IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

ALABAMA STATE BOARD OF )CHIROPRACTIC EXAMINERS )

)Plaintiff )

)Vs ) CIVIL ACTION NO.: CV-2009-900640

)JAMES DUNNING )

)Defendant )

MOTION FOR SUMMARY JUDGMENT

COMES NOW the Defendant, JAMES DUNNING, and, pursuant to Ala. R. Civ. P. 56,

moves this Court for summary judgment in his favor as to the claims asserted against him by

the Plaintiff in this cause. As grounds for the present motion the Movant states as follows:

1. There exists no genuine issue of material fact and the Defendant is entitled to

judgment as a matter of law;

2. The present motion is supported by the pleadings, the affidavits of Sonja Enfinger,

PT (with exhibits) and Dr. James Dunning, DPT (with exhibit), and the

Defendant’s Brief in Support of Motion for Summary Judgment which contains

the Narrative Summary of Undisputed Facts.

WHEREFORE, the Defendant prays this Honorable Court will grant summary

judgment in his favor and against the Plaintiff as to each claim contained in the Plaintiff’s

Complaint, tax costs against the Plaintiff, and afford any further and different relief to which

the Defendant is entitled.

ELECTRONICALLY FILED7/1/2009 11:32 AMCV-2009-900640.00

CIRCUIT COURT OFMONTGOMERY COUNTY, ALABAMA

MELISSA RITTENOUR, CLERK

Respectfully submitted:

/s Richard A. Bearden _Richard A. Bearden (ASB-0873-E41R)Attorney for Dr. James Dunning, DPT

OF COUNSEL:

MASSEY, STOTSER & NICHOLS, P.C.P.O. Box 94308Birmingham, Alabama 35220-4308Voice: 205/838-9000Fax: 205/838-9024Email: rbearden@msnattorneys.com

CERTIFICATE OF SERVICE

I hereby certify that on this, the 1st day of July, 2009, I electronically filed theforegoing with the Clerk of Court by using the Alacourt Electronic Filing System which willsend notification to the following:

James S. Ward2100 Southbridge Parkway, Ste. 580Birmingham, Alabama 35209

/s Richard A. Bearden _Of Counsel

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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

ALABAMA STATE BOARD OF )CHIROPRACTIC EXAMINERS )

)Plaintiff )

)Vs ) CIVIL ACTION NO.: CV-2009-900640

)JAMES DUNNING )

)Defendant )

BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

I NARRATIVE SUMMARY OF UNDISPUTED FACTS:

COMES NOW the Movant, JAMES DUNNING, and, pursuant to the requirements of

Ala. R. Civ. P. 56, sets forth the following undisputed facts in support of his Motion for

Summary Judgment:

1. James Dunning is a physical therapist licensed as such by the State of Alabama

Board of Physical Therapy. Dunning aff. (Exhibit 1).

2. In 2002, James Dunning earned his Doctorate of Physical Therapy. Id.

3. Dr. Dunning has been licensed by the State of Alabama since 2006 and has been

a licensed physical therapist since 1999. Id.

4. Dr. Dunning advertises and performs spinal manipulations as a part of his

treatment of patients. Id.

5. Dr. Dunning has performed seminars on spinal manipulation in the State of

Alabama and other states and countries. Id.

ELECTRONICALLY FILED7/1/2009 11:32 AMCV-2009-900640.00

CIRCUIT COURT OFMONTGOMERY COUNTY, ALABAMA

MELISSA RITTENOUR, CLERK

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6. On both occasions where Dr. Dunning taught his seminar on spinal manipulation

in the State of Alabama, the Alabama Board of Physical Therapy approved the

course for continuing education credits required by licensees to maintain a license

to practice physical therapy in the state. Id.

7. By Legislative Act, the Alabama Legislature conferred upon the Board of Physical

Therapy the following duties:

It shall be the duty of the board to pass upon the qualifications ofapplicants for registration as physical therapists and licensing as physicaltherapist assistants, to conduct examinations, to issue licenses andrenewals to physical therapists and physical therapist assistants qualifyingunder this article and in a proper case to suspend or revoke the registrationor license of such persons. The board may adopt rules and regulations notinconsistent with law as it may deem necessary for the performance of itsduties . . . .

