IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA ELECTRONICALLY FILED 3/18/2015 1:46 PM 47-CV-2014-902167.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C. SMITH, CLERK CARL E. FALLIN, SR., ) ) Plaintiff, ) ) v. ) Civil Action No. 2014-902167 ) CITY OF HUNTSVILLE, ALABAMA; ) ATTITUDE, LLC; CHICAGO TITLE ) INSURANCE COMPANY, ) ) Defendants. ) FIRST SUPPLEMENTED AND AMENDED COMPLAINT This action seeks declaratory and injunctive relief against a municipality that has granted, or is about to grant, public funds for a private retail business entity in violation of the State Constitution, allegedly for economic development. These grants have occurred without the public notice required by the Alabama Constitution by entering extraordinary contracts and dramatically overpaying for certain related real property and then directing the excess amounts to provide free land and improvements for a private entity. The action also seeks relief to obtain public records in the possession of municipal officials related to this grant of funds and to prevent the withholding of public records in the future. The Parties 1. Plaintiff Carl E. Fallin, Sr., is an individual resident citizen and pays taxes to the City of Huntsville regularly. He operates a business within the City of Huntsville and pays an annual tax which gives him the authority to conduct his business there.
2. Defendant City of Huntsville, Alabama ( Huntsville ), is a municipal corporation organized and existing under the laws of the State of Alabama. 3. Defendant Attitude, L.L.C. ( Attitude ), is an Alabama limited liability company engaged in the development and management of real property. 4. Defendant Chicago Title Insurance Company is a corporation organized under the laws of the State of Nebraska, and does business with Defendant Attitude in the State of Alabama. Jurisdiction and Venue 5. This Court has jurisdiction over the subject matter of this action pursuant to 142 of the Alabama Constitution and Ala. Code 12-11-30, -31, and -33. Relief is authorized by Ala. Code 6-6-500, Ala. Code 6-6-220, et seq., and Rules 57 and 65, Ala. R. Civ. P. 6. Venue is proper in this Court because Defendant Huntsville is located within Madison County, Alabama; a substantial part of the acts or omissions giving rise to this action occurred in Madison County, Alabama; and the real property that is the subject of this action is located within Madison County, Alabama. I. Summary 7. This action challenges Huntsville s improper spending of public funds on a project commonly known as Parkside Town Centre ( the Parkside Project ), which is the proposed site for a Cabela s, Inc. ( Cabela s ), outdoor retail store in Huntsville. The developers of the Parkside Project are James Packard; Attitude, L.L.C. ( Attitude ), and 2
Mushashi, LLC ( Mushashi ); and Mike Culbreath, a public official and member of the Huntsville City School Board. The Parkside Project developers collectively are referred to herein as the Developers. 8. Huntsville and Attitude have entered into a series of extraordinary real estate contracts and transactions whereby Huntsville has paid or will pay over $5.6 million to Attitude to acquire property with a fair market value that is dramatically less than the amount paid. The purpose of the excess payments is to direct public funds to Cabela s private land through Attitude--under the guise of purchasing properties for infrastructure, connected with business recruitment. 9. Thus, the excess funds created by Huntsville s overpayments to Attitude have been or are being directed by Huntsville to Cabela s in the form of direct cash payments for site work and free land on which Cabela s store will be constructed. A substantial portion of these funds are being held in escrow by Chicago Title for payment to Cabela s after Cabela s completes certain construction on its property and is open for business. Providing these municipal funds to Cabela s in this manner violates the bar in 94.01 of the State Constitution on granting public funds to a private entity. 10. Huntsville s contribution of money to Cabela s and the Parkside Project does not follow customary procedures for the use of public resources for economic development. A portion of the public monies used by Huntsville, as described herein, includes the taxes 3
