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9d93ce89-c6f2-4c94-a3ab-4ebfa8d85e4f	Towles v. Alabama	N/A	1121099	Alabama	Alabama Supreme Court	REL:09/19/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1121099 ____________________ Ex parte State of Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Kevin Andre Towles v. State of Alabama) (Etowah Circuit Court, CC-07-480; Court of Criminal Appeals, CR-09-0396) BOLIN, Justice. 1121099 Kevin Andre Towles was convicted of capital murder for killing his son, Geontae Glass, who was under the age of 14 when he was killed. See § 13A-5-40(a)(15), Ala. Code 1975. By a vote of 11 to 1, the jury recommended that Towles be sentenced to death. The trial court followed the jury's recommendation and sentenced Towles to death. The Court of Criminal Appeals reversed Towles's conviction and sentence in a per curiam opinion. Towles v. State, [Ms. CR-09-0396, March 29, 2013] __ So. 3d __ (Ala. Crim. App. 2013). The State petitioned this Court for a writ of certiorari, which we granted. Facts and Procedural History The Court of Criminal Appeals set forth the following statement of facts: "On the morning of December 4, 2006, Shalinda Glass arrived at the Conoco gas station on Baltimore Avenue in Albertville. Ronnie Cook, who was at the time at the gas station to complete a sales order, took note of Glass because she drove her Nissan Altima automobile from one side of the lot to the other several times before she parked her vehicle in front of a gas pump. Cook watched Glass and Shaliyah Glass, Glass's seven-year-old daughter, get out of the vehicle and enter the gas station. "After they entered the Conoco gas station, Cook saw a blue Ford pickup truck stop beside Glass's Altima. Cook then saw a black male, who had the same 2 1121099 general physical characteristics as Towles, get into the Altima and then leave the Conoco gas station in the Altima. Cook did not see the black male get out of the pickup truck, but he stated that the black male was close to the passenger door of the pickup truck when Cook first noticed him. Cook testified that the pickup truck followed the Altima away from the Conoco gas station. "When Glass left the gas station with Shaliyah and found her Altima missing, she used a pay phone to telephone Towles. After Towles failed to answer, Glass telephoned 911. Glass told the emergency dispatcher that her Altima was missing and that her five-year-old son, Geontae, was asleep in the backseat of the vehicle. "The State presented evidence that the blue pickup truck Cook saw belonged to Bobby Spydell. Towles and Spydell had been friends since childhood, and the two men were business partners, operating a barbeque restaurant together. According to Spydell, Towles telephoned Spydell around 2 or 3 a.m. on December 4. Towles told Spydell that he needed Spydell to pick him up in Albertville. Spydell immediately left to meet Towles in his Ford pickup truck. "Spydell met Towles at a house in Albertville. At Towles's direction, Spydell drove Towles to a parking lot across the street from the Conoco gas station. Towles then asked Spydell to take him across the street to the Conoco gas station. Once there, Towles got out of the pickup truck, briefly walked away from the pickup truck and returned, throwing cash on the passenger seat for Spydell. Towles then walked toward the entrance of the Conoco gas station, and Spydell drove his pickup truck to his house. "While the search for Geontae and the Altima was ongoing, Investigator J.T. Cartee of the Albertville 3 1121099 Police Department interviewed Glass and Towles. Towles had few details to share with Investigator Cartee at that time. Investigator Cartee subsequently became aware of the involvement of the blue pickup truck. In a second interview with Investigator Cartee, Towles denied any knowledge of a blue pickup truck or of its possible owner. "Alabama State Trooper William Randall, Jr., who was at the time a deputy with the Marshall County Sheriff's Office, participated in a search of Towles's residence located on Broad Street in Albertville. Towles had consented to the search. During the search, Trooper Randall found a receipt for a utility bill in the name of 'Vicki Towles.' The address listed on the receipt was not Broad Street but was a Boaz address on Shady Grove Road. Trooper Randall traveled to the Shady Grove address, secured the residence, and awaited the arrival of deputies with the Etowah County Sheriff's Office. "Etowah County Sheriff Todd Entrekin arrived at the Shady Grove address and entered the residence. Sheriff Entrekin and some of his deputies performed a sweep of the home searching for Geontae. Although he did not find Geontae, Sheriff Entrekin did note that the layout of the residence appeared to match a description given by Shaliyah to officers of the house in which she and Geontae had stayed the weekend before Geontae's alleged kidnapping. Sheriff Entrekin left the residence and returned to the sheriff's office, intending to return with a search warrant for the residence. "While he was at the sheriff's office, Sheriff Entrekin was informed that the missing Altima had been discovered in the garage of the Shady Grove residence. Inside the trunk of the Altima officers found Geontae's body wrapped in a blanket. Among other items recovered from the backseat of the Altima was a blue-and-white-striped bedsheet with reddish brown stains. Subsequent DNA testing of the 4 1121099 stains on the bedsheet by Deborah Dodd, a forensic scientist with the Alabama Department of Forensic Sciences, revealed that the stains matched the DNA profile of Geontae. On the bathtub in the back bathroom of the house, additional reddish brown stains were found. Dodd testified that these stains contained a mixed DNA profile, which is not uncommon for samples recovered in common areas, and that Geontae was most likely a contributor to the sample. "Investigator Mike Jones of the Etowah County Sheriff's Office and Agent Brenn Tallent of the Federal Bureau of Investigation interviewed Towles at the sheriff's office at 3:15 a.m. on December 5, 2006. Towles was made aware of the discovery of Geontae's body. At the outset of the interview, Towles stated that he was 'responsible for what happened to Geontae' and that he did not want Shalinda charged in Geontae's death. Towles stated to Investigator Jones that he was outside his residence on Sunday evening when two masked men approached him and demanded that Geontae come outside. Towles agreed to the demand, believing that Geontae would not be harmed because he was a small child. Towles was then asked for money, and he gave them all the money he had, which he approximated at $15,000. Before leaving, one of the masked men took Geontae behind the house and beat him while the other masked man held Towles at gunpoint. Towles took Geontae inside the residence and told him that he would take Geontae to the doctor in the morning if he were not feeling well. Towles did not identify the men to Investigator Jones or Agent Tallent. "Several items found in the Shady Grove residence cast doubt on Towles's statement to Investigator Jones and Agent Tallent. Specifically, officers recovered an assault rifle, a pistol, a bulletproof vest, and $33,382. "Dr. Emily Ward, a state medical examiner, performed the autopsy on Geontae. Dr. Ward noted 5 1121099 many injuries she considered to be nonlethal. Geontae's body had abrasions on his arms, back, chest, stomach, groin, buttocks, legs, and left foot, and had bruising on his right thigh and right buttock. In addition to the fresh abrasions, Geontae's body revealed wounds that had begun healing, indicating to Dr. Ward that these wounds were likely sustained a few days before Geontae's death. Based on the curved nature of the wounds that had begun healing, Dr. Ward speculated that they had been inflicted with a belt. "Geontae's body also presented more serious injuries. Incisions to the right buttock and thigh revealed that the muscles had a large accumulation of blood. Dr. Ward explained that the accumulation of blood was significant because it indicated that the injury was 'extremely forceful.' Further, the muscular damage sustained by Geontae caused an increase of myoglobin in the bloodstream, which Dr. Ward classified as a very toxic substance capable of causing kidney failure. The level of myoglobin in Geontae's bloodstream was 87 nanograms per milliliter, where a normal level would be less than 5 nanograms per milliliter. "Geontae's lower back did not appear to have injuries to the skin, indicating that Geontae did not receive a direct blow to that area. However, the force applied to the buttocks was significant enough to cause hemorrhaging that reached Geontae's spinal cord. Based on the level of hemorrhaging in the nerve fibers of the lower portion of the spinal cord, Dr. Ward surmised that Geontae's injuries resulted in paralyzation. Dr. Ward testified that in her opinion Geontae died of complications from blunt-force injuries but that he could have survived had he received medical attention. "Additionally, a portion of the skin on Geontae's buttocks was denuded. Dr. Ward testified that the denuded-skin injury was consistent with 6 1121099 having been struck with a piece of wood and that she asked investigators to return to the scene and to look for something similar to a piece of wood that may have been used to injure Geontae. "Captain Jeff Hopper of the Etowah County Sheriff's Office was sent to the Shady Grove residence with instructions to look for a solid object two to four inches wide. Captain Hopper located a piece of wood on the property. The piece of wood was approximately four feet long and two inches wide. His attention was drawn to the piece of wood because it bore a reddish brown stain. Dodd performed DNA testing on the stain, determining that the stain was blood and that the bloodstain matched the DNA profile of Geontae. "A search of a book bag recovered from the Altima yielded Geontae's school-conduct chart for the months of November and December. The chart displayed that Geontae had received a smiley face for the first two weeks of November but that Geontae had received a straight face on the chart's most recent entry. The State offered Geontae's conduct assessment as Towles's motive for killing Geontae. ".... "At trial, the State offered the testimony of Shaquille Cameron, Towles's [other] son. Cameron, who was 15 years old at the time of trial, lived with Towles from the time he was 8 years old until he was 9. Cameron was removed from Towles's custody by the Alabama Department of Human Resources after Cameron appeared at school with an injury to his head. According to Cameron, Towles became angry with him because Towles found a number of cups under Cameron's bed. Cameron said that Towles picked up a metal box fan and struck Cameron's head with the fan. Additionally, Cameron alleged that on other occasions Towles struck him with his fists or with various implements, such as a belt, an extension 7 1121099 cord, or a broomstick. Cameron testified that the assaults were in response to disciplinary issues at school. Towles objected to the admission of Cameron's testimony on the ground that it violated Rule 404(b), Ala. R. Evid. The circuit court overruled Towles's objection, finding that Cameron's testimony was relevant and admissible for the limited purpose of proving Towles's intent. ".... "The circuit court instructed the jury as follows with respect to Cameron's testimony: "'Ladies and gentlemen, there was testimony during the course of the trial by the young man Shaquille Cameron. And I want to speak to you about that testimony and what weight or how you can use that testimony. "'The Court charges you that there has been testimony in this case of prior bad acts by the defendant. You may not consider this testimony as evidence that the defendant had a bad character or that he acted in conformity with that character on the occasion that is the basis of the present charge; nor may you consider this evidence as proof that the defendant committed the acts alleged in this case. "'You may only consider the evidence of prior acts as evidence of identity or of an intent, purpose or motive to commit the acts complained of in the indictment before you today.'[1] The State argued that Cameron's testimony was admissible 1 to show motive, intent, and identity. The trial court overruled Towles's objection to the admission of Cameron's testimony, determining that the testimony was admissible for 8 1121099 "... Towles did not object to the circuit court's jury instructions." Towles v. State, __ So. 3d at __ (references to record and emphasis omitted). Towles argued on appeal to the Court of Criminal Appeals that the admission of Cameron's testimony violated Rule 404(b), Ala. R. Evid., because, he argued, the sole purpose of that testimony was to establish Towles's bad character. Rule 404(b) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ...." the limited purpose of proving Towles's intent. At the charge conference before closing arguments, the trial court proposed instructing the jury that it could consider Cameron's testimony for purposes of proving identity, intent, and motive. Towles objected, stating that Cameron's testimony had been admitted for the limited purpose of showing intent. The trial court agreed and determined that the jury would be instructed that Cameron's testimony could be considered only as proof of intent. However, when the trial court gave the jury the limiting instruction regarding the prior-acts evidence, it gave the more expansive limiting instruction, which included the instruction that the jury could consider the evidence for purposes of identity, intent, and motive. Towles did not object to the instruction. 9 1121099 The Court of Criminal Appeals initially questioned the admissibility of Cameron's testimony under any exception to the exclusionary rule. However, the Court of Criminal Appeals assumed, without deciding, that, if the evidence relating to Towles's physical abuse of Cameron was relevant to show intent as the trial court had found, "'pursuant to the trial court's broad instruction, [the jury] ... remained free to consider that evidence for ... other [improper] purposes (including [motive and identity]).'" Towles, __ So. 3d at __ (quoting Ex parte Billups, 86 So. 3d 1079, 1087 (Ala. 2010)). This Court found plain error in Ex parte Billups, where the trial court's limiting instruction to the jury permitted the jury to consider collateral-bad-acts evidence for implausible purposes or for purposes other than those for which the collateral-bad- acts evidence was offered. The Court of Criminal Appeals reversed Towles's conviction, finding that Cameron's testimony was inadmissible to prove identity and motive. As to identity, the Court of Criminal Appeals stated: "Contrary to the circuit court's instructions, the jury could not properly consider Cameron's testimony under the identity exception to the exclusionary rule. '[T]he identity exception to the 10 1121099 general exclusionary rule of character ... contemplates the situation where the now-charged crime was committed in a novel and peculiar manner.' Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence, § 69.01(8) (6th ed. 2009). "'"'When extrinsic offense evidence is introduced to prove identity, the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused.'" Ex parte Baker, 780 So. 2d 677, 680 (Ala. 2000) (quoting United States v. Clemons, 32 F.3d 1504, 1508 (11th Cir. 1994) (further citations omitted)). ... "'Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated ... rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.'" Hurley v. State, 971 So. 2d 78, 83 (Ala. Crim. App. 2006) (quoting 1 McCormick on Evidence § 190 at 801–03 (4th ed. 1992) (footnotes omitted)).' "Moore v. State, 49 So. 3d 228, 233 (Ala. Crim. App. 2009). "The primary assault to which Cameron testified involved Towles's use of a metal box fan. The only apparent similarity between the assault Cameron suffered and the manner in which Geontae was killed is that Cameron and Geontae are both Towles's sons. During the acts at issue, different implements were used by Towles –- Cameron was assaulted with a metal box fan and Geontae was killed with a piece of wood; the primary injuries differed -– Cameron was struck on his head and Geontae on his buttocks; and the apparent impetus for the beatings was different -– Cameron was assaulted for having cups under his bed, whereas the State's offered motive was that Geontae 11 1121099 had a less than satisfactory conduct report from school. In short, there was no showing that the assaults to which Cameron testified and the manner in which Geontae was killed possessed the novelty or peculiarity necessary to render Cameron's testimony admissible under the identity exception. In fact, the circuit court explicitly recognized that the identity exception was not applicable. Accordingly, the circuit court erred by allowing the jury to consider Cameron's testimony for the purpose of establishing Towles's identity as Geontae's murderer." Towles, __ So. 3d at __ (citations to record omitted). As to motive, the Court of Criminal Appeals stated: "'Motive is defined as "an inducement, or that which leads or tempts the mind to do or commit the crime charged." Spicer v. State, 188 Ala. 9, 11, 65 So. 972, 977 (1914). Motive has also been described as "that state of mind which works to 'supply the reason that nudges the will and prods the mind to indulge the criminal intent.'" [Charles Gamble, Character Evidence: A Comprehensive Approach 42 (1987).]' "Bowden v. State, 538 So. 2d 1226, 1235 (Ala. 1988). "The State argues on appeal that Cameron's testimony was admissible, and therefore properly considered by the jury, under the motive exception to the exclusionary rule. Specifically, the State cites Bedsole v. State, 974 So. 2d 1034 (Ala. Crim. App. 2006), arguing that the assaults on Cameron 'tended to show that Towles was motivated to physically beat or assault children for disciplinary problems,' particularly those disciplinary problems that occur at school. 12 1121099 "In Bedsole, this Court held that evidence of similar collateral sex acts with a child was admissible under Rule 404(b), Ala. R. Evid., to prove that the appellant was 'motivated by an unnatural sexual desire for young girls.' Bedsole, 974 So. 2d at 1038–40; see also Ex parte Register, 680 So. 2d 225, 226–28 (Ala. 1994); Garner v. State, 977 So. 2d 533, 536–38 (Ala. Crim. App. 2007). However, the liberal view of the motive exception to Rule 404(b) found in Bedsole, Register, and Garner has been narrow in application. Alabama courts have not expanded the holdings of these cases beyond the scope of cases involving the sexual abuse of a minor, and we decline to do so today. "Simply stated, there was no logical tendency to lead to any inference that Towles, because he had assaulted his son Cameron three years earlier, was motivated to kill Geontae. Accordingly, the jury should not have been instructed that it could consider Cameron's testimony as evidence of Towles's motive." Towles, __ So. 3d at __. Additionally, the Court of Criminal Appeals concluded: "The circuit court's instructions were erroneous because they permitted the jury to consider Cameron's testimony for improper purposes. Given the highly prejudicial nature of collateral acts involving child abuse, this Court holds that the erroneous jury instructions '"affected [Towles's] substantial rights and ... seriously affected the fairness and integrity of the proceeding against him."' Ex parte Billups, 86 So. 3d [1079] at 1086 [(Ala. 2010)] (quoting Billups v. State, 86 So. 3d 1032, 1079 (Ala. Crim. App. 2009) (Welch, J., dissenting))." 13 1121099 Towles, __ So. 3d at __. Presiding Judge Windom dissented for the same reasons stated in her special writing in R.C.W. v. State, [Ms. CR-11-0387, November 2, 2012] __ So. 3d __ (Ala. Crim. App. 2012) ("R.C.W. I"), which we discuss in greater detail infra. Standard of Review Towles objected to the admission of the collateral-bad- acts evidence on the ground that the evidence violated Rule 404(b), Ala. R. Evid. "The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So. 2d 1093, 1103 (Ala. 2000). "This is equally true with regard to the admission of collateral-acts evidence. See Davis v. State, 740 So. 2d 1115, 1130 (Ala. Crim. App. 1998)." Irvin v. State, 940 So. 2d 331, 345 (Ala. Crim. App. 2005). Further, Rule 45, Ala. R. App. P., provides: "No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire case, it should appear that the error complained of has probably 14 1121099 injuriously affected substantial rights of the parties." This Court stated in Ex parte Crymes, 630 So. 2d 125, 126 (Ala. 1993): "[T]his Court has stated that the reviewing court must determine whether the 'improper admission of the evidence ... might have adversely affected the defendant's right to a fair trial,' and before the reviewing court can affirm a judgment based upon the 'harmless error' rule, that court must find conclusively that the trial court's error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant." See also Ex parte Greathouse, 624 So. 2d 208, 210 (Ala. 1993) (noting that the proper harmless-error inquiry asks, absent the improperly introduced evidence, "'is it clear beyond reasonable doubt that the jury would have returned a verdict of guilty?'" (quoting United States v. Hastings, 461 U.S. 499, 511 (1983))). Although Towles objected to the admission of the collateral-bad-acts evidence, the record does not demonstrate that Towles objected to the actual limiting instruction given to the jury. As discussed supra in note 1, the trial court proposed at the charge conference instructing the jury that it could consider Cameron's testimony for purposes of proving identity, intent, and motive. Towles objected, stating that 15 1121099 Cameron's testimony could be considered only for the limited purpose of showing intent. The trial court agreed and concluded that the jury would be instructed that Cameron's testimony could be considered only as proof of intent. However, when the trial court charged the jury, it gave the more expansive limiting instruction, which included the instruction that the jury could consider Cameron's testimony for purposes of identity, intent, and motive. Towles did not object to the instruction. Towles contends on appeal that he preserved for appellate review the issue of the limiting instruction because "[a] defendant may make a clear objection at the charge conference in lieu of objecting at the close of the oral instructions." Withee v. State, 728 So. 2d 684, 688 (Ala. Crim. App. 1998). Although a defendant may make an objection to a jury charge at the charge conference in lieu of objecting at the close of the trial court's oral charge to the jury, the defendant must obtain an adverse ruling from the trial court at the charge conference in order for the issue to be preserved for appellate review. This court may review only those matters on which the trial court has made rulings adverse to the party seeking review. Breckenridge v. State, 16 1121099 628 So. 2d 1012, 1018 (Ala. Crim. App. 1993). Here, Towles received a favorable ruling from the trial court at the charge conference when he objected to the proposed limiting instruction. Thus, Towles was required to object to the trial court's more expansive limiting instruction during the trial court's oral charge to the jury in order to preserve the issue for appellate review. He did not. Accordingly, the issue regarding the trial court's limiting instruction is reviewable for plain-error only. See Rule 45A, Ala. R. App. P. "'The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L. Ed.2d 1 (1985), the plain-error doctrine applies only if the error is "particularly egregious" and if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." See Ex parte Price, 725 So. 2d 1063 (Ala. 1998).'" Ex parte Brown, 11 So. 3d 933, 935–36 (Ala. 2008) (quoting Hall v. State, 820 So. 2d 113, 121–22 (Ala. Crim. App. 1999)). Discussion The State argues that the Court of Criminal Appeals erred in reversing Towles's conviction based on the admission of Cameron's testimony because, it says, the testimony was 17 1121099 relevant and admissible to prove Towles's motive for killing Geontae. The State further argues that the Court of Criminal Appeals erred in failing to apply a harmless-error analysis to the trial court's erroneous limiting instruction, which allowed the jury to consider Towles's collateral bad acts for improper purposes. Towles contends that the Court of Criminal Appeals did not err in determining that Cameron's testimony was inadmissible to show motive because, he says, there was no logical or factual connection between Geontae's killing and the incidents of abuse testified to by Cameron. Rule 404(b) has been explained as follows: "'"'On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.'" Pope v. State, 365 So. 2d 369, 371 (Ala. Crim. App. 1978), quoting C. Gamble, McElroy's Alabama Evidence § 69.01. (3d ed. 1977) "'This exclusionary rule is simply an application of the character rule which forbids the State to prove the accused's bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has 18 1121099 almost an irreversible impact upon the minds of the jurors.'" Ex parte Arthur, 472 So. 2d 665, 668 (Ala. 1985), quoting McElroy's supra, § 69.01(1).... "'... The well-established exceptions to the exclusionary rule include: (1) relevancy to prove identity; (2) relevancy to prove res gestae; (3) relevancy to prove scienter; (4) relevancy to prove intent; (5) relevancy to show motive; (6) relevancy to prove system; (7) relevancy to prove malice; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes. Willis v. State, 449 So. 2d 1258, 1260 (Ala. Crim. App. 1984); Scott v. State, 353 So. 2d 36 (Ala. Crim. App. 1977). However, the fact that evidence of a prior bad act may fit into one of these exceptions will not alone justify its admission. "'Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government's case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.'" Averette v. State, 469 So. 2d 1371, 1374 (Ala. Crim. App. 1985), quoting United States v. Turquitt, [557 F.2d 464] at 468–69 [(5th Cir. 1977)].'" Ex parte Jackson, 33 So. 3d 1279, 1284-85 (Ala. 2009) (quoting Robinson v. State, 528 So. 2d 343, 347 (Ala. Crim. App. 1986)). "'"[I]t is 'only when the probative value of evidence is "substantially outweighed by the danger of unfair prejudice," ... that 19 1121099 relevant evidence should be excluded.' United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982) (emphasis in original). '[T]he probative value of the evidence of other offenses must also be balanced against its "prejudicial nature" to determine its admissibility. "Prejudicial" is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial.' State v. Daigle, 440 So. 2d 230, 235 (La. Ct. App. 1983). "'"'Of course, "prejudice, in this context, means more than simply damage to the opponent's cause. A party's case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one." State v. Hurd, Me., 360 A.2d 525, 527 n. 5 (1976), quoting McCormick, Handbook on the Law of Evidence § 185 at 439 n.31 (2nd ed. 1972).' "'"State v. Forbes, 445 A. 2d 8, 12 (Me. 1982)."'" White v. State, [Ms. CR-09-0662, August 30, 2013] __ So. 3d __, __ (Ala. Crim. App. 2013) (quoting Averette v. State, 469 So. 2d 1371, 1374 (Ala. Crim. App. 1985)). Regarding the motive exception to Rule 404(b), this Court has stated: "'Motive is an inducement, or that which leads or tempts the mind to do or commit the crime 20 1121099 charged.' Spicer v. State, 188 Ala. 9, 26, 65 So. 972, 977 (1914). Motive is 'that state of mind which works to "supply the reason that nudges the will and prods the mind to indulge the criminal intent."' C. Gamble, Character Evidence[: A Comprehensive Approach], at 42 [(1987)]. 'Furthermore, testimony offered for the purpose of showing motive is always admissible. It is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense.' (Emphasis in original, citations omitted.) Bowden v. State, 538 So. 2d 1226, 1235 (Ala. 1988)." Ex parte Register, 680 So. 2d 225, 227 (Ala. 1994). As mentioned in the Court of Criminal Appeals' statement of facts quoted above, the State offered Geontae's negative- conduct assessment as Towles's motive for killing Geontae. The State sought to establish that as the motive with testimony from Cameron relating to collateral acts of abuse perpetrated upon him by Towles. Cameron was 15 years old at the time of trial. Cameron testified that when he was nine years old he was living with Towles, who is his biological father. Cameron stated that Towles would "spank" him for getting into trouble at school: "Q. What did you usually get into trouble about? "A. School, acting up. "Q. Did you get in worse trouble if you had been in trouble at school? 21 1121099 "A. Yes, ma'am. ".... "Q. Describe for us, if you will, what you were spanked with. "A. Belts and extension cords. "Q. Were they used together or separately? "A. Separately. "Q. What came first? "A. The belts did. And then the extension cords followed after my behavior got worse in school. ".... "Q. Was there ever an occasion where you were hit with something other than the items that you have described for us now? "A. Yes, ma'am. "Q. What was that? "A. A broomstick. "Q. And what happened with the broomstick? "A. The broomstick broke. Just like one of the little flimsy ones with the kind of flimsy metal on it. ".... "Q. Did you ever get hit with anything else? "A. Yes, ma'am. 22 1121099 "Q. What was that? "A. His fist. "Q. Tell us about that, if you will. "A. Well, one time I got hit in my mouth. And then after the extension cord stopped working he told me we were going to start fighting if I got into any more trouble. "Q. And he hit you with his fist in your mouth? "A. Yes, ma'am. "Q. What did he do after he hit you with his fist in your mouth? "A. Well, he cried. We came back from the doctor, and a day later he came and apologized to me. "Q. Did he cry before he took you to the doctor? "A. No, ma'am." Cameron was eventually removed from Towles's home by the Alabama Department of Human Resources ("DHR") after Towles struck him in the head with a metal "box" fan. Cameron stated that Towles entered his bedroom one morning before school and discovered a number of plastic drinking cups under his bed. Cameron testified that Towles began "fussing" and "yelling" at him because the cups had not been put away. He stated that Towles then picked up a metal "box" fan from the floor and 23 1121099 swung it at him, striking him in the head. Cameron testified that the blow to his head with the fan produced a golf-ball- size knot on his head that was noticed by students at his school. Cameron's teacher informed the school's principal, who then contacted DHR. Cameron was removed from Towles's home, and he never returned. Geontae's teacher testified that when Geontae received the negative-conduct grade on the Friday before he was killed, Geontae stated that he "would be getting in trouble when he got home." The State's evidence indicates that Geontae died after being beaten with a wooden implement. Cameron testified that he suffered physical abuse at the hands of Towles following disciplinary issues at school. Cameron's testimony indicated that Towles would become angered when Cameron got into trouble at school and responded by beating him with various implements that happened to be at hand, including belts, extension cords, a broomstick, and his fists. Although the last incident of physical abuse perpetrated upon Cameron by Towles before Cameron was removed from Towles's home was brought about by Towles's discovery of drinking cups under Cameron's bed, as opposed to a disciplinary issue at school, 24 1121099 Towles was nevertheless motivated to punish Cameron for the disciplinary infraction by striking him with an implement close at hand, i.e., the metal "box" fan. The State offered Geontae's negative-conduct assessment as Towles's motive for killing Geontae. The State sought to establish this motive with testimony from Cameron as to prior acts of abuse perpetrated upon him by Towles following disciplinary issues at school. Cameron's testimony, viewed in its entirety, establishes the logical inference that Towles was motivated to beat or assault his children because of disciplinary issues at school. Accordingly, we conclude that the collateral-acts evidence introduced by the State through Cameron's testimony was relevant and reasonably necessary to the State's case because it related to motive and that the probative value of the evidence is not substantially outweighed by its potential prejudicial effects. Ex parte Jackson, supra.2 Although we do not necessarily agree with the Court of 2 Criminal Appeals' entire reasoning as to its determination that the collateral-acts evidence in this case was inadmissible to show identity, we do agree with that court's conclusion that Cameron's testimony was inadmissible for the purpose of establishing Towles's identity as Geontae's murderer. 25 1121099 Having determined that Cameron's testimony was admissible under the motive exception to Rule 404(b), Ala. R. Evid., we must now address the issue of the trial court's limiting instruction. Relying on this Court's decision in Ex parte Billups, 86 So. 3d 1079 (Ala. 2010), the Court of Criminal Appeals determined that the trial court's limiting instruction to the jury was erroneous because it permitted the jury to consider Cameron's testimony for the improper purposes of proving intent and identity. In Ex parte Billups, the defendant was indicted in June 2005 for the murder of Stevon Lockett. The defendant had been indicted in October 2004 on 13 counts of capital murder in relation to the killing of four men at the Avanti East Apartments in Birmingham. In November 2005, the defendant was convicted of 13 counts of capital murder in connection with the Avanti East killings. The trial court sentenced the defendant to death. In December 2005, before the defendant was tried for Lockett's murder, the State gave the defense notice of its intent to present evidence regarding the defendant's involvement in the Avanti East killings during his trial for 26 1121099 Lockett's murder. The trial court, over the defendant's objection, determined that the evidence regarding the defendant's involvement in the Avanti East killings was admissible "'based upon the close proximity, the fact that the same weapon was used, and the fact that [the offenses] [were] very similar.'" Ex parte Billups, 86 So. 3d at 1081. At trial, the State presented an overwhelming amount of evidence relating to the defendant's involvement in the Avanti East killings. The evidence presented by the State consisted of eyewitness testimony of the Avanti East killings by two witnesses; testimony of forensic experts, a firearms expert, and a detective relating to the Avanti East killings; and photographic evidence demonstrating the victims' wounds. The State first mentioned evidence relating to the defendant's involvement in the Avanti East killings in its opening statement, during which the State provided the jury with a detailed account of those killings and displayed postmortem photographs of the four victims of the Avanti East killings. During its case-in-chief, the State called seven witnesses who testified regarding the Avanti East killings. During its cross-examination of the defendant, the State asked several 27 1121099 questions regarding the defendant's involvement in the Avanti East killings. The State also introduced during its cross- examination of the defendant the postmortem photographs of the victims of the Avanti East killings that it had displayed during the opening statement. Finally, the State made numerous references to the Avanti East killings in its closing argument. The defendant objected on several occasions to the introduction of the evidence relating to his involvement in the Avanti East killings, arguing, among other things, that the evidence was inadmissible in that it was unnecessary and prejudicial. The trial court instructed the jury as follows regarding its consideration of the evidence of the defendant's involvement in the Avanti East killings: "'Ladies and gentlemen, let me tell you one thing about this testimony. You're hearing testimony today about another incident that allegedly occurred, not the same one that [the defendant] is actually charged with in this case. "'The law is clear that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith. In other words, evidence of other crimes allegedly committed by the defendant cannot be used to show bad character. 