Ala. Code § 34-24-193(a).

8. The Physical Therapy Practice Act defines “physical therapy” as:

The treatment of a human being by the use of exercise, massage, heat,cold, water, radiant energy, electricity or sound for the purpose ofcorrecting or alleviating any physical or mental condition or preventing thedevelopment of any physical or mental disability, or the performance ofneuromuscular-skeletal tests and measurements to determine the existenceand extent of body malfunction; provided, that physical therapy shall bepracticed only upon the referral of a physician licensed to practicemedicine or surgery and a dentist licensed to practice dentistry and shallnot include radiology or electrosurgery.

Ala. Code § 34-24-191(a)(1)1.

1 The profession of physical therapy was addressed in Benchmark Medical Holdings, Inc. v. Barnes,where that court recognized “to become a licensed physical therapist in the State of Alabama, one mustcomplete extensive training and graduate educational requirements. [P]hysical therapists exercise aprofessional skill in the public interest that requires delicacy of skill and the ability to make instantaneousdecisions. Although physical therapists may only act with a referral from a physician or dentist, they exercisetremendous discretion and professional skill and judgment in evaluating, making a diagnosis, reaching aprognosis, designing, implementing, re-evaluating, and modifying patient care. Physical therapists have arelationship of trust and duty that exists between their patients and themselves, where the patient should be

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9. The legislature has created a mechanism by which any party who believes a

licensed physical therapist is practicing outside of the Physical Therapy Practice

Act may file a complaint with the Board of Physical Therapy:

Any person may file a complaint with the board against any registeredphysical therapist or licensed physical therapist assistant in the statecharging the person with a violation of this article. The complaint shall setforth specifications of charges in sufficient detail to disclose to the accusedfully and completely the alleged acts of misconduct for which he or she ischarged. When a complaint is filed, the secretary of the board shall mail acopy thereof to the accused by registered mail at his or her address ofrecord, with a written notice of the time and place of a hearing of thecomplaint, advising the accused that he or she may be present in personand by counsel if he or she so desires to offer testimony and evidence inhis or her defense.

Ala. Code § 34-24-194(a).

10. In the event the Board of Physical Therapy makes a determination that

such a violation has occurred, the duties of the Board of Physical Therapy

are prescribed by statute:

The board shall refuse to issue a license to any person and, after noticeand hearing in accordance with its regulations and rules, shall suspend orrevoke the license of any person who has:

(1) Practiced physical therapy other than upon the referral of a physicianlicensed to practice medicine or surgery, and a dentist licensed to practicedentistry; or practiced as a physical therapist assistant other than under thedirection of a registered physical therapist;

(2) Used drugs or intoxicating liquors to an extent which affects his or herprofessional competency;

(3) Been convicted of a felony or of a crime involving moral turpitude;

entitled to trust that physical therapist is exercising reasoned professional judgment as to the patient’s care.”328 F.Supp.2d 1236, 1249 (M.D. Ala. 2004).

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(4) Obtained or attempted to obtain a license by fraud or deception;

(5) Been grossly negligent in the practice of physical therapy or in acting asa physical therapist assistant;

(6) Been adjudged mentally incompetent by a court of competentjurisdiction;

(7) Been guilty of conduct unbecoming a person registered as a physicaltherapist or licensed as a physical therapist assistant or of conductdetrimental to the best interest of the public;

(8) Been convicted of violating any state or federal narcotic law;

(9) Treated or undertaken to treat human ailments otherwise than byphysical therapy as defined in this article;

(10) Advertised unethically according to standards as set by the board;or

(11) Failed or refused to obey any lawful order or regulation of the board.

Ala. Code § 34-24-217 (emphasis supplied).

11. By correspondence dated September 9, 2008, the Plaintiff, Alabama State Board

of Chiropractic Examiners, availed itself of the complaint procedures and

authored a letter to the Alabama Board of Physical Therapy. Enfinger Aff. (Exhibit

2).