paid by Fallin. Unless relief is granted to Fallin, his taxes will be needed to replenish monies spent by Huntsville on the Parkside Project. 11. For the reasons described below, the transactions between Huntsville, Attitude should be enjoined by this court, and, any public monies delivered to Attitude or Chicago Title for payment to Cabela s should be restored to the Huntsville City treasury. II. Facts A. Huntsville and the Developers work together to develop the Parkside Project. 12. In 2009, the Developers identified the proposed location for the Parkside Project in Huntsville, a 2-lot parcel ( the Property ), adjacent to which was located a detention/retention area commonly known as Lake 5. The Developers persuaded the thenowners of the Property to sell the Property to Packard for $306,000. 13. In 2012, after developing a portion of the Property, the Developers decided to expand the Parkside Project to attract a Cabela s store. Huntsville aided the Developers in attracting Cabela s to the Parkside Project by offering incentives to Cabela s in the form of free land and cash for development. Huntsville code named the plan to bring Cabela s to the Parkside Project Project Dolphin. B. Huntsville and the Developers lure Cabela s to Parkside by passing economic incentives from Huntsville to Cabela s through Defendant Attitude. 14. On March 7, 2014, Developer Attitude, LLC, committed to Cabela s that a site for a Cabela s store would be provided at no cost to Cabela s in concert with a Development Agreement with the City of Huntsville and subject to City Council approval. 4
It specifically offered up to 21 acres, including subdivision of the parcel into appropriate final acreage, and it commit[ted] to providing a pad prepared site at no cost to Cabela s. 15. On April 17, 2014, Huntsville provided a letter of commitment to Cabela s and advised that it was about to complete a Development/Real Estate Agreement with Attitude, LLC. 16. In an email dated April 23, 2014, Shane Davis, Huntsville s Director of Urban Development, outlined to representatives of Cabela s the incentives Huntsville would provide to Cabela s, indicating that the direct and indirect incentives totaled $8,935,000. He also pointed out that, with a previous development, Huntsville had been able to avoid its obligations to provide public notice and a hearing under 94.01 of the Alabama Constitution when providing incentives for the project. 17. In an email dated April 28, 2014, to a representative of Cabela s, Shane Davis again provided a list of incentives Huntsville planned to offer Cabela s: As you are aware, I have spent the past couple of days attempting to bridge the gap for Project Dolphin without entering into the Amendment 772 process. In so doing, the City has been able to secure the ability to offer Project Dolphin the following: Project Site Real Estate: $2,849,200 (rebate thru Developer) Broker Fee: $ 235,000 (paid by Developer at real estate closing) Site Improvements: $1,900,000 (rebate thru Developer) Total Incentives: $4,984,200 18. On May 27, 2014, Attitude executed a purchase-sale agreement with Huntsville to sell to Huntsville for $850,000 a 1.62-acre portion of a 4-acre parcel that is adjacent to 5
Lake 5. That 4-acre parcel is referred to herein as the Lake Property. As part of that agreement, Huntsville obtained an option to purchase the remainder of the Lake Property for $1,250,000, which it later exercised. Thus, in all, Huntsville has paid or is scheduled to pay Attitude $2.1 million for the 4-acre Lake Property. 19. On May 30, 2014, Attitude and Cabela s entered into a purchase-sale agreement whereby Attitude sold a 14-acre parcel to Cabela s on which the Cabela s store was to be constructed. Although, as part of the agreement, Cabela s agreed that $2,849,200 would be paid for the parcel, the agreement required that the money be placed in trust and ultimately refunded to Cabela s 30 days after it opened its store. Importantly, the agreement does not specify that Cabela s itself will place the purchase money in trust. Instead, the agreement indicates that Attitude itself will place the purchase money in trust. Thus, in effect, Cabela s obtained the 14-acre parcel for free, regardless of whether it actually builds a store on the parcel. In addition, the agreement between Attitude and Cabela s required Attitude to pay Cabela s $1,900,000 to offset construction costs, an amount which, under a later amendment to the agreement, Cabela s would have to pay back to Attitude if it did not open a store at the project site. 20. On June 12, 2014, Huntsville and Attitude entered into a second purchase-sale agreement whereby Huntsville agreed to purchase from Attitude a 3-acre parcel ( the Buffer Property ) and a parcel on which a road leading to the construction site was located ( the ROW ) for $3,584,200. As part of that agreement, Attitude purchased a 2-acre portion of 6
Lake 5 from Huntsville for $650,000, thus offsetting the amount Huntsville owed Attitude and reducing that amount to $2,934,200. 21. Also on June 12, Huntsville and Attitude entered into a development agreement in which Huntsville agreed to perform a substantial amount of infrastructure and other work at and around the parcel on which the Cabela s store was to be built, and Attitude agreed to reimburse Huntsville up to $1.9 million for that work if Cabela s did not open a store at the site by the end of 2015. 22. At the June meeting where these agreements were approved, Huntsville s Director of Urban Development, Shane Davis, misrepresented to City Council members that Huntsville was making $3 million in public improvements, that there were no improvements on private property, and that there was no direct incentive to Cabela s. In fact, Davis knew that Huntsville was providing the funds for the Property where the Cabela s facility would be located. Davis also knew that those funds were meant to provide an incentive to Cabela s to open its facility on the Property for business. 