28 1121099 "'The evidence being presented regarding other acts allegedly committed by the defendant can be considered by you only for the purpose of determining either motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. "'I'm going to repeat those for you. But if you think the evidence from the other case is relevant to the issues of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in Stevon Lockett's death, then you can consider this evidence. "'But it cannot be used by you for any other purpose; all right?'" Ex parte Billups, 86 So. 3d at 1082. Further, the trial court stated the following in its final instructions to the jury: "'Now, as I instructed you during the trial, there's been some testimony regarding an allegation of other crimes. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action and conformity therewith. In other words, evidence of the other crimes allegedly committed by the defendant cannot be used to show bad character. It cannot be used to show bad character. The evidence being presented regarding other acts allegedly committed by the defendant can be considered by you only for the purpose of determining motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, as I have instructed you. If you think the evidence from the other case is relevant to the issues of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in Stevon Lockett's death, then you can consider it. But it cannot be used by you for any other purpose.'" 29 1121099 Ex parte Billups, 86 So. 3d at 1082. The Court of Criminal Appeals concluded that the trial court did not err in admitting the collateral-acts evidence regarding the defendant's involvement in the Avanti East killings, stating, in relevant part, that that evidence "was relevant to establish [the defendant's] identity, intent, pattern or plan." Billups v. State, 86 So. 3d 1032, 1053 (Ala. Crim. App. 2009). As to the trial court's limiting instruction regarding the collateral-acts evidence, the Court of Criminal Appeals noted that "the trial court repeatedly instructed the jury as to the limited purpose for which evidence about the [Avanti East] killings ... was being admitted" and that the trial court "specifically instructed the jury that it could not use the collateral bad act evidence to show [the defendant's] bad character or to show that he acted in conformity therewith." Billups, 86 So. 3d at 1053. Judge Welch authored a vigorous dissent to the Court of Criminal Appeals' opinion, concluding that, although the collateral-acts evidence relating to the Avanti East killings may have been admissible to show motive, it was not reasonably necessary to prove motive and that the prejudicial 30 1121099 impact of the substantial evidence relating to the Avanti East killings so outweighed its probative value that the motive exception did not justify its admission into evidence. Billups, 86 So. 3d at 1073. Specifically, Judge Welch stated: "The record in this case presents a textbook example of the reason the exclusionary rule prohibiting collateral-act evidence was created; the extensive evidence of collateral acts in [the defendant's] trial for the murder of Lockett permitted this trial to become, for all intents and purposes, a trial for murders of the four Hispanic men as well. The inadmissible collateral evidence diverted the jurors' minds from the main issue of [the defendant's] criminal responsibility for Lockett's death and had an irreversible impact on the jury's decision-making process in this case. ... ".... "In addition to the fact that the evidence about the quadruple murders was unnecessary to the State's case, the evidence was overwhelmingly and unduly prejudicial to [the defendant]. The State presented such substantial evidence and argument about the quadruple-murder case, beginning in its opening argument to the jury when it displayed photographs of the four victims, that the record reads almost as if [the defendant] were being tried for both crimes in this trial. There was no way the jury could have excluded consideration of the significant and detailed collateral evidence as impermissible character evidence and there was a substantial danger that the jury would have made an impermissible inference, based on the collateral evidence, that [the defendant] was a depraved massacring killer so he probably killed Lockett, 31 1121099 too. Allowing the jury to hear the collateral evidence was far more prejudicial than probative of the issues the majority contends it was admissible to prove." Billups, 86 So. 3d at 1072-77. Additionally, Judge Welch concluded that the trial court did not properly instruct the jury as to the purposes for which it could consider the collateral-acts evidence of the defendant's involvement in the Avanti East killings and that the erroneous limiting instruction actually served to exacerbate the error caused by admitting the collateral-acts evidence. Judge Welch stated: "[A]lthough the majority has correctly stated that the trial court did issue 'limiting' instructions, those instructions were wrong as a matter of law. The trial court accepted the State's invitation at trial to instruct the jury that it could use the collateral-act evidence for any of the reasons listed in Rule 404(b), [Ala. R. Evid.,] even though the State never argued that the evidence was admissible for most of those purposes. The State never argued that evidence about the [Avanti East killings] fell within the exceptions in the exclusionary rule for evidence related to opportunity, preparation, knowledge, or absence of mistake or accident. Thus, the trial court, by issuing its erroneous instructions, greatly enhanced the prejudice caused when evidence about the [Avanti East killings] was admitted because the erroneous instructions permitted the jury to consider the illegal evidence for many issues other than those for which it was purportedly admitted. "This Court considered a similar issue in McAdory v. State, 895 So. 2d 1029 (Ala. Crim. App. 32 1121099 2004), when the trial court incorrectly instructed the jury about the issues relative to which evidence of the defendant's prior crimes could be considered. The Court stated: 'A limiting curative instruction only mitigates the prejudicial admission of illegal evidence if the instruction is legally sound. The jury could not have considered the prior convictions for knowledge and intent because neither was at issue.' 895 So. 2d at 1036. Thus, not only was substantial, prejudicial evidence about the [Avanti East killings] erroneously admitted, but the jury also received misleading instructions that permitted it to consider that prejudicial evidence for issues far beyond those for which the evidence was initially admitted. The confusion of the jury and the probable prejudice to [the defendant] is obvious and exacerbated the devastating harm that resulted from the erroneous admission of the testimony. Although defense counsel did not object to the instructions, based on the record as a whole, I believe that the error affected [the defendant's] substantial rights and that it seriously affected the fairness and integrity of the proceeding against him." Billups, 86 So. 3d at 1078-79 (emphasis added). The defendant argued to this Court that the trial court had committed reversible error in instructing the jury as to the purposes for which it could consider the collateral-acts evidence because, he argued, the trial court's limiting instruction allowed the jury to consider the collateral-acts evidence for purposes not in dispute. In reversing the decision of the Court of Criminal Appeals, this Court stated: 33 1121099 "Assuming, without deciding, that the evidence regarding [the defendant's] involvement in the Avanti East killings was, as the State contends, relevant to show plan, identity, motive, and intent, the jury, pursuant to the trial court's broad instruction, nonetheless remained free to consider that evidence for numerous other purposes (including opportunity, preparation, knowledge, or absence of mistake or accident) that were indisputably not at issue in this case. See McAdory v. State, 895 So. 2d 1029, 1036 (Ala. Crim. App. 2004) (plurality opinion) (concluding that the jury could not have properly considered the defendant's prior convictions to show knowledge and intent because neither was at issue). Presenting the jury with such a far-reaching 'limiting' instruction carries with it the same problems as providing the jury with no specific purpose for considering the other crimes, wrongs, or acts evidence. "'[A]n instruction should advise the jury on the purposes for which prior acts are admitted, meaning uses that are plausible in the case at hand, and should not include a laundry list of every conceivable use.' 1 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 4:30 at 789 (3d ed. 2007) (emphasis added). In this case, however, the jury was allowed to consider the evidence regarding [the defendant's] involvement in the Avanti East killings for several implausible purposes, including, among others, opportunity and absence of mistake or accident. For example, [the defendant] made no argument at trial that Lockett's killing was the result of an accident or that he lacked the opportunity to kill Lockett; rather, [the defendant's] defense was that another person, Charles Cooper, was responsible for Lockett's murder. "By simply reciting the complete 'laundry list' of permissible theories under Rule 404(b), the trial court's instruction in this case gave the jury 34 1121099 inadequate guidance. See Ex parte Belisle, 11 So. 3d 323, 333 (Ala. 2008) ('[A]n appellate court "presume[s] that the jury follows the trial court's instructions unless there is evidence to the contrary."' (quoting Cochran v. Ward, 935 So. 2d 1169, 1176 (Ala. 2006))). The trial court's instruction also failed to limit the State to the purposes –- as nonspecific as they were –- that it advanced in support of admission of the evidence regarding [the defendant's] involvement in the Avanti East killings. Thus, we conclude that the trial court erred by failing to limit the jury's consideration of that evidence to only those purposes for which the evidence was purportedly offered by the State (plan, identity, motive, and intent). See Huddleston [v. United States, 485 U.S. 681 (1988)]; cf. United States v. Tse, 375 F.3d 148, 158 (1st Cir. 2004) (finding that the district court 'adequately limited the jury's consideration of [certain Rule 404(b)] evidence' when the court instructed the jury that it could not use that evidence 'to make a propensity inference' and that the jury could use that evidence to determine only the defendant's 'knowledge and intent'). "With regard to the erroneous jury instruction, we agree with Judge Welch's conclusions that '[t]he confusion of the jury and the probable prejudice to [the defendant] is obvious' and that 'the error affected [the defendant's] substantial rights and ... seriously affected the fairness and integrity of the proceeding against him.' Billups, 86 So. 3d at 1079 (Welch, J., dissenting). Accordingly, we conclude that, under the particular circumstances of this case, the trial court's failure to properly instruct the jury regarding the purposes for which it could consider the evidence of [the defendant's] involvement in the Avanti East killings constituted plain error." Ex parte Billups, 86 So. 3d at 1085-86. 35 1121099 This Court recently decided R.C.W. v. State, [Ms. 1120562, May 30, 2014] __ So. 3d __ (Ala. 2014) ("R.C.W. II"). R.C.W. was tried for and convicted of sexually abusing T.W., his biological daughter. During the course of the trial the State presented testimony from R.C.W.'s two other biological daughters regarding specific acts of sexual abuse perpetrated upon them. R.C.W. argued that the evidence was not necessary to the State's case because, he said, motive, intent, and identity would not be contested at trial. The State argued that the evidence was admissible pursuant to Rule 404(b), Ala. R. Evid., for the purposes of showing motive, opportunity, intent, or plan. The trial court allowed the collateral-acts testimony and charged the jury as follows: "'"You have heard testimony and evidence regarding crimes, wrongs or bad acts regarding the Defendant. The Defendant is on trial only for the criminal charges that I have read to you in the indictments, not for anything else. Evidence of other crimes, wrongs, or bad acts was allowed into evidence not to prove that the Defendant may or may not be a bad person or may or may not be a person of bad character or that it made him more likely to commit the crimes charged in these indictments, because that would be wrong and legally impermissible. The evidence of other crimes, wrongs or bad acts was allowed into evidence for one narrow purpose only. That is, it may be considered by you for the limited purpose as regarding the Defendant's motive, opportunity, intent, or plan."'" 36 1121099 R.C.W. II, ___ So. 3d at ___ (quoting R.C.W. I, ___ So. 3d at ___). R.C.W. objected to the trial court's limiting instruction as follows: "'"Judge, with regard to the charge on [Rule] 404(b) evidence. The portion where you said that it's for the limited purpose of motive, opportunity, or plan, I would submit that those are not matters in controversy and by having it go –- I believe that that is different than what the State had said originally, was their purpose for offering that evidence. We except and object to the Court giving it with that broad of reason for it coming in."'" R.C.W. II, ___ So. 3d at ___ (quoting R.C.W. I, ___ So. 3d at ___). The Court of Criminal Appeals concluded on appeal that the collateral-act evidence of R.C.W.'s sexual misconduct involving T.W.'s half sisters was admissible to establish motive. However, the Court of Criminal Appeals, relying on this Court's decision in Ex parte Billups, further concluded that "it was reversible error for the trial court to allow the jury to consider the evidence of collateral sexual misconduct involving T.W.'s half sisters for the improper purposes of intent, opportunity, and plan," where those points were not at issue in R.C.W.'s trial, R.C.W. I, __ So. 3d at __, because a "jury may not consider evidence of collateral sexual 37 1121099 misconduct for an implausible purpose." R.C.W. I, ___ So. 3d at __. Presiding Judge Windom authored a dissenting opinion in which she agreed with the holding of the main opinion that evidence of R.C.W.'s prior sexual abuse of his other daughters was admissible to establish his motive for sexually abusing T.W. R.C.W. I, __ So. 3d at __ . Presiding Judge Windom also agreed with the conclusion in the main opinion that the trial court's limiting instruction erroneously allowed the jury to consider evidence of R.C.W.'s collateral sexual abuse for purposes other than to show motive, i.e., for the "'improper purposes of intent, opportunity, and plan.'" R.C.W. I, __ So. 3d at __ (quoting main opinion). However, Presiding Judge Windom concluded that R.C.W. suffered no harm as the result of the trial court's erroneous jury instruction, which allowed the jury to consider evidence of R.C.W.'s collateral sexual abuse for purposes other than motive. Presiding Judge Windom explained: "In Ex parte Billups, 86 So. 3d at 1084–85, the Alabama Supreme Court held that when evidence of collateral bad acts is admitted for one or more purposes other than to show bad character, the circuit court's failure to give an instruction that limits the jury's consideration of that evidence to 38 1121099 only the purpose for which it was admitted constitutes error. Specifically, the Court held that the circuit court's limiting instruction relating to Rule 404(b) evidence that 'simply recit[ed] the complete "laundry list" of permissible theories under Rule 404(b) [for the admission of collateral-bad-act evidence], ... gave the jury inadequate guidance [and constituted error].' Billups, 86 So. 3d at 1086. "The Supreme Court did not, however, create a per se rule requiring reversal every time a circuit court's limiting instruction relating to collateral bad acts includes purposes listed in Rule 404(b) for which the evidence was not admitted. To the contrary, the Supreme Court has repeatedly held that the failure to give a limiting instruction and/or the giving of an erroneous limiting instruction must be reviewed on a case-by-case basis. Snyder v. State, 893 So. 2d 482, 485 (Ala. 2001) (explaining that 'each inquiry regarding the propriety of an instruction on the use of evidence of prior convictions ... must be determined on a case-by-case basis'); Ex parte Martin, 931 So. 2d 759, 768 (Ala. 2004) (same); Johnson v. State, 120 So. 3d 1119, 1126 (Ala. 2006) (same). ".... "Although evidence of R.C.W.'s collateral bad acts was properly admitted as substantive evidence to show his motive and although the circuit court correctly prohibited the jury from considering R.C.W.'s collateral bad acts as evidence of his bad character, the majority finds reversible error in the circuit court's limiting instruction because it allowed the jury to consider that evidence for the 'improper purposes of [establishing] intent, opportunity, and plan[, points that were] not at issue in this case.' [R.C.W. I,] __ So. 3d at __. I, however, disagree. Because it was not plausible for evidence of R.C.W.'s collateral bad acts to 39 1121099 establish his intent, opportunity, or plan, any error in allowing the jury to consider the evidence for those purposes was harmless. In United States v. Levy–Cordero, 67 F.3d 1002, 1011 (1st Cir. 1995), the government offered evidence of the appellant's collateral bad acts to establish his consciousness of guilt. The trial court, however, gave a limiting instruction that directed the jury to consider the collateral-bad-act evidence for the purpose of establishing the appellant's intent and knowledge. Id. The United States Court of Appeals for the First Circuit held that a trial court's limiting instruction relating to the Rule 404(b) evidence improperly allowed the jury to consider the appellant's collateral bad acts as evidence of his intent and knowledge because those were not reasons that the evidence was admitted. Although the trial court improperly instructed the jury that it could consider the appellant's collateral bad acts for intent and knowledge, the First Circuit held that the error was harmless. Id. The Court explained that the erroneous instruction was harmless because there was 'no logical reason why [the collateral bad acts] would demonstrate appellant's intent or knowledge with respect to [charged] offenses ....' Id. Thus, the circuit court's instruction was harmless because it 'instructed the jury that it could draw an inference that the evidence could not logically support.' Id. "In this case, the circuit court's instruction that allowed the jury to consider R.C.W.'s sexual misconduct for 'improper purposes of [establishing] intent, opportunity, and plan,' [R.C.W. I,] __ So. 3d at __, was harmless because there was 'no logical reason why [the collateral bad acts] would demonstrate appellant's intent[, plan, or opportunity] with respect to [charged] offenses....' Levy–Cordero, 67 F.3d at 1011. Stated differently, R.C.W.'s collateral sexual misconduct did not establish his specific intent to commit, his opportunity to commit, or a plan to commit the 40 1121099 charged offenses. Therefore, the circuit court's erroneous limiting instruction was harmless because it merely allowed the jury to 'draw an inference that the evidence could not logically support.' Id. "Additionally, as the majority explains, R.C.W.'s intent, opportunity, and plan were not at issue at trial. R.C.W. was T.W.'s father, and they lived together at the time of the offenses. From this evidence, the jury must have drawn the conclusion that R.C.W., who was living with his daughter, had the opportunity to rape, sodomize, and sexually abuse her. Because R.C.W.'s opportunity to commit the charged offenses was clearly established at trial, the circuit court's instruction that allowed the jury to consider R.C.W.'s collateral bad acts for the purpose of establishing opportunity was harmless. Cf. Dawson v. State, 675 So. 2d 897, 900 (Ala. Crim. App. 1995) ('The erroneous admission of evidence that is merely cumulative is harmless.' (citing Reese v. City of Dothan, 642 So. 2d 511, 515 (Ala. Crim. App. 1993))); Woods v. State, 13 So. 3d 1, 23 (Ala. Crim. App. 2007). Likewise, as the majority states, '[t]he intent necessary to these types of crimes may be inferred by the jury from the acts themselves.' [R.C.W. I,] __ So. 3d at __. Because R.C.W.'s general intent was established by the acts themselves, the circuit court's instruction allowing the jury to consider additional evidence of intent was harmless. Cf. Dawson, 675 So. 2d at 900; Woods, 13 So. 3d at 23. Finally, as the majority states, R.C.W.'s identity was not at issue in this case because R.C.W. did not allege that someone else committed the crime. Because R.C.W. did not place his identity at issue, the jury had two choices: believe that R.C.W. committed the acts or believe that no acts occurred. Because R.C.W.'s identity was not at issue and the jury was left to decide only whether the acts occurred, allowing the jury to consider evidence to show a plan and thus R.C.W.'s identity was not harmful. Id. 41 1121099 "This is not a case in which evidence of collateral bad acts was improperly admitted or in which the circuit court erroneously allowed the jury to consider that evidence to show bad character. Instead, evidence of R.C.W.'s collateral sexual acts was properly admitted and considered as substantive evidence of his motive, and the circuit court correctly prevented the jury from considering that evidence for the sole purpose for which it is not allowed –- bad character and action in conformity therewith. Because evidence of R.C.W.'s collateral sexual misconduct was properly considered by the jury as substantive evidence of motive and because the circuit court prevented the jury from considering the evidence to prove bad character, the circuit court's limiting instruction that allowed the jury to also consider that evidence for additional implausible and/or irrelevant purposes was harmless. Therefore, I respectfully dissent." R.C.W. I, __ So. 3d at __ (Windom, P.J., dissenting). We granted the State's petition for a writ of certiorari in R.C.W. II to determine whether an erroneous limiting instruction as to otherwise properly admitted Rule 404(b) collateral-bad-acts evidence is subject to a harmless-error analysis. The State argued to this Court that the collateral-acts evidence of R.C.W.'s sexual misconduct involving T.W.'s half sisters had been properly admitted to show motive. The State conceded that the trial court's limiting instruction to the jury was erroneous in that it allowed the jury to consider the 42 1121099 collateral evidence of R.C.W.'s sexual abuse of his two other daughters for purposes other than to show motive, i.e., for the improper purposes of intent, opportunity, and plan. However, the State further argued that the trial court's limiting instruction, although erroneous, was harmless error because, despite being overly broad, it did, in fact, properly limit the jury's consideration of the collateral-sexual- misconduct evidence to the permissible purpose of showing motive and properly prevented the jury from considering the evidence for the impermissible purpose of showing the defendant's bad character. R.C.W. argued on appeal that the decision of the Court of Criminal Appeals properly followed this Court's decision in Ex parte Billups. This Court agreed with the Court of Criminal Appeals' conclusions that the collateral-bad-acts evidence was properly admitted to show motive and that the trial court's limiting instruction was erroneous because it permitted the jury to consider the collateral-bad-acts evidence for the improper purposes of showing opportunity, intent, or plan. However, this Court in R.C.W. II went on to apply a harmless-error analysis to the erroneous limiting instruction, stating: 43 1121099 "Although not expressly stated in this Court's main opinion in Ex parte Billups, Judge Welch's dissent in Billups, with which this Court expressly agreed, was based on two independent conclusions. First and foremost, Judge Welch determined that a substantial amount of prejudicial evidence relating to the defendant's involvement in the Avanti East killings had been erroneously admitted at trial. As Judge Welch stated in Billups: 'The record in this case presents a textbook example of the reason the exclusionary rule prohibiting collateral-act evidence was created; the extensive evidence of collateral acts in [the defendant's] trial for the murder of Lockett permitted this trial to become, for all intents and purposes, a trial for murders of the four Hispanic men as well.' 86 So. 3d at 1072 (emphasis added). Second, Judge Welch determined that the overly broad limiting instruction that permitted the jury to consider the collateral-acts evidence for issues beyond those for which the evidence was initially admitted resulted in obvious confusion to the jury and probable prejudice that only exacerbated the already prejudicial effect of the erroneously admitted collateral-acts evidence. Billups, supra. In other words, Judge Welch determined that the already overwhelming amount of prejudicial evidence admitted became even more prejudicial when considered in context with the overly broad limiting instruction, which allowed the jury to consider the prejudicial evidence for many purposes other than those for which it was purportedly admitted. Given the sheer volume of prejudicial evidence admitted in Billups, the overly broad instruction given to the jury in that case regarding the purposes for which that evidence could be considered, including matters beyond those for which the evidence was initially admitted, certainly was prejudicial because the limiting instruction gave the jury little guidance and no limitations as to the proper purposes for which the jury could consider the collateral-acts evidence. See Ex parte Billups, 86 So. 3d at 1086 (stating that 44 1121099 '[p]resenting the jury with such a far-reaching "limiting" instruction carries with it the same problems as providing the jury with no specific purpose for considering the other crimes, wrongs, or acts evidence' and that, '[b]y simply reciting the complete "laundry list" of permissible theories under Rule 404(b), the trial court's instruction in this case gave the jury inadequate guidance'). Thus, Ex parte Billups can be read as standing for the proposition that an improper limiting instruction is prejudicial if, in effect, it offers little guidance or no limitations to the jury as to the proper purpose or purposes for which the collateral-act evidence could be considered. "To be sure, the factual scenario present in Ex parte Billups is extreme, given the voluminous amount of prejudicial collateral-acts evidence admitted at trial coupled with an overly broad limiting instruction in which the trial court simply listed each possible exception to Rule 404(b). For that reason, the holding in Ex parte Billups is limited to a similar factual scenario and does not 'create a per se rule requiring reversal every time a circuit court's limiting instruction relating to collateral bad acts includes purposes listed in Rule 404(b) for which the evidence was not admitted.' R.C.W. [I], ___ So. 3d at ___ (Windom, P.J., dissenting). ".... "... [U]nlike the situation in Ex parte Billups, the potential prejudicial effect resulting in this case from the admission of the evidence of R.C.W.'s prior sexual misconduct with his other daughters, coupled with the erroneous limiting instruction given by the trial court, was muted because of the limited amount of collateral-acts evidence admitted at trial. Here, the collateral-acts evidence was properly admissible to show motive and was limited to the testimony of R.C.W.'s other two biological 45 1121099 daughters, who testified to specific instances of similar sexual misconduct as alleged in this case. Furthermore, although the limiting instruction in this case erroneously allowed the jury to consider the collateral-acts evidence for issues not in dispute, the limiting instruction properly instructed the jury that it could consider the collateral-acts evidence for the purpose of motive and that it could not consider the evidence to show R.C.W.'s bad character and that he acted in conformity with that character. To the extent the trial court's limiting instruction allowed the jury to consider the collateral-acts evidence for issues not in dispute, we agree with Presiding Judge Windom's conclusion that '[b]ecause it was not plausible for evidence of R.C.W.'s collateral bad acts to establish his intent, opportunity, or plan, any error in allowing the jury to consider the evidence for those purposes was harmless.' R.C.W. [I], ___ So. 3d at ___ (Windom, P.J., dissenting). ... ".... "Instructing the jury that it could consider the collateral-acts evidence for purposes for which it ultimately would not actually consider it did not prejudice R.C.W., because the trial court properly instructed the jury that it could consider the collateral-acts evidence for the proper purpose of motive. The instruction here, although overly broad, was not so broad that it essentially gave no guidance or no limitation to the jury as to the proper purpose for which the evidence could be considered. See Ex parte Billups, supra. Because the collateral-acts evidence was appropriately before the jury for the purpose of proving motive, and because the limiting instruction did not rise to the level of prejudicial ambiguity found in Ex parte Billups, any error arising from the trial court's limiting instruction was harmless." 46 1121099 R.C.W. II, __ So. 3d at __ (final emphasis added). Although the State has argued, and this Court has concluded, that the collateral-acts evidence offered by Cameron's testimony was admissible to show motive, the State originally offered the testimony for the purposes of showing motive, intent, and identity. The trial court admitted the collateral-acts evidence for the sole purpose of establishing Towles's intent. However, the trial court subsequently instructed the jury that the evidence could be considered for purposes of establishing motive, intent, and identity. The Court of Criminal Appeals assumed for purposes of its decision that Cameron's testimony was admissible to establish Towles's motive and then determined pursuant to Ex parte Billups, supra, that the trial court's limiting instruction was erroneous because it permitted the jury to consider the testimony for other improper purposes, i.e., identity and intent. The State argues here that it was implausible that the jury could have relied on Cameron's testimony to find the specific intent required for a capital-murder conviction and that, to the extent the trial court erroneously instructed the 47 1121099 jury that it could consider Cameron's testimony for purposes of establishing intent, that error was harmless. We disagree. In R.C.W. I and R.C.W. II, R.C.W.'s general intent was established by the acts of sexual abuse themselves perpetrated upon his daughter. Therefore, the trial court's instruction allowing the jury to consider the additional evidence of intent was harmless. However, in this case intent was a central issue to be determined because, in order to prove capital murder, the State was required to prove that Towles had the specific intent to kill Geontae, a child under 14 years of age. § 13A-5-40(a)(15), Ala. Code 1975. See Ziegler v. State, 886 So. 2d 127, 140 (Ala. Crim. App. 2003)(holding that "Alabama appellate courts have repeatedly held that, to be convicted of [a] capital offense and sentenced to death, a defendant must have had a particularized intent to kill"). Intent has been defined as "the ripened purpose to effect a result." Fuller v. State, 269 Ala. 312, 336, 113 So. 2d 153, 175 (1959). Dean Charles Gamble has addressed the admissibility of collateral-act evidence pursuant to the intent exception to Rule 404(b) as follows: "If the accused is charged with a crime that requires a prerequisite intent, collateral crimes, 48 1121099 acts or misconduct are admissible to show that the accused possessed the necessary intent. This rule is based upon the theory that because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question, the greater the likelihood that the act in question was not done inadvertently. Whether the collateral act has a tendency to show that the accused did possess the prerequisite state of mind is, of course, one of relevancy vested largely in the discretion of the trial court." I Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence § 69.01(5)(6th ed. 2009) (footnotes omitted). Further, "'"'[i]n a prosecution for murder, evidence of former acts of hostility between the accused and the victim are admissible as tending to show malice, intent, and ill will on the part of the accused.' White v. State, 587 So. 2d 1218, 1230 (Ala. Cr. App. 1990), affirmed, 587 So. 2d 1236 (Ala. 1991), cert. denied, 502 U.S. 1076, 112 S. Ct. 979, 117 L.Ed. 2d 142 (1992)." Childers v. State, 607 So. 2d 350, 352 (Ala. Cr. App. 1992). "Acts of hostility, cruelty and abuse by the accused toward his homicide victim may be proved by the State for the purpose of showing motive and intent.... This is 'another of the primary exceptions to the general rule excluding evidence of other crimes.'" Phelps v. State, 435 So. 2d 158, 163 (Ala. Cr. App. 1983). See also Baker v. State, 441 So. 2d 1061, 1062 (Ala. Cr. App. 1983).' "Hunt v. State, 659 So. 2d 933, 939 (Ala. Crim. App. 1994). See Harris v. State, 489 So. 2d 688 (Ala. Crim. App. 1986) (prior acts of abuse toward child 49 1121099 victim were admissible to show motive and intent to murder). See also Harvey v. State, 579 So. 2d 22, 26 (Ala. Crim. App. 1990). 'Former acts of hostility or cruelty by the accused upon the victim are very commonly the basis for the prosecution's proof that the accused had a motive to commit the charged homicide.' 1 Charles W. Gamble, McElroy's Alabama Evidence § 45.01(8) (5th ed. 1996) (footnote omitted), and cases cited therein." Burgess v. State, 962 So. 2d 272, 282 (Ala. Crim. App. 2005). In this case the prior bad acts of assault and physical abuse were not perpetrated by Towles upon the victim Geontae. Rather, the prior assaults and abuse were perpetrated upon Geontae's older brother Cameron approximately three years before Geontae's murder. We cannot say that Cameron's testimony relating to the physical assaults he suffered at the hands of Towles approximately three years before Geontae's murder was relevant to show that Towles intended to kill Geontae. Further, where the jury was faced with deciding whether Towles intended to murder Geontae or to assault him for disciplinary issues at school, the admission of the collateral assaults perpetrated by Towles upon Cameron were highly prejudicial. The probative value, if any, of the testimony concerning the collateral assaults upon one son simply does not outweigh the undue prejudice to Towles in his 50 1121099 prosecution for the capital murder of his other son. See generally Ex parte Jackson, supra. Accordingly the trial court's admission of the collateral-acts testimony to show intent and its limiting instruction to the jury that the jury could consider the testimony for purposes of establishing intent constitutes plain error because it "'"seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."'" Ex parte Brown, 11 So. 3d at 935–36 (quoting Hall v. State, 820 So. 2d at 121). Conclusion For the reasons set forth above, we affirm the judgment of the Court of Criminal Appeals. AFFIRMED. Stuart, Parker, Main, and Bryan, JJ., concur. Murdock and Shaw, JJ., concur in the result. Moore, C.J., and Wise, J.,* recuse themselves. *Justice Wise was a member of the Court of Criminal Appeals when that court considered this case. 51	September 19, 2014