12. In that correspondence, the Plaintiff raised the very same issues which form the

basis of its complaint in this lawsuit (i.e., performing “spinal manipulation” and

advertising this fact). Id.

13. Based upon the provisions of the Alabama Board of Physical Therapy

Administrative Code, a physical therapist who has earned a doctorate degree may

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refer to himself in advertisement as “Dr.” so long as, at the end of his name, the

designation “DPT” is present. Id.

14. Additionally, it is the interpretation by the Board of Physical Therapy of the

Physical Therapy Practice Act that “spinal manipulation” is encompassed within

the Act. Id.

15. Pursuant to the authority conferred by the Alabama Legislature, and in

compliance with the Rules promulgated for the handling of complaints, the Board

of Physical Therapy investigated the complaint of the Plaintiff and made a

determination that neither the conduct of James Dunning nor the advertisement

of Dr. Dunning were outside the Physical Therapy Practice Act. Id.

16. The Alabama Board of Chiropractic Examiners did not appeal from the

determination of the Board of Physical Therapy.

II PLAINTIFF’S COMPLAINT INVITES THE COURT TO USURP AUTHORITYCONFERRED UPON THE BOARD OF PHYSICAL THERAPY BY THE LEGISLATURE.

Plaintiff’s complaint seeks to do an “end run” around the determination of the

Alabama Board of Physical Therapy by couching the present lawsuit in terms of whether the

Chiropractors’ Practice Act has been violated. Complaint. This lawsuit follows on the heels

of the Plaintiff’s attempts to have the Board of Physical Therapy make a determination that

the conduct and advertising of Dr. Dunning fell outside of the Physical Therapy Practice

Act. When the Board of Physical Therapy made its determination that Dr. Dunning’s

conduct and advertisement were within the Physical Therapy Practice Act, this lawsuit

ensued.

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The issue before this Court is not whether James Dunning’s conduct and advertising

violate the Chiropractic Practice Act; rather, the issue (which has already been determined

by the Board of Physical Therapy) is whether James Dunning’s conduct and advertisement

violate in any respect the Practice Act applicable to him (i.e., the Physical Therapy Practice

Act). The Board of Physical Therapy has determined that his conduct and advertisement do

not violate the laws which that Board is authorized by the legislature to enforce and regulate.

That fact alone should end the inquiry and demonstrate the Defendant’s entitlement to

summary judgment. So long as Dr. Dunning is acting within the scope of his practice as a

physical therapist, he cannot be in violation of the provisions of the Chiropractic Practice

Act. The implication raised by the Plaintiff’s complaint that there can be no overlap

between these two professions is an erroneous one2.

Plaintiff did not appeal from the ruling of the Board of Physical Therapy determining

that Dr. Dunning’s conduct and advertising were within the Physical Therapy Practice Act.

Those appeal rights are set forth at Ala. Code § 34-24-195. Rather than appeal that ruling

(which would be subject to limited judicial review, Alabama Board of Nursing v. Williams,

941 So. 2d 990, 995 (Ala. Civ. App. 2005)) Plaintiff seeks to have this Court enter an order

that “spinal manipulations can only be performed by individuals licensed to practice

chiropractic in this state.” Complaint. Such a determination by this Court would constitute

an impermissible usurpation of the authority conferred by the Alabama Legislature upon the

2 It is significant to note that although Plaintiff alleges (erroneously) “spinal manipulation” constituteschiropractic and not physical therapy, the term “spinal manipulation” does not appear in the statutorydefinition of “chiropractic.” Ala. Code § 34-24-120(a). As is made clear from the evidence presented, “spinalmanipulation” is a required part of the course curriculum that physical therapists must complete in order toobtain their license from the Board of Physical Therapy. See Dunning Aff.

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Board of Physical Therapy to interpret its own Practice Act. QCC, Inc., v. Hall, 757 So. 2d

1115, 1119 (Ala. 2000) (courts should give deference to actions of an administration agency

charged with enforcement of a statute).