23. At the June meeting of the Council, Davis further led the members of the City Council to believe that Huntsville would be getting all its funding back within two years. 24. In late August 2014, Attitude and Cabela s agreed that Cabela s would have four years to open for business--until October 2018, as a condition to keeping the incentives Being provided. At that time, they amended their May Real Estate Purchase and Sale Agreement ( PSA ), in a document titled First Amendment to Real Estate Purchase and Sale 7
Agreement ( PSA Amendment ). The August 2014 agreement also confirmed the linkage between the monies described in Davis s memo to the Cabela s real estate advisor for payment thru the Developer to Cabela s. 25. In the August PSA Amendment, Attitude and Cabela s confirmed that the Purchase Price to be paid for the Cabela s 14-acre parcel would be in funds actually provided by Attitude--totaling $4,749,200. Those funds comprise the $1.9 million payment to Cabela s under 6(d) of the PSA to offset construction costs and remaining improvements and an additional $2,849,200, the amount listed in 3(a) of the PSA and referenced in 6(d) of the PSA. These funds are in the same amount to be routed thru Developer as promised by Huntsville in April 2014. These monies are labeled the Incentives by the PSA Amendment. The PSA Amendment itself indicates that Huntsville is investing substantial sums to improve roadways and infrastructure because of the Cabela s land purchase. 26. Under the August PSA Amendment, the $4,749,200 is to be deposited with Chicago Title as Escrow Agent for the benefit of Cabela s. In addition, the date for opening the Cabela s store to the public for business is extended to October 2018 (which is forty-eight (48) months after Closing ). In the event that deadline is not met, all the monies are paid by the Escrow Agent back to Attitude. 8
27. By separate agreement, in the event the Cabela s Store is not open to the public for business by December 31, 2015, Attitude is required to pay back to Huntsville the $1.9 million. 28. Thus, in summary, Huntsville gave Attitude the net sum of $5,034,200, which is precisely $50,000 more than the $4,984,200 of incentives Shane Davis had indicated in his email to Cabela s that Huntsville would provide to Cabela s thru or by Attitude. Attitude, in turn, provided to Cabela s a 14-acre parcel of property that the parties apparently agreed was worth $2,849,200, or exactly $85,000 less than the amount Huntsville paid to Attitude for the Buffer Property and the ROW. And, Huntsville provided infrastructure and other work for the Cabela s site worth $1.9 million, an amount Attitude would have to pay back to Huntsville if Cabela s did not open a store on the site. At the same time, Attitude agreed to pay that exact amount, $1.9 million, to Cabela s, which Cabela s would have to refund to Attitude if it did not open a store (thus funding the $1.9 million Attitude would owe to Huntsville in that circumstance). Finally, if Cabela s does not build a store on the property provided to it, it still gets to keep that property at no cost to it, and Attitude still gets to keep the over $5 million Huntsville paid to it for parcels of land that, collectively, are worth nothing near that amount. C. Huntsville s concealment of the scheme through its sham transactions with the Developers. 29. Huntsville s impermissible financing of the Parkside Project through its sham purchases of real estate from Attitude and its use of Attitude as a middleman by which to 9
funnel incentives to Cabela s becomes particularly apparent when considering the Developers investment in the ROW, Buffer Property, and Lake Property and the returns on those investments from Huntsville s purchases. 30. Specifically, Huntsville purchased the 2.86-acre ROW and the 3-acre Buffer Property from Attitude for $3,584,200, despite the fact that the Developers originally paid less than $1.2 million for the entire approximately 44 acres from which those parcels are carved. Moreover, Huntsville paid $2.1 million for the Lake Property, which is more than 15 times greater than the $133,250 Attitude paid for that property. 31. Neither Attitude nor the other Developers did anything to improve the ROW, Buffer Property, or Lake Property or to otherwise cause their fair market values to exponentially increase during the limited time they owned those properties. The ROW, Buffer Property, and Lake Property remained in the same unimproved state when Huntsville purchased them from the Developers in 2014 as they had when the Developers purchased them in 2009. 32. Huntsville has concealed, and continues to conceal, the nature of the transactions with the Developers and the benefits to them and to Cabelas. Among other things, Huntsville s officials have falsely indicated that Huntsville did not provide incentives to Cabelas, beyond indirect infrastructure improvements, when they are fully aware and intended that Huntsville provide incentives to Cabelas in the form of free land and cash for 10
