Section 6-5-70 gives the parent of a minor Ihe right to bring action against any person who unl'-lWfuity "sells or fumishes spiritoos liquors" to a minor. Parker argued that a seller who sells I...." kegs of beer to the two Olher minors should be Said to ha'w'e furnished the beer 10 her daughter. She argued that it was illogical Ihat tWO minors would consume both kegs. The SUI)rcme cowt dlsllgreed {lnd stated that the sellers cannot be said to have furnished beer to her dilughter by selling beer to the other t·NO minors. The court also stated that Parker failed to state a claim under §6-5-71 for the samC reason, that is, the defendants did not pr'Ovide alcoholic beverages to Ihe intOK' icafed person. Finally, the court declined to fC(ol:!nlze a common lilW negligence action for distribu tion of illcoholic beverages to minors.
Venue ... "MeanS" test applied Ex parle: Be,lfd and Beard (Re; Beard v. TJI/aclcga County Commission. ef al., 24 ABR 843 (January 5. 199Ol. Beard WilS Injured when iln automobile in which she was riding left J Tal adega County road at a railroad crossi ng. She sued Talladega County, Southem Ibllway and Central of Georgia Railroad. The com· plaint was filed In Coosa COUllty alleging negligent desl!:!n and construction of the rililroad cr~s lng. Southern Rallway O1ed a motion to transfer the case to Talladega County comending that it Ot'.'ned no property in Coosa Coonty ,Jnd did no business In Coosa County. Southern Railway. however. did own a controlling interest in the slock of Central of GeorgiCl Ritllroacl which did own prop.erty and did do business In Coosa County. Thc trial court granted Southern Raliwily'S motion to trOlnsfcr, and the Beards JX!titiont.'(j (or a writ of mandamus to vaca te the trial court's order tr.lnsferr. Ing the case. The supreme court granted the wri t. In its order, Ihe tdal court held Ihat there was insufficient evidence to conclude Ih(lt Central of Geotgla was acting as Southern Railways' agent for purposes of detcrminin!:! ~nuc. The 5upreme coort disagreed and Slated that when determinIng venue, "The clement of control. or lack thereof. o( thc princil>al QV(!r its agent is not detcrmlnatlve. If the entity is the 'mC1lns' brt which the principal Is
luly 1990
able to do businessIn a particular county, then thCl Clnthy Is the 'J8ent' of thc principal for venue purposes." In order to trigger thc means tcst It Is not necesS<lry that the~ be tOtal ownership of a subsidiary. The primary Question to be answered is: What corpof<1te purpose does the subsidiary serve for its ownerl Based on the evidence, Central of Georgia was the ~ meanS~ through which Southern Railway performed part of Its business functioru and was, for venue purposes, doing business as an agent of Southern Railway In COOS<l County.
Recent Bankruptcy Decisio ns Entitlement to jury trial on fraudulent transfer issue Gr<Jnfinan cl(JriJ SA v. Nordb(Jr& 109 S.O. 782 (1989); 19 B.C.D. 493. The Suo p!'CfIlC Courl hcld Ihilt If one has not nted a claim against a bankruptcy estate, such person is entitled 10 a jury tdill upon suit being brought by 0 trustee In bankruptcy to reccr.oer on an alleged fraudulcnt tf<1nsfer. The Court reached this conclusion because In eighteenth century England parties suing for monetary damages on a fraudulent transfer....ould ha-.-e ~ entitled to a jury trial. HowcYCr, the Court said that In b.lnkruptcy If a proo( of claim has been filed, the right to jury trial has been lost. The Court discussed public rights as ag.linst private rightS Slating that Congress may only deny trial by jury In actions at tiJW where public righ ts are beIng litigated. Jury demand does not withdraw referen ce to Bankruptcy Court C, ry Fire Equipment Co., Inc. v. Amcr~J( Corp., slip. op. No. 01 89·4. 1727-5 (N.D. Ala. December 7, 1989). In an en banc decision of the Judges of the U.S. District Court for the Northern DI strict of Alab.1ll'1a the Issue pnrsented was whether reference to the Bankruptcy Court should be withdrawn bv reason of jury demand. The 8.lnkrup!cy COOrt held tha t it did OOt have juri5dlctlon of the referred actioos- The U.s. Districl COOrt disagreed holding that the Bankruptcy COOrt had jurisdiclion wilh the Question being whether the Bankruptcy COUrl could or should conduct a Jury trial. The District Court QUOted at length (rom Gran(;nan· The Aillb.lma La"'Yer