III PLAINTIFF’S COMPLAINT SEEKS AN IMPERMISSIBLE ADVISORY OPINION FROMTHIS COURT.

Plaintiff has sued Dr. Dunning alone; however, Plaintiff seeks a ruling from this Court

that “spinal manipulations can only be performed by individuals licensed to practice

chiropractic in this state.” Complaint. Although couched as a Complaint for Declaratory

and Injunctive Relief, Plaintiff’s complaint impermissibly seeks an advisory opinion.

Ala. Code § 6-6-222 authorizes the courts of this state to “declare rights, status, and

other legal relations whether or not further relief is or could be claimed.” Section 6-6-222

does not, however, confer jurisdiction upon the courts of this state to issue advisory

opinions. Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So. 2d 661, 662 (1963). As

the Alabama Supreme Court recognized in Stamps v. Jefferson County Bd. of Educ.,

“’[a]ctions or opinions are denominated ‘advisory’’ and, therefore, not justiciable, ‘when

there is an insufficient interest in the plaintiff or defendant to justify judicial determination,

where the judgment sought would not constitute specific relief to a litigant … or where, by

reason of inadequacy of parties defendant, the judgment could not be sufficiently

conclusive.’” 642 So. 2d 941, 944 (1994) quoting E. Borchard, Declaratory Judgments 31

(1934).

Plaintiff seeks to have this Court render an opinion that “spinal manipulations can

only be performed by individuals licensed to practice chiropractic in this state.” Complaint.

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Presumably, given the history of this case, Plaintiff would then seek to use that ruling against

the Alabama State Board of Physical Therapy in an effort to interfere with the Board of

Physical Therapy’s statutory right to interpret its own Practice Act which, in turn, would

affect every physical therapist in the State of Alabama. At its essence, Plaintiff’s complaint

seeks an adjudication that every physical therapist in the State of Alabama would be in

violation of law by utilizing the spinal manipulation techniques which they were taught as a

mandatory part of their curriculum. Plaintiff asks this Court to speak law over parties who

are not before it. Because this Court cannot grant the relief requested by the Plaintiff (i.e.,

“declare that spinal manipulations can only be performed by individuals licensed to practice

chiropractic in this state”), any opinion of this Court would constitute an impermissible

“advisory opinion.” Stamps v. Jefferson County Bd. of Educ., 642 So. 2d 941 (Ala. 1994).

In Stamps, special education teachers brought suit for declaratory relief against the

Jefferson County Board of Education. The issue in that case was whether the Board’s

requirement that special education teachers perform certain medical procedures subjected

the teachers to prosecution for violating the Nursing Practice Act. In Stamps, as in the

present case, a court ruling would not have ended the controversy given the absence of

parties potentially affected by the ruling. That court, relying upon Ala. Code § 6-6-229,

determined that the trial court’s ruling constituted an impermissible advisory opinion. Id. at

944. The pertinent part of Ala. Code § 6-6-229 upon which the Stamps court relied

provides “[t]he court may refuse to enter a declaratory judgment where such judgment, if

entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

Id. at 944 quoting Ala. Code § 6-6-229.

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The Stamps court specifically held that because the controversy was nonjusticiable

(i.e., an advisory opinion), the trial court lacked subject matter jurisdiction. Similarly, the

Plaintiff in this case seeks an advisory opinion from this Court which this Court lacks

jurisdiction to provide. As such, Plaintiff’s claim must fail.

IV THE BOARD OF PHYSICAL THERAPY’S RULING PRECLUDES THE CLAIMSCONTAINED IN THE PLAINTIFF’S COMPLAINT.

The determination by the Board of Physical Therapy that Dr. Dunning’s conduct and

advertisements did not fall outside of the Physical Therapy Practice Act precludes the claims

asserted in the present complaint because Plaintiff is attempting to re-litigate an issue which

has already been determined.