7f4feb0c-4868-454f-8f5b-8513ef2fb328	Troy Bank & Trust Company v. Citizens Bank	N/A	1130040	Alabama	Alabama Supreme Court	Rel: 09/30/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130040 ____________________ Troy Bank and Trust Company v. The Citizens Bank Appeal from Geneva Circuit Court (CV-11-0049) PARKER, Justice. Troy Bank and Trust Company ("Troy Bank") appeals a summary judgment entered in favor of The Citizens Bank ("Citizens Bank") by the Geneva Circuit Court ("the circuit 1130040 court"). We reverse the circuit court's judgment and remand the cause. Facts and Procedural History In its order entering a summary judgment in favor of Citizens Bank, the circuit court set forth the following relevant, undisputed facts: "1. On 12/10/09 Ronnie Gilley Properties, LLC, ('Gilley' hereinafter) issued a check in the amount of $100,000.00 payable to Cile Way Properties, LLC, ('Cile' hereinafter). The check was drawn on the account held by Gilley at Troy Bank. "2. On 12/16/09, Cile deposited the check to its account at Citizens Bank. "3. Citizens Bank presented the check for payment through the Federal Reserve Board ('FRB' hereinafter) and mis-encoded/under-encoded[ ] the 1 amount of $1000.00 instead of $100,000.00. "4. On the date [the check was] presented to Troy Bank[,] Gilley's account[,] which contained a balance of $199,083.39[,] was debited $1000.00 Troy Bank provides the following explanation of 1 "encoding" in its brief: "'Encoding' refers to the process whereby a party (typically a depositary bank) puts information on a check (such as the amount of the check being deposited) using Magnetic Ink Character Recognition ('MICR'). The MICR line on a check can then be -- and is -- read and processed electronically by other parties." Troy Bank's brief, at p. 5 n.1. 2 1130040 instead of $100,000.00 because of Citizens Bank's encoding error. Cile's account was credited $1000.00 at Citizens Bank. "5. On 01/22/10 Citizens Bank discovered the mistake and sent an adjustment through the FRB for the under-encoded amount of $99,000.00. "6. Upon receipt of the adjustment notice, Troy Bank honored the notice and made final payment of $99,000.00 which was credited to Cile's account at Citizens Bank.[ ] 2 "7. Troy Bank never returned the item or sent written notice of dishonor to Citizens Bank. "8. On 03/17/10, Troy Bank sent a letter to Citizens Bank demanding payment in the amount of $98,436.43 for damages it claimed to have suffered as a result of the encoding error because Gilley's account held insufficient funds on the date final payment of the $99,000 was made." On April 20, 2011, Troy Bank sued Citizens Bank seeking to recover damages Troy Bank claimed to have suffered as a result of the encoding error made by Citizens Bank. Troy Bank alleged that it was entitled to recover damages under Alabama's check-encoding warranty, which is set forth in § 7- 4-209, Ala. Code 1975, and states, in pertinent part: Troy Bank states in its brief, and Citizens Bank does not 2 dispute, that the Federal Reserve Bank, at which Troy Bank has an account, paid Citizens Bank's adjustment notice immediately upon receipt of the adjustment notice; payment of the adjustment notice to Citizens Bank did not require Troy Bank to take any action. 3 1130040 "(a) A person who encodes information on or with respect to an item after issue warrants to any subsequent collecting bank and to the payor bank or other payor that the information is correctly encoded. If the customer of a depositary bank encodes, that bank also makes the warranty. ".... "(c) A person to whom warranties are made under this section and who took the item in good faith may recover from the warrantor as damages for breach of warranty an amount equal to the loss suffered as a result of the breach, plus expenses and loss of interest incurred as a result of the breach." On May 15, 2013, Citizens Bank filed a motion for a summary judgment and a brief in support of its motion, which it later amended. Citizens Bank argued that it was not strictly liable for its encoding error under § 7-4-209 but that Troy Bank "had an obligation to mitigate its damages and attempt to avoid loss altogether. [Troy Bank] failed to do this when it sent no written notice of dishonor or nonpayment before its midnight deadline and it allowed final payment to be made from [Gilley's] account ...." On August 6, 2013, Troy Bank filed a response to Citizens Bank's summary-judgment motion. Troy Bank argued: "Troy Bank had already become accountable for the full amount of the item when the under encoded check was initially presented for payment and paid in the amount for which it was under encoded. The issue no 4 1130040 longer is whether Troy Bank is liable for the full amount of the check. Instead, the issue is whether Troy Bank was able to mitigate its losses by charging the drawer's account for the remaining balance of the check (and Citizens [Bank] does not dispute that there were not sufficient funds in the account to pay the $99,000.00 when Troy Bank received the adjustment notice), and if not, whether Troy Bank is entitled to shift the loss to the depositary bank (Citizens [Bank]) who under encoded the check. UCC § [7-]4-209 says Troy Bank is entitled to shift that loss." Troy Bank also noted that Citizens Bank's motion for a summary judgment could have been "read to suggest that Federal Operating Circular No. 3 preempts the Uniform Commercial Code or imposes additional obligations on payor banks with respect to under encoded checks." Troy Bank argued in its response to Citizens Bank's summary-judgment motion: 5 1130040 "[T]he scope provisions of the UCC[ ] and Operating 3 This is a reference to § 7-4-103, Ala. Code 1975, which 3 provides: "(a) The effect of the provisions of this article may be varied by agreement, but the parties to the agreement cannot disclaim a bank's responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure. However, the parties may determine by agreement the standards by which the bank's responsibility is to be measured if those standards are not manifestly unreasonable. "(b) Federal Reserve regulations and operating circulars, clearing-house rules, and the like have the effect of agreements under subsection (a), whether or not specifically assented to by all parties interested in items handled. "(c) Action or non-action approved by this article or pursuant to Federal Reserve regulations or operating circulars is the exercise of ordinary care and, in the absence of special instructions, action or non-action consistent with clearing-house rules and the like or with a general banking usage not disapproved by this article, is prima facie the exercise of ordinary care. "(d) The specification or approval of certain procedures by this article is not disapproval of other procedures that may be reasonable under the circumstances. "(e) The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount that could not have been realized by the exercise of ordinary care. If there is also bad faith it includes any other damages the party suffered as a proximate consequence." 6 1130040 Circular 3 make it clear that the operating procedure which allows the parties to resubmit items back through the Fed[eral Reserve Bank] when there has been an encoding error is not inconsistent with the ability of a bank to pursue a warranty claim against an encoding bank under ... § [7-]4-209. There is no inconsistency. The procedure for remitting items through the Fed[eral Reserve Bank] to correct errors operates in a narrow 'sphere' to provide a shorthand procedure for resolving issues where a check has been under encoded and funds remain available to pay the proper amount of the check. It is not intended to undo the effect of ... § [7-]4-209, which was adopted to place losses on the depositary bank that under encodes a check. Citizens [Bank's] use of the short-hand procedure in an effort to obtain payment of the additional $99,000.00 shortfall caused by its encoding error did not obligate Troy Bank to utilize that shorthand procedure to reject the payment request. There is nothing inconsistent with an expedited procedure for determining who holds the funds when there is a dispute and a separate mechanism under the UCC that determines the liability of the parties and resolves the matter in favor of Troy Bank." Troy Bank also attached to its response the affidavit of Gayla Kinney, an employee of Troy Bank with personal knowledge of the facts and circumstances related to the encoding error made by Citizens Bank, which had attached to it "documents relating to the Federal Reserve Circular dealing with under encoded items." A page of Operating Circular 3 was attached to Kinney's affidavit, which states, in pertinent part: "20.7 Underencoded item 7 1130040 "A bank may request an adjustment based on a claim that the MICR encoded amount of a cash item or returned check is less than the true amount of the item, if the bank sent the item to us [a Federal Reserve Bank] and received settlement for it in the encoded amount. The request must be received by a Reserve Bank within six calendar months after the item was credited to the requesting bank, and must provide all information that the Reserve Banks require, including a photocopy of the front and back of the item that clearly shows the amount of the encoding error (words control over figures in determining the true amount of the item). The requesting bank's Administrative Reserve Bank will provisionally credit the bank in the amount of the difference between the encoded amount and the true amount of the item. A Reserve Bank will charge that amount[,] and send the documentation to, the bank to which the Reserve Bank presented or returned the item. However, the Administrative Reserve Bank reserves the right not to credit the requesting bank if a Reserve Bank is unable to charge the paying or depositary bank. "20.8 Revocation of Adjustments for Underencoded items "The requesting bank's Administrative Reserve Bank will revoke part or all of the credit given to the bank, and a Reserve Bank will recredit the paying or depositary bank, if a Reserve Bank receives a statement as provided below from the paying or depositary bank, within twenty banking days after the Reserve Bank charged the paying or depositary bank for the undercoding claim. The statement must be in a format we prescribe that is signed by an officer of the paying or depositary bank, and: "(a) state that the paying or depositary bank had charged its customer for the encoded amount of the item and is 8 1130040 unable to recover all or a specified portion of the difference between the encoded amount and the true amount of the item by charging the account of the customer, and "(b) request an adjustment in that specified amount, based on a claim of breach of warranty with respect to the encoding error." Also attached to Kinney's affidavit was a "Claim of Damage Due to Underencoding Adjustment" form, which, Kinney stated in her affidavit, "is [a form] used in connection with underencoded items and it states that a bank which suffered a loss due to an encoding error has twenty (20) banking days to submit a claim through the Federal Reserve system." The pertinent portion of the form reads: "This form must be received by the Reserve Bank within 20 banking days after the date the Reserve Bank sent the documentation to support the encoding error charge. The advice of charge must accompany the form. Failure to provide all information will result in the claim being rejected. "Although late responses will be rejected by the Reserve Bank, you may nonetheless be able to recover from the claimant, but you must deal directly with the claimant." (Emphasis added.) 9 1130040 On August 28, 2013, following a hearing, the circuit court entered a summary judgment in favor of Citizens Bank, stating: "Citizens Bank breached the encoding warrant[y] when it erroneously encoded the amount of $1000.00 instead of $100,000.00. The erroneous amount was paid by Troy Bank from Gilley's account, received by Citizens Bank and deposited to Cile's account. Because the erroneous amount was less than the correct amount, and there was sufficient funds in Gilley's account to cover the erroneous amount, Troy Bank, at that point, had suffered no loss or damages. § 7-4-209(c)[, Ala. Code 1975,] provides 'A person to whom warranties are made under this section and who took the item in good faith may recover from the warrantor as damages for breach of warranty an amount equal to the loss suffered as a result of the breach plus expenses and loss of interest incurred as a result of the breach.' Under this provision for damages resulting from encoding error Citizens Bank was not liable to Troy Bank at that time. Troy Bank had taken the item in good faith and Citizens Bank had breached the warranty, but there was no damage because Gilley's account had sufficient funds to cover the under-encoding error. "To remedy the error Citizens Bank sent an adjustment notice through the Federal Reserve Bank Clearing House for the under-encoded amount of $99,000.00. "When Troy Bank received the adjustment notice it could have dishonored and refused final payment of the request because there were insufficient funds in Gilley's account. But, Troy Bank honored the request without objection. Troy Bank failed to confirm that the funds were available before honoring the notice or by acting before the midnight deadline which would have avoided (mitigated) its 10 1130040 loss. Had it done so, the loss would have been Citizens Bank's loss caused by its encoding error. But, because Troy Bank did not refuse final payment and give written notice of dishonor before the midnight deadline, it is accountable for the loss under the provisions of § 7-4-301 and -302[, Ala. Code 1975]. "There is no evidence that Troy Bank complied with the FRB [Federal Reserve Bank ('FRB')] Circular by filing the Claim of Damage Due to Underencoding Adjustment within 20 days as required or that the claim was filed at all. Therefore, the adjustment notice should have been treated no differently than and is subject to the same law and regulations as the initial transaction. "Troy Bank is not entitled to recover as a matter of law because it did not return the item or send written notice of dishonor before the midnight deadline. Troy Bank amply made final payment; it is strictly liable for the loss which means any issues of negligence are irrelevant. Citizens Bank's encoding error did not cause [Troy Bank's] loss. Troy Bank's loss was not a result of the breach as required by § 7-4-209. The $99,000 was deposited to Cile's account and Citizens Bank and Cile relied upon the finality of the transaction. Paraphrasing from Citizens Bank's conclusion to its brief, to permit Troy Bank to repudiate the payment would destroy the certainty which must pertain to commercial transactions if they are to remain useful to the business public. If this is not the case, when would Citizens Bank and Cile have known when they could have relied safely on the check being paid? "If this court is in error by holding that the adjustment notice had to be treated the same as the initial transaction by Troy Bank pursuant to § 7-4-301 because the FRB policy was not complied with, the court holds, as a matter of law, that Troy 11 1130040 Bank's loss was the direct result of its own negligence and it is not entitled to recover. "Therefore, summary judgment is rendered in favor of Defendant, Citizens Bank." Troy Bank appealed. Standard of Review Troy Bank and Citizens Bank agree that the underlying facts are not in dispute. See Troy Bank's brief, at p. 9, and Citizens Bank's brief, at p. 6. This Court has held that when "the underlying facts are not disputed and [the] appeal focuses on the application of the law to those facts, there can be no presumption of correctness accorded to the trial court's ruling, and this Court must review that application of the law de novo." Beavers v. County of Walker, 645 So. 2d 1365, 1373 (Ala. 1994) (citing First Nat'l Bank of Mobile v. Duckworth, 502 So. 2d 709 (Ala. 1987), and Barrett v. Odom, May & DeBuys, 453 So. 2d 729 (Ala. 1984)). Discussion This case involves Alabama's check-encoding warranty ("the encoding warranty") set forth above. Troy Bank argues that the encoding warranty "makes clear that any party that encodes a check warrants the correctness of that information 12 1130040 and is liable for any loss due to an encoding error." Troy Bank's brief, at pp. 13-14. Troy Bank argues that the summary judgment in favor of Citizens Bank was in error based on the plain language of the encoding warranty. Initially, we must address the issue of which law applies in this case. In its brief, Citizens Bank agrees that it breached the encoding warranty, but it argues that "binding federal banking regulations and operating circulars" prevent Troy Bank from recovering under the encoding warranty and, contrary to the encoding warranty, shift liability to Troy Bank. Specifically, Citizens Bank argues that Regulation CC, 12 C.F.R. § 229 et seq., and Operating Circular No. 3 set forth a claim procedure ("the claim procedure") that Troy Bank failed to follow. Citizens Bank argues that Troy Bank's failure to follow the claim procedure rendered Troy Bank strictly liable for any loss it suffered in relation to Citizens Bank's encoding error. Citizens Bank does not argue that the encoding warranty in this case is preempted by the claim procedure; rather, it argues that the claim procedure complements the encoding warranty and, thus, must be followed to recover damages under the encoding warranty. We disagree. 13 1130040 As set forth above, in drafting the form to be used to initiate the claim procedure, the Federal Reserve Bank clearly stated that the claim procedure was not the exclusive recovery method for a bank that had suffered a loss due to an encoding error made by another bank but expressly recognized that recovery could be pursued by the bank that had suffered the loss outside the claim procedure by dealing directly with the misencoding bank. In fact, as Troy Bank notes, Operating Circular No. 3 states in subsection 20.1 that "[a] bank may need to pursue other kinds of claims directly with another bank or by making a legal claim rather than, or in addition to, an adjustment request." (Emphasis added.) As Troy Bank argues on appeal, it was not required to use the claim procedure but, instead, chose to pursue recovery under the encoding warranty. We note that § 7-4-103(a), Ala. Code 1975, states that "[t]he effect of the provisions of this article may be varied by agreement" and that § 7-4-103(b) states that "Federal Reserve regulations and operating circulars ... have the effect of agreements under subsection (a)." However, § 7-4- 103 should not be read to obviate the encoding warranty. 14 1130040 Under § 7-4-103, it is only "when the customer uses the system" that the customer, "in effect, agrees to use the system's rules." 5 Thomas M. Quinn, Quinn's Uniform Commercial Code Commentary and Law Digest § 4-103[A][1] (rev. 2d ed. 2010) (emphasis added). Had Troy Bank pursued recovery under the claim procedure, it would have been bound by the applicable federal regulations. As set forth above, however, Troy Bank chose not to use the claim procedure but sought recovery under the encoding warranty. Therefore, because Troy Bank filed its action under § 7-4-209 and Citizens Bank has failed to direct this Court's attention to any authority indicating that the claim procedure was the exclusive method of recovery available to Troy Bank, the encoding warranty alone controls this case.4 We note that Citizens Bank also argues that Troy Bank's 4 claim under the encoding warranty is barred by a federal statute of limitations set forth in 12 C.F.R. § 229.38(g): "Any action under this subpart may be brought in any United States district court, or in any other court of competent jurisdiction, and shall be brought within one year after the date of the occurrence of the violation involved." Citizens Bank's argument is wrong for two reasons. First, as set forth above, Troy Bank filed this action under § 7-4-209, not under 12 C.F.R. § 229 et seq. Therefore, 15 1130040 Having determined that the encoding warranty is the applicable law in this case, we now address the merits of the parties' arguments concerning the encoding warranty. First, we note that there is no Alabama caselaw discussing the encoding warranty, which was effective January 1, 1996, and which was adopted directly from the 1990 official revisions to Article 4 of the Uniform Commercial Code ("the UCC"). In fact, we have not been able to find a case in any jurisdiction in the United States applying UCC § 4-209. Accordingly, some general background information regarding the encoding warranty is beneficial to our discussion, given the lack of caselaw involving some of the issues presented in this case. Concerning the encoding warranty generally: "A major impetus for amendment of Article 4 [of the UCC] was the desire to modernize its provisions to reflect the automated processing methods that the one-year statute of limitations has no relevance or applicability to this case. Second, Citizens Bank did not assert this affirmative defense in the circuit court; thus, we cannot consider this argument for the first time on appeal. Ameriquest Mortg. Co. v. Bentley, 851 So. 2d 458, 465 (Ala. 2002)("This Court can affirm the judgment of a trial court on a basis different from the one on which it ruled, Smith v. Equifax, 537 So. 2d 463 (Ala. 1988), but the constraints of procedural due process prevent us from extending that principle to a totally omitted affirmative defense."). 16 1130040 were introduced shortly after Article 4 was originally promulgated. The use of Magnetic Ink Character Recognition (MICR) encoding and high-speed sorters and computers posed some issues that the codification based on manual processing simply did not address adequately. For example, the MICR information has to be encoded on a check, a task generally undertaken by the depository bank. Revised Article 4 fills a void by addressing the consequences of misencoding." William H. Lawrence, Changes in Check Collection and Access to Funds: Regulation CC and Revised UCC Article 4, 61 J. Kan. B.A. 26, 32-33 (July 1992). Lawrence's Anderson on the Uniform Commercial Code states that "U.C.C. § 4-209 [Rev.] provides rules for determining which party will suffer the loss resulting from payment of an erroneously encoded item. It allocates the loss through the encoding warranties." 7 Lary Lawrence, Lawrence's Anderson on the Uniform Commercial Code § 4-209:5 (3d ed. 2007); see also James J. White & Robert S. Summers, Uniform Commercial Code § 20-6c. (4th ed. 1995)("[R]evised 4-209 ... gives a claim against the 'person who encodes.'"). However, before we turn our attention to the issue whether the encoding warranty shifts liability for the encoding error from Troy Bank to Citizens Bank, we first consider Troy Bank's liability for the full $100,000 amount of 17 1130040 the check. It is important to note that the parties agree that Troy Bank became liable for the full $100,000 amount of the check; the parties disagree, however, as to when Troy Bank became liable for the full amount of the check. The circuit court -- apparently applying the "final-payment" and "midnight-deadline" rules set forth in §§ 7-4-215 and 7-4-301, Ala. Code 1975, respectively (which are set forth below) -- determined that Troy Bank became liable for the full amount of the check when the adjustment notice was paid and Troy Bank failed to "return the [adjustment notice] or send written notice of dishonor before the midnight deadline." Citizens Bank agrees with the circuit court's conclusion. Troy Bank argues that it became liable for the full amount of the check at the time the check was presented to Troy Bank, and it paid the underencoded amount and did not dishonor the check by its midnight deadline. For the reasons set forth below, we agree with Troy Bank. Simply, "[f]inal payment occurs when a payor bank pays the item or settles for the item and the time frame for revoking that settlement has expired." Texas Stadium Corp. v. Savings of America, 933 S.W.2d 616, 619 (Tex. App. 1996). 18 1130040 Under Alabama law, § 7-4-215 sets forth the "final-payment rule," which dictates when an item is finally paid. Section 7-4-215 states, in pertinent part: "(a) An item is finally paid by a payor bank when the bank has first done any of the following: "(1) Paid the item in cash; "(2) Settled for the item without having a right to revoke the settlement under statute, clearing-house rule, or agreement; or "(3) Made a provisional settlement for the item and failed to revoke the settlement in the time and manner permitted by statute, clearing-house rule, or agreement. "(b) If provisional settlement for an item does not become final, the item is not finally paid." However, § 7-4-215 must be read in conjunction with § 7-4-301, which sets forth the "midnight-deadline rule": "(a) If a payor bank settles for a demand item other than a documentary draft presented otherwise than for immediate payment over the counter before midnight of the banking day of receipt, the payor bank may revoke the settlement and recover the settlement if, before it has made final payment and before its midnight deadline, it "(1) returns the item; or "(2) sends written notice of dishonor or nonpayment if the item is unavailable for return. 19 1130040 "(b) If a demand item is received by a payor bank for credit on its books, it may return the item or send notice of dishonor and may revoke any credit given or recover the amount thereof withdrawn by its customer, if it acts within the time limit and in the manner specified in subsection (a). "(c) Unless previous notice of dishonor has been sent, an item is dishonored at the time when for purposes of dishonor it is returned or notice sent in accordance with this section. "(d) An item is returned: "(1) As to an item presented through a clearing house, when it is delivered to the presenting or last collecting bank or to the clearing house or is sent or delivered in accordance with clearing-house rules; or "(2) In all other cases, when it is sent or delivered to the bank's customer or transferor or pursuant to instructions." Paragraph 3 of the Official Comment to § 7-4-301 explains the relationship between § 7-4-215 and § 7-4-301: "3. The relationship of Section 4-301(a) to final settlement and final payment under Section 4-215 is illustrated by the following case. Depositary Bank sends by mail an item to Payor Bank with instructions to settle by remitting a teller's check drawn on a bank in the city where Depositary Bank is located. Payor Bank sends the teller's check on the day the item was presented. Having made timely settlement, under the deferred posting provisions of Section 4-301(a), Payor Bank may revoke that settlement by returning the item before its midnight deadline. If it fails to return the 20 1130040 item before its midnight deadline, it has finally paid the item if the bank on which the teller's check was drawn honors the check. But if the teller's check is dishonored there has been ... no final payment under Section 4-215(b). Since the Payor Bank has neither paid the item nor made timely return, it is accountable for the item under Section 4-302(a)[ ]." 5 The final-payment rule and the midnight-deadline rule operated to make Troy Bank, the payor bank, liable for the full face amount of the check when it paid the underencoded amount of the check pursuant to § 7-4-215 (setting forth the final-payment rule) and did not dishonor the check within the Section 7-4-302(a), Ala. Code 1975, states: 5 "(a) If an item is presented to and received by a payor bank, the bank is accountable for the amount of: "(1) A demand item, other than a documentary draft, whether properly payable or not, if the bank, in any case in which it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, whether or not it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline; or "(2) Any other properly payable item unless, within the time allowed for acceptance or payment of that item, the bank either accepts or pays the item or returns it and accompanying documents." 21 1130040 time prescribed in § 7-4-301 (setting forth the midnight- deadline rule). This conclusion is supported by the following secondary authorities and cases. Lawrence's Anderson on the Uniform Commercial Code states: "Where the item was encoded in a smaller amount than for which it was drawn, if the payor bank does not dishonor the item, it will be accountable for the full amount of the item as drawn while having debited its customer's account only for the amount in which it was encoded. If the customer is insolvent, the payor bank may not be able to recover the full amount of the item from its customer. If this is the case, the depository bank will be liable to the payor bank for the difference." § 4-209:6 (emphasis added); see also 1 Henry J. Bailey & Richard B. Hagedorn, Brady on Bank Checks: The Law of Bank Checks § 21.04 (rev. ed. 2011)("[U]nder the UCC, it is clear that a payor bank remitting an insufficient amount on an underencoded check would be accountable for the full amount."); and Lawrence, Changes in Check Collection, 61 J. Kan. B.A. at 33 ("If the encoding is for less than the amount of the check, the payor bank is liable for the full amount of the check."). This is in accord with the Official Comment to § 7-4-209, which states, in pertinent part: 22 1130040 "If a drawer wrote a check for $25,000 and the depositary bank encoded $2,500, the payor bank becomes liable for the full amount of the check. The payor bank's rights against the depositary bank depend on whether the payor bank has suffered a loss. Since the payor bank can debit the drawer's account for $25,000, the payor bank has a loss only to the extent that the drawer's account is less than the full amount of the check. There is no requirement that the payor bank pursue collection against the drawer beyond the amount in the drawer's account as a condition to the payor bank's action against the depositary bank for breach of warranty." § 7-4-209, ¶ 2 (emphasis added); see also White & Summers, Uniform Commercial Code § 20-6c. ("The comment and [§ 4-209] seem to adopt the proposition that a payor who pays an underencoded amount has made final payment on the check or has liability for the full face amount to other parties. However, the payor can recover or set off any difference that it cannot get from its customer from the encoding depositary bank. Thus, the payor would first have to attempt to charge its depositor's account for the amount of the check and if it could not -- either because the account had been closed or there was a stop payment -- it would have a warranty claim against the depositary bank."); and Paul A. Carrubba, UCC Revised Articles 3 & 4: The Banker's Guide to Checks, Drafts and Other Negotiable Instruments 165 (Banker's Publ'g Co. 23 1130040 1993)("The payor of the item is allowed, under [§ 4-209], to look immediately and directly to the depository bank without first attempting to collect the proceeds from the payee of the check. If the check was written by the drawer for $10,000 but was encoded as $1,000, the payor could first attempt to charge the customer's account for the $9,000 underencoded amount. If the customer's bank account balance was not sufficient, the payor bank could look directly to the depository bank without first pursuing collection from the drawer."). Moreover, in Azalea City Motels, Inc. v. First Alabama Bank of Mobile, 551 So. 2d 967, 976 (Ala. 1989), this Court held, under the then existing version of Alabama's UCC, relying upon Georgia Railroad Bank & Trust Co. v. First National Bank & Trust Co. of Augusta, 139 Ga. App. 683, 684- 85, 229 S.E.2d 482, 484 (1976), as follows: "The UCC provides that the payor bank becomes accountable for an item upon paying the item. § 7–4–213(1).[ ] Like our sister state of Georgia, we 6 Section § 7-4-215 encompasses, with some revisions, the 6 final-payment rule previously set forth in the now repealed § 7-4-213 (Act No. 95-668, Ala. Acts 1995, repealed what had been § 7-4-213 and enacted a new § 7-4-213, moving the substance of former § 7-4-213 to § 7-4-215). Prior to 1996, "[f]ormer Section 4-213(1)(c) provided that final payment occurred when the payor bank completed the 'process of posting.' [The process-of-posting test was] abandoned in 24 1130040 hold that the partial payment of the item by [the payor bank] constituted final payment within the meaning of § 7–4–213(3), so that the [payor] bank was rendered accountable for the full and proper amount of the item." See also First Nat'l Bank of Boston v. Fidelity Bank, 724 F. Supp. 1168, 1172 (E.D. Pa. 1989) ("I reject the argument that the amount of the item for § 4–213(1) [pre-revised UCC] purposes is the encoded amount, rather than the face amount, of the check."); and Georgia R.R. Bank & Trust Co., 139 Ga. App. at 685, 229 S.E.2d at 484 (a case cited in the Official Comment to § 7-4-209 finding that "posting of the item, although in a smaller amount than the true amount of the item, was sufficient to constitute final payment [and] the payor bank became accountable for the amount of the item").7 [revised] Section 4-215(a) for determining when final payment is made." § 7-4-215, Ala. Code 1975, Official Comment ¶ 5. Additionally, former § 4-213(1) provided that "[u]pon final payment under subparagraphs (b), (c) or (d) the payor bank shall be accountable for the amount of the item." This sentence was deleted in revised § 7-4-215(a), Ala. Code 1975. The provision was thought to be "an unnecessary source of confusion," especially since the revised section deleted the process-of-posting test. § 7-4-215, Ala. Code 1975, Official Comment ¶ 6. A bank will still be accountable under § 7-4-302 if it "has neither paid the item nor returned it within its midnight deadline." § 7-4-215, Ala. Code 1975, Official Comment ¶ 6. Referring to First National Bank of Boston, Azalea City 7 and Georgia R.R. Bank & Trust Co., the United States District 25 1130040 In the present case, Ronnie Gilley Properties, LLC ("Gilley"), the drawer, issued a $100,000 check to Cile Way Properties, LLC ("Cile"). Cile deposited the check in its account at Citizens Bank, the depositary bank. Citizens Bank encoded the check in order to collect the funds from Gilley's bank -- Troy Bank, the payor bank. However, Citizens Bank incorrectly encoded the check for $1,000 instead of $100,000; Citizens Bank underencoded the check by $99,000. Therefore, when Troy Bank was presented with the check, it was encoded for $1,000, and Troy Bank paid Citizens Bank $1,000. Troy 8 Bank paid the check and at no time sought to dishonor the check. Therefore, pursuant to §§ 7-4-215, 7-4-301, and the Court for the Western District of Pennsylvania stated in United States v. Zarra, 810 F. Supp. 2d 758, 767 (W.D. Pa. 2011): "Important policies support these holdings. '[T]he Board [of Governors of the Federal Reserve System] believes that finality of payment and the discharge of the underlying obligation are fundamental and valuable features of the check collection process.' Collections of Checks and Other Items by Federal Reserve Banks, 70 Fed. Reg. 71218, 71221 (Nov. 28, 2005) (to be codified at 12 C.F.R. pts. 210 and 229)." At the time Troy Bank paid the underencoded amount of 8 $1,000 to Citizens Bank, there were sufficient funds in Gilley's account to cover the full $100,000 amount of the check. 