elera obS(!rvlng that the mere filing of a jury demand does not malldate Ihe with· drawal of a reference 01' cause the Bilnk· ruptcy Court to lose jurisdiction. The COUrl explicitly refrilined ff1)m determinIng bankruptcy coorts' authority to conduct jury trials, but did hold thilt all proceedIngs short of the jury S(!ICCllon and trial should be in the Bilnkruptcy Court. The COUrl stated that the bank· ruptcy judges have special knowledge of the matters before them and that there should be no Withdrawal 01 rcfef(.'Ilce untillhe case becomes re.ldy for jury trial, 10 wit after disc~ry is completed, all motions ruled upon and pretrial orders flied. Insider preferences Roberuon BrOthers Dri/lln& Inc., Deb/ors M.lnufacturcrs HanOllCr Leasing Corp. v. Lowery, 692 F.2d 850 (10th Clr. 1989) adopting opinion of the District COurt reported In 97 B.R. 77. This caS(! In the Tenth Circuit follO'.'.'Cd DcPr;zlo in the Se\lenth Circuit, in holding thot a guarantor of a claim against a debtor is a credi tor of the debtor due to the fact that the guarantor holds a contingent claim which is subject to becoming liQuidated and non<ofllingent when guarantor P''YS the oreditor on the gUilrantce. This situation makes il a preferential p<I'fmentlf paid within one ~ar of the OUng of bankrup!CY and nlay be ilYOlded IJt' the trustee If other requirements are met. Of course, the guarantor must be an insider. The bankruptcy law provides that insiders are subject to a one-year prefer. ence period, and non- n~idcrs arc subjecl only to a 9O-day period. In this case, the actual crOOitor was a non-InsIder but becauS(! thl:! guarantor was an Insldl:!t, the Court held that there Is a one-year period In which the payment can be nvoided. In a recent case from the Sixlh Circuit, In re: C·L Carla8e Co.. Inc., Debtor, a prinCil>a1 of the corporate debtor bor· !'(IYJed monL'Y from iI bank for thl! benefit of the corporation. The corporation made siJ( payments to the bank on the loon and a Single payment or\ another. The Court held that the Individual prln. cipal was an insider, Ihal payments to Ihe bank beoefjted him, and, thus. the period of preferential payment could Cl<tend bil(k one year from bankruptcy. The SiJ(th Circuit expressly rejected the " twO transfct' theory, on the grounds thaI both the Insider (the principal), and the out·
sider (the bank! each benefited from eilch p.1yment ilS made. The case of Levll v. Ingenal/ Rand FilIanclal Corp., 874 F. 2d 1186 (7th Clr. 1989) which Is the forerunner of the aboYe clled case, has been widely discussed throughout the counlry being IJrofaned by lenders and horored by trustCC$. Unless a circuit court oi appeals de-cldL'$ conversely to the Tenth, Shrth and Se\.1:!nth circuits, the holdings will mmaln the law of the country. Sophisticated lenders and their legal staffs hil\'C d<!vlsed various methods of attempting to evade the holding. but It remains to be ~n as to whether these devices will be suc· cessful. Notice requircmcnl for filing claims In re SprinS v.t/lcy Farm5, 21 2d 6SJ.(l1 th C.C.A.) This Cil51! hcld that notice to a corporale creditor as to a bar date for nUnS dalnls In a ChaplClr tI cast! must be nctuilily Iran smlncd to the corporate credi tor, e\len Ihough the corporale creditor may have knowledge of the b.lnkruptcy. Concelv.lbly this also would be the opinion of Ihe Eleventh Circuit should a corporate credi tor nOt receive notice of the filing of a bankruptcy and the setting of Ihe 341 credi tors' ml.'cting.
c.a.c.