construction improvements to the land, all the while utilizing sham arrangements with the Developers to hide the provision of those incentives. 33. In addition, Huntsville officials misrepresented to the public the amount of public funds expended in connection with the announcement that Cabelas will locate a new store in Huntsville. They have stated publicly that Huntsville has spent $2.9 million, when, in actuality, Huntsville will pay a net amount in excess of $5 million and fund improvements worth almost $2 million. 34. Moreover, not only have Huntsville officials misrepresented the amount of City funds they have spent in connection with luring Cabela s to Huntsville, they obtained sham appraisals of the parcels Huntsville purchased from Attitude that inflate the stated values of the parcels far beyond their actual worth as buffer, drainage, and right of way. 35. For example, although Huntsville s appraisal of the 4-acre Lake Property assigns a value of $2.1 million to that parcel, the appraisal indicates that this value is accurate only under the following conditions, none of which are true: (1) the Lake Property is suitable for development as a commercial site that could be developed with a commercial use similar to that being developed on other sites in the area; (2) that, although the it is located within a 100 year flood zone, less than one foot of fill would be required to fill above the flood elevation; (3) the site is readily accessible to the future development and all utilities have been extended to the site; (4) the parcel is a stand alone commercial site suitable for development; and (5) the parcel would be connected to the development by a roadway that 11
will allow for ingress and egress. The appraisal of the Lake Property noted that a substantial amount of site preparation work would have to be completed prior to the parcel being suitable for development, and it cautioned that if any of the above-noted conditions is not met, the final estimate of value would be much lower than the value contained in the appraisal. Instead of developing the Lake Property and meeting the conditions set forth in the appraisal, Huntsville has simply flooded all or almost all of it, using the Lake Property to expand Lake 5. D. Huntsville s actions violate 94 of the Alabama Constitution and related amendments. 36. Under Section 94 of the Alabama Constitution, it is unconstitutional, and in excess of statutory power, for a municipality such as Huntsville to grant public money or a thing of value in aid of or to any individual, association, or corporation, unless the action has been fully advertised to the public, as provided in 94.01 (Amendment 772). Through its actions in providing incentives to Cabela s, Huntsville has violated those constitutional provisions. Furthermore, Huntsville s acts and omissions are so arbitrary and unreasonable as to constitute a misuse of power not authorized by law. 37. In its business relationship and transactions with the Developers, Huntsville has applied public funds or attempted to apply public funds for the private benefit of the Developers and Cabela s, virtually financing or bankrolling the Parkside Project. 12
E. Huntsville violates the Open Records Act. 38. In an October 1, 2014, letter (delivered to Huntsville on October 2, 2014), Fallin requested that Huntsville make available to him for inspection and copying certain records of Huntsville related to its activity and spending or planned spending of public funds for the purpose of arranging for Cabela s to locate a retail store in Huntsville, and, particularly, at the Parkside Project. 39. The particular items requested in Fallin s October 1 letter were any and all public writings or records concerning or related in any way to: public money spent, or committed to be spent, directly or indirectly by Huntsville for or on behalf of Cabela s, Developers, or any other person or business entity associated with Cabela s or Developers; the purchase, sale, lease, encumbrance, conveyance, or release of real property by Huntsville within the Parkside Project and/or associated with Developers; the appraisal or value of any real property purchased, sold, encumbered, conveyed, or released by Huntsville within the Parkside Project and/or associated with Developers; the economic impact on Huntsville and/or Madison County associated with Cabela s operations; the escrow of money associated with Cabela s and/or the purchase, sale, lease, encumbrance, conveyance, or release of real property by Huntsville within the Parkside Project and/or associated with Developers; public notice of the terms and conditions of and parties to the purchase, sale, lease, encumbrance, conveyance, or release of real property by Huntsville within the Parkside Project and/or associated with Developers; public notice of the terms and conditions of and parties to transactions involving money, benefits, or incentives provided, credit afforded, loans made, financing of and/or payments directly or indirectly to Cabela s or Developers; 13