26 1130040 ample authority cited above, at the time Troy Bank paid the underencoded amount of $1,000, it became liable for the full amount of the check -- $100,000 -- because it made payment on the check and did not dishonor the check within the midnight deadline. Having concluded that Troy Bank became liable for the full amount of the check when it paid the underencoded amount of the check and did not revoke its settlement of the check by the midnight deadline, we now turn to whether the encoding warranty shifts liability from Troy Bank to Citizens Bank. Based on the principles set forth above, we conclude that the encoding warranty shifts liability to Citizens Bank. Citizens Bank discovered its encoding error after Troy Bank had honored the check and had paid the underencoded amount. Citizens Bank then submitted to the Federal Reserve Bank the adjustment notice requesting that $99,000 be transferred from Troy Bank to Citizens Bank to cover the full amount of the check. At the time the Federal Reserve Bank transferred $99,000 from Troy Bank's Federal Reserve Bank account to Citizens Bank's Federal Reserve Bank account, Gilley's account no longer had sufficient funds to pay the 27 1130040 full amount of the check. After receiving notice that the Federal Reserve Bank had paid Citizens Bank's adjustment notice, Troy Bank discovered that Gilley's account no longer had sufficient funds to cover the full amount of the check and realized damage in the alleged amount of $98,436.43.9 It is important to note that had Citizens Bank properly encoded the check there would have been no damage. As set forth above, Gilley's account had sufficient funds to cover the full amount of the check when Troy Bank was presented with the check. However, Gilley all but emptied the checking account after the underencoded amount of $1,000 was withdrawn from its account so that, when Citizens Bank realized its error and sent the adjustment notice, there were no longer sufficient funds in Gilley's account to cover the full amount of the check. Citizens Bank's encoding error caused Troy Bank to incur damage.10 Apparently, Troy Bank was able to recover $563.57 from 9 Gilley's account. The purpose of a claim brought under the encoding 10 warranty is to determine liability between banks for damage caused by an encoding error. Therefore, in considering Troy Bank's claim against Citizens Bank, Gilley's conduct is irrelevant. 28 1130040 Under the encoding warranty -- and in accordance with the Official Comment to § 7-4-209 and the above-quoted cases and secondary authorities -- it was error for the circuit court to enter a summary judgment in Citizens Bank's favor. As the Official Comment ¶ 2 to the encoding warranty states, "[t]here is no requirement that the payor bank pursue collection against the drawer beyond the amount in the drawer's account as a condition to the payor bank's action against the depositary bank for breach of warranty." Following the Federal Reserve Bank's payment of Citizens Bank's adjustment notice from Troy Bank's Federal Reserve Bank account, Troy Bank first looked to Gilley's account for the $99,000 that had been transferred to Citizens Bank. Gilley's account had been all but emptied and no longer had sufficient funds to cover the full amount of the check; thus, Troy Bank's damage, for which Citizens Bank is liable pursuant to the encoding warranty, is the difference between the $99,000 that was transferred from Troy Bank to Citizens Bank and the amount of funds in Gilley's account at that time. The encoding warranty protects Troy Bank from any damage resulting from Citizens Bank's encoding error. Although Troy 29 1130040 Bank did not incur any damage at the time it honored the check by paying the underencoded amount of $1,000, Troy Bank certainly incurred damage when the adjustment notice was paid because Gilley's account no longer contained sufficient funds to cover the full amount of the check. The damage Troy Bank incurred was the result of Citizens Bank's encoding error. Had Citizens Bank properly encoded the check, Gilley's account would have contained sufficient funds to cover the full amount of the check when it was first presented to Troy Bank. We note that Citizens Bank argues that its breach of the encoding warranty does not make it strictly liable for the alleged damage to Troy Bank but that its breach of the encoding warranty must have actually caused Troy Bank's alleged damage in order for Citizens Bank to be liable for the alleged damage. We agree and, as set forth above, have concluded that Citizens Bank's breach of the encoding warranty caused Troy Bank's alleged damage. Citizens Bank makes a strained argument that Troy Bank was under an obligation to "dishonor" the adjustment notice. See Citizens Bank's brief, at pp. 29-32. However, as set forth above, Troy Bank was already liable for the full amount of the check when Citizens 30 1130040 Bank sent the adjustment notice to the Federal Reserve Bank. Payment of the adjustment notice did not make Troy Bank liable for the full amount of the check; Troy Bank's payment of the underencoded amount of $1,000 made Troy Bank liable for the full amount of the check. The payment of the adjustment 11 notice was inconsequential as to Troy Bank's liability. In this case, the encoding warranty, which is applied to determine liability as between banks, operates to shift the liability to Citizens Bank. To hold that Citizens Bank is not liable for the damage it caused Troy Bank based on Citizens Bank's encoding error would render the encoding warranty useless and strip Troy Bank of a legislatively enacted protection.12 See Official Comment to § 7-4-209 and Lawrence's 11 Anderson on the Uniform Commercial Code § 4-209:6, supra. We also note the following salient point made by Troy 12 Bank: "As a practical matter, Citizens Bank's theory of a second midnight deadline [applying to the adjustment notice] would not only nullify § 7-4-209, but it would also require every bank to set up a system to potentially process the same check two (or possibly more) times. Rather than putting the risk on the party who can best bear it by properly encoding the check -- as the legislature has expressly done -- Citizens Bank's theory would provide a perverse incentive to game the system by 31 1130040 Conclusion Based on the foregoing, we conclude that the circuit court erred in its application of the law to the undisputed facts of this case. Citizens Bank's initiation of the claim misencoding a check and then having multiple opportunities for it to clear." Troy Bank's brief, at p. 22 (footnote omitted). Citizens Bank relies upon U.S. Bank National Association v. First Security Bank, N.A., (No.2:97-CV-0789C, April 3, 2001) (D. Utah 2001)(not reported in F. Supp. 2d), to argue that any delay caused by Troy Bank in discovering that Gilley's account had insufficient funds to cover the full amount of the check should be taken into consideration in determining liability. That factor, however, is irrelevant in this case. In U.S. Bank, a payor bank's delay in looking to a drawer's account to cover the full amount of an underencoded check played a significant role in the court's decision because it was the payor bank's delay that allowed the drawer to empty his account. In this case, if any delay is relevant, it is Citizens Bank's delay in discovering its encoding error, which allowed Gilley time to empty its account before the adjustment notice was sent. By the time Troy Bank received the adjustment notice, Gilley's account had been all but emptied. Therefore, U.S. Bank is inapplicable to this case. Moreover, U.S. Bank is an unreported decision decided by the United States District Court of Utah; it is lacking in precedential value. Citizens Bank also relies upon First National Bank of Boston v. Fidelity Bank, National Association, 724 F. Supp. 1168 (E.D. Penn. 1989), for a similar principle. However, First National was decided by the United States District Court for the Eastern District of Pennsylvania in 1989, a year before the UCC was revised to include the check-encoding- warranty provisions, which Alabama later adopted. In First National, the court was dealing with a court-created equitable doctrine, not a statutory provision. Therefore, this Court will not consider U.S. Bank and First National. 32 1130040 procedure did not deprive Troy Bank of its statutory right to seek damages under the encoding warranty. Under the encoding warranty, Citizens Bank is liable for the alleged damage to Troy Bank. Accordingly, we reverse the circuit court's summary judgment and remand the cause for the circuit court to enter a summary judgment in favor of Troy Bank in the amount of damages supported by the substantial evidence. REVERSED AND REMANDED. Moore, C.J., and Stuart, Bolin, Main, and Bryan, JJ., concur. Shaw, J., concurs in the result. Murdock, J., dissents. 33	September 30, 2014
cd5cd74b-d0c8-4538-ad42-3b509fef1916	Kirksey v. Johnson et al.	N/A	1130385, 1130403	Alabama	Alabama Supreme Court	Rel: 10/17/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2014-2015 ____________________ 1130385 ____________________ Bessie Kirksey v. Iris Johnson et al. ____________________ 1130403 ____________________ Ex parte Iris Johnson et al. PETITION FOR WRIT OF MANDAMUS (In re: Bessie Kirksey et al. v. Iris Johnson et al.) Appellate Proceedings from Jefferson Probate Court (Case No.: 44653) PARKER, Justice. Bessie Kirksey appeals an order of the Jefferson Probate Court ("the probate court") vacating its order discharging Kirksey as administrator ad litem of the estate of Kirksey's sister, Willie Mae Graves, deceased. Iris Johnson, Darryl Thomas, Dorothy McLemore, John McLemore, Jr., Jerrick McLemore, Frederick Pryor, Jr., Rafeal Santece Powell, Nyya Nicole Marshall, Brandon LeMar Marshall, and Jeffrey Sams (alleged heirs of Graves hereinafter collectively referred to as "the omitted heirs") filed a cross-appeal from the probate court's order insofar as it denied the omitted heirs' motion to transfer the case to the Jefferson Circuit Court based on the alleged lack of subject-matter jurisdiction in the probate court. For the reasons stated herein, we treat the cross- appeal as a petition for a writ of mandamus, and we have styled the case accordingly. We dismiss the appeal, and we grant the petition and issue the writ. Facts and Procedural History 2 1130385, 1130403 On June 3, 2011, Graves died intestate. On June 21, 2011, Kirksey filed a petition in the probate court requesting appointment as administrator ad litem for the purpose of bringing a wrongful-death claim. On June 30, 2011, Kirksey sent the probate court a letter via facsimile stating: "Below is the information you needed regarding the next of kin for Willie Mae Graves." The letter then listed Kirksey's name and address and the names and addresses of Margaret Thompson and Sonya Gardner, whom the letter identified as Graves's sisters. Kirksey's letter to the probate court also stated that, "[a]t the time of death, Willie Mae Graves had no spouse or children." On July 11, 2011, the probate court issued an order granting Kirksey's petition and stating: "Kirksey is appointed as administratrix ad litem in the matter of the estate of Willie Mae Graves, deceased, [to gather] information to investigate a wrongful death claim, with the express order that any settlement of the case must first be approved by [the probate court]. In addition, [Kirksey] must immediately deposit the recovery of any funds into the Jefferson County Probate Court Trust Fund for proper distribution." Subsequently, Kirksey filed a wrongful-death action in the Jefferson Circuit Court. On March 21, 2012, Kirksey filed a motion in the probate court stating that a proposed 3 1130385, 1130403 confidential settlement had been reached with the defendant in the wrongful-death action. However, instead of asking the probate court to approve the proposed settlement of the wrongful-death action, as the probate court required in its July 11, 2011, order, Kirksey requested that she be relieved of that condition to her appointment as administrator ad litem. Kirksey also requested that the probate court not require her to deposit the funds with the probate court for distribution. In support of her motion, Kirksey attached a copy of Alabama's wrongful-death statute, § 6-5-410, Ala. Code 1975, which states, in pertinent part: "The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions." On May 1, 2012, the probate court held a hearing on Kirksey's motion. On May 4, 2012, the probate court issued an order stating, in pertinent part: "(2) The court approves the wrongful death settlement of $2,250,000 on behalf of the estate of Willie Mae Graves. "(3) Pursuant to [the] Wrongful Death Act codified in [Ala. Code 1975,] § 6-5-410(c), the proceeds 'are not subject to the payment of the debts or liabilities of the testator or intestate, 4 1130385, 1130403 but must be distributed according to the statute of distributions.' "(4) According to [Kirksey], the deceased leaves three lawful heirs: "Sister. Bessie Kirksey (adult of sound mind) "Sister. Margaret Thompson (adult of sound mind) "Sister. Sonya Gardner (adult of sound mind) "(5) The court orders [Kirksey's attorney] to distribute the proceeds in accordance with [Ala. Code 1975,] § 43-8-42(3). "(6) The court approves the distribution of these proceeds via the trust account of [Kirksey's attorney]. Said proceeds are not to be paid into the [probate court]."1 Although the probate court did not require Kirksey to deposit the wrongful-death-settlement proceeds with the probate court, the probate court purported to approve the settlement of the We note that, in its May 4, 2012, order, the probate 1 court stated that the settlement of the wrongful-death action was "on behalf of the estate of Willie Mae Graves." However, as discussed more thoroughly below, a wrongful-death action is not brought by, or on behalf of, the estate of a decedent. Instead, Kirksey was appointed to bring the wrongful-death action on behalf of those entitled to receive any damages from such an action under the statute of distributions. See Ex parte Taylor, 93 So. 3d 118, 119 (Ala. 2012)(Murdock, J., concurring specially). 5 1130385, 1130403 wrongful-death action and the distribution of the wrongful- death-settlement proceeds to Kirksey, Thompson, and Gardner. The record includes an affidavit of Kirksey, which lists Kirksey, Thompson, and Gardner as a "full and exhaustive list" of Graves's siblings. The affidavit further states: "6. I understand that a settlement was reached in the [wrongful-death action] in the Circuit Court of Jefferson County (Bessemer Division), Alabama. This case was brought pursuant to [Ala. Code 1975,] § 6-5-410, which is the Wrongful Death Statute of Alabama. According to the Wrongful Death Act, any damages recovered must be distributed according to the Statute of Distributions. Because my sister was not married at the time of her death and had no children, I understand that all of the proceeds from the wrongful death case pass to her heirs pursuant to [Ala. Code 1975,] § 43-8-42(1). Pursuant to this statute, all proceeds will pass to the heirs as long as they are of the same degree of kinship and then they take equally. "7. Therefore, all siblings of Willie Mae Graves would share equally in the proceeds. I understand and agree that the list of heirs above is a complete and final list. I affirm that I do not have any knowledge of any other spouse, children, siblings or heirs of Willie Mae Graves. I further attest and affirm that all of the listed heirs are true and accurate heirs of Willie Mae Graves, pursuant to [Ala. Code 1975,] § 43-8-48. Therefore, by signing this declaration, I attest and affirm that I agree to this distribution, I agree with the accuracy of the list of heirs, I have no knowledge of any additional heirs, and I would waive any potential legal claim based on any assertion that any of the listed heirs are not legal heirs entitled to a share of these wrongful death proceeds." 6 1130385, 1130403 On June 28, 2012, Kirksey, Thompson, and Gardner filed acknowledgments of the receipt of a distributive share of the wrongful-death-settlement proceeds. On the same day, the probate court issued a certificate of discharge stating that Kirksey "is hereby discharged and is released, in so far as her liability appears from her account, evidences and reports filed in this court." Sometime thereafter, the omitted heirs learned about the distribution of the wrongful-death-settlement proceeds and filed in the probate court an "emergency petition to reopen estate, set aside discharge, appoint county administrator to handle estate and for other relief." In their petition, the omitted heirs challenged Kirksey's distribution of the wrongful-death-settlement proceeds. Specifically, the omitted heirs argued that they are heirs of Graves, known to Kirksey at the time of her appointment as administrator ad litem, and that, therefore, they are entitled to a share of the wrongful- death-settlement proceeds along with Kirksey, Thompson, and Gardner. The omitted heirs argued that the "estate need[ed] to be reopened to set aside the discharge that was entered," pursuant to Rule 60(b), Ala. R. Civ. P., but they did not 7 1130385, 1130403 specify which subpart of Rule 60(b) applied to their petition. The omitted heirs' petition asked the probate court to: 1) reopen the case, 2) set aside the certificate of discharge of Kirksey from her duties as administrator ad litem, 3) require Kirksey to make an accounting of the receipts and disbursements of the wrongful-death-settlement proceeds, 4) order Kirksey to refund all sums overpaid, whether to her or to others, 5) appoint the county administrator to represent Graves's estate, 6) order Gardner and Thompson to immediately repay any overpayment, and 7) order other appropriate relief. On February 4, 2013, Gardner filed an objection to the omitted heirs' petition. Gardner argued that the petition was untimely and improper for failing to allege an applicable reason for relief under Rule 60(b), Ala. R. Civ. P. Gardner also argued that the petition should be denied because, she argued, the omitted heirs provided no evidence to substantiate their claim that the are heirs of Graves. On February 5, 2013, the omitted heirs amended their petition and alleged that Kirksey had perpetrated a fraud on the probate court by swearing to the probate court that she, Thompson, and Gardner constituted Graves's heirs and that she 8 1130385, 1130403 had, therefore, distributed the wrongful-death-settlement proceeds in accordance with the statute of distributions, when Kirksey had actually deprived the omitted heirs of their portion of the wrongful-death-settlement proceeds. Accordingly, the omitted heirs alleged that they were entitled to relief pursuant to § 43-8-5, Ala. Code 1975, which states: "Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this chapter or if fraud is used to avoid or circumvent the provisions or purposes of this chapter, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within one year after the discovery of the fraud or from the time when the fraud should have been discovered, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of the commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate." On February 25, 2013, Keith T. Belt, Jr., and the Belt Law Firm, P.C. (hereinafter collectively referred to as "Belt"), who had formerly represented Kirksey in this matter,2 filed a complaint interpleading a portion of the wrongful- Belt represented Kirksey through her discharge as 2 administrator ad litem. On February 14, 2013, Kirksey retained current counsel. 9 1130385, 1130403 death-settlement proceeds and seeking declaratory relief, naming Kirksey, Thompson, Gardner, and the omitted heirs as defendants. Belt alleged that he learned of the omitted 3 heirs on November 26, 2012, after the wrongful-death- settlement proceeds had been distributed to Kirksey, Thompson, and Gardner. Belt alleged that Kirksey, Thompson, and Gardner had received twice as much of the wrongful-death-settlement proceeds as they should have and that he had taken immediate steps to obtain repayment of the distributed funds upon learning of the existence of the omitted heirs. Belt alleged that Kirksey returned $233,903.17, half of the amount of the wrongful-death-settlement proceeds she had received, and that Gardner returned $10,000, which sums Belt held in trust; Belt did not state that Thompson returned any of the funds distributed to her. Belt deposited with the probate court the $243,903.17 of the wrongful-death-settlement proceeds he had received from Kirksey and Gardner and requested that the probate court accept the interpleaded funds, enter a judgment declaring the rights and obligations as between and among the Belt alleged that Graves's brother John McLemore, Sr., 3 had a son named Jeremy, last name unknown, whom Belt named as a defendant. However, the omitted heirs denied that John McLemore, Sr., had a son named Jeremy. 10 1130385, 1130403 defendants; order that Belt be released and discharged from any and all liability, duty, or other obligation to Kirksey, Thompson, Gardner, and the omitted heirs; and award Belt attorney fees and costs associated with the complaint from the interpleaded funds. Kirksey, Thompson, Gardner, and the omitted heirs separately answered Belt's interpleader complaint and objected to Belt's requested relief on numerous grounds –- including the probate court's alleged lack of subject-matter jurisdiction over Belt's complaint. Subsequently, Belt filed a motion for a discharge from the interpleader action. Belt's motion has been held in abeyance pursuant to an agreement of the parties. On February 28, 2013, Gardner filed an objection to the omitted heirs' petition, arguing that § 43-8-5 was not applicable because, she argued, any false representation made to the probate court concerning the number and identity of Graves's heirs was not the product of fraud on the probate court. On April 12, 2013, Thompson filed a response to the omitted heirs' petition and raised the same objections Gardner had raised in her responses to the omitted heirs' original and 11 1130385, 1130403 amended petitions. On June 17, 2013, Thompson filed a motion to dismiss the omitted heirs' petition under Rule 60(b), Ala. R. Civ. P., as being untimely; she also alleged that § 43-8-5 was inapplicable because, Thompson said, there had been no fraud on the probate court. On June 17, 2013, Kirksey filed a response to the omitted heir's petition and made the same arguments as those made by Gardner and Thompson; she additionally argued that the probate court had "lost jurisdiction over the parties and subject matter." On June 18, 2013, the probate court conducted a hearing on the omitted heirs' petition. On July 8, 2013, the omitted heirs filed a complaint against Kirksey, Gardner, and Thompson in the Jefferson Circuit Court, asserting various claims related to Kirksey's alleged improper distribution of the wrongful-death-settlement proceeds.4 We note that by filing their action, the omitted heirs 4 essentially sought the same relief in the Jefferson Circuit Court they are seeking in the probate court. Mainly, the omitted heirs have sought to hold Kirksey liable for her alleged improper distribution of the wrongful-death-settlement proceeds. 12 1130385, 1130403 On August 26, 2013, the probate court issued an order granting the omitted heirs' motion to "reopen" Graves's estate, setting aside its order discharging Kirksey as administrator ad litem, and appointing the county administrator to preside over future proceedings –- which the probate court identified as a redistribution of the wrongful- death-settlement proceeds; the probate court also denied Kirksey's motion to dismiss Belt's interpleader complaint for lack of subject-matter jurisdiction. On September 25, 2013, the omitted heirs filed a motion challenging the probate court's subject-matter jurisdiction over the distribution of the wrongful-death-settlement proceeds, requesting that the probate court vacate its August 26, 2013, order insofar as it "reopened" Graves's estate and appointed the county administrator to preside over the proceedings, because letters of administration had never been issued to initially open Graves's estate, and requesting that the probate court transfer the interpleaded funds to the Jefferson Circuit Court pending a determination in the action in that court that had been filed by the omitted heirs. 13 1130385, 1130403 On September 26, 2013, Kirksey filed a motion asking the probate court to reconsider its August 26, 2013, order and to enter a new order finding that she had not committed a fraud on the probate court. On November 1, 2013, Belt filed a response to the omitted heirs' September 25, 2013, motion and argued that the probate court had jurisdiction over the interpleader action. On November 25, 2013, the probate court entered the following order: "This matter comes before the Court on two separate motions. On November 5, 2013, the Court heard oral argument on the motion of Defendant Bessie Kirksey, seeking to have the Court reconsider its Order of August 26, 2013, reopening the Estate of Willie Mae Graves, as well as the motion of the [omitted heirs] seeking to have the Court determine whether ... it has jurisdiction to continue to preside over this matter. A third Motion filed by Interpleader Plaintiffs Keith T. Belt, Jr. and the Belt Law Firm, P.C. seeking a discharge will be held in abeyance per the agreement of all counsel. "The motions now before the court raise issues of whether the appointment of an Administrator ad Litem granted such AAL the authority to maintain and settle a wrongful death case citing the concurring opinion of Justice Bolin in Golden Gate Nat. Senior Care, LLC v. Roser, 94 So. 3d 365 (Ala. 2012). The cited opinion is admitted to be mere dicta and this court is compelled to follow the law as stated in the controlling case of Affinity Hospital, LLC v. Williford, 21 So. 3d 712 (Ala. 2009). 14 1130385, 1130403 "The motions raise the issue of this court's jurisdiction to act in this case relying principally upon Ex parte Rodgers, [141 So. 3d 1038 (Ala. 2013),] and Justice Murdock's special concurring opinion in Ex parte Taylor, 93 So. 3d 118 (Ala. 2012). Neither of these opinions is controlling in this case. The Rodgers case holds that an administrator, in his or her capacity as administrator, may not be compensated from wrongful death proceeds based upon the statutory formula for compensation of personal representatives because the proceeds from the wrongful death recovery are not assets of the estate. It was not a jurisdiction case and the appeal in that case was from the Circuit Court for Jefferson County and raised no jurisdictional issue. In fact, Justice Bolin wrote a specially concurring opinion suggesting that while the personal representative may not be compensated in his or her capacity as personal representative of the decedent's estate, he or she may and should be compensated as a trustee. "The movants next rely upon the special concurring opinion of Justice Murdock in Ex parte Taylor, supra, in which Justice Bolin concurred. The issue of probate jurisdiction was not before the court in that case and it should be emphasized that the rationale in the special concurring opinion, while well stated, is one side of the issue, and is not a holding of the Supreme Court nor does it necessarily state the opinion of a majority of the justices. In that opinion, after citing 12-13-1 [et seq., Ala. Code 1975,] Justice Murdock states, "'The foregoing categories of jurisdiction concern matters relating to the administration of a decedent's estate; they do not authorize the probate court to entertain a motion concerning the approval of the settlement of a wrongful-death claim by a personal representative or to enter an order concerning the distribution of the proceeds from a settlement in such an 15 1130385, 1130403 action as part of the final settlement of the estate. Likewise, matters concerning the personal representative's settlement of a wrongful-death claim and the distribution of the proceeds therefrom do not fall within the Mobile Probate Court's general equity jurisdiction, which is limited to matters of equity "in the administration of the estates," Act No. 91-131, Ala. Acts 1991, and to "any proceeding involving a testamentary or inter vivos trust." Ala. Code 1975, § 19-3B-203.' "However, the reference to Ala. Code 1975, § 19-3B-203 makes no reference to the interpretation of that code section construed by the full Court in Regions v. Reed, 60 So. 3d 868 (Ala. 2010), in an opinion also authored by Justice Murdock: "'Thus, the probate courts of Jefferson, Mobile, and Shelby Counties have concurrent jurisdiction with the circuit courts of those counties to hear any proceeding brought by a trustee or beneficiary concerning the administration of a trust. In other words, the reference in subsection (b) of § 19-3B-203 to probate courts that have been granted "statutory equitable jurisdiction" is an identifying reference, not a limitation on the jurisdiction of the courts so identified. It is those probate courts to which subsection (b) grants "concurrent jurisdiction" with the circuit courts to hear actions concerning the administration of a trust brought by a trustee or beneficiary.' "60 So. 3d at 880. "There is a limitation in 19-3B-203(b) to inter vivos and testamentary trusts. While the concurring 16 1130385, 1130403 opinion in Ex parte Taylor concludes that the trust or quasi trust formed for the proceeds of a wrongful death recovery is neither, it may also be argued that the trust is an inter vivos trust. "But the jurisdiction of this court in this case is not dependant upon the Uniform Trust Code. Ala. Code 1975, § 43-2-111 is a part of the probate code of this state. It is contained in Article 5 of Title 43 which is titled 'Liability of Executors and Administrators' and states, 'The personal representative and the sureties on his bond are liable to the parties in interest for the due and legal distribution of all damages recovered by such representative under sections ... 6-5-410[, Ala. Code 1975, the wrongful-death act]... and are subject to all remedies which may be pursued against such representative and sureties for the due administration of personal assets.' (Emphasis supplied). The sureties on the bond are bound to the probate court and no other court. The probate court has jurisdiction over the administrator and is the only party in interest who can call upon the surety for the payment of the penal sum of the bond. One of the remedies referred to in the code section which is available to the persons of interest who are wronged by the improper distribution of funds held by the administrator is to obtain an order from the probate court directing the proper administration of the funds and calling in the bond for failure to do so. It is clear that this court has original general jurisdiction to enforce this section of the code. "With regard to the motion to reconsider, the Court holds that its previous finding of fraud on the Court is properly supported by the Court's record. There is no question that the Court's prior orders regarding the Estate of Willie Mae Graves relied upon information supplied by the Administrator ad Litem, Bessie Kirksey, in open court which has now been proven to be inaccurate. Regardless of her position that she did not intend to cause harm while making 17 1130385, 1130403 those statements, the statements were nonetheless relied upon by the Court thereby creating a fraud on the Court as a matter of law. This court has now heard the arguments of counsel on its motion to reconsider but has heard no evidence controverting the evidence taken in open court which induced this court to close the estate. The information then presented has been proven in open court to be untrue and this court has ruled that the order discharging the administrator ad litem is due to be and has been set aside and the estate has been reopened. There being no new or additional evidence presented to this court, the motion to reconsider is hereby denied. "For the foregoing reasons, and the Court's finding that it does have jurisdiction to continue to preside over the matters which are currently before the Court, the motion to construe jurisdiction is hereby denied. The Court finds that jurisdiction will be maintained in the Probate Court. "There being no just cause for delay, this is determined to be a final order under [Rule 54(b), Ala. R. Civ. P.]." Kirksey appealed; the omitted heirs cross-appealed, which cross-appeal we are treating as a petition for a writ of mandamus. Discussion Initially, we note: "Not every order has the requisite element of finality that can trigger the operation of Rule 54(b)[, Ala. R. Civ. P.]. Moss v. Williams, 747 So. 2d 905 (Ala. Civ. App. 1999). Therefore, a trial court should certify a nonfinal order as final pursuant to Rule 54(b) only 'where the failure to do so might have a harsh effect.' Brown v. Whitaker 18 1130385, 1130403 Contracting Corp., 681 So. 2d 226, 229 (Ala. Civ. App. 1996) (overruled on other grounds, Schneider Nat'l Carriers, Inc. v. Tinney, 776 So. 2d 753 (Ala. 2000)). Rule 54(b) certifications are not to be entered routinely and should be made only in exceptional cases. Parrish v. Blazer Fin. Servs., Inc., 682 So. 2d 1383 (Ala. Civ. App. 1996). '"Appellate review in a piecemeal fashion is not favored."' Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So. 2d 190, 192 (Ala. Civ. App. 1999) (quoting Brown v. Whitaker Contracting Corp., 681 So. 2d at 229)." Goldome Credit Corp. v. Player, 869 So. 2d 1146, 1148 (Ala. 2003). "For an order to be susceptible to Rule 54(b) certification, the order must dispose of at least one of a number of claims or one of multiple parties, must make an express determination that there is no just reason for delay, and must expressly direct the entry of a judgment as to that claim or that party. Jakeman v. Lawrence Group Mgmt. Co., 82 So. 3d 655, 659 (Ala. 2011) (citing Committee Comments on 1973 Adoption of Rule 54(b), Ala. R. Civ. P.). ... "'Pursuant to Rule 54(b), a trial court may direct "the entry of a final judgment as to one or more but fewer than all of the claims or parties." But Rule 54(b) makes an order final –- and therefore appealable –- "only where the trial court 'has completely disposed of one of a number of claims, or one of multiple parties.'" Tanner v. Alabama Power Co., 617 So. 2d 656, 656 (Ala. 1993) (quoting Committee Comments on the 1973 adoption of Rule 54(b)) (emphasis added in Tanner). In other words, for a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the 19 1130385, 1130403 claims as they relate to at least one party.' "Haynes v. Alfa Fin. Corp., 730 So. 2d 178, 181 (Ala. 1999). 'An appeal will not lie from a nonfinal judgment.' Baugus v. City of Florence, 968 So. 2d 529, 531 (Ala. 2007)." Ex parte Noland Hosp. Montgomery, LLC, 127 So. 3d 1160, 1165- 66 (Ala. 2012). The probate court's November 25, 2013, order did not completely adjudicate a claim. Accordingly, the probate court's order was not a final judgment, and the probate court's Rule 54(b), Ala. R. Civ. P., certification of that nonfinal order was improper. "An appeal will not lie from a nonfinal judgment." Baugus v. City of Florence, 968 So. 2d 529, 531 (Ala. 2007). We therefore dismiss Kirksey's appeal (case no. 1130385). Although an appeal will not lie from a nonfinal judgment, in certain instances a party can challenge a nonfinal order by a petition for a writ of mandamus. This Court has treated a notice of appeal as a petition for a writ of mandamus, Morrison Rests., Inc. v. Homestead Vill. of Fairhope, Ltd., 710 So. 2d 905 (Ala. 1998), and, conversely, treated a petition for a writ of mandamus as a notice of appeal, Ex 20 1130385, 1130403 parte Burch, 730 So. 2d 13 (Ala. 1999). As noted in F.L. Crane & Sons, Inc. v. Malouf Construction Corp., 953 So. 2d 366 (Ala. 2006), this Court's actions in the above cases is consistent with Rule 1, Ala. R. App. P., which provides: "[These rules] shall be shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits." Likewise, Rule 2(b), Ala. R. App. P., also calls for the suspension of the requirements or provisions of any of the Rules of Appellate Procedure "[i]n the interest of expediting decision." In F.L. Crane & Sons, this Court explained the reasoning for using the flexibility afforded by Rules 1 and 2 in the situations presented in that case and in Morrison Restaurants, Ex parte Burch, and the present case: "In Ex parte Burch, we treated a petition for the writ of mandamus addressed to a trial court's denial of a motion in limine as a notice of appeal. We stated in Burch that there is 'no bright-line test for determining when this Court will treat a particular filing as a mandamus petition and when it will treat it as a notice of appeal.' 