Turnover doctrine Austein v. Schwartz, Marth 13, 1990 (9th C.c.".) 58 USlW 2559 extended the opinion of the U.S. Supreme Court in Whitins Pools, Inc., 462 U.s. 198 (1983). Whltins held thaI turnQYer applied dgainst the IRS on iI pre·petltion levy milde on property or the debtor. Whltlns was a Challter 11 caS(! which expressly refr.1lned from dl'Cldlng whClher Its hold· Ing would apply to a Chapter 7 liquida. tlon. In this Ninth Circui t Cilse, the court held that the Wh iling case also applied in Chapter 7 as to the trUStees !)CM'er un· der aankrUI)tcy §542 to obtil n a turfl(M!r against a lienholder. The Coort stated that Bankruptcy Code Section 541 "comprehensively PUIS wllhln the estate all the property of the debtor whether reduced to possession or not and whether the est"te is being reorgani7.ed or liquidated." Interes1 payments as preference CHQ Imerna/ional v. 8afdays EMn"20 a.C. D. 296, (9th Cir. 19!JO). In this case, the Ninth Circuit held that interest payable on a note made for an antece239
dent debt, Jlthough p;tyments 'Nere m<lde DCcording to the terms of the note, still conSlitutes a preference if mJde within the 90 days of bankruptcy. Such payments do not com12 within the ordl· nary course of business exception . However, the (cOlder should be aware that there Is a connci of authorities on this point and, therefore, arguments cO(lld be made to the court either w;ty. No recovery of attorney's fees for successful defense In ro Burns, 20 B.CO. 192, (N .D. Colo. 1990) The debtor boJ'fOWed moocy to In· vest in the stock market. The creditor
nted an action to determine dischargeJbllity of Ihe debt and 1051. The deblor auempled to recover attorney's fC!CS. The Courl held thalthi ~ was nOI a consumer debt and, therefore, under the low the debtor was not entitled to attorney's fees for a successful defense.
No asset report does not constitute adandonment of CilUSc of action In rc Moore, 20 a.c.D. 22 1, (CD. Cal. 1990) held th<ll lhe trustee's filing of the n()"'.lISSCt reporl does not i1oondoo the cause of action which is the property of the estJte. Any cause of action of debtor becomes property o( the estate under
§54I{a)(1). The trustee is permitted, under §5S4(a) "ftcr notice and hearing, 10 abar.don property burdensome to the estJte, and §SS4(c) provides tl\,lt llnschedllied property nOI abandoned reverts to the debtor at dosing. but this applies only at Ihe cloSing of the estate. Therefore, the fi ling of the no-asset report docs nol 0l}craie as {In abandonment until the case Is dQsoo. In this particulm case, there was a lender liability suit which the trustee did nOt Cilre to pursue. The lender of· fered the truslee apl>roximalely $5,000 (or the case. The trustee refused and the Bankruptcy Court said that the trustee had to tJke some aclion, as he could nOt refuse to take any position. •
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torn or Order a binder (or two!) at $10.00 each from:
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or call (205) 269·1515 240
luI.,. 1990
Memorials par1menl of the United Sliltes Army. After
the war he returned to his hometown,
Wilbur Clarence Alkeison- Pratt ville Admitted: 1947 Died: May 18, 1990 Schuyler Atlen
B ~ ke r- B i rll'lingham
Admitted: 1948
Died: May 19, 1990
Earl Dorwin Hendon- Birmingham Mmlfled: 1949 Died: Aprll 5, 1990 Dexter Cummings Hobbs-Montgon1('ry Admillcd : 1980
Dlt..'<l : April 22, 1990 Jack M clendon P<lIe-Birmingham Admined : 1968
Died : March S, 1988 Thomas Benjamin Wdrd, Jr.-Tu$CaIOQSa Admitted : 1939 Died : May 23, 1990
IIU, 110 I \1 ,\N PALII
There is lillie Ihill can be silid abou t a marl whose life and what he did (or others were far more meaningful Ihan
\'lOrd s. Erls Paul began the practice of law in
Elb..l , Alabama, In 1937. lolls practice was interrllPl l'<l by World War II. He served his country in the j(ldgc Ad voca te Dc-
'The A labama Lawyer
was clC<:lcci and SCM'(j as d istrict at路 lorney for Co((ce and Pike counties, the 12th Judicial Circuit. He was elected circuit judge In 1952 and served wi thout opposition until he look sUI>ernumerary status in 1976. He contlnued 10 seryc as a Irlal judge in the 12m and other drculls. From time to time he Solt wi th the Alabama SUI)rCfTl(! Court and Courts of Appeal. He served a~ president of the Alabama Circuit Judg<!S Associa tion, as a member of the Alabama State D'H Board of Commissioners and (IS a member of Alabama's Ethics Commission.
