April 24, 2015
Ex parte Dental Referral Service, LLC; In re: Alabama Department of Labor
Dental Referral Service, LLC
(Shelby Circuit Court, CV-11-291; Court of Civil Appeals,
Petitioner: Stewart G. Springer of Springer Law Firm, L.L.C.,
Respondent: Joseph S. Ammons, gen. counsel, and Donald M.
Harrison III and Arthur F. Ray II, asst. gen., counsel,
Alabama Department of Labor.
FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
petition for the writ of certiorari is quashed.
quashing the petition for the writ of certiorari, this Court
does not wish to be understood as approving all the language,
reasons, or statements of law in the Court of Civil
Appeals' opinion. Horsley v. Horsley, 291 Ala.
782, 280 So.2d 155 (1973).
Parker, Shaw, Main, and Bryan, JJ., concur.
Justice (concurring specially).
Court today quashes the writ previously issued in this case,
but notes that, in doing so, it " does not wish to be
understood as approving all the language, reasons, or
statements of law in the Court of Civil Appeals' opinion.
Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155
(1973)." __ So.3d at __. I write separately to explain
why I do not wish to be understood as agreeing with the
rationale of the Court of Civil Appeals.
not agree that Dental Referral Service, LLC, waived its claim
to attorney fees in this particular case by relying only on
the language of the statute that actually provides for and
governs that claim, § 12-19-272, Ala. Code 1975. The
language of that statute adequately explains the standard to
be applied directly to the facts in a case such as this:
" (a) Except as otherwise provided in this article, in
any civil action commenced or appealed in any court of record
in this state, the court shall award, as part of its judgment
and in addition to any other costs otherwise assessed,
reasonable attorneys' fees and costs against any attorney
or party, or both, who has brought a civil action, or
asserted a claim therein, or interposed a defense, that a
court determines to be without substantial justification,
either in whole or part;
" (b) When a court determines reasonable attorneys'
fees or costs should be assessed it shall assess the payment
thereof against the offending attorneys or parties, or both,
and in its discretion may allocate among them, as it
determines most just, and may assess the full amount or any
portion thereof to any offending attorney or party;
" (c) The court shall assess attorneys' fees and
costs against any party or attorney if the court, upon the
motion of any party or on its own motion, finds that an
attorney or party brought an action or any part thereof, or
asserted any claim or defense therein, that is without
substantial justification, or that the action or any part
thereof, or any claim or defense therein, was interposed for
delay or harassment, or if it finds that an attorney or party
unnecessarily expanded the proceedings by other improper
conduct including but not limited to abuses of discovery
procedures available under the Alabama Rules of Civil
the circumstances, the citation to § 12-19-272 is more
than adequate to preserve the claim, even if the inclusion of
case authority might have made for a better argument.
28(a)(10), Ala. R. App. P., requires that arguments in an
appellant's brief contain " citations to the cases,
statutes, other authorities, and parts of the record relied
on." (Emphasis added.) Although in some circumstances
citation to a statute without citation to any applicable case
authority might amount to the presentation, as the Court of
Civil Appeals held, of an " undelineated general
proposition," Alabama Department of Labor v. Dental
Referral Service, LLC, [Ms. 2130338, Aug. 22, 2014] __
So.3d __, __ (Ala.Civ.App. 2014), I do not find that to be
the situation here. I see no waiver resulting from the fact
that Dental Referral could not, or did not, find and cite to
this Court some case or cases applying the governing language
of § 12-19-272 to a case indistinguishable factually
from the present case.