730 So. 2d at 146. Instead, we consider the facts of the particular case in deciding whether to treat the filing as a petition or as an appeal: "'The question we come to, then is this: Do the circumstances of this case make it such that the policies set forth in Rule 1[, 21 1130385, 1130403 Ala. R. App. P.,] will be served by resolving the matter presented to us? Or, will those policies be better served by requiring, as we do in the normal case, strict compliance with our appellate rules and thus not reviewing the trial court's interlocutory ruling?' "730 So. 2d at 147. "In Burch, we treated the petition as a petition for a permissive appeal under Rule 5, Ala. R. App. P., because the hearing transcript revealed the trial court's belief that this Court's resolution of the motion in limine was 'important to materially advancing th[e] litigation.' 730 So. 2d at 147–48. Similarly, we believe that deciding the issue of the enforceability of this forum-selection clause on its merits will further the 'just, speedy, and inexpensive determination ... on [the] merits' of the case favored by Rule 1, Ala. R. App. P." 953 So. 2d at 372. As in Ex parte Burch, consideration of the subject-matter jurisdiction of the probate court –- an issue raised by the omitted heirs in their cross-appeal –- is important to materially advancing this litigation. Therefore, although we are dismissing Kirksey's appeal, we treat the omitted heirs' cross-appeal as a petition for a writ of mandamus requesting this Court to direct the probate court to dismiss this case on the basis that that court lacks subject-matter jurisdiction 22 1130385, 1130403 over the distribution of the wrongful-death-settlement proceeds. We review the omitted heirs' petition according to the following standard of review: "'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So. 2d 805 (Ala. 2000)." Ex parte Liberty Nat'l Life Ins. Co., 888 So. 2d 478, 480 (Ala. 2003). In its November 25, 2013, order, the probate court concluded that "it does have jurisdiction to continue to preside over the matters which are ... before" it. The matters that were before the probate court when it entered that order were Kirksey's motion to reconsider the probate court's August 26, 2013, order –- which "reopened" Graves's estate, set aside its order discharging Kirksey as administrator ad litem, appointed the county administrator to preside over future proceedings, and denied Kirksey's motion 23 1130385, 1130403 to dismiss Belt's interpleader complaint for lack of subject- matter jurisdiction –- as well as the omitted heirs' September 25, 2013, motion –- which challenged the probate court's subject-matter jurisdiction over the distribution of the wrongful-death-settlement proceeds. The nucleus of each of those matters is the same: the alleged improper distribution of the wrongful-death-settlement proceeds. As explained below, the probate court's conclusion that the settlement of the wrongful-death action was on behalf of the estate of the decedent led it to believe that it had jurisdiction over the distribution of the wrongful-death-settlement proceeds.5 A wrongful-death action is not brought by the estate of the decedent; accordingly, the proceeds from a wrongful-death action are not part of the decedent's estate. As Justice We note that the question of Kirksey's capacity, as 5 administrator ad litem, to bring the wrongful-death action is not before this Court. In Affinity Hospital, LLC v. Williford, 21 So. 3d 712, 718 (Ala. 2009), this Court held that, in maintaining a wrongful-death action, a plaintiff was "acting in her capacity as an administrator ad litem, was a 'personal representative' within the meaning of Ala. Code 1975, § 6-5-410, and was, therefore, vested with the authority conferred by that section to file a wrongful-death action." Accordingly, we limit our analysis to the narrow issue involving the subject-matter jurisdiction of the probate court to oversee the distribution of the wrongful-death-settlement proceeds received by Kirksey as the personal representative of the decedent. 24 1130385, 1130403 Murdock noted in his special concurrence to Ex parte Taylor, 93 So. 3d 118, 118 (Ala. 2012)(Murdock, J., concurring specially): "[A]n estate cannot file a wrongful-death action. See Ala. Code 1975, § 6–5–410; Downtown Nursing Home, Inc. v. Pool, 375 So. 2d 465, 466 (Ala. 1979) (noting that the 'right' to file a wrongful-death action is 'vested in the personal representative alone'). As 1 a corollary, the proceeds from the settlement of the wrongful-death claim that arose out of Newman's death are not a part of Newman's estate. See, e.g., Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993) ('[D]amages awarded pursuant to [§ 6–5–410] ... are not part of the decedent's estate.'). "This Court has long recognized that, "'[i]n prosecuting [wrongful-death] actions, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent. He acts rather as an agent of legislative appointment for the effectuation of the legislative policy....' "Hatas v. Partin, 278 Ala. 65, 68, 175 So. 2d 759, 761 (1965); see also Steele, 623 So. 2d at 1141 (noting that the 'personal representative ... act[s] as agent by legislative appointment for the effectuation of a legislative policy of the prevention of homicides through the deterrent value of the infliction of punitive damages'). 'Upon a recovery, [the personal representative] acts as a 25 1130385, 1130403 quasi trustee for those who are entitled thereto under the statute of distribution. Such damages are not subject to administration and do not become part of the deceased's estate.' United States Fid. & Guar. Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149, 155, 274 So. 2d 615, 621 (1973). Indeed, commenting on an earlier version of Alabama's wrongful-death statute, this Court noted that the legislature has "'impose[d] upon the administrator a trust separate and distinct from the administration. The trust is not for the benefit of the estate, but of the widow, children, or next of kin of the deceased. The administrator fills this trust, but he does not do it in the capacity of representative of the estate. It is altogether distinct from the administration, notwithstanding it is filled by the administrator.' "Hicks v. Barrett, 40 Ala. 291, 293 (1866) (discussing Ala. Code of 1852, § 1938). "____________________ " Because we do not have the record on appeal 1 before us, however, I cannot confirm whether the wrongful-death action was filed by Jerry, as personal representative of Newman's estate, or by the estate itself, as the Court of Civil Appeals states in its opinion. Concomitantly, in reference to the Court of C i v i l A p p e a l s ' d e s c r i p t i o n o f litigation-settlement-restriction language contained in Jerry's letters of administration, the probate court has no power to issue such a restriction as to the settlement of litigation in which the estate has no interest, i.e., a wrongful-death action. ..." 93 So. 3d at 119. 26 1130385, 1130403 With these principles in mind, we now address whether the probate court had the authority to oversee the distribution of the wrongful-death-settlement proceeds received by Kirksey and to condition her discharge as administrator ad litem on the probate court's approval of Kirksey's distribution of the wrongful-death-settlement proceeds –- funds that were never part of Graves's estate and in which the probate court has no interest; we hold that it did not. The legislature established the subject-matter jurisdiction of the probate courts in § 12-13-1, Ala. Code 1975, which states: "(a) The probate court shall have original and general jurisdiction as to all matters mentioned in this section and shall have original and general jurisdiction as to all other matters which may be conferred upon them by statute, unless the statute so conferring jurisdiction expressly makes the jurisdiction special or limited. "(b) The probate court shall have original and general jurisdiction over the following matters: "(1) The probate of wills. "(2) The granting of letters testamentary and of administration and the repeal or revocation of the same. "(3) All controversies in relation to the right of executorship or of administration. 27 1130385, 1130403 "(4) The settlement of accounts of executors and administrators. "(5) The sale and disposition of the real and personal property belonging to and the distribution of intestate's estates. "(6) The appointment and removal of guardians for minors and persons of unsound mind. "(7) All controversies as to the right of guardianship and the settlement of guardians' accounts. "(8) The allotment of dower in land in the cases provided by law. "(9) The partition of lands within their counties. "(10) The change of the name of any person residing in their county, upon his filing a declaration in writing, signed by him, stating the name by which he is known and the name to which he wishes it to be changed. "(11) Such other cases as jurisdiction is or may be given to such courts by law in all cases to be exercised in the manner prescribed by law. "(c) All orders, judgments and decrees of probate courts shall be accorded the same validity and presumptions which are accorded to judgments and orders of other courts of general jurisdiction." Additionally, the Jefferson Probate Court "has concurrent jurisdiction with the circuit court in any proceeding 28 1130385, 1130403 involving a testamentary or inter vivos trust." § 19-3B-203, Ala. Code 1975. See Jett v. Carter, 758 So. 2d 526, 529 (Ala. 1999)("Act No. 1144, Ala. Acts 1971 (Reg. Session), a local act, applies to cases originating in the Jefferson Probate Court. It grants to the Jefferson Probate Court 'general jurisdiction concurrent with that of the Circuit Courts of this State, in equity, in the administration of the estates of deceased persons, minors and insane or non compos mentis persons, including testamentary trust estates.' (§ 1.)" (emphasis added)). As Justice Murdock noted in his special concurrence in Ex parte Taylor in relation to the subject-matter jurisdiction of the Mobile Probate Court in a similar situation: "The foregoing categories of jurisdiction[, §§ 12-13-1(b)(3)-(5), Ala. Code 1975,] concern matters relating to the administration of a decedent's estate; they do not authorize the probate court to entertain a motion concerning the approval of the settlement of a wrongful-death claim by a personal representative or to enter an order concerning the distribution of the proceeds from a settlement in such an action as part of the final settlement of the estate. Likewise, matters concerning the personal representative's settlement of a wrongful-death claim and the distribution of the proceeds therefrom do not fall within the Mobile Probate Court's general equity jurisdiction, which is limited to matters of equity 'in the administration of the estates,' Act No. 91–131, Ala. Acts 1991, and to 'any proceeding 29 1130385, 1130403 involving a testamentary or inter vivos trust.' Ala. Code 1975, § 19–3B–203." 93 So. 3d at 122. However, in the present case, the probate court did not hold that it had subject-matter jurisdiction over the distribution of the wrongful-death-settlement proceeds pursuant to the legislature's general grant of jurisdiction under § 12-13-1. Rather, as set forth above, the probate court stated the following in regard to whether it had subject-matter jurisdiction over the distribution of the wrongful-death-settlement proceeds: "There is a limitation in 19-3B-203(b) to inter vivos and testamentary trusts. While the concurring opinion in Ex parte Taylor concludes that the trust or quasi trust formed for the proceeds of a wrongful death recovery is neither, it may also be argued that the trust is an inter vivos trust." Although the probate court did not address the question whether it had subject-matter jurisdiction under § 19-3B-203, Ala. Code 1975, a trust formed by the receipt of the proceeds in a wrongful-death action cannot be construed as an inter vivos trust, which is a "[t]rust created during lifetime of settlor and to become effective in his lifetime as contrasted with a testamentary trust which takes effect at death of 30 1130385, 1130403 settlor or testator." Black's Law Dictionary 821 (6th ed. 1990). Regardless, the probate court further stated that it had subject-matter jurisdiction over the distribution of the wrongful-death-settlement proceeds pursuant to § 43-2-111, Ala. Code 1975, which provides: "The personal representative and the sureties on his bond are liable to the parties in interest for the due and legal distribution of all damages recovered by such representative under sections ... 6-5-410 ... and are subject to all remedies which may be pursued against such representative and sureties for the due administration of personal assets." Section 43-2-111 authorizes an action against a personal representative regarding the distribution of proceeds of a wrongful-death action; it does not vest the probate court with subject-matter jurisdiction to oversee the distribution of the proceeds of a wrongful-death action, in which the estate of the decedent has no interest. Accordingly, the probate court did not have subject-matter jurisdiction under § 12-13-1, § 43-2-111, or § 19-3B-203 over the settlement of the wrongful- death action and Kirksey's distribution of the wrongful-death- settlement proceeds. Rather, subject-matter jurisdiction lies with the circuit court. 31 1130385, 1130403 Therefore, the probate court does not have subject-matter jurisdiction over the interpleader action because the interpleaded funds are not part of Graves's estate but are the proceeds of the settlement of the wrongful-death action. Accordingly, Belt's interpleader action is due to be dismissed. Further, although a probate court has subject-matter jurisdiction over a petition to vacate its discharge of an administrator ad litem, in this case we note that the only basis for doing so was to attempt to correct Kirksey's alleged improper distribution of the wrongful-death-settlement proceeds. Likewise, the probate court's appointment of the county administrator and its "reopening" of Graves's estate –- when no letters of administration have been issued –- were also based on its attempt to oversee the distribution of the wrongful-death-settlement proceeds, which the probate court has no authority to do. Accordingly, the probate court acted beyond its authority in taking those actions. Therefore, the omitted heirs have a clear legal right to the relief they seek –- dismissal of the case for lack of subject-matter jurisdiction. 32 1130385, 1130403 Conclusion For the reasons explained above, the probate court did not have subject-matter jurisdiction to oversee either the settlement of the wrongful-death action or Kirksey's distribution of the wrongful-death-settlement proceeds pursuant to the statute of distributions. Accordingly, the actions of the probate court regarding the settlement of the wrongful-death action and Kirksey's distribution of the proceeds of the wrongful-death action are void. Therefore, we grant the omitted heirs' petition for a writ of mandamus and direct the probate court to vacate its August 26, 2013, and November 25, 2013, orders and to dismiss Belt's interpleader action. Furthermore, we direct the probate court to vacate its May 4, 2012, order insofar as it purported to approve the wrongful-death settlement and order the distribution of the funds to Kirksey, Thompson, and Gardner. 1130385 –- APPEAL DISMISSED. Bolin, Shaw, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs specially. Moore, C.J., and Stuart, J., concur in the result. 1130403 –- PETITION GRANTED; WRIT ISSUED. 33 1130385, 1130403 Main, Wise, and Bryan, JJ., concur. Bolin, Murdock, and Shaw, JJ., concur specially. Stuart, J., concurs in the result. Moore, C.J., dissents. 34 1130385, 1130403 BOLIN, Justice (concurring specially in case no. 1130403). I note initially that I concur with this Court's main opinion, including its conclusion that the omitted heirs' cross-appeal be treated as a petition for a writ of mandamus because the probate court's November 25, 2013, order was not a judgment subject to certification of finality under Rule 54(b), Ala. R. Civ. P.; the question of a court's subject- matter jurisdiction is reviewable by a petition for a writ of mandamus. Moreover, as a former probate judge, I am experienced and familiar with the interplay of opening a decedent's estate in the probate court for the primary purpose of allowing a personal representative to file a wrongful-death claim in the circuit court. Although I concur fully with this Court's main opinion--vacating the probate court's orders based on that court's lack of subject-matter jurisdiction to oversee the distribution of the wrongful-death-settlement proceeds--I write specially to note that on July 11, 2011, when the learned probate judge appointed Bessie Kirksey as the administrator ad litem for the purpose of gathering "information to investigate a wrongful death claim," the judge 35 1130385, 1130403 was informed generally by this Court's decision in Affinity Hospital, L.L.C. v. Williford, 21 So. 3d 712 (Ala. 2009)(holding that the probate court's order appointing an administrator ad litem to investigate a possible wrongful- death action on behalf of the deceased patient's estate also granted administrator ad litem the authority to file such an action). As demonstrated in the present opinion, this Court has subsequently, and more narrowly, construed the plain wording of § 6-5-410, Ala. Code 1975, to recognize a personal representative as the proper party to initiate a wrongful- death action. It is my judgment that Affinity Hospital, by improperly allowing an administrator ad litem (again, appointed by the probate court for a specific purpose) to pursue a wrongful-death action, blurred the distinction between the probate court's role and the circuit court's role in wrongful-death actions, because it is the probate court that generally monitors the actions of its own appointees. The confusion created was exacerbated by the fact that it is the probate court where heirship is usually determined, although the beneficiary recipients (heirs at law of the decedent pursuant to the statute of distributions) of damages as a 36 1130385, 1130403 result of a circuit court wrongful-death action are one and the same. It is my judgment that the above combined to substantially create much of the ensuing uncertainty as to whether the probate court here had any oversight of, or, put a better way, jurisdiction to judicially supervise the safeguarding and proper disbursement of, the corpus created by a successful wrongful-death action. Whether justified or not, the confusion in this area of estate/wrongful-death law has caused this Court to ultimately remove any doubt by delineating that a probate court's jurisdiction, in overseeing matters concerning the administration of an estate, does not include those matters pertaining to the settlement or the distribution of the proceeds of a wrongful-death action, because such proceeds are not part of the decedent's estate. See, e.g., Ex parte Taylor, 93 So. 3d 118 (Ala. 2012), in which Justice Murdock wrote specially to discuss the role delegated to a personal representative by § 6–5–410, Ala. Code 1975, and the proper distribution of proceeds derived from a wrongful-death action, when the probate court has issued an order concerning the distribution of those proceeds; Golden Gate Nat'l Senior Care, 37 1130385, 1130403 LLC v. Roser, 94 So. 3d 365 (Ala. 2012), a case in which I concurred specially to express my judgment that a wrongful- death action may be instituted only by a personal representative, and not by an administrator ad litem, referencing Justice Murdock's special writing in Ex parte Taylor explaining the role of a personal representative in the context of a wrongful-death action; Ex parte Rodgers, 141 So. 3d 1038, 1042 (Ala. 2013), another case in which I concurred specially and referenced Justice Murdock's special writing in Ex parte Taylor; and, finally, Ex parte Wilson, 139 So. 3d 161 (Ala. 2013), in which I concurred specially regarding the inability of an administrator ad litem to initiate a wrongful-death action when the question of the capacity of the administrator ad litem to bring such an action is properly and timely presented to the trial court. It is always easy to state what the law is, or what a trial court should or should not have properly done, with the cool reflection afforded an appellate court. I write specially to note, however, that when the probate judge appointed an administrator ad litem on July 11, 2011, he was acting in conformity with this Court's precedent in Affinity Hospital, 38 1130385, 1130403 which empowered a probate court appointee to institute a wrongful-death proceeding without there being in existence a decedent's estate or a properly appointed personal representative. Although the subsequent responsibility for the proper conduct of a wrongful-death action should have been borne by the circuit court, the probate judge in this proceeding did not have the benefit of the above-cited and later released special writings, none of which was controlling precedent, as the probate court noted in its November 25, 2013, order. In conclusion, it is no surprise to me that the probate court cautiously intervened and the instant scenario occurred, given (1) that the probate court, in appointing the administrator ad litem, was guided by this Court's decision in Affinity Hospital; (2) that the administrator ad litem appointed by the probate court was empowered to litigate a wrongful-death action to a jury verdict or effectuate a settlement of potentially a large corpus of funds, despite the fact that there was no estate proceeding determining heirship and, in contravention of § 6-5-410, Ala. Code 1975, had been no appointment of a personal representative; and (3) that, 39 1130385, 1130403 most importantly, the probate judge was bound by section C of the Compliance provision of the Canons of Judicial Ethics pertaining to probate judges, which states that "[a] probate judge should consider himself the conservator of all estates under his jurisdiction." "Compliance with the Canons of Judicial Ethics," following Canon 7, Canons of Judicial Ethics. Although there was no "estate" before the probate judge as referred to in the Canon, there was certainly the appointment of a party who, given the state of the law, could create a corpus of funds payable to heirs –- as close to a decedent's intestate estate as is possible without the actual creation thereof. 40 1130385, 1130403 MURDOCK, Justice (concurring specially). The main opinion concludes its review of the propriety of the probate court's Rule 54(b), Ala. R. Civ. P., certification of its November 25, 2013, order by reasoning that the probate court's order was not properly certifiable as a final, appealable judgment under Rule 54(b) because that order did not "completely adjudicate" a claim. ___ So. 3d at ___. To be clear, not only did the probate court's order not "completely" adjudicate a claim, it did not even "partially" adjudicate a claim. Indeed, to the contrary, it "undid" an otherwise final adjudication of a claim, thereby leaving that claim open for further consideration by the probate court. Our precedents specifically hold that, except in unique circumstances not present here, the grant of a Rule 60(b), Ala. R. Civ. P., motion is not appealable for this very reason, i.e., it vacates a final judgment and contemplates further proceedings in the trial court. See, e.g., Washington Mut. Bank, F.A. v. Campbell, 24 So. 3d 435, 439 (Ala. 2009) (noting that "[a]n order granting a Rule 60(b), Ala. R. Civ. P., motion generally is not appealable because 'further 41 1130385 and 1130403 proceedings are contemplated by the trial court.' Ex parte Overton, 985 So. 2d 423, 424 (Ala. 2007)."). The "claims" to which Rule 54(b) refers are the claims for substantive relief asserted by plaintiffs that create lawsuits. See Rule 54, Ala. R. Civ. P. (addressing "claims for relief ..., whether ... a claim, counterclaim, cross- claim, or third-party claim"). Rule 54(b) addresses orders that conclusively or finally dispose of such "claims," not orders that reject defenses asserted by defendants and thereby leave the plaintiff's claims that are the subject of the Rule 54(b) certification pending for further proceedings. In the present case, the omitted heirs effectively occupied the position of defendants in relation to Bessie Kirksey's claims; they "defended" against Kirksey's claims, in part, by seeking to persuade the probate court to dismiss those claims for lack of subject-matter jurisdiction. The probate court did not do that. Although it did choose on the merits to undo its prior adjudication of Kirksey's claims, it denied the defendant's motion to dismiss Kirksey's claims on the ground, asserted by the omitted heirs, that the probate court lacked subject-matter jurisdiction over those claims. 42 1130385 and 1130403 Thus, the probate court entered an order rejecting the defense of lack of jurisdiction asserted by the omitted heirs, thereby keeping Kirksey's claims alive for further proceedings. Such an order is not an order otherwise subject to a certification of finality under Rule 54(b); it did not settle the parties' substantive rights in relation to one another. See, e.g., Banyan Corp. v. Leithead, 41 So. 3d 51, 54 (Ala. 2009) (holding that the trial court erred in certifying an order as a final, appealable judgment under Rule 54(b) because "the order ... did not completely dispose of any of the substantive claims in this case, nor did the order fully dispose of the claims as they relate to at least one party"). See also, e.g., State v. Brantley Land, L.L.C., 976 So. 2d 996, 999 (Ala. 2007) ("'"Only a fully adjudicated whole claim against a party may be certified under Rule 54(b)."'" (quoting James v. Alabama Coalition for Equity, Inc., 713 So. 2d 937, 942 (Ala. 1997), quoting in turn Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th Cir. 1987) (emphasis omitted))); and Haynes v. Alfa Fin. Corp., 730 So. 2d 178, 181 (Ala. 1999) ("[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least 43 1130385 and 1130403 one claim or fully dispose of the claims as they relate to at least one party."). The Chief Justice, in his special writing, expresses a reluctance to accept a petition for a writ of mandamus as the appropriate vehicle for seeking relief from this Court. He points to § 12-22-20, Ala. Code 1975, which he reads as permitting an appeal to this Court of the probate court's order. The language of § 12-22-20 quoted by the Chief Justice, however, expressly permits an appeal only as to a "final judgment, order or decree." Nor does the decision of this Court in Watts v. Town of Green Valley, 282 Ala. 555, 213 So. 2d 398 (1968), support the notion that an appeal is available in this case. The judgment appealed in Watts, which the trial court there had refused to vacate, was a final judgment. That is, the judgment appealed in Watts had conclusively adjudicated the rights of the parties; the judgment had provided the plaintiffs the substantive relief requested in their complaint, i.e., an order requiring an election regarding the possible incorporation of a new town. Similarly, the appeal in McDonald v. Lyle, 270 Ala. 715, 121 So. 2d 885 (1960), was 44 1130385 and 1130403 from a judgment that had conclusively adjudicated the claims at issue in that case -- salary claims brought by county employees against various county commissioners. The fact that 6 the defenses asserted, but rejected by the trial court, in both Watts and McDonald happened to be jurisdictional defenses does not change the fact that the judgments entered by the trial courts in those cases and appealed to this Court were in and of themselves final judgments that finally decided the claims asserted by the plaintiffs in those cases. The order of the probate court here vacating its otherwise final judgment adjudicating the claims of certain heirs and requiring further proceedings as to those claims is the opposite. Both Watts and McDonald were decided by this Court prior 6 to the promulgation of Rule 54. 45 1130385 and 1130403 SHAW, Justice (concurring specially in case no. 1130403). The issue in these cases is whether the probate court possessed jurisdiction to oversee the actions of the "personal representative" pursuing a wrongful-death action in the circuit court. As the main opinion holds, it does not. I agree. Justice Bolin, in his special writing, expresses, among other things, concern that this Court's holding in Affinity Hospital, L.L.C. v. Williford, 21 So. 3d 712 (Ala. 2009), has caused confusion as to whether an administrator ad litem may be appointed to prosecute a wrongful-death action. I do not believe that Affinity Hospital causes any such confusion. That case addressed a narrow question: Did a "duly appointed" administer ad litem have the capacity under the wrongful-death act, § 6-5-410(a), Ala. Code 1975, to file a wrongful-death action? I say "duly appointed" because the issue whether the 7 Although Affinity Hospital holds that an administrator 7 ad litem had the power to file a wrongful-death action, that decision was not unprecedented, as the practice was noted in numerous prior decisions: "There are several reported cases in which it appears that an administrator ad litem, without challenge, has filed a wrongful-death action. See, e.g., Ex parte Sumter County, 953 So. 2d 1235 (Ala. 2006); Franks v. Norfolk S. Ry., 679 So. 2d 214 (Ala. 1996); Fitts v. Minnesota Mining & Mfg. Co., 581 So. 2d 819 (Ala. 1991); and Handley v. Richards, 518 So. 2d 682, 683 (Ala. 1987) (Maddox, J., 46 1130385 and 1130403 administrator ad litem had initially been properly appointed by the probate court was not a matter before the Court in Affinity Hospital: "Trinity also contends that an administrator [8] ad litem can be appointed only in connection with an existing proceeding. Whether a proceeding must be pending or existing before an administrator ad litem can be appointed does not touch upon the issue presented in this case: Whether an administrator ad litem has the power, capacity, or authority to file a wrongful-death action under § 6-5-410. Instead, Trinity's argument challenges whether Williford was properly appointed in the first place. "However, for purposes of the question, certified on this permissive appeal, the circuit court assumed that Williford was properly appointed as an administrator ad litem. Specifically, the circuit court's order certifying the question was based on the premise that Williford 'was duly appointed under Ala. Code [1975,] § 42-2-250 by the Jefferson County Probate Court as Administrator Ad Litem,' and the question it certified asks if 'the administrator ad litem' had 'the capacity to file this wrongful death suit ....' Trinity's issue is thus outside the scope of the questions certified in this case." concurring specially)." Affinity Hosp., 21 So. 3d at 716. See also Golden Gate Nat'l Senior Care, LLC v. Roser, 94 So. 3d 365, 366 (Ala. 2012) (Bolin, J., concurring specially) ("The case that arguably created the practice of appointing an administrator ad litem to file a wrongful-death action is Franks v. Norfolk Southern Railway, 679 So. 2d 214 (1996)."). "Trinity" was a collective reference for Affinity 8 Hospital, L.L.C., d/b/a Trinity Medical Center, and David Brittin, R.N. 47 1130385 and 1130403 Affinity Hosp., 21 So.3d at 718 n.4. Affinity Hospital cannot be read to speak to whether an administrator ad litem can be properly appointed under § 43-2-250, Ala. Code 1975, to pursue a wrongful-death action in the first place; whether the appointment in that case met the criteria of § 43-2-250, including issues as to whether an "existing" proceeding was required and whether the estate needed representation, was not addressed. That an administrator ad litem, properly appointed, may file a wrongful-death action in no way confuses the issue whether a probate court may oversee the actions of the "personal representative" in a wrongful-death action. The probate court's attempts in the instant case to oversee the distribution of the proceeds of the wrongful-death action could have occurred even if Bessie Kirksey had been an administrator or executor. Any purported mistakes or fraud in the distribution of the proceeds could just have easily been committed by an administrator or executor. Nothing in the actual holding of Affinity Hospital contributed to the conduct in the instant case. 48 1130385, 1130403 MOORE, Chief Justice (concurring in the result in case no. 1130385 and dissenting in case no. 1130403). I concur with the conclusion of the main opinion that the probate court lacked subject-matter jurisdiction to oversee the wrongful-death settlement and the distribution of the settlement proceeds. However, I concur in the result in case no. 1130385 and dissent in case no. 1130403 because, pursuant to § 12-22-20, Ala. Code 1975, I believe both cases are properly before us on appeal from a "final decree of the probate court, or from any final judgment, order or decree of the probate judge." In my opinion, the Court, while correctly identifying the jurisdictional defect in the probate proceedings, unnecessarily treats the omitted heirs' cross- appeal as a petition for the extraordinary writ of mandamus. The main opinion addresses as a threshold issue whether the probate court's Rule 54(b), Ala. R. Civ. P., certification of its November 25, 2013, order was proper. Having determined that the order was not properly certified as a final order, the main opinion goes on to treat the omitted heirs' cross- appeal as a petition for a writ of mandamus. However, both Bessie Kirksey and the omitted heirs expressly invoked this 49 1130385, 1130403 Court's jurisdiction to hear their appeals as of right pursuant to § 12-22-20, Ala. Code 1975, not from a judgment made final pursuant to Rule 54(b). Section 12-22-20 is an independent source of appellate jurisdiction that does not depend upon a trial court's certifying the challenged order as final under Rule 54(b). Although an appeal from a Rule 54(b) order lies only if the order "dispose[d] of at least one of a number of claims or one of multiple parties," Ex parte Noland Hosp. Montgomery, LLC, 127 So. 3d 1160, 1165-66 (Ala. 2012), under § 12-22-20, "[a]n appeal lies to the circuit court or Supreme Court from any final decree of the probate court, or from any final judgment, order or decree of the probate judge; and, in all cases where it may of right be done, the appellate court shall render such decree, order or judgment as the probate court ought to have rendered." (Emphasis added.) The main opinion attaches significance to the probate court's Rule 54(b) certification of its November 25, 2013, order, when in fact, I believe the parties properly invoked this Court's appellate jurisdiction under § 12-22-20, Ala. Code 1975. Pursuant to that provision, I believe this Court has jurisdiction to hear the parties' appeals, even if 50 1130385, 1130403 the probate court had not certified its order as a final judgment. In their September 25, 2013, motion, the omitted heirs challenged the probate court's subject-matter jurisdiction and asked the probate court to vacate its August 26, 2013, order insofar as it reopened Willie May Graves's estate and appointed the county administrator to preside over subsequent proceedings. The procedural posture of this case closely resembles that in Watts v. Town of Green Valley, 282 Ala. 555, 213 So. 2d 398 (1968). In Watts, a probate court exercised its special statutory jurisdiction to order that an election be held among residents of a town to determine whether to incorporate the town. Watts then moved the probate court to set aside its order on the ground that the court lacked subject-matter jurisdiction to issue the order. The alleged jurisdictional defect resulted from the fact that one of four individuals who had signed the petition to incorporate the town was not a qualified elector, as required by statute. The probate court determined that it had jurisdiction, and Watts appealed to this Court. 51 1130385, 1130403 This Court reversed the order of the probate court on the ground that the disqualification of the signatory deprived the probate court of jurisdiction over the proceeding. Our reasoning and holding bears reiterating because I believe it applies with equal force to the instant case: "Here, there was a [d]irect attack on the validity of the decrees, which direct attack questioned the jurisdiction of the court to render such decrees, and moved the court that they be vacated. Such direct attack was filed in the court that rendered the decrees. The alleged facts recited in the decree, or decrees, as to the jurisdiction of the court, was contradicted by primary records in the proceeding, and disclosed the lack of jurisdiction on the part of the court .... ".... "The question of jurisdiction is always fundamental and is a question of primary importance in every case, and if there is an absence of jurisdiction over subject matter, it is fatal. ... ".... "...[A]n absence of jurisdiction was shown because one of the necessary condition precedents establishing such jurisdiction was proven to be not existing. ... "Here, if the subject matter before the probate court was an ordinary power vesting in the court without being dependent upon a special statute ... the rule relative to jurisdictional matters before the court may have been different. ... 52 1130385, 1130403 "However, the power vested in the probate court ... was not an ordinary or general power vested in the court, but was a special limited or statutory power being exercised by a court of limited jurisdiction. ... "Here, the judicial act of the probate court in deciding it had jurisdiction was an erroneous conclusion in view of the facts before the court on direct attack of the court's decrees. Viewing the record of the probate court proceedings, it is clear from such record now before this court by transcript and bill of exceptions, that the court was without authority to enter its decrees from which rulings of that court this appeal was taken. "When the evidence clearly established lack of jurisdiction over the subject matter, the proceedings should have ended for they were void. ... "No issue has been raised as to the propriety of the motions to vacate the probate court's decrees from a procedural standpoint. However, we think such motions were proper procedure, and the court had the power to vacate its decrees on motion. An appeal is the proper remedy where the trial court fails to vacate a void decree. Doby v. Carroll, 274 Ala. 273, 147 So. 2d 803 [(1962)]; McDonald v. Lyle, 270 Ala. 715, 121 So. 2d 885 [(1960)]. "It therefore follows that the probate court should have granted the motions seeking to vacate its decrees, such decrees being void for lack of jurisdiction on the part of the court." 282 Ala. at 559-62, 213 So. 2d at 402-04 (all but first emphasis added). Additionally, in McDonald v. Lyle, 274 Ala. 273, 121 So. 2d 885 (1960), we declared that when a trial court issues a 53 1130385, 1130403 judgment that is void for lack of subject-matter jurisdiction and fails to vacate that void judgment on motion of an interested party, the appropriate remedy is an appeal. Thus, under § 12-22-20, Ala. Code 1975, "an appeal is the proper remedy where the probate court fails to vacate an allegedly void judgment. Therefore, an appeal, not a petition for a writ of mandamus, provides [the petitioners] the proper mode for attacking the probate court's judgment. Mandamus is an extraordinary writ, and [the petitioners] cannot use it as a substitute for an appeal." Ex parte Town of Valley Grande, 885 So. 2d 768, 771 (Ala. 2003)(emphasis added). Because the probate court's November 25, 2013, order, like the orders in Watts and Town of Valley Grande, failed to vacate its allegedly void order of August 26, 2013, I believe that order was directly appealable under § 12-22-20, Ala. Code 1975. The probate court lacked subject-matter jurisdiction to oversee the settlement of the wrongful-death action and the distribution of the wrongful-death-settlement proceeds. Therefore, "every order and judgment entered in this case [with respect to that issue] was void, including the judgments from which this appeal was taken. A void judgment will not 54 1130385, 1130403 support an appeal." Bernals, Inc. v. Kessler-Greystone, LLC, 70 So. 3d 315, 321 (Ala. 2011)(vacating a default judgment and dismissing an appeal from that and other orders, on the ground that the trial court lacked jurisdiction to hear the case). Section 12-22-20 instructs us, when hearing an appeal, to "render such ... order or judgment as the probate court ought to have rendered." Therefore, I believe we should dismiss both Bessie Kirksey's appeal and the omitted heirs' cross-appeal, vacate the probate court's orders of August 26, 2013, and November 25, 2013, direct the probate court to dismiss the interpleader action, and hold that the language of the probate court's May 4, 2012, order approving the wrongful-death settlement and ordering the distribution of the proceeds is of no effect. 55	October 17, 2014