Paul was born In 1909 In a rural community ncar Elba and mOYed to Elba at a young age. He re<:eivcd most of his grammar and secondary education there. He entered the Uni\IC~ty of "laOOma In 1932 and graduated from law school In 1937. He worked his ~ through the Uniycrsl ty as a soda jerk and a sl(.'"ep-in night wa tchman at the University Supply Store, the "Supe Store," In the old Union lJulldlng. He married Jean Richardson from NotilSulga, Alabama. They had two children, Jeanice Kirkland, Andalusia, and Orlce Paul, Enterprise, sheriff of Colfee County. He became a member of the Unlver. slty of Alabama Bo.-.rd of TrusttX'S In 1954 .md served as active and trustee emeritus until hi s death. The IIJW school r oSniz(.'{! his legal ability wi th its honorary Doctorilte of Law. The University honored him wi th its Distinguished Alumrl l Award. He was a deacon at the First Baptist Church in Elba. His life was a many mlendored thing or like a jewel wi th many facets tha t reflected his abilities and accomplish. ments.
searching questions, thereby bri nging you ra~ to face wi th the core of the problem ar,d generall y the solutlol\. He only sought to havc you be true to the fads, and if a legal problem, true to the lilW, and true to the highest Ideals of your in路 ncr self. He was a profoundly religious person but woold be the firsf 10 say he had transgresscd too much, but adually far less thM mOSt. He was a vigorous prosecutor, but a kind and compassionate Judge. He believed in the ru le of the liM', I.e" what the law was and not whilt he thol.lgh t it ought \0 be, but he believed the spirit of the l.:rw WilSas impot!.lnl as the leiter of the law. Although he worked In the highest halls of justice in the stil\(!, and in the halls of one of Its great (.'{!ucalional in路 stitutions, the University 01 Alabama, he was a man who liked nothing beller than to take his bird dog, get in hiS land I'OI.ef ilnd go hunting. He enJ<7)oW nothing more than sitting dO'Nn lind til lk ing with rriend ~ aOOUltheir dogs. He kept one all his life. He W.l$ truly a man for all seaSOns. We have many problems in our state and nation. We need many things, nOI the lettst of which Is more men and women like Eris Paul. Besides all these fine attributes, he was more fun to be wi th th,In IIny person I have ever knCM'n. To lurn around Will Roge"' phrase, "I nCYCf mel a man who did not like him:' He loved a good story and he had as many as Abraham li ncoln, SO I will end this recollecti on 0f"I the light ~ide, Charlie Brown, ask your friend, lInl.l5, to share his security blanket with us, Erls' friend s. We have lost our securHy blanket.
-Virgil Pillman Senior United States District ludge Southern District of Alabama
He never sought to Impose any of his pred lll,.'Ction5on you. His method of gl .... Ing advice was by askillg you deep and
241
(,11 I!I II r \.\ 01 ) 11110\\ "r ( tit) I ' 0 '
Longtime 8irm ingharYl atlO fI'If!y GW. Nicholson, 68, passed .......ay Febru;IIY 19, 1990, after a four-year battle with Icukemla. "Nick:' as most people called him, of· ten could be seen on Ihe weets o( d()YJn· town Birmin gham sparling his ever· present bow tic, (Ind (llw<lYS r(!lldy with (I lively comment on Ihe Universi ty of Alabama football warn, which was his favorite 1)lIstimc. Nicholson, a n3live of Brookwood in Tuscaloosa County, earned his I(lw degree from the University of AtabJma School of L.1W in 1951, following his gr<ldU<ltion (rom thc UniV(lr$i ty's School of Commerce. Prior to college, Nichol· son S<!r"vt.'(I his Courltry as a Marirlc hI Wt)rld W:u II, fi ghting with the First Marine Divi sion 31 the Battle of Guadalcarlal In the South Pacific. In 1952, he began his law career when he teamed up with l<lw school clilssm(lte Ferris Ritchey to open the offices of Ritchey & Nicholson in Birmingham's Frank
Nelson Building. Nicholson left the pr<lCtice of law temporari ly in 1964 to pursue some relll est<ltC Interests. He return!!d to law rulilime In 1967 when he and anomey Jim Forslman opened an omce In the Brown Mark Bolldlng In downtown Birmingham. From 1973·1988, Nicholson practiced mostly by himself doYlntown and al a southside loca tion. He served as city at· lorney of Gardendale during Ihe 19605. He was a member of the Birmingham Bar Association and the Alabama Sta te Bar. Nicholson Wi'l~ active In many civic af· fai rs in Birmingham, serving as presidei'll for various clubs and organIZ<llions, including leffcf50n CounlY Council of the American legion, Geneml Gorg.15 POSI No. 1 of the AmeriC.1n legion, Five Points Lions Club, Wake Island Detachment of the Marine Corps League, Eastern Salesmim'$ Club and CresthHI Civic Club.