the documents made available or delivered to members of the City Council related to Cabela s, Developers, and/or the purchase, sale, lease, encumbrance, conveyance, or release of real property by Huntsville within the Parkside Project and/or associated with Developers; any resolution of the City Council, including, but not limited to, the resolution adopted by the City Council on June 12, 2014 (No. 14-435), associated directly or indirectly with Cabela s or the Parkside Project; and the subjects or subject matter discussed in the minutes of the City Council on June 12, 2014. 40. The time period of the requested documents was January 1, 2009, going forward. 41. Fallin also requested that the documents to be produced include not only physical items but also electronically stored documents and communications. 42. Huntsville does not have a standard process for receiving and resolving requests for documents that are made pursuant to the Open Records Act. 43. Fallin received no response from Huntsville concerning his October 1 open records request. 44. Fallin filed the present action on October 22, 2014. Over fifty days after Fallin s records request, on November 21, Huntsville filed a motion to dismiss in which it addressed, for the first time, its failure to abide by its obligations under the Open Records Act, Ala. Code 36-12-40 to -41 to provide Fallin with the documents he had requested. Huntsville represented to the Court that it would provide those documents to Fallin. 14
45. The Court set Huntsville s motion to dismiss for a hearing on January 16, 2015. On January 14, over 100 days after Fallin s request, Huntsville provided Fallin approximately two thousand pages of documents. On the day of the hearing, Huntsville provided Fallin a few hundred additional pages of documents. 46. Huntsville possesses additional records that are responsive to Fallin s Open Records request that it has turned over to the Court for in camera inspection. forth herein. COUNT ONE Violation of the Open Records Act, Ala. Code 36-12-40 to -41 47. Fallin realleges and reasserts the preceding factual allegations as if fully set 48. The Open Records Act, Ala. Code 36-12-40, provides that [e]very citizen has a right to inspect and take a copy of any public writing of this state... 49. Fallin has requested particular public writings from Huntsville relating to the above-described transactions concerning Cabela s. 50. In violation of 36-12-40, Huntsville failed to make the requested documents available to Fallin for inspection and copying. 51. Since the filing of this action, Huntsville has provided some of the documents Fallin requested. Huntsville has failed or refused to provide Fallin with other documents that are both responsive to his request and subject to disclosure under the Open Records Act. And, Huntsville has not demonstrated that it undertook an adequate search for responsive documents that are due to be produced. 15
WHEREFORE, premises considered, Fallin demands a judgment against Huntsville that: (1) enjoins Huntsville, and all persons acting in concert with it, from refusing to make available to him the records related to the Cabela s transactions as requested above; (2) declares that Huntsville is required to provide the records requested; (3) declares that Huntsville s search for responsive documents subject to disclosure was inadequate; (4) enjoins Huntsville to undertake an adequate search for responsive documents subject to disclosure; (5) deems void any actions that the requested documents show were taken by meetings occurring in violation of the Open Meetings Act, Ala. Code 36-25A-1, et seq.; and (6) provides such other relief as may be just and proper, including an award of attorneys fees and costs of this action. forth herein. COUNT TWO Violations of Ala. Const. art. IV, 94 and 94.01 52. Fallin realleges and reasserts the preceding factual allegations as if fully set 53. Huntsville has engaged in the illegal or wrongful conveyance, disposition, or diversion of municipal property. Indeed, Huntsville s contracts with Attitude are illegal and constitute the unauthorized appropriation, use, and expenditure of public funds in violation of Ala. Const. art. IV, 94 and 94.01. Huntsville s actions in purchasing the ROW, Buffer Property, and Lake Property have resulted in waste and injury to Huntsville s property and funds and to the community in general for the benefit and aid of a private individual. 16