4ea40c24-1f61-4549-a0ba-a4f99368bc16	Ex parte Howard Lynn Creel. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Howard Lynn Creel v. State of Alabama) (Cullman Circuit Court: CC-12-416; Criminal Appeals : CR-13-0288). Writ Denied. No Opinion.	N/A	1130915	Alabama	Alabama Supreme Court	Rel: 8/29/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130915 ____________________ Ex parte Howard Lynn Creel PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Howard Lynn Creel v. State of Alabama) (Cullman Circuit Court, CC-12-416; Court of Criminal Appeals, CR-13-0288) BRYAN, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur. Moore, C.J., and Murdock, J., dissent. 1130915 MOORE, Chief Justice (dissenting). I am not convinced that the jury had before it sufficient evidence from which to conclude beyond a reasonable doubt that Howard Lynn Creel knew that a passenger in the vehicle Creel was driving, Michael Shane Hardin, had methamphetamine in his possession. "'Where the accused is not in exclusive possession of the premises, his knowledge of the presence of a controlled substance may not be inferred 'unless there are circumstances tending to buttress this inference.'" Ex parte Harper, 594 So. 2d 1181, 1194-95 (Ala. 1991)(quoting Lyons v. State, 455 So. 2d 295, 296 (Ala. Crim. App. 1984)). The fact that Creel fled the scene in the vehicle was not sufficient to establish that he knew that Hardin possessed the methamphetamine. There are many other reasons Creel might have fled the scene. Moreover, arresting officer Jimmy Barnes testified that he did not smell the methamphetamine until he unzipped the bag containing the methamphetamine. There is no evidence indicating that Creel was in the officer's presence while the bag was unzipped; therefore, there is no evidence indicating that he could have smelled the methamphetamine before fleeing. In light of the foregoing, I believe there was not enough evidence to connect 2 1130915 Creel to the methamphetamine for the purposes of prosecution under § 13A-12-218, Ala. Code 1975; therefore, I dissent. 3	August 29, 2014
0ca60c26-3efd-447c-8bdb-64e535943056	Pennsylvania National Mutual Casualty Insurance Company v. Bradford	N/A	1130503	Alabama	Alabama Supreme Court	Rel: 09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130503 _________________________ Pennsylvania National Mutual Casualty Insurance Company v. Michael S. Bradford Appeal from Jackson Circuit Court (CV-11-900138) MAIN, Justice. Pennsylvania National Mutual Casualty Insurance Company ("Penn National") was sued by Jacob T. Walker, an employee of its named insured, seeking underinsured-motorist ("UIM") benefits following an automobile accident. After settling the 1130503 claims against it, Penn National filed a cross-claim against Michael S. Bradford, the alleged tortfeasor, asserting a subrogation theory of recovery. The trial court dismissed the cross-claim on the ground that it was barred by the statute of limitations, and Penn National appealed. We affirm the judgment of the trial court. I. Facts and Procedural History On September 21, 2009, Walker was involved in an accident when the vehicle he was operating, a truck owned by his employer, collided with a vehicle being operated by Bradford. Bradford's vehicle was insured by GEICO Indemnity Company and carried a bodily-injury limit of $25,000 per person. On September 14, 2011, Walker sued Bradford and Penn National in the Jackson Circuit Court. The complaint alleged that the accident was caused by Bradford's negligent and/or wanton operation of his vehicle and that the accident caused Walker to sustain permanent injury and other damage. Walker also asserted a claim for UIM benefits against Penn National, the insurer who provided UIM coverage for the vehicle operated by Walker. 2 1130503 Before trial, Walker and Bradford reached a tentative settlement agreement pursuant to which Walker agreed to dismiss his claims against Bradford for $25,000, a sum representing the policy limits of Bradford's automobile- liability insurance with GEICO. Pursuant to the terms of his employer's insurance policy with Penn National, Walker notified Penn National of the proposed settlement agreement and requested Penn National's consent to the settlement and requested that Penn National waive its subrogation rights. Penn National declined to consent to the settlement and, under the guidelines set forth by this Court in Lambert v. State Farm Mutual Automobile Insurance Co., 576 So. 2d 160 (Ala. 1991), advanced the proposed $25,000 settlement amount to Walker in order to preserve its subrogation rights. On June 21, 2013, Penn National and Walker settled Walker's UIM claim in the amount of $500,000 and filed a pro tanto stipulation of dismissal of Walker's claims against Penn National. Because Penn National did not consent to the proposed settlement between Walker and Bradford, Walker's claims against Bradford remained pending. 3 1130503 On July 2, 2013, prior to the entry of an order of dismissal of Penn National, Penn National filed a cross-claim against Bradford. The cross-claim asserted that Penn National was subrogated to the rights of Walker against Bradford and "assert[ed] against the tortfeasor, Michael Bradford, all of the causes of action alleged, or that could be alleged, against the tortfeasor by the plaintiff in this litigation." Bradford moved to dismiss the cross-claim on the ground that it was filed almost four years after the accident and thus was barred by the two-year statute of limitations. The trial court granted Bradford's motion to dismiss Penn National's cross-claim, specifically finding that the Penn National's direct claim against Bradford was barred by the statute of limitations. On January 13, 2014, Penn National filed a motion to substitute Walker's counsel, who had been litigating the matter, with Penn National's counsel. The trial court 1 denied Penn National's motion to substitute counsel. On May 16, 2014, the trial court certified its dismissal of Penn National's cross-claim as final under Rule 54(b), Ala. No motion to substitute Penn National as the party 1 plaintiff and real party in interest has been filed. 4 1130503 R. Civ. P. Penn National appeals the dismissal of its cross- claim. 2 II. Standard of Review "'The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d 640, 641 (Ala. 1985); Hill v. Falletta, 589 So. 2d 746 (Ala. Civ. App. 1991). In making this determination, the Court does not consider whether the plaintiff will ultimately prevail, but only whether [it] may possibly prevail. Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala. 1985); Rice v. United Ins. Co. of America, 465 So. 2d 1100, 1101 (Ala. 1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garnett v. Hadden, 495 So. 2d 616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala. 1986).'" DGB, LLC v. Hinds, 55 So. 3d 218, 223 (Ala. 2010) (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)). Penn National also filed a separate appeal from the order 2 of the trial court denying its motion to substitute counsel. On May 13, 2014, that appeal was dismissed as being from a nonfinal, nonappealable order Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Bradford (No. 1130568), __ So. 3d ___ (Ala. 2014)(table). Accordingly, the issue as to whether the trial court properly denied the motion to substitute is not before us. 5 1130503 III. Analysis Penn National contends that the trial court erred in dismissing its subrogation cross-claim against Bradley on the ground that it was barred by the statute of limitations. We disagree. Alabama follows "the well established rule that a subrogee can acquire no greater rights than those possessed by the principal whose rights he asserts." Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 607, 285 So. 2d 468, 472 (1973). Alabama, like most other jurisdictions, specifically applies this principle to the running of the statute of limitations. Home Ins., 291 Ala. at 607-08, 285 So. 2d at 472 ("[T]his court has specifically held this principle applicable to the running of the statute of limitations."). Thus, in a subrogation case, the statute of limitations begins to run when the cause of action accrues, and "the cause accrues as soon as the party in whose favor its arises is entitled to maintain an action thereon." 291 Ala. at 608, 285 So. 2d at 473. In Hardin v. Metlife Auto & Home Ins. Co., 982 So. 2d 522 (Ala. Civ. App. 2007), the Court of Civil Appeals applied the 6 1130503 above principles to facts markedly similar to those in this case. Hardin arose out of a two-vehicle automobile accident that occurred in 2001. The Fotis were injured as a result of that accident, and they sued the operator of the other vehicle, Hardin, as well as their own uninsured-motorist carrier, Metlife. In 2004, the Fotis notified Metlife of their intention to settle their claims against Hardin. Metlife, in order to retain its subrogation rights, advanced the Fotis the amount of the proposed settlement. In 2005, Metlife settled the remainder of the Fotis' claims. In 2006, Metlife sued Hardin under a subrogation theory to recover the amounts it had paid as a result of the Fotis' action. The trial court denied Hardin's motion to dismiss based on the statute of limitations and granted Metlife's motion for a summary judgment. Hardin appealed. On appeal, the Court of Civil Appeals reversed the summary judgment in favor of Metlife and, relying on Home Insurance, concluded that Metlife's subrogation claims were barred by the statute of limitations: "In Home Insurance Co. v. Stuart-McCorkle, Inc., supra, our supreme court resolved the issue regarding when, in Alabama, the statute of limitations begins to run on a subrogated insurer's 7 1130503 claim against the tortfeasor. ... Therefore, under the precedent of Home Ins. Co. v. Stuart-McCorkle, Inc., supra, the statute of limitations for Metlife to file its cause of action began to run on December 23, 2001, the date of the automobile accident that gave rise to the claims by the Fotis, Metlife's insureds." 982 So. 2d at 526-27. Because Metlife's action was not filed within the two-year limitations period, the Court of Civil Appeals held that Metlife's action was barred by the statute of limitations, and it reversed the trial court's summary judgment in favor of Metlife. The present case is nearly indistinguishable from Hardin. Walker's automobile accident occurred on September 21, 2009. Based on the payments it has made in this case, Penn National asserts that it is subrogated to Walker's rights against Bradford arising from the 2009 accident. Penn National, however, did not file its cross-claim against Bradford until July 2, 2013, more than three years after the 2009 accident. Accordingly, Penn National's direct claims against Bradford are barred by the two-year statute of limitations. Penn National argues that this result is "grossly inequitable" and urges us to overrule Hardin. We decline to do so. First, this result is compelled by the application of 8 1130503 long-established legal precedent. Other than asserting that the result in this case is inequitable, Penn National has failed to provide any basis compelling a departure from stare decisis. Further, Penn National exaggerates the purported inequities of the result in this case. Generally speaking, insurers need not file a direct action against the tortfeasor to protect their right of reimbursement. Rather, insurers generally may obtain reimbursement from the insured's recovery against the tortfeasor. See Ex parte State Farm Mut. Auto. Ins. Co., 118 So. 3d 699, 704 (Ala. 2012). Indeed, Penn National's own uninsured-motorist-coverage endorsement attached to the policy in this case contains the following provision: "If we make any payment and the 'insured' recovers from another party, the 'insured' shall hold the proceeds in trust for us and pay us back the amount we have paid." 3 Moreover, most insurance policies, including the Penn National policy here, impose a duty on the insured to cooperate with See Star Freight, Inc. v. Sheffield, 587 So. 2d 946, 958 3 (Ala. 1991) (holding that such subrogation and trust provisions apply only to recovery from the uninsured tortfeasor). 9 1130503 the insurer seeking to secure its subrogation rights. 4 Accordingly, we do not agree that insurers are unfairly prejudiced by the application of well settled precedent concerning the running of the statute of limitations in subrogation actions. We cannot say the trial court erred in 5 dismissing Penn National's direct claim against Bradford. IV. Conclusion For the reasons set forth above, the judgment of the trial court is affirmed. AFFIRMED. Moore, C.J., and Bryan, J., concur. Murdock, J., concurs specially. Bolin, J., concurs in the result. The policy provides, in part: 4 "Transfer Of Rights Of Recovery Against Other To Us. "If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after 'accident' or 'loss' to impair them." Other courts have addressed similar arguments regarding 5 the running of the statute of limitations in subrogation cases and rejected those arguments on the ground that insurers have ample methods to protect their subrogation interests. See American States Ins. Co. v. Williams, 151 Ind. App. 99, 107- 08, 278 N.E.2d 295, 301 (1972); Sahloff v. Western Cas. & Sur. Co., 45 Wis. 2d 60, 70-71, 171 N.W.2d 914, 918 (1969). 10 1130503 MURDOCK, Justice (concurring specially). "'The general rule is that when an insurer pays the insured in accordance with the insurance contract for a loss of property proximately resulting from fire caused by the actionable misconduct of a third party, the insurer becomes, by the doctrine of equitable subrogation, the owner, pro tanto, of the claim of the insured against the third party.'" McGuire v. Wilson, 372 So. 2d 1297, 1300 (Ala. 1979) (quoting City of Birmingham v. Walker, 267 Ala. 150, 154, 101 So. 2d 250, 252 (1958)). Indeed, the subrogation clause in Jacob Walker's employer's insurance policy with Penn National Mutual Casualty Insurance Company ("Penn National") expressly states: "If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and do nothing after 'accident' or 'loss' to impair them." Thus, as a result of its payment of insurance proceeds, Penn National has become the beneficial owner of "the claims" that have been filed by Walker against Michael S. Bradford and that remain pending in the trial court. As the main opinion holds, however, this does not necessarily mean that Penn National can file some new claim in its own name against Bradford after the statute of limitations has expired. Further, Penn National 11 1130503 has not attempted to substitute itself for Walker as the real party in interest in Walker's claims (or argued that its cross-claim should be treated as a motion for such substitution). I therefore concur in the main opinion. The fact remains, however -- and I write separately to note -- that, because Penn National is now the beneficial owner of "the case" against Bradford, Penn National has the right to control the prosecution of that case, including the selection of counsel. The main opinion observes in a footnote that Penn National purported to file a separate appeal from an order of the trial court denying its motion to substitute counsel as to those claims but that this Court dismissed that purported appeal as being from a nonfinal, nonappealable order. Although the trial court subsequently purported to certify its order refusing to allow substitution of counsel as final and appealable under Rule 54(b), Ala. R. Civ. P., the appeal of that order already had been dismissed by this Court and, in any event, was not properly subject to such a certification because it did not conclusively adjudicate any substantive rights of the parties. See, e.g., Banyan Corp. v. Leithead, 41 So. 3d 51, 54 (Ala. 2009) (holding that the trial 12 1130503 court erred in certifying an order as a final, appealable judgment under Rule 54(b) because "the order ... did not completely dispose of any of the substantive claims in this case, nor did the order fully dispose of the claims as they relate to at least one party"). Furthermore, the briefs 6 before us in the present proceeding focus solely on the issue of the dismissal of Penn National's cross-claim; therefore, there is nothing before this Court that could be treated as a petition for mandamus relief as to this issue. See also, e.g., McCulloch v. Roberts, 290 Ala. 303, 305, 6 276 So. 2d 425, 426 (1973) ("'The test of the finality of a decree sufficient to support an appeal is that it ascertains and declares the rights of the parties ....'" (quoting Carter v. Mitchell, 225 Ala. 287, 293, 142 So. 514, 519 (1932))); Lunceford v. Monumental Life Ins. Co., 641 So. 2d 244, 246 (Ala. 1994) ("A final judgment is an order 'that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.'" (quoting Bean v. Craig, 557 So. 2d 1249, 1253 (Ala. 1990))); State v. Brantley Land, L.L.C., 976 So. 2d 996, 999 (Ala. 2007) ("'"Only a fully adjudicated whole claim against a party may be certified under Rule 54(b)."'" (quoting James v. Alabama Coalition for Equity, Inc., 713 So. 2d 937, 942 (Ala. 1997), quoting in turn Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th Cir. 1987) (emphasis omitted))); and Haynes v. Alfa Fin. Corp., 730 So. 2d 178, 181 (Ala. 1999) ("[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party." (emphasis omitted)). 13	September 26, 2014
017195ad-e813-4572-aec3-77f642c9ad34	Ex parte Shannon Ray Johnson. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Shannon Ray Johnson v. State of Alabama) (Lauderdale Circuit Court: CC-11-485; Criminal Appeals : CR-12-2086). Writ Denied. No Opinion.	N/A	1131279	Alabama	Alabama Supreme Court	Rel: 12/12/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2014-2015 ____________________ 1131279 ____________________ Ex parte Shannon Ray Johnson PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Shannon Ray Johnson v. State of Alabama) (Lauderdale Circuit Court, CC-11-485; Court of Criminal Appeals, CR-12-2086) BRYAN, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Shaw, Main, and Wise, JJ., concur. 1131279 Moore, C.J., and Parker and Murdock, JJ., dissent. 2 1131279 MOORE, Chief Justice (dissenting). I respectfully dissent from the Court's decision to deny petitioner Shannon Ray Johnson's request for a writ of certiorari directed to the Alabama Court of Criminal Appeals. Facts and Procedural History In March 2011, Johnson pleaded guilty to resisting arrest, a violation of § 13A-10-33, Ala. Code 1975, in the district court of Lauderdale County. The Court of Criminal Appeals' unpublished memorandum, Johnson v. State (No. CR-12- 2086, April 25, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014)(table), provides the following facts: "The district court judge sentenced Johnson to six months in the Lauderdale County Work Release Center ('LCWRC'). The LCWRC is operated by the Lauderdale County Community Corrections Authority. Johnson reported to the LCWRC that evening and was given a classification that prevented him from leaving the LCWRC for any reason. Johnson was informed that night of his classification. The next day Johnson was again told that he could not leave the LCWRC. "At 7:00 p.m. on March 31, 2011, an Alcoholics Anonymous meeting was held in a common area of the LCWRC. A corrections officer announced that the meeting was beginning, and Johnson went to the common area along with other inmates. Shortly after the meeting began, Johnson walked out of the common area and off the LCWRC grounds. A corrections officer reported the escape to law enforcement, and the next day, April 1, 2011, Daryl Williams, 3 1131279 supervisor of the LCWRC, obtained a warrant for Johnson's arrest. "Later that day, Robbie Howard of the Florence Police Department saw Johnson near a Johnson family business. Johnson got into a vehicle and drove away. Howard followed Johnson before stopping and arresting him without incident." Johnson was convicted in the Lauderdale Circuit Court of third-degree escape under § 13A-10-33, Ala. Code 1975. The State offered four of Johnson's prior felony convictions in support of its request to have Johnson sentenced under the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA"). Two of the four convictions were felony convictions from Georgia. Johnson objected to the admission of the Georgia convictions on the ground that they were not properly authenticated, that the State failed to lay the proper foundation for admitting them, and that the State failed to provide advance notice of its intent to use the Georgia convictions. The circuit court admitted the Georgia convictions over Johnson's objection and sentenced Johnson as a habitual offender to life imprisonment under the HFOA. Johnson appealed to the Court of Criminal Appeals, which affirmed his conviction and sentence in an unpublished 4 1131279 memorandum. That court overruled Johnson's application for rehearing. Johnson then filed this petition for certiorari review. Subject-Matter Jurisdiction of the Circuit Court Before the Court of Criminal Appeals, Johnson argued that the evidence of his Georgia convictions was inadmissible because the State failed to prove that the conduct underlying his Georgia convictions would have constituted felonies in Alabama. The Court of Criminal Appeals held that Johnson failed to preserve the issue of the admissibility of his Georgia convictions because he made only a general objection at trial. In his certiorari petition before this Court, Johnson argues that the Court of Criminal Appeals' holding conflicts with appellate decisions holding that a general objection is sufficient to preserve for appeal a challenge to patently illegal evidence. See, e.g., Satterwhite v. State, 364 So. 2d 359, 360 (Ala. 1978) ("[A] general objection to admission of evidence should be sustained if the evidence is illegal for any purpose and cannot be made legal by introducing other evidence or by otherwise framing the inquiry."). Whether 5 1131279 Johnson's alleged conflict ground has any merit, I believe that we should have granted certiorari review to determine whether the circuit court had subject-matter jurisdiction to consider Johnson's Georgia convictions. Rule 26.6(b)(3)(iv), Ala. R. Crim. P., provides, in relevant part: "Any conviction in any jurisdiction, including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under Act 607, § 130(4), Acts of Alabama 1977, p. 812 (§ 13A-1- 2(4), Alabama Criminal Code), or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980 ...." Under the plain language of Rule 26.6(b)(3)(iv), not every prior conviction may be used to enhance the sentence of a criminal defendant as a habitual felon. Only those convictions that satisfy the criteria set forth in the rule may properly be considered. Therefore, the question whether a prior out-of- state conviction qualifies to enhance a sentence goes to the jurisdiction of the sentencing court. As the Court of Criminal Appeals has stated: "A challenge to the use of a prior conviction from another jurisdiction to enhance a sentence under the HFOA on the grounds that the prior conviction arose from conduct that was not a felony in Alabama is a 6 1131279 jurisdictional issue challenging the legality of the sentence." Skinner v. State, 987 So. 2d 1172, 1175 (Ala. Crim. App. 2006) (holding that a challenge similar to the one at issue was jurisdictional and therefore not subject to the bar against successive petitions in Rule 32, Ala. R. Crim. P.). "'Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu.'" Ex parte Siderius, 144 So. 3d 319, 323 (Ala. 2013) (quoting Ex parte Punturo, 928 So. 2d 1030, 1033 (Ala. 2002)). Therefore, Johnson's first ground supporting his petition for a writ of certiorari has a probability of merit. Applicability of Misdemeanor-Escape Statute Additionally, I believe that Johnson states a cognizable conflict with Terrell v. State, 621 So. 2d 402 (Ala. Crim. App. 1993). Johnson was convicted of third-degree escape under § 13A-10-33, Ala. Code 1975, which classifies that escape as a felony and supports Johnson's life sentence. Section 13A-10- 33 prohibits "escap[ing] or attempt[ing] to escape from custody." (Emphasis added.) Section 14-8-42, Ala. Code 1975, is a misdemeanor-escape statute that provides: 7 1131279 "The willful failure of an inmate to remain within the extended limits of his confinement or to return to the place of confinement within the time prescribed shall be deemed an escape from a state penal institution in the case of a state inmate and an escape from the custody of the sheriff in the case of a county inmate and shall be punishable accordingly." (Emphasis added.) The Court of Criminal Appeals held in its unpublished memorandum that the misdemeanor-escape statute does not apply "[i]n circumstances where an inmate of any type escapes from the detention center itself." In support of its holding, the court relied upon Nichols v. State, 518 So. 2d 851 (Ala. Crim. App. 1987), which in turn cited Hall v. State, 386 So. 2d 765 (Ala. Crim. App. 1980). However, the inmate in Hall was being transported by two correctional counselors when he broke free and escaped. The court held that, "[u]nder the particular facts of this case," the inmate escaped from "actual custody" under the felony- escape statute and did not fail "to remain within the extended limits of his confinement" under a former misdemeanor-escape statute. 386 So. 2d at 766. Johnson, however, did not break free from the custody of officials, but failed to remain at the work-release center. I believe that the conclusion by the 8 1131279 Court of Criminal Appeals that departing a work-release center without authorization does not constitute misdemeanor escape finds no support in the language of § 14-8-42, which prohibits "[t]he willful failure of an inmate to remain within the extended limits of his confinement." Johnson alleged that the Court of Criminal Appeals' holding conflicts with its decision in Terrell v. State, 621 So. 2d 402 (Ala. Crim. App. 1993), in which the court held that a county inmate who escaped while serving time for a misdemeanor could be found guilty of only misdemeanor escape, and not felony third-degree escape. Like Terrell, Johnson "was a county inmate serving time for a misdemeanor." Petition, at 10. Therefore, I believe that Johnson's second ground for certiorari review has a probability of merit. Conclusion For the above-stated reasons, I would grant Johnson's petition for a writ of certiorari to consider his challenge to the use of his Georgia convictions to enhance his sentence and the adverse construction of the misdemeanor-escape statute, § 14-8-42, Ala. Code 1975. 9	December 12, 2014