Politics was another ~v id Interest of Nicholson's. He ran unsuccessfully for the Writ! House of Representillives in the 19505. In 1968, he W.1ScCK:halrperson of Jim Allen's successful U.S. Senate cam· palgn. Nl chol~n served for many yeal5 as chief poll inspector at the Eastwood Mall voting precinCt in Bi rmingham. Nicholson attended /'o;\CElwain 8aptist Church in Birmingham and consider(.od church aCtivities iI top priority. He taught a men's Sunday Schoo! class for over 25 years and served as a deacon. NiCholSOn Is survived D,o his wife, Perry lee Sellers Nicholson of Birmingham; one son, Gilbert Nlcholron of Birmingham; aile daughter, e ece Hall of Locust Fork; three grandchildren, Josh Holt, Jake Holt and Jessica Holt, il il o( Locust FQrk. Other survivors include three brothers and lwo sisters. •
Correction: In the May 1990 issue of The Alabama Lawyer, the contributors' names on two memoria ls were switched. Patta A. Steel wrole the tribute to David M cGiffert Hall , and l ee B. O sborn wrote (Ibou t Colonel Charles Sterli ng Babcock. We regret any inconvenience this may have caused the au thors, the fam il ies of the deceased or Ihe readers.
Please Hel p Us ... We have no way of knO'Nlng when one of our membership Is deceased unl ess we are notified. 00 not wait for someone else to do It; if you know of the death of one of our members, please fet us know. Memorial Information must be in writi ng with name, return address and letephorle llum ber.
242
July 1990
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MACHI NERY EQUIPMENT AP· PRAISER: 25 years' experience. Li· q\lid<ltion, f,l i r milrket vil l\le, (lnd replacement cost for capital, refinanc· ing, bankruptcy, insurance, etc. Wri te
(or free br«hure. Phillip D. Bryant, P.O. Drawer 966, Oxford, Mississippi 38655·0966. Phone (601) 234·6204.
INSURANCE LITIGATION CONSUlTANT: 24 yeilrS' industry expe ri ence, former claims executive; attorney; ex·
pert witn ess; ca~ J!'ItIlysl$-pltlinllff/defendant: policy Interpretation; case eval utltlon; profcsslonnllnsurance con· duct; ngcllcy, broker, CDnlpany, policy. holdcr, relation ships and rcsponslbll. ilics; bad faith. Cu rriculum vi tilC upon request. william 8. Jones, Jr., 3445 Beauderc Road, J ~cksonville, Florida 32217. Phone (9041 739-2796. ROOFIN G LITIGATION: Expert wltness and investigation; accident meon· structi oni stlfety analySiS; Industry standard s. Roof condi tion reports in· duding testing and analysis. Speci(ica-
tion for new <lnd retrofit roofi ng ~ys-
terns. Installation inspections imd qUillity ContrOL Robert Koning, 6]01 Joliet Slreel, Hudson, f lo rlda 34667. Phone (813) 863·]427,
CERTI FIED FORENSIC DOCUMENT EXAMINER: 8.S., M.S., graduate of unl· versi ty-boscd resident school In docu· mcnt exami nation. Published natllntcr· nat. Seventeen years' tri al expericnce In stille and federal courts of Alilbamil. Forgery, alterations " d document i'luth(>ntidty ell<lminationSin non-c:rim inal mailers. American Academy of Forensic Sciences. American Board of foren sic Document Ex.1mlners, Alllcrlcan Society of Questioned Examiners. lamar Miller, P.O. Box 55405, Birming. ham, Alabama 35255. Phone (205) 988-4156.