54. Huntsville s purchases of the ROW, Buffer Property, and Lake Property at excessive and unreasonable prices are affected by fraud (actual or constructive), corruption, collusion, unfair dealing, and abuse. They are a mere sham by which Huntsville is attempting to hide its transfer of funds to Cabela s and avoid its obligations to notify the public of its provision of economic incentives, in the form of cash and land, to Cabela s. 55. Based on the above, an actual, justiciable controversy has arisen and now exists between Fallin and Huntsville concerning the rights and obligations of Huntsville under any contract with any of the Developers. 56. Fallin desires a judicial determination of the rights, status, or other legal relations of Huntsville, the Developers, and Cabela s based on the contracts for sale of the ROW, Buffer Property, and Lake Property and the construction or validity of those contracts and other declarations that will terminate the controversy or remove an uncertainty between Huntsville and its citizens and taxpayers, such as: whether Huntsville s acts and omissions related to the Parkside Project, the Developers, and Cabela s violated public policy or were unlawful, unconstitutional, or otherwise wrongful and improper; whether Huntsville s purchase of the ROW, Buffer Property, or Lake Property must be set aside; whether Huntsville s purchase of the ROW, Buffer Property, or Lake Property constitutes a misuse of public funds; and whether any proposed purchase by Huntsville of the ROW, Buffer Property, or Lake Property must be enjoined. 17
57. A judicial declaration is necessary and appropriate at this time under the circumstances in order that Fallin may ascertain the rights, status, or other legal relations of Huntsville, the Developers, and Cabela s based on the contracts for sale of the ROW, Buffer Property, and Lake Property and the construction or validity of those contracts and other declarations that will terminate the controversy or remove an uncertainty between Huntsville and its taxpayers. 58. If Huntsville is not enjoined from continuing its wrongful conduct, including, but not limited to, the expenditure of public funds and the purchase and sale of the ROW, Buffer Property, and Lake Property, then Fallin and other Huntsville taxpayers will continue to suffer substantial and irreparable injury. Fallin has no adequate remedy at law for the injuries and damages suffered by him and, therefore, he requests that this Court issue a preliminary injunction and a permanent injunction after a trial on the merits. WHEREFORE, premises considered, Fallin demands a judgment against Huntsville that provides the following relief: A. A declaration that: (1) the purchase price paid by Huntsville for the ROW, Buffer Property, and Lake Property is excessive, and void, illegal, and ultra vires as a scheme to direct public money to Cabela s in violation of the State Constitution s prohibition on municipalities granting public funds to a private business; (2) any deed conveying the ROW, Buffer Property, and Lake Property from Developers to Huntsville is void and invalid; (3) any deed conveying the ROW, Buffer Property, or Lake Property is due to be canceled of 18
record; and (4) Huntsville is due to be reimbursed all of the funds it has transferred to Attitude, or the funds now held by Chicago Title for the benefit of Cabela s, as part of the above-described scheme to provide incentives to Cabela s to open a retail store. B. Preliminary and permanent injunctive relief restraining and enjoining Huntsville and its councilmen, mayor, officials, and agents; Attitude and its officers and agents; and Chicago Title and its officers and agents: (1) from proceeding with any of the property transfers between Huntsville and the Developers; (2) from transferring any funds, directly or indirectly, to Cabela s or any of the Developers, or any persons or entities working for, in behalf of, or in concert or participation with Cabela s or the Developers; and (3) to restore to Huntsville the funds placed in escrow with Chicago Title. C. Such other and further relief to which Fallin may show himself justly entitled at law or in equity, including attorneys fees and costs of this action. Respectfully submitted on March 18, 2015. OF COUNSEL: Wallace Jordan Ratliff & Brandt, LLC 800 Shades Creek Parkway, Suite 400 P.O. Box 530910 Birmingham, Alabama 35253 19 s/ Albert L. Jordan Albert L. Jordan (JOR002) s/ Matthew D. Fridy Matthew D. Fridy (FRI035)
Newly added defendants to be served by certified mail at the following addresses: Attitude, LLC c/o James B. Packard 3060 High Mountain Road Huntsville, AL 35811 Chicago Title Insurance Company c/o CT Corporation System 5601 South 59th Street Lincoln, NE 68516 20
CERTIFICATE OF SERVICE I hereby certify that on March 18, 2015, a copy of the foregoing was electronically filed with the Clerk of the Circuit Court using the AlaFile System, which sends notification of such filing to counsel of record in this cause and that those not registered with AlaFile for electronic notification have been served by U.S. Mail: T. Michael Brown Benjamin L. McArthur Harold D. Mooty, III Bradley Arant Boult Cummings, LLP One Federal Place 1819 Fifth Avenue North Birmingham, Alabama 35203 s/ Albert L. Jordan Of Counsel 21