It is well settled that agency determinations constitute adjudications for purposes of

res judicata analysis. E.g. State v. Brooks, 53 So. 2d 329 (Ala. 1951); Bishop State

Community College v. Williams, 4 So. 3d 1152, 1159 (Ala. Civ. App. 2008) (“when the law

has vested a special board, commission or tribunal with authority to hear and determine

matters arising in the course of its duties, its decisions on those matters are conclusive, and

like the judgments of courts, cannot be collaterally attacked in another proceeding.”). The

doctrine of collateral estoppel applies when: (1) there is identity of the parties or their

privies, (2) there is identity of issues, (3) the parties had an adequate opportunity to litigate

the issues in the administrative proceeding, (4) the issues to be estopped were actually

litigated and determined in the administrative proceeding, and, (5) the findings on the issues

to be estopped were necessary to the administrative decision. E.g., Wal-Mart Stores, Inc. v.

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Smitherman, 743 So. 2d 442 (Ala. 1999). Because each of these elements is met in this

case, Plaintiff is collaterally estopped from bringing this lawsuit.

Both before the Board of Physical Therapy and before this Court, Plaintiff is

challenging the conduct and advertising of James Dunning; therefore, the parties are

identical. The issues are, likewise, identical in that Plaintiff seeks a determination that the

Defendant’s conduct and advertisement violate the law (i.e., are outside of the Physical

Therapy Practice Act)3. Because the Plaintiff availed itself of the complaint procedures

adopted by the Board of Physical Therapy to complain about the very issues which are the

subject of the present lawsuit, and because the Board of Physical Therapy, pursuant to those

procedures, made its determination that the conduct and advertisement did not violate the

Physical Therapy Practice Act, the remaining elements of collateral estoppel are satisfied as

well.

V. CONCLUSION

Plaintiff’s claim invites this Court to usurp the authority conferred upon the State of

Alabama Board of Physical Therapy which is charged with the enforcement of the Physical

Therapy Practice Act. Plaintiff also invites this Court to issue an impermissible advisory

opinion over parties who are not before the Court. Furthermore, Plaintiff seeks to re-litigate

an issue which was resolved in favor of Dr. Dunning and against Plaintiff by the Alabama

3 Plaintiff seeks to avoid this analysis by framing the issue differently in this litigation. Before the Boardof Physical Therapy, Plaintiff sought a determination that Dr. Dunning’s conduct and advertisement wereoutside of the Physical Therapy Practice Act based upon Plaintiff’s belief that spinal manipulation is theprovince of chiropractors alone. In this action Plaintiff seeks a determination that Dr. Dunning’s conductviolates the Chiropractic Practice Act, again, based upon Plaintiff’s belief that spinal manipulation is the soleprovince of chiropractors. If you put a dress on a pig and call it Bess, it’s still a pig.

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State Board of Physical Therapy. For all of the reasons demonstrated above, the Plaintiff’s

claims are due to be disposed of by a grant of Defendant’s Motion for Summary Judgment.

Respectfully submitted:

/s Richard A. Bearden _Richard A. Bearden (ASB-0873-E41R)Attorney for Dr. James Dunning, DPT

OF COUNSEL:

MASSEY, STOTSER & NICHOLS, P.C.P.O. Box 94308Birmingham, Alabama 35220-4308Voice: 205/838-9000Fax: 205/838-9024Email: rbearden@msnattorneys.com

CERTIFICATE OF SERVICE

I hereby certify that on this, the 1st day of July, 2009, I electronically filed theforegoing with the Clerk of Court by using the Alacourt Electronic Filing System which willsend notification to the following:

James S. Ward2100 Southbridge Parkway, Ste. 580Birmingham, Alabama 35209

/s Richard A. Bearden _Of Counsel

ELECTRONICALLY FILED7/1/2009 11:32 AMCV-2009-900640.00

CIRCUIT COURT OFMONTGOMERY COUNTY, ALABAMA

MELISSA RITTENOUR, CLERK

ELECTRONICALLY FILED7/1/2009 11:32 AMCV-2009-900640.00

CIRCUIT COURT OFMONTGOMERY COUNTY, ALABAMA

MELISSA RITTENOUR, CLERK