•
Disciplinary Report Reinstatement
Suspension
• ,. MasSey Relfe, Jr., was rl.!in st(lWd to the practice of liIW i!:ffcct l~ March 20, 1990, by suprenle court order. [ASB No. 90.031
• Barry Cordon TerrMova, iI former Mobile liIW)"Cr, was suspended from the practice of law for a IX!riod of 69 days, e((cctlllC March 21, 1990, by order of the SUI)reme Court of Alnbama. Terranova was suspended for entering into a business tran saction with a client where their resl>CCl ive interests were different, representing mu ltiple clients with differing interests, fail ing to deposit client fu nds in a trUSTaccount, misappropria. tion of client fund s by failin g to proml)tl y I)ay over mon<!y cotlected by him for his client and for cOI,duct Involving fra ud, misrepresentation, and willful misconduct that adllCrsely reflects on his fi tness to pr'i'lctlce law. [ASa No. 88·6871
Disbarments • The Supreme COUrl of AI"bama entered an order April 9, 1990. disbarri nl:\ Alabama lawyer Quentin C. Crummelin, Ir., effective JMuary 26, 1990, based upon a disbarment order entered by the Disciplinary CommissIon of the Alabama State Bar, pursunnt \0 Rule 14tb), Rulcs of Disciplinary Enforccmcnt. [Rule 14 (b) No. 89·021 • Decatur lawyer Homer Crawford Coke WJ S disbarred, effective March 20, 1990, by order of the Supreme Court of Alabama. Coke had been found ijui lty of unprofessional conduct by the Disci plinary SO<lrd of the Al abama Sta te aM, His unprofessional conduct includoo accepting a k.o.e from a client to nre a suit but (ailing to me the suit, fail ing to pay a filin g fee wi th the b'lnkruptcy courl aft er having bc!!n given the fee by clients to pay to the court, forgi ng a dlent's name to an insurance settlement check ilnd ,1 releMe, (lnd willfully neglect· inij 11 leijal maner entrusted to him. [AS8 Nos. 88·J81 , 88-413, 66-595 & 89-iOJ
' 44
Public Censure • On March 16, 1990, Montgomery lawyer J. Eldridge Holt waSpublicly CenS\lfOO fOr unpr(JfesSiOn(l1COnduCt in violation of DR 7.101(A)(I), (2) & (3) of the Code of Professional Rcsponslbllily of the Alabama St.1te Bar. On March 14. 1989, Holt wa s suspended (rom practicing before the United States Bankruptcy Court for the Middle District of IIlnbama for a period of six month s, for being "consistentl y dereli ct" in hiS representation of b.lnkruptcy clienTSbefore the tourl. IASB No. 89-164J • luly 1990
THANKS TO STRONG WE'VE KEPT OUR BALANCE'FOR NEARLY HALF ACENTURY. MISSISSIPPI VAL1EY TInE INSURANCE COMPANY CONSOUDATID BALANCE SHEET ASSETS CASII AND INVESTED ASS~"TS
"""Demand
Deposi!~
$
Tinx: ~it" ............... , ... .
29.249 2A l 0.94~
llond~. ~I ~moni/.a! COSI(nmket. S4.~~8.2921 ....
4.Xl7.637
Stocks
1000AS7
Prclcrred. AI ro5I\ markl'l. S98,)6()1
Common. Qll't'l;ltki:l ((0:14, S2S4,6381 , Mongagt iog,lU ln~mtm il'lC'OnJl: ~ and III.'tTUI.'d
773,0<1 1
nU73 •
1'0111 CI$h and inl'eSfOO mel, OTIIER ASSEr S Accounts and f"l.'Illil,llll$ reccil'Jblc . R('31 t'SIOIt. htiiJdings. (urniwrt and t\l\lll~t'ol-'H. ~I COSI, less aocumul~led <kprtciadon of $696,630 Till... piams ~OO rrt'OI'ds . . .. . .. II1I't'Slmcnl in ~ffiliatcd comllan~ Sundry .. ,............ . .. Tocal 0I1x-r ~'U 101:.i1~s
167.29)
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SHAREHOlDERS' EQUITY Common stock, WI stilled Iotlur of SI. 5~ per lhm. Authori(nll,600 Wres: iuucd 322.6 ~ ., Paid in capital ... . .... "" Umnli/.a! gain on in.'t$ImtnU .. . •. Rftained tamings 1.l':!oS treasury Mro, aI rose, 19.) JIwa TOtal Wfthok!m' ~tuity ...• , , TOtal 1i~ilhiesaod sharcOOldm' t\juity ......••••..
1IH1tIlfI/I""... AI.
1',,,0/101
J. Monon Mut rick
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GorOOo W. SkdlOll VbPtoJU,.,
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Vance W. Smith
J.M. Sel1~ri
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DIRECTORS
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Dudley Ii Btidgfonh. Jr.
UAUlUllES
PII)'IIbIe 10 iffilialoo company .
John, ', Cossar
806.480
UABIUTIES AND SHAREHOLDERS' EQUITY O~im~ Ftts Alld II!It$ _
E. l.too Sanden
8.226.897
240,228 2,998.168 S!l ,225.<)6)
31. 1990
OFFICERS ROIl..." 1-1. Taylor, Sr. Owr_. 6 ClO
"" Pauicii Oailq- Brown
1.(6).926 )01&<13
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$
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Donnie D. Riky
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John': CAwr
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J.M. Stllari
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Alton H. 11arvt'Y
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