c81f58ac-737c-4a0f-b147-bf383352f9a1	In re: API Holdings, LLC v. Frost Cummings Tidwell Group, LLC	N/A	1121140	Alabama	Alabama Supreme Court	REL: 09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1121140 ____________________ Ex parte Tommy Sundy PETITION FOR WRIT OF MANDAMUS (In re: API Holdings, LLC v. Frost Cummings Tidwell Group, LLC) (Jefferson Circuit Court, CV-12-902502) MURDOCK, Justice. Tommy Sundy petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to dismiss third-party 1121140 claims asserted against him by the Frost Cummings Tidwell Group, LLC ("FCT"), an accounting firm. We deny the petition. I. Facts and Procedural History In June 2005, Adams Produce Company, Inc. ("APCI"), purchased Crestview Produce of Destin, Inc., from Sundy. As part of the transaction, APCI and Sundy executed a promissory note in the amount of $850,000. Sundy became an employee of APCI. FCT alleges that, based on representations from APCI and Sundy, certain budget and bonus projections were set for APCI, but those goals were not met. Because of the failure to meet those projections, Sundy was not entitled to bonuses that had been paid to him throughout 2009. With the alleged help and direction of FCT, APCI recharacterized the bonuses as repayments of principal on the promissory note. The nonpayment of certain amounts to Sundy in the context of this recharacterization had the effect of increasing APCI's income and decreasing its indebtedness. APCI also allegedly entered into an oral, undocumented agreement with Sundy stipulating that it would make him whole in future years for the forfeited bonus payments. 2 1121140 In 2009, APCI's shareholders decided to sell the company to API Holdings, LLC. One step in that transaction involved APCI's creating Adams Produce Company, LLC ("APC"). Another step in the transaction involved APCI's retaining FCT in March 2010 to perform an audit and to make a report concerning APCI's 2009 financial statements ("the audit report"). FCT completed the audit and submitted the audit report to APCI in September 2010. FCT admits in its third-party complaint that 1 it investigated the recharacterization of bonuses paid to Sundy and that it confirmed in the audit report that the recharacterization was correct. FCT denies that it had any knowledge of the side agreement between APCI and Sundy to reimburse him for the forfeited bonuses in future years. Pursuant to an "Asset Contribution Agreement" executed on September 3, 2010, APCI transferred all of its assets and liabilities to APC. On the same day, API Holdings entered into a "Membership Interest Purchase Agreement" pursuant to which API Holdings purchased all, or a controlling part of, the membership interests in APC for a total purchase price of FCT also performed an audit for APC the following year 1 for the 2010 fiscal year, and its report for that audit apparently contained the same recharacterization of the bonuses, affecting APC's financial outlook. 3 1121140 $20,490,000. In the purchase agreement, API Holdings received assurances that all aspects of APC's financial condition had been disclosed to it through the audit report submitted by FCT. API Holdings alleges that, following its purchase of APC, it discovered that, contrary to representations made by FCT in the audit report, APCI's financial statements were fraudulent, causing API Holdings to believe that APC was worth more than it actually was. On August 9, 2012, API Holdings sued FCT in the Jefferson Circuit Court asserting claims of negligent misrepresentation, auditing malpractice, fraud, and other claims of professional malfeasance. In general, API Holdings alleged that it had relied upon the audit report when it agreed to purchase APC and when it agreed upon the purchase price. Among several other claims, API Holdings alleged that FCT had failed to uncover misrepresentations by Sundy and APCI and that FCT had acted fraudulently in confirming the recharacterization of Sundy's bonuses as payments on principal of the promissory note. 4 1121140 On April 27, 2012, APC filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Northern District of Alabama ("the bankruptcy court"). On October 19, 2012, APC filed an adversarial complaint in the bankruptcy court against FCT, alleging that FCT's audit work had painted a false financial picture of APC upon which APC had relied in continuing to operate its business even after reaching the point of insolvency. APC alleged that it had 2 continued to operate past the point of insolvency and had incurred additional debt that it otherwise would not have incurred but for its reliance upon representations provided by FCT in the audit report (i.e., the report applicable to 2009) and in the similar report prepared by FCT with respect to APC's 2010 fiscal-year activities. Specifically, APC alleged that the audit reports indicated that APC's cash position was more favorable than it actually was. On March 18, 2013, FCT filed a third-party complaint in the bankruptcy court against Sundy and others. FCT's complaint alleged various theories under Alabama law as bases APC included allegations regarding FCT's audit work for 2 fiscal year 2010 because, according to its complaint, "[t]he 2010 Audit Report was based, in part, on the 2009 Financial Statements and the 2009 Audit Report." See supra note 1. 5 1121140 for FCT to "recover over" against Sundy. Those claims, as contemplated by Rule 14(a)(1), Fed. R. Civ. P., are "for all or part of the [plaintiff's] claim against [the third-party plaintiff]," i.e., APC's claims against FCT (for the injury suffered by APC in incurring additional debt and eventually suffering insolvency). On March 21, 2013, three days after filing its third- party complaint in the federal action in the bankruptcy court, FCT filed a third-party complaint against Sundy and others in the Jefferson Circuit Court case filed by API Holdings. Again, as contemplated by Rule 14(a), Ala. R. Civ. P., FCT filed its third-party claims in the Jefferson Circuit Court action for the purpose of recovering from Sundy "for all or part of the plaintiff's claim against the third-party plaintiff" in that case, i.e., API Holdings' claims against FCT (for the investment losses suffered by API Holdings following its purchases of APC). Of course, in the case of the Jefferson Circuit Court action, the plaintiff is API Holdings, not APC, and the claims it asserted for its investment losses were, of course, not the same as the claims 6 1121140 held by APC and asserted by APC as the plaintiff in the federal action in the bankruptcy court. Sundy subsequently filed in the Jefferson Circuit Court a motion to dismiss FCT's third-party complaint in that case on the basis of § 6-5-440, Ala. Code 1975, Alabama's abatement statute. Following the submission of arguments and a hearing on the motion, the circuit court denied the motion on June 7, 2013. Sundy timely filed a petition for a writ of mandamus seeking to have this Court direct the circuit court to vacate its judgment denying the motion to dismiss and to order the circuit court to dismiss FCT's claims against Sundy asserted in its third-party complaint in the Jefferson Circuit Court action. On July 24, 2013, this Court ordered answers and briefs to the petition. On July 30, 2013, FCT filed in this Court a motion to stay its response time because it had filed in the bankruptcy court a motion to dismiss APC's complaint against FCT pending in that court. This Court granted the motion to stay the response time. Subsequently, the bankruptcy court denied FCT's motion to dismiss APC's complaint, and FCT filed its response to Sundy's mandamus petition in this Court. 7 1121140 II. Standard of Review "'[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or an abuse of discretion.' Ex parte Palm Harbor Homes, Inc., 798 So. 2d 656, 660 (Ala. 2001). Mandamus is the appropriate remedy to correct a trial court's failure to properly apply § 6-5-440. See Ex parte Chapman Nursing Home, Inc., 903 So. 2d 813 (Ala. 2004); Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849, 852 (Ala. 1999)." Ex parte J.E. Estes Wood Co., 42 So. 3d 104, 108 (Ala. 2010). "The standard for deciding whether two actions may proceed in different courts is similar to the standard applied for determining the applicability of the doctrine of res judicata; that is, whether the issues in the two actions are the same and whether the same evidence would support a recovery in both actions." Ex parte Brooks Ins. Agency, 125 So. 3d 706, 710 (Ala. 2013). III. Analysis Section 6-5-440, Ala. Code 1975, Alabama's abatement statute, provides: "No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times." 8 1121140 The parties do not dispute that § 6-5-440 applies to abate a State-court action on the ground that the same action was previously filed and remains pending in a federal court in this State. See Ex parte J.E. Estes Wood Co., 42 So. 3d at 108 (quoting Ex parte Norfolk Southern Ry., 992 So. 2d 1286, 1289 (Ala. 2008)) (stating that "'[t]his Court has previously held that an action pending in a federal court falls within the coverage of this Code section'"). This Court previously has explained the history behind the prohibition codified in § 6-5-440: "'Section 6-5-440, as initially codified in Ala. Code 1907, § 2451, was "a transcript of section 4331 of the Civil Code of Georgia." Ex parte Dunlap, 209 Ala. 453, 455, 96 So. 441, 442 (1923). See current version at Ga. Code Ann. § 9-2-5(a) (Michie 1982). However, these statutes merely codified the principle expressed in the common-law maxim: "Nemo debet bis vexari (si constet curiae quod sit) pro una et eadem causa," that is: "No man ought to be twice troubled or harassed (if it appear to the court that he is), for one and the same cause." O'Barr v. Turner, 16 Ala. App. 65, 67-68, 75 So. 271, 274 (1917), cert. denied, 200 Ala. 699, 76 So. 997 (1917). This rule was well established in Alabama long before it was first codified in Ala. Code 1907, § 2451. In Foster v. Napier, 73 Ala. 595 (1883), for example, this Court explained: 9 1121140 "'"The doctrine is thus stated in 1 Bac. Ab. 28, M.: 'The law abhors multiplicity of actions; and, therefore, whenever it appears on record, that the plaintiff has sued out two writs against the same defendant, for the same thing, the second writ shall abate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer in infinitum; ... if there was a writ in being at the time of suing out the second, it is plain the second was vexatious and ill ab initio.'" "'Foster v. Napier, 73 Ala. 595, 603 (1883) (quoting 1 M. Bacon, A New Abridgment of the Law 28 (1843)). In fact, the rule was well established as early as 1461, for it was thoroughly discussed and applied in Y.B. 39 Henry VI, pl. 12 (1461), case quoted in toto, Commonwealth v. Churchill, 5 Mass. 174 (1809); see also Sparry's Case, 5 Coke 61a., 77 Eng. Rep. 148 (K.B. 1591).'" Ex parte J.E. Estes Wood Co., 42 So. 3d at 108-09 (quoting Ex parte State Mut. Ins. Co., 715 So. 2d 207, 213 (Ala. 1997) (emphasis omitted)). The Court also explained in Ex parte J.E. Estes Wood Co. that "the principle codified by the statute 'is founded upon the policy of discouraging a multiplicity of 10 1121140 suits -- of protecting the defendant from oppression, [and] from the grievance of double vexation for the same cause or thing.' Foster v. Napier, 73 Ala. 595, 606 (1883). '[W]hen a defendant is twice impleaded by the same plaintiff, for the same thing, the oppression and vexation is not matter of fact; it is a conclusion of law, and is not dependent upon an inquiry into the actual circumstances of the two cases.' 73 Ala. at 603." 42 So. 3d at 111. Sundy's argument that the abatement statute warrants dismissal of FCT's third-party complaint in the Jefferson Circuit Court action is misplaced. As noted, the plaintiffs in the federal action and in the State action are different. Each plaintiff is the "'master of [its own] complaint.'" Ex parte J.E. Estes Wood Co., 42 So. 3d at 111 (quoting Noland Health Servs., Inc. v. Wright, 971 So. 2d 681, 693 (Ala. 2007)). Each asserts its own separate and distinct claims against FCT. In each of those actions, the third-party plaintiff, FCT, is authorized by Rule 14(a) to expand the action by way of a third-party claim, but only to the limited extent of seeking recovery against a third-party defendant "for all or part of the plaintiff's claim against the third- party plaintiff." Rule 14(a) (emphasis added). That is, FCT could not seek to recover from Sundy in the State action 11 1121140 (initiated by API Holdings for the purpose of vindicating its rights and recovering its losses) losses for which FCT might potentially be held responsible in the federal action (initiated by APC for the purpose of vindicating its rights and recovering its losses). See, e.g., City of Orange Beach v. Scottsdale Ins. Co., 166 F.R.D. 506, 510 (S.D. Ala. 1996), aff'd, 113 F.3d 1251 (11th Cir. 1997) ("'Rule 14(a) does not allow the defendant to assert a separate and independent claim even though the claim arises out of the same general set of facts as the main claim.' United States v. Olavarrieta, 812 F.2d 640, 643 (11th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987)."); 3 James Wm. Moore, Moore's Federal Practice § 14.07 (2d ed. 1995) ("Thus, an impleader claim cannot assert any and all rights to recovery arising from the same transaction or occurrence as the underlying action." (as quoted in 2 Law & Prac. of Ins. Coverage Litg. § 15:30 note 5 (June 2014))). FCT is, itself, subject to suit by two different primary plaintiffs –- API Holdings and APC –- in two different lawsuits. Just as FCT may be held to account in two separate actions by two separate plaintiffs, it may seek separate 12 1121140 recoveries against a third party in relation to the different claims and losses it faces in each of those lawsuits. IV. Conclusion FCT's third-party claims against Sundy in the State action are not barred by the abatement statute. The Jefferson Circuit court properly declined to dismiss those claims. Therefore, we deny the petition for a writ of mandamus. PETITION DENIED. Moore, C.J., and Bolin, Main, and Bryan, JJ., concur. 13	September 26, 2014
0b3c2f04-7e11-4e96-ac19-32eb23076cfd	In re: S.L.M. and R.S.M. v. S.C.	N/A	1130573	Alabama	Alabama Supreme Court	REL: 09/19/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130573 ____________________ Ex parte S.L.M. and R.S.M. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: S.L.M. and R.S.M. v. S.C.) (Etowah Juvenile Court, JU-11-120.02 and JU-11-487.02; Court of Civil Appeals, 2120004) STUART, Justice. 1130573 This Court issued a writ of certiorari to determine, among other issues, whether the decision of the Court of Civil Appeals on return to remand, determining that sufficient evidence was presented to support the juvenile court's decision to modify custody, conflicts with Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). We reverse the judgment of the 1 Court of Civil Appeals and render a judgment for S.L.M. and R.S.M. Facts S.C., the maternal grandmother, petitioned the Etowah Juvenile Court to intervene and to grant her custody of S.D.A., who was 19 months old at the time of trial, and R.D.A., who was 9 months old at the time of trial, both of whom were in the custody of S.L.M. and R.S.M. (S.D.A. and This case presents a procedural quagmire and involves 1 questionable decisions by both the juvenile court and the Court of Civil Appeals. Given the posture of this case and the importance of minimizing disruption in custody and promoting stability of custody in this case, this Court addresses this determinative substantive issue and pretermits the consideration of other issues. Our refusal to address the other issues, however, should not be understood as an approval of all the language, reasons, or statements of law in the Court of Civil Appeals' opinions relating to those other issues or in the juvenile court's orders. Cf. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). 2 1130573 R.D.A. are hereinafter referred to collectively as "the children"). S.L.M. and R.S.M. are not related to the 2 children. In the petitions, the grandmother alleged that the children were dependent as to the mother and the biological father, that S.L.M. may have been awarded temporary custody of the children, and that it would be in the best interest of the children for the children to be placed in her custody. At trial, the maternal grandmother testified that she lived in Kentucky, that she and the children's mother were estranged, that she had custody of the mother's oldest child, and that she had been unaware of the births of the children. She explained that, when she learned about the children, she contacted the Department of Human Resources, requesting information about and custody of the children. She testified that she was physically and financially able to take care of all three children and that she wanted them to grow up as a family. The maternal grandmother admitted that she had never met the children and that the oldest child had only seen photographs of the children. Specifically, S.L.M. had been awarded "temporary legal 2 custody" of S.D.A., and S.L.M. and R.S.M. had been awarded custody of R.D.A. 3 1130573 S.L.M. testified that, although she was not a blood relative of the mother, she had known the mother for over 20 years and considered the mother a "sister." She explained: "We are –- I love [the mother] like a sister, and she loves me. I have been the only person there for [the mother]. [The mother] is a struggling drug addict that needs help, and I have been the only one there. But no, we are not related." With regard to her relationship with the children, S.L.M. testified that the children had lived with her and her husband, R.S.M., since their respective births. She explained that she brought each child to her home from the hospital because of the mother's drug-addiction problems. S.L.M. testified: "I love them like they are my own. I have cared for the children since day one. I stayed in the Birmingham hospital with [the youngest child] for five weeks because she was born premature in a motel room and almost died. None of [the mother's] family ... could even call me and ask if that baby was alive or dead. I was the only one there for that baby, the only one. I have had the babies since day one. I have been the only one there for them, and I love them. I love them like they are my own." She stated that R.S.M. is a good father and that their daughter loves the children. When asked how often the mother visits with the children, S.L.M. replied, "sometimes a week, sometime a couple of weeks. It just depends on how [the 4 1130573 mother] is to tell you the truth." She stated that she allowed the mother to visit with the children if the mother was "straight." R.S.M. testified that he shares custody of the children with S.L.M., his wife of 13 years. He stated that he loved the children like his own daughter and that he willingly provided for them, carried them to doctor's appointments, and used his income to support them. The mother testified that she wanted S.L.M. to have custody of her children. She elaborated about the children's lives with S.L.M., stating: "[W]hen I went to church with the kids –- they are going to church. They are living a very Christian life. The kids are done very fairly. I mean, they have got all the toys in the world you can dream of. I mean, they are spoiled. I mean, I will give you that. They are spoiled. And they are really over loved. They are. I mean, there is so much love around them." The mother admitted that the maternal grandmother could provide adequately for the children but maintained that she wanted the children to remain with S.L.M. and R.S.M. so that she could continue to have a relationship with the children. The following testimony was developed with regard to the mother's visitation and relationship with the children: 5 1130573 "[THE COURT]: How often do you see the two children here? "[The mother]: Well, up until I had left I was [3] getting to see them once a week to once every two weeks, depending upon their schedule. "[THE COURT]: How often would you see them when you would see them? "[The mother]: A couple of hours a day. The longest –- what was it, nine hours I got? And then I spent the night, spent the night on several occasions. And then the girls, they spent the night with me. "Remember, you came over to the motel and you stayed the night with me when [my boyfriend] was at work. "[S.L.M.]: We stayed until late but we never stayed all night. "[The mother]: I'm sorry. That's my mistake. ".... "[THE COURT]: Tell me more about the night that you –- the children were there late at the motel. Where was that at? "[The mother]: That's when I was –- that's when I was over there at Super 8 [motel]. "[THE COURT]: How long has that been? "[The mother]: It ain't been long. Probably weeks. "[THE COURT]: Recently? The mother moved to Arizona to find temporary employment. 3 6 1130573 "[The mother]: Yeah, recently. "[THE COURT]: And that's the time you were doing drugs from what you testified a while ago. Were you not on drugs? "[The mother]: I had one relapse about two months ago. It may have been three. I'm guessing two. I'm having to guess here. "[THE COURT]: You were saying it was two months ago that this happened. So this was the time -- "[S.L.M.]: It was before her relapse. Like a week later I called her to tell her we were going to come back over and let her see the kids, and she told me she relapsed, and I didn't go back. "[The mother]: Anytime I have relapsed I have been honest with her. Anytime I have relapsed I have been honest with her. ".... "[THE COURT]: If I decided that I don't want you around the kids based on the fact of your drug usage and entered an order that [S.L.M.] could not let you see the children, what would that do to you and placement? Would that affect it? I'm really concerned about you being around the kids with drug use. I'm just curious. Would that change in your mind –- is the fact that [S.L.M.] gives you access to the children -- "[The mother]: She doesn't let me be around them when I'm using, no. I have always been honest with her. I know she is probably mad at me right now knowing that I have. But I have always been honest with her. ".... 7 1130573 "[THE COURT]: Has [the mother] ever been with the children alone since you have had them? "[S.L.M.]: Never, ever. "[THE COURT]: So a while ago when she testified she had them one night by herself in a motel, that never happened? "[S.L.M.]: No sir. That was the night I was there. We stayed until about 11:00 o'clock that night. We took her out to eat at Pizza Hut. He dropped us off, and he come back at 11:00 o'clock at night to pick us up. She has never been one minute by herself with those children ever, never." In closing, the maternal grandmother's counsel argued that the children should be placed with a relative and that, because the children's half sister was in the custody of the maternal grandmother, the children should be placed in the custody of the maternal grandmother and be united with their half sister. After considering the evidence, the juvenile court entered orders awarding custody of the children to the maternal grandmother. After S.L.M. and R.S.M.'s posttrial motions were denied, they appealed the judgment to the Court of Civil Appeals. The Court of Civil Appeals, after reviewing the record, remanded the cases to the juvenile court to make written 8 1130573 findings of fact to support its judgments. S.L.M. v. S.C., [Ms. 2120004, April 12, 2013] ___ So. 3d ___, ___ (Ala. Civ. App. 2013). On remand, the juvenile court entered identical orders as to each child explaining the reasons for its decision to modify custody with regard to each child, stating: "3. This Court heard evidence at [a] hearing addressing [the maternal grandmother's] petition for custody. The evidence heard included all events from the birth of both children to present. The [maternal grandmother] provided testimony that she is a fit and proper person to have the care, custody and control of her granddaughter. She also has custody of the minor child's older half sibling. "4. At the hearing, the mother of the minor child testified that the present custodians let her have overnight visits with the minor child. The mother also testified that she was still using drugs and still had a problem with them. She also testified that she did not want her mother to have custody of the minor child because she would hold her accountable for using drugs and restrict her visits with the minor child if the mother was using drugs, but the present custodian understood her drug use even though it would make her mad. The Court was greatly disturbed by this, and concerned that the minor child was being exposed to the situation which removed her from her natural mother in the first place. It was clear and convincing evidence from the testimony of all the parties, that the [maternal grandmother] limits the contact between the mother and the older half sibling but that the present custodians of the minor child [do] not. ".... 9 1130573 "Based on the evidence, the Court finds that there has been a material change in circumstances in this case and that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child. The child is young and the court finds that the young child will adapt to the circumstances. She would be living with a loving grandmother, with her other siblings. "This Court finds that the positive good brought by the change of custody would offset any disruption that might be caused. By granting custody of the child to the [maternal grandmother], all of the children would be together, and be protected from their mother who admitted to still using drugs." On return to remand, the Court of Civil Appeals affirmed the juvenile court's judgments. S.L.M. v. S.C., [Ms. 2120004, October 4, 2013] ___ So. 3d ___ (Ala. Civ. App. 2013)(opinion on return to remand). Standard of Review "'On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.'" Ex parte Helms, 873 So. 2d 1139, 1143 (Ala. 2003)(quoting Ex parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996)). Discussion S.L.M. and R.S.M. contend that the Court of Civil Appeals erred in affirming the juvenile court's judgments holding 10 1130573 that the maternal grandmother presented sufficient evidence to modify custody of the children. After a juvenile court has placed a dependent child into the custody of a proper caregiver, consideration of a change of custody is conducted pursuant to the standard set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). See Ex parte J.P., 641 So. 2d 276, 278 (Ala. 1994)(applying the McLendon standard in a custody dispute between two sets of relatives when one set of relatives had been awarded custody under a prior judicial order). In Ex parte Cleghorn, 993 So. 2d 462, 466–68 (Ala. 2008), this Court stated: "In Ex parte McLendon, we held that the trial court cannot order a change of custody '"unless [the party seeking the change of custody] can show that a change of the custody will materially promote [the] child's welfare."' 455 So. 2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So. 2d 444, 445 (1947)). We noted in Ex parte McLendon that '[i]t is important that [the party seeking the change in custody] show that the child's interests are promoted by the change, i.e., that [the party seeking the change in custody] produce evidence to overcome the "inherently disruptive effect caused by uprooting the child."' 455 So. 2d at 866. ... ".... "Our decision in Ex parte McLendon provides that a party seeking a change in custody must show that the change 'will materially promote [the] child's welfare.' 455 So. 2d at 865. The McLendon standard 11 1130573 is a 'rule of repose,' meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption. Ex parte McLendon, 455 So. 2d at 865. It is founded on the longstanding principle that '[i]t is the court's duty to scrupulously guard and protect the interests of children. And in the context of child-custody proceedings, the dominant consideration is always the best interest of the child.' Ex parte Fann, 810 So. 2d 631, 638 (Ala. 2001). See also McCartney v. McCartney, 11 So. 3d 213, 220-21 (Ala. Civ. App. 2007)('"The controlling consideration in child-custody matters is always the best interests of the child."' (quoting Patrick v. Williams, 952 So. 2d 1131, 1140 (Ala. Civ. App. 2006)))." Here, the evidence is not sufficient to satisfy the McLendon standard, and it does not support a finding that the children's best interest would be served by modifying custody and removing the children from S.L.M. and R.S.M.'s home. The children have lived in the Gadsden area and have been with S.L.M and R.S.M. since their births. R.D.A. was born premature and struggled to survive. S.L.M. cared for her throughout her five-week hospitalization and has continued, along with R.S.M., to tend to her medical needs. The evidence indicates that the children's physical and financial needs are met and that they are well loved. The maternal grandmother testified that she wanted custody of the children because they were blood relatives and because she wanted to unite them with 12 1130573 their half sister. The maternal grandmother, however, admitted that she had never seen the children and that, although the older half sister of the children had seen photographs of the children, she also had never met them. The evidence simply does not support a finding that the benefits of relocating the children with the maternal grandmother would materially promote the best interest of the children and more than offset the disruptive effect of a change of custody. Instead, the record supports the need to "preserve the stability of these young children by keeping them in an indisputably suitable home with two undeniably commendable and caring custodians instead of uprooting them to live with complete strangers, although ones related by blood, in an unknown environment." S.L.M. v. S.C., [Ms. 2120004, Feb. 14, 2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2013)(order overruling application for rehearing)(Moore, J., dissenting)(footnote omitted). This Court is mindful of the juvenile court's concern that the children in S.L.M. and R.S.M.'s custody may be exposed to the situation that caused them to be removed from the mother in the first place. However, the evidence was not 13 1130573 clear and convincing that the children had indeed been exposed to the mother's drug use; rather, the testimony established clearly and convincingly that, although S.L.M. "understands" the mother's drug use, she does not allow the children to be around the mother when the mother is using drugs. "'A custody determination of the [juvenile] court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 SO. 2d 440 (Ala. Civ. App. 1989), and Vail v. Vail, 532 So. 2d 639 (Ala. Civ. App. 1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong.'" Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994)(quoting Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993)). Here, the evidence does not support a modification of custody. Nothing in the record supports the conclusion that modifying custody and removing the children from the home of S.L.M. and R.S.M. would materially promote the children's best interest; therefore, granting the maternal grandmother custody of the children is plainly and palpably wrong. Conclusion Based on the foregoing, the judgment of the Court of Civil Appeals affirming the juvenile court's erroneous 14 1130573 judgment is reversed, and a judgment is rendered for S.L.M. and R.S.M. REVERSED AND JUDGMENT RENDERED. Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs in the result. Moore, C.J., dissents. 15	September 19, 2014
c6479122-8b51-41da-af50-3765dd20a642	Trenier v. City of Prichard	N/A	1130851	Alabama	Alabama Supreme Court	REL:11/21/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2014-2015 ____________________ 1130851 ____________________ Mark Trenier v. City of Prichard and Troy Ephriam, Mayor Appeal from Mobile Circuit Court (CV-13-901796) BOLIN, Justice. Mark Trenier appeals from the trial court's summary judgment in favor of the City of Prichard and its mayor, Troy Ephriam. We affirm. I. Facts and Procedural History The facts in this case are undisputed. This appeal involves a dispute over the interpretation of § 11-43C-38(a), Ala. Code 1975, which governs the appointment and removal from 1130851 office of fire chiefs and police chiefs in Class 5 municipalities such as the City of Prichard. Section 11-43C- 38(a) provides: "There are hereby created three divisions of city government: Public works, finance, and public safety. The mayor shall appoint department heads to the above divisions. Upon the first vacancy, of any nature whatsoever, in the office of police chief or fire chief, the mayor may appoint the police chief and fire chief, respectively, from outside the said merit system, with the approval of four members of the council who shall serve at the pleasure of the mayor; provided, however, such officers shall be removed from office only upon recommendation of the mayor with the approval of four council members." (Emphasis added.) On April 19, 2007, Trenier and Ronald K. Davis, then the mayor of the City of Prichard, executed a proposed employment agreement in which Trenier agreed to provide services as the Prichard Fire Chief for a term of five years, commencing April 19, 2007. On this same date, the five-member Prichard City Council unanimously approved the agreement, and Trenier became the duly appointed fire chief for the City of Prichard in accordance with § 11-43C-38(a). The "Time of Performance" section of the employment agreement expressly states that Trenier would provide services for five years: 2 1130851 "The CHIEF shall commence performance of this Agreement and the rendering of services required hereunder for a period of five (5) years commencing upon the execution of the Agreement by the CITY. The services shall be undertaken in such sequence as to assure the proper and expedient achievement of the objectives of this Agreement for the period of time stated herein. In no event shall the completion dates of times stated herein, if any, be extended, except in accordance with the provisions of the Amendments Section." (Capitalization in original.) The "Compensation" section of the employment agreement contains language confirming that the agreement was for a limited term, subject to expiration, termination, or renewal: "The CITY agrees to provide the CHIEF fifteen (15) sick days per year for the duration of this Agreement. ... "All unused sick time and vacation time will be paid by the City to the CHIEF at the expiration and/or termination of this Agreement. In the event that this Agreement is renewed or extended pursuant to the mutual agreements of the parties, the CHIEF, at his sole option, may continue to accumulate sick and vacation time until such renewal period expires." (Capitalization in original; emphasis added.) The mayoral election for the City of Prichard was held in October 2012, at which time Troy Ephriam, who had served on the city council, was elected mayor of the City of Prichard, defeating Mayor Davis. Before the conclusion of his mayoral 3 1130851 term in 2012, Mayor Davis on two separate occasions attempted to have the city council approve subsequent employment agreements for Trenier and to have him reappointed as the fire chief; both attempts, however, were unsuccessful. Although Trenier's employment agreement expired on April 19, 2012, he continued to serve as fire chief until April 8, 2013, at which time newly elected Mayor Ephriam notified him that his employment was officially terminated. On July 16, 2013, Trenier filed a complaint against Mayor Ephriam in his official capacity, as well as against the City of Prichard, alleging a violation of his employment rights under § 1l-43C-38(a) and seeking damages as a result thereof. Specifically, Trenier alleged that Mayor Ephriam had unilaterally terminated Trenier's employment without any "recommendation" and without the approval of four city-council members pursuant to § 11-43C-38(a). Mayor Ephriam and the City of Prichard filed a joint motion for a summary judgment supported by, among other things, the affidavit of Mayor Ephriam, who testified as follows regarding the events leading up to Trenier's discharge: "1. My name is Troy Ephriam, the duly elected Mayor of the City of Prichard, and I am familiar 4 1130851 with the facts and circumstances surrounding the former employment of Mark Joseph Trenier as the Fire Chief of the City of Prichard, as well as the events giving rise to [Trenier's] Complaint in this matter. "2. Prior to being elected Mayor of the City of Prichard, I was duly elected and served as a Prichard City Councilman, representing District Four, from 2001 until my election as Mayor in October 2012. "3. Under Alabama Code § 11-43C-38(a) (1975), the Prichard City Council is required to approve any appointment made by the Mayor of the City of Prichard for the position of fire chief. "4. In making such appointments, it is an accepted practice for the Mayor of the City of Prichard to utilize employment contracts which enumerate the terms under which an appointee for the position of fire chief will serve. Additionally, it is an accepted practice for the Mayor of the City of Prichard, and the Prichard City Council, to utilize employment agreements for a specific, limited term to effectuate the appointment and removal process of a fire and police chief under Alabama Code § 11-43C-38 (1975). "5. On April 19, 2007, I was serving as a duly elected member of the City Council for the City of Prichard, representing the citizens of District Four. "6. On or about April 19, 2007, former Mayor Ron Davis and Mark Joseph Trenier signed a proposed employment agreement, in which Mark Trenier agreed to provide services as Chief of the Prichard Fire Department. "7. The Agreement provided that Mark Trenier would commence performance under the Agreement upon 5 1130851 execution by the City of Prichard, for a period of five (5) years. "8. After the Agreement was signed by former Mayor Davis and Mark Trenier, it was submitted to the Prichard City Council for review and approval, and the Prichard City Council accordingly considered a motion to approve the proposed Agreement on April 19, 2007. "9. As reflected in the Prichard City Council minutes for April 19, 2007, the Prichard City Council unanimously carried the motion, and approved the proposed Agreement between the City of Prichard and Mark Trenier. "10. At the time the City Council entertained the motion to approve the proposed 2007 Employment Agreement between Mark Trenier and the City of Prichard, it was my understanding that the motion was to approve the explicit terms of the Agreement, including its provisions limiting Mark Trenier's employment to a term of five (5) years. "11. I further understood that no additional vote, motion, or other action on behalf of the Prichard City Council was necessary to terminate the employment of Mark Trenier after the expiration of the Agreement's five-year term. More particularly, I understood that the proposed Agreement was meant to serve as the Council's approval of both the initiation and conclusion of Mr. Trenier's employment in the position of fire chief. "12. Former Mayor Ron Davis made two (2) unsuccessful attempts to have subsequent employment contracts for Mark Trenier approved prior to the conclusion of his mayoral term in 2012, and to have Mark Trenier re-appointed as fire chief. "13. On March 22, 2012, prior to former Mayor Davis's defeat in the 2012 Prichard mayoral 6 1130851 election, the Prichard City Council considered a motion to approve a subsequent employment agreement between Mark Trenier and the City of Prichard, identical to the agreement previously approved on April 19, 2007. The March 22, 2012, motion to approve the additional employment contract of Mark Joseph Trenier failed to carry, gaining only two (2) of the required four (4) 'yea' votes necessary to approve the contract. "14. On October 25, 2012, two days after I defeated former Mayor Davis in the 2012 Prichard mayoral runoff, the Prichard City Council again considered a motion to approve an identical employment agreement, and to approve the re-appointment of Mark Trenier as fire chief. The October 25, 2012, motion also failed to gain the requisite four (4) City Council votes necessary to carry the motion. "15. Due to my participation as a candidate in the 2012 Prichard mayoral elections, I abstained from both the March 22, 2012, and October 25, 2012, votes. "16. After I assumed the office of Mayor of the City of Prichard, I allowed Mark Trenier to continue carrying out the duties of Prichard Fire Chief on a probationary and/or interim basis. On multiple occasions, I discussed with Mark Trenier that he remained employed solely on a probationary and/or interim basis, pending a thorough review of the Prichard Fire Department by my administration, including interviews with employees and an assessment of the department's leadership. I made it clear to Mark Trenier that I would not submit my recommendation to the city council for his renewal and/or re-appointment as fire chief unless I was satisfied with his leadership after the departmental review. I further informed Mark Trenier that I would not submit him as a candidate for re-appointment to the Prichard City Council if I determined that the 7 1130851 City of Prichard was [not] best served by his continued leadership of the Fire Department. "17. During this interim period, Mark Trenier never raised an objection to his status as probationary and/or interim fire chief, [to] the position that his tenure as fire chief had expired under the terms of his 2007 Employment Agreement as approved by the Prichard City Council, or [to the fact] that his re-appointment may not be submitted to the city council for approval after a departmental review by my administration. "18. After a thorough review of the state of the Prichard Fire Department, including interviews with employees and an assessment of the department's leadership, I determined that it was not in the best interest of the City of Prichard that Mark Trenier be submitted for re-appointment as fire chief. More particularly, I determined that Mark Trenier's leadership of the Prichard Fire Department had become ineffective, and that his re-appointment was not advocated." Trenier also filed his own motion for a partial summary judgment on the issue of liability, supported by his verified complaint as well as documents proffered by Mayor Ephriam and the City of Prichard in support of their jointly filed motion for a summary judgment. The trial court conducted hearings on January 10, 2014, and February 28, 2014, and thereafter entered a summary judgment in favor of Mayor Ephriam and the City of Prichard. Trenier appealed. II. Standard of Review 8 1130851 "'We review the trial court's grant or denial of a summary judgment motion de novo.' Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346 (Ala. 2006) (citing Bockman v. WCH, L.L.C., 943 So. 2d 789 (Ala. 2006)). A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present 'substantial evidence' showing that a genuine issue of material fact exists. Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999). Substantial evidence is 'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmovant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So. 2d 435, 436 (Ala. 1993). Moreover, '[t]he trial court's ruling on a question of law carries no presumption of correctness, and this Court reviews de novo the trial court's conclusion as to the appropriate legal standard to be applied.' Dunlap v. Regions Fin. Corp., 983 So. 2d 374, 377 (Ala. 2007) (citing Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997))." Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d 914, 919 (Ala. 2007). Because the facts are undisputed, we are presented with a question of law, and our review is de novo. III. Discussion On appeal, Trenier does not dispute that his appointment to the position of fire chief of the City of Prichard complied 9 1130851 with the requirements of § 11-43C-38(a); he does not dispute the validity of his employment agreement; and he does not dispute that Mayor Ephriam had a right to seek his removal from that position. Instead, he challenges Mayor Ephriam's "unilateral" exercise of that right of removal. Specifically, he argues that Mayor Ephriam was required to follow the removal mandates of § 11-43C-38(a), which state that a fire chief "shall be removed from office only upon recommendation by the mayor with the approval of four council members." (Emphasis added.) According to Trenier, once the city council voted on April 19, 2007, to approve his appointment as fire chief, the position remained his until he either resigned or was removed from office by at least four members of the city council based upon a recommendation of the mayor. Trenier further asserts that the existence of an employment agreement within the context of a statutory appointment of a fire chief or a police chief does not alter the fact that four votes are necessary for removal of that chief. Mayor Ephriam and the City of Prichard, on the other 1 We note that neither Trenier nor Mayor Ephriam and the 1 City of Prichard have provided this Court with any argument concerning whether a governing body such as the city council or the mayor has the authority to have an appointed, at-will, 10 1130851 hand, assert that it was common practice on the part of the mayor and the city council to use employment agreements for specific limited terms to effectuate both the appointment and removal mandates of § 11-43C-38(a) and that once the city council voted to approve Trenier's agreement for a limited term, no further action was needed to remove him from office in the event he was not reappointed. The facts of this case are undisputed, and the issue is a pure question of law regarding the interpretation of the § 11-43C-38(a). Specifically, the issue is whether the city council was required to follow the removal mandates stated in § 11-43C-38(a) after Trenier's employment agreement had expired. In other words, did the city council's initial action of approving Trenier's agreement, which by its very terms was to expire on April 19, 2012, impliedly satisfy the removal mandates of the statute? It has been brought to this Court's attention by the parties and the trial court that the City of Prichard is the only Alabama municipality subject to the provisions of Chapter 43C of Title 11 and that there are position, such as a fire chief, made lawful through a multiyear contract for services. We further note that the term of Trenier's employment agreement exceeded Mayor Davis's term of office. 11 1130851 no appellate decisions discussing the application of § 11-43C- 38(a) or otherwise addressing the hiring or firing of a fire chief under the statute. Accordingly, this Court will adhere to the following principles of statutory construction: "This Court has held that the fundamental rule of statutory construction is to ascertain and give effect to the intent of the Legislature in enacting a statute. IMED Corp. v. Systems Engineering Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992). If possible, a court should gather the legislative intent from the language of the statute itself. Advertiser Co. v. Hobbie, 474 So. 2d 93 (Ala. 1985). If the statute is ambiguous or uncertain, the court may consider conditions that might arise under the provisions of the statute and examine results that would flow from giving the language in question one particular meaning rather than another. Clark v. Houston County Comm'n, 507 So. 2d 902, 903–04 (Ala. 1987). The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage. Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County, 589 So. 2d 687, 689 (Ala. 1991)(citing Ex parte Holladay, 466 So. 2d 956 (Ala. 1985))." Norfolk Southern Ry. v. Johnson, 740 So. 2d 392, 396 (Ala. 1999). We begin our discussion with the fact that the City of Prichard operates under a mayor-council form of government, which is governed by § 11-43C-1 et seq., Ala. Code 1975. Wilson v. Dawson, 590 So. 2d 263 (Ala. 1991). The mayor's 12 1130851 powers in a mayor-council form of government are defined in § 11–43C–37, which states, in pertinent part: "All executive powers of the city shall be vested in the mayor and the mayor shall be the head of the executive and administrative branches of the city government. ... The mayor shall be responsible for the proper administration of all affairs of the city, and, except as otherwise provided herein, he shall have the power and shall be required to: "(1) .... "(2) Appoint and remove, when necessary for the good of the service, all officers and employees of the city except those appointed by the council. Such appointment and removal of personnel are subject to any merit system provisions in effect at such time, except for those officers and employees who are exempted from the merit system by other section of this chapter." (Emphasis added.) Mayor Davis appointed Trenier to the position of fire chief of the City of Prichard pursuant to the powers bestowed upon him by § 11-43C-37, and the appointment complied with § 11-43C-38(a). Although § 11-43C-38(a) makes no mention of a specific term in office, nothing in the plain language of the statute prohibits a city from using an employment contract with a limiting term to satisfy the approval mandates of the statute, which is precisely what occurred in this case. And, as previously indicated in note 1, supra, none of the parties 13 1130851 challenges the mayor's or the city council's authority to enter into a multiyear contract with an appointed, at-will, employee for that employee's services. In fact, Mayor Ephriam stated in his affidavit that "it is an accepted practice for the Mayor of the City of Prichard to utilize employment [agreements] which enumerate the terms under which an appointee for the position of fire chief will serve." Accordingly, during the five-year term that Trenier served as fire chief pursuant to his employment agreement he was afforded the protections of § 11-43C-38(a), and his removal from that position could be effected "only upon recommendation of the mayor with the approval of four council members." Moreover, "contracts of employment that ... specify a definite period terminate by their own terms at the end of such period .... See Northrop v. Kirby, 454 F. Supp. 698, 701 (N.D. Ala. 1978)." Shirley v. Lin, 548 So. 2d 1329, 1332 (Ala. 1989)(emphasis added). Trenier admits in his brief in response to Mayor Ephriam and the City of Prichard's motion for a summary judgment that his five-year term under the employment agreement expired on April 19, 2012. 14 1130851 We now address the effect of the employment agreement as it relates to Trenier's continued employment as fire chief after its expiration. The trial court's action in granting Mayor Ephriam and the City of Prichard's motion for a summary judgment was based on its conclusion that once Trenier's 2 employment agreement had expired on April 19, 2012, there was no longer any need for the city council to ratify what it had already established by a prior vote, i.e., the approval of an agreement that would, by its terms, expire on April 19, 2012, and that, upon the expiration of the agreement, Trenier became We note the trial court's action in entering a summary 2 judgment in favor of Mayor Ephriam and the City of Prichard was primarily based on its conclusion that the appointment of fire chief under § 11-43C-38(a) cannot extend beyond the term of the appointing mayor, explaining that the fire chief's appointment and service "is inexorably linked to that of the appointing mayor" and "[t]his appointing authority is essential so that an incoming mayor's specific public safety directives may be properly carried out, and that his/or general executive, administrative, and supervisory powers may be properly executed." However, as properly noted by Trenier, had the legislature intended to limit the term of fire chief to the term of the appointing mayor, the legislature could have added language to this effect, but it did not. See Noonan v. East-West Beltline, Inc., 487 So. 2d 237, 239 (Ala. 1986)("It is not proper for a court to read into the statute something which the legislature did not include although it could have easily done so."). Accordingly, although the trial court's legal conclusion appears logical under the circumstances, this Court cannot not read into § 11-43C-38(a) something the legislature did not include. Id. 15 1130851 an at-will employee who served at the pleasure of Mayor Ephriam. We agree. The trial court's conclusion in this regard was guided by an order issued by Mobile Circuit Judge Charles A. Graddick in which Judge Graddick was presented with an identical issue as it related to the employment status of the chief of police for the City of Prichard. Judge Graddick's opinion is part of the record, and it provides a thorough analysis regarding the issue at hand: "The essential question is whether the mayor of a class 5 Municipality such as Prichard always needs approval of four members of the city council to appoint, reappoint, or remove a police chief. ... ".... "In attempting to resolve the dispute over the statutory interpretation, the Court was unable to find any appellate opinions that directly address or even cite [§ 11-43C-38(a)]. The Court is similarly unaware of any Attorney General Opinion that sheds light on whether a city council in a Class 5 municipality has to vote to remove a police chief after a specific term in an employment contract has expired. The Court accordingly is of the opinion that the best guidance for answering this question comes from the general principles of employment contract law. "It is well settled that there are two types of employment contracts: at will employment and employment for a specific term or undertaking. 19 Williston on Contracts § 54:39 (4th ed.). If employment is for a specific term, the employee can only be fired for good cause, whereas an at will 16 1130851 employee can be fired for good, bad, or no cause. Id. This rule is followed in Alabama. Under employment at will, 'an employee may be discharged for any reason, good or bad, or even for no reason at all.' Johnson v. City of Marion, 743 So. 2d 481, 483 (Ala. Civ. App. 1999)(quoting Ex parte Amoco Fabrics & Fiber Co., 729 So. 2d 336, 339 (Ala. 1998)). "It is clear that Gardner was originally an employee for a specific term. His contract contained a specific two-year term. Consequently, the Court finds that the City properly conceded that Gardner was entitled to protections of [§ 11-43C- 38(a)] during the term of his employment. The Court agrees with the City's position that after the expiration of the term, the post of police chief was effectively vacant, and the next step was for the Mayor to appoint a new chief or reappoint Gardner and submit the choice to the council for a vote. However, even if Gardner's employment did continue for the one month he retained the position, he was at best an at will employee who served at the pleasure of the Mayor who is the appointment authority for the position of police chief. Under [§ 11-43C-37(2), Ala. Code 1975], the mayor has the power to 'appoint and remove, when necessary and for the good of the service, all officers and employees of the city except those appointed by the council.' Because Gardner's employment had lapsed after November 20, 2012, the Mayor needed to take action on submitting a name for police chief to the city council for the good of the city. "Additionally, it is well settled that 'an employment contract for a fixed period terminates by its own terms.' Guyse v. Morgan County Bd. of Educ., 516 So. 2d 692, 693-94 (Ala. Civ. App. 1987). This principle makes Chief Gardner's interpretation of [§ 11-43C-38(a)] untenable. There was no evidence that the 2010 contract for a two-year term was to automatically renew itself unless the city 17 1130851 council voted otherwise by four votes. This principle suggests that [§ 11-43C-38(a)] does not contemplate or require a vote by the council to formalize the termination of all police chief contracts. Gardner correctly contends that if he resigned, the city council would not need to vote him out by four votes. Similarly, once his contract expired on November 20, 2012, there was no need for the council to vote retroactively to make this result take effect. That would render a formal express contract meaningless. It is well settled that this principle of contract law is more consistent with the city's position that the two- year express contract of November 2010, approved by the council, impliedly incorporated the four votes needed to remove Gardner on November 20, 2012, absent an earlier vote to the contrary. This is the more efficient result--there is no need to ratify what the city council had already established by a valid vote." City of Prichard v. Gardner, (CV. No. 2012-902834.00, January 16, 2013)(emphasis added). Further, although § 11-43C-38(a) does require that removal of an officer such as the fire chief be recommended and approved by four council members, nothing in the plain wording of the statute requires that that approval should or can be achieved in a specific manner. Instead, the statute requires only a recommendation of removal by the mayor and that the recommendation be approved by four council members. Accordingly, it is reasonable to conclude that Trenier's removal was "approved" once the city council voted (upon Mayor 18 1130851 Davis's recommendation) to approve the initial agreement, which by its very terms expired on April 19, 2012. Although not controlling, this conclusion is supported by Mayor Ephriam's unchallenged affidavit testimony that "it is an accepted practice for the Mayor of the City of Prichard, and the Prichard City Council, to utilize employment agreements for a specific, limited term to effectuate the appointment and removal process of a fire and police chief under [§ 11-43C- 38(a)]." (Emphasis added.) Mayor Ephriam also testified that it was his understanding that "no additional vote, motion, or other action on behalf of the Prichard City Council was necessary to terminate the employment of Mark Trenier after the expiration of the Agreement's five-year term." In the absence of a controlling basis provided by Trenier to the contrary, this Court concludes that Mayor Ephriam and the City of Prichard's interpretation of the statute is reasonable and persuasive. Consequently, once Trenier's employment agreement expired on April 19, 2012, without a subsequent agreement being approved, he merely served at the pleasure of Mayor Ephriam, and his employment could be terminated at will by either the mayor or Trenier. See Ex parte Amoco Fabrics & 19 1130851 Fiber Co., 729 So. 2d 336, 339 (Ala. 1998) ("[I]n the absence of a contract providing otherwise, employment in this state is at-will, terminable at the will of either party. Under this doctrine, an employee may be discharged for any reason, good or bad, or even for no reason at all."). Trenier also argues that "the City, acting through its Council and Mayor, by expressly allowing or acquiescing [to his] services as Fire Chief for one year following the end of the five-year term of the Agreement, should be estopped from claiming that the appointment is not governed by the requirements of [§ 11-43C-38(a)]." We find this argument to be without merit based on our conclusion that once Trenier's employment agreement expired, he merely served as fire chief at the pleasure of Mayor Ephriam, and his employment could be terminated at will by either him or Mayor Ephriam. Moreover, Mayor Ephriam testified as follows regarding Trenier's continued employment, which was clearly consensual: "16. After I assumed the office of Mayor of the City of Prichard, I allowed Mark Trenier to continue carrying out the duties of Prichard Fire Chief on a probationary and/or interim basis. On multiple occasions, I discussed with Mark Trenier that he remained employed solely on a probationary and/or interim basis, pending a thorough review of the Prichard Fire Department by my administration, 20 1130851 including interviews with employees and an assessment of the department's leadership. I made it clear to Mark Trenier that I would not submit my recommendation to the City Council for his renewal and/or re-appointment as fire chief unless I was satisfied with his leadership after the departmental review. I further informed Mark Trenier that I would not submit him as a candidate for re-appointment to the Prichard City Council if I determined that the City of Prichard was [not] best served by his continued leadership of the Fire Department. "17. During this interim period, Mark Trenier never raised an objection to his status as probationary and/or interim fire chief, [to] the position that his tenure as fire chief had expired under the terms of his 2007 Employment Agreement as approved by the Prichard City Council, or [to the fact] that his re-appointment may not be submitted to the City Council for approval after a departmental review by my administration. "18. After a thorough review of the state of the Prichard Fire Department, including interviews with employees and an assessment of the department's leadership, I determined that it was not in the best interest of the City of Prichard that Mark Trenier be submitted for re-appointment as fire chief. More particularly, I determined that Mark Trenier's leadership of the Prichard Fire Department had become ineffective, and that his re-appointment was not advocated." (Emphasis added.) Trenier does not challenge on appeal Mayor Ephriam's affidavit testimony before the trial court. As further noted by Mayor Ephriam, Trenier never raised an objection to his status as probationary and/or interim fire 21 1130851 chief. Accordingly, Trenier is not entitled to any relief on this claim. IV. Conclusion Trenier's employment agreement commenced on April 19, 2007, and extended for a limited term of five years; the city council unanimously approved the agreement for this limited term; the city council's approval complied with § 11-43C- 38(a), which requires the approval of four council members; and once the employment agreement expired on its own terms on April 19, 2012, with no new employment agreement in place, Trenier continued serving as fire chief as an at-will employee at the pleasure of Mayor Ephriam, and his employment could be terminated by either Trenier or Mayor Ephriam. Ex parte Amoco Fabrics & Fiber Co., supra. Because nothing in the plain language of § 11-43C-38(a) prohibits the City of Prichard from using an employment agreement with a limited term for the purpose of satisfying both the approval and/or removal mandates of the statute, the city council's initial action approving the employment agreement that was due to expire on April 19, 2012, impliedly satisfied the removal mandates of § 11-43C-38(a), and it was unnecessary for the city council to 22 1130851 formalize what it had already approved, because requiring it to do so would be illogical and would produce the same result. Accordingly, the summary judgment in favor of Mayor Ephriam and the City of Prichard is affirmed. AFFIRMED. Murdock, Main, and Bryan, JJ., concur. Moore, C.J., concurs in the result. 23	November 21, 2014
80eb69db-195f-4a99-b75e-c4d8f4dcecf1	Barko Hydraulics, LLC v. Shepherd	N/A	1121479	Alabama	Alabama Supreme Court	Rel: 09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1121479 ____________________ Barko Hydraulics, LLC v. Michael Shepherd Appeal from Bullock Circuit Court (CV-11-900010) PER CURIAM. Following a two-day trial in May 2013, a Bullock County jury returned a $450,000 verdict in favor of Michael Shepherd on a breach-of-warranty claim he asserted against Barko 1121479 Hydraulics, LLC ("Barko"). Barko appeals the judgment entered on that verdict. We reverse and remand. I. Facts and Procedural History On September 12, 2008, Shepherd purchased a Barko 495ML knuckle boom loader ("the 495ML loader") from G&S Equipment Company in Prattville for use in his logging operation. The 1 price of the 495ML loader was $202,274, and Shepherd financed the purchase through Wells Fargo, agreeing to make 60 monthly payments of $4,039. In conjunction with Shepherd's purchase of the 495ML loader, Barko issued a warranty. That warranty provided, in part: "Barko Hydraulics, LLC ('Barko'), warrants to the distributor and/or original Buyer each new hydraulic knuckle boom loader ... including attachments and accessories thereto. ('Product') sold by Barko is to be free from defects in material and workmanship under normal use, maintenance and service. "Barko will cause any major structural component of a Barko product covered by this warranty which proves to be defective in material or workmanship under normal use, maintenance and service within three (3) years or 6,000 hours, whichever occurs first from first day in service ..., to be replaced As described in the record, the 495ML loader was used to 1 pick up trees and load them onto a truck after the trees were felled by a "cutter" such as a "feller buncher" and then dragged to the loading area by a "skidder." 2 1121479 without charge with a new or repaired part, at Barko['s] election. Barko also will cause the labor to remove any such defective part and to install the new or repaired part to be provided without charge to the owner of said Barko product. The parts and labor to meet this warranty will be furnished by designated Barko distributor. "Barko will cause all other parts of product covered by this warranty which proves to be defective in material or workmanship under normal use, maintenance and service within one (1) year or 2,000 hours, whichever occurs first from first day in service ..., to be replaced, without charge, with a new or repaired part, at Barko['s] election. Barko also will cause the labor to remove any such defective part and to install the new or repaired part to be provided without charge to the owner of said Barko product. The parts and labor to meet this warranty will be furnished by designated Barko distributor." The warranty excluded coverage for "[d]amage due to failure to maintain or use the Barko product or part according to manuals, schedules, or good practice." The warranty limited Barko's potential liability under the warranty as follows: "Remedies available to any person claiming under this warranty are exclusive and expressly limited to obtaining the parts and the labor, where applicable, in accordance with terms of this warranty. "Barko['s] liability for losses, damages, or expenses of any kind arising from the design, manufacture or sale of the product covered by this warranty, whether based on warranty, negligence, contract, tort or otherwise, is limited to an amount not exceeding the cost of correcting the defects as herein provided, and, at the expiration of the 3 1121479 applicable warranty period, all such liability shall terminate. "Barko shall in no event be liable for incidental, consequential, or special damages [for] losses of use of the Barko product, a loss or damage to property other than the Barko product, a loss of profits or other commercial loss, or any special or consequential damages (except liability for consequential damages which by law may not be disclaimed)." Finally, the warranty stated that it was issued "in lieu of all other warranties express or implied, statutory, written or oral" and that there was "no implied warranty of merchantability or fitness for a particular purpose." Shepherd signed a receipt indicating that he understood the warranty and the maintenance requirements of the 495ML loader. Shepherd testified that he was initially pleased with the performance of the 495ML loader after incorporating it into his logging operation. Shepherd testified, however, that after approximately four months of use the 495ML loader began having problems with its hydraulic system and with fuel consumption. Shepherd testified at trial that he informed G&S Equipment about these problems with the 495ML loader numerous times. G&S Equipment's owner, Mike Guy, testified that G&S Equipment was not notified of all of these problems. On 4 1121479 behalf of Barko, G&S Equipment serviced the 495ML loader several times during Shepherd's first year of ownership, replacing the alternator, a turntable bearing, an air-heater contact switch twice, all under the warranty and without cost to Shepherd. Guy testified at trial that these were fairly minor repairs and that they were unrelated to the hydraulic system. In August 2009, Shepherd brought the 495ML loader to G&S Equipment for it to complete some outstanding warranty repairs. At the time, the 495ML loader's clock was at approximately 1900 hours; thus, only 1 month or 100 hours remained before the warranty expired. G&S Equipment replaced the swivel, replaced the solenoids, and repaired the joysticks used by the operator to control the equipment on the loader. Guy testified at trial that those repairs were both common and relatively minor. Guy also testified, however, that during the course of making those repairs, his shop noticed that Shepherd's maintenance of the 495ML loader was lacking –– specifically moving parts were not being greased and both hydraulic filters and air filters were not being changed in accordance with the manufacturer's recommended schedule. Both 5 1121479 Shepherd and his employee, George Oliver, however, disputed the idea that the 495ML loader was not being properly maintained, testifying that they regularly maintained it in a fashion similar to every other piece of logging equipment they had used in their many years -- approximately 20 and 30 years, respectively -- of working in the logging industry. Shepherd also emphasized that G&S Equipment's written service records do not indicate that the 495ML loader was not being properly maintained. In November 2010, when the 495ML loader had approximately 4,300 hours on its clock, Shepherd transported it to G&S Equipment for repairs after the hydraulic pumps began making noise. G&S Equipment confirmed that the hydraulic pumps had failed and notified Shepherd that the needed repairs, costing approximately $10,000, would not be covered under the warranty because the warranty period had expired. At Shepherd's request, G&S Equipment contacted Barko, which confirmed that it would not authorize or reimburse G&S Equipment for making the needed repair because of the expiration of the warranty. At that point, Shepherd told G&S Equipment that he could not afford to pay for the repairs to the 495ML loader, nor could 6 1121479 he continue to meet his obligation to Wells Fargo. He therefore left the 495ML loader with G&S Equipment and apprised Wells Fargo of its location and of his intention to make no further payments on it. Wells Fargo subsequently repossessed the 495ML loader, sold it, and obtained a $124,184 deficit judgment against Shepherd. On January 28, 2011, Shepherd sued Barko, G&S Equipment, and Cummins Mid-South, LLC, the manufacturer of certain component parts of the 495ML loader, asserting fraud, negligence and/or wantonness, and multiple breach-of-warranty claims. Shepherd sought both compensatory damages for lost profits and mental anguish and punitive damages. Ultimately, G&S Equipment and Cummins Mid-South were dismissed from the action, and, during the course of the trial, all of Shepherd's claims against Barko except a breach-of-express-warranty claim were withdrawn or dismissed. On May 2, 2013, the breach-of- express-warranty claim was submitted to the jury following a two-day trial and, after the jury returned a $450,000 verdict in favor of Shepherd and against Barko, the trial court entered a judgment consistent with the verdict. Barko's subsequent postjudgment motion renewing its previous motion 7 1121479 for a judgment as a matter of law or, in the alternative, for a new trial was denied by the trial court on August 29, 2013; on September 23, 2013, Barko filed its notice of appeal to this Court. II. Standard of Review On appeal, Barko argues that the trial court erred by denying Barko's motion for a judgment as a matter of law on Shepherd's breach-of-express-warranty claim and by allowing the jury to award damages for mental anguish and compensatory damages exceeding the amount it would have cost to repair the 495ML loader. We review Barko's first argument concerning its motion for judgment as a matter of law in accordance with the following standard of review: "When reviewing a ruling on a motion for a [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a [judgment as a matter of law]. Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d 3 (Ala. 1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So. 2d 1350 (Ala. 1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a [judgment as a matter of law]. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). A reviewing court must 8 1121479 determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So. 2d at 1353. In reviewing a ruling on a motion for a [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id." Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So. 2d 1143, 1152 (Ala. 2003). As to Barko's second argument regarding damages, generally, the assessment of damages is within the sole province of the jury. This Court will not substitute its judgment for that of the jury and will not disturb a damages award unless the award is the product of bias, prejudice, improper motive or influence or was reached under a mistake of law or in disregard of the facts. See, e.g., Daniels v. East Alabama Paving, Inc., 740 So. 2d 1033, 1050 (Ala. 1999). III. Analysis A. Breach of Express Warranty Barko argues that Shepherd's breach-of-express-warranty claim should never have been submitted to the jury because, it says, Shepherd failed to adduce substantial evidence indicating that the hydraulic pumps stopped working on the 9 1121479 495ML loader because of a defect. More particularly, Barko contends that, to support a breach-of-express-warranty claim, a plaintiff must present expert testimony detailing the defect that caused the product to fail. Alternatively, Barko argues that there was substantial evidence showing that Shepherd had not maintained the 495ML loader in accordance with the factory-suggested schedule. Barko also argues that the warranty period had expired when the hydraulic pumps failed. Shepherd counters that he presented substantial evidence showing that Barko had breached the express warranty. Specifically, Shepherd says that he presented substantial evidence showing that the 495ML loader did not preform as warranted, especially when Barko was given notice of the problems with the 495ML loader but was unable, or unwilling, to correct those problems. Shepherd contends that the evidence as to whether inadequate maintenance caused the 495ML to fail was disputed and that, therefore, the issue whether improper maintenance of the 495ML loader precludes any breach- of-warranty claim was proper for determination by the jury. Shepherd also contends that there is no merit to Barko's argument that the warranty period had expired when the pumps 10 1121479 failed because Shepherd had repeatedly reported problems with the 495ML loader and Barko did not, or could not, repair those problems. "Express warranties should be treated like any other type of contract and interpreted according to general contract principles." See Ex parte Miller, 693 So. 2d 1372, 1376 (Ala. 1997) (citing 2 Alphonse M. Squillante & John R. Fonseca, Williston on Sales § 15–9 (4th ed. 1974)). "In Alabama, the crux of all express warranty claims is that the goods did not conform to the warranty." Ex parte Miller, 693 So. 2d at 1376. Barko warranted the 495ML loader to be free from defects "in material or workmanship under normal use, maintenance and service." Barko asserts that Shepherd failed to prove that there was any defect in the 495ML loader. The argument Barko advances is that, like the plaintiffs in actions based on the theory of products liability, the plaintiff asserting a breach-of-warranty claim must establish the presence of a specific defect. We conclude that the identification of an existing defect is not essential to recovery upon an express 11 1121479 warranty. See Ex parte Miller, 693 So. 2d at 1376, Yarbrough 2 v. Sears, Roebuck & Co., 628 So. 2d 478, 483 (Ala. 1993), and Shell v. Union Oil Co., 489 So. 2d 569, 571 (Ala. 1986). It 3 is sufficient if, as here, the evidence shows, either directly or by permissible inference, that the 495ML loader was defective in its performance or function or that it otherwise failed to conform to the warranty. In this case, the evidence showed that, after four months of use, the 495ML loader began to overheat and to use excessive fuel and hydraulic fluid. Ultimately, after the 495ML loader was serviced repeatedly, the hydraulic pumps stopped working. "[W]e have held that the application of an express warranty is a question of fact for the trier of fact. Ex parte Miller, 693 So. 2d 1372 (Ala. 1997)." Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So. 2d 84, 104 (Ala. 2004). The parties submitted conflicting evidence. Explaining that "'[c]are must be taken to avoid elevating 2 a defect in the goods to the status of an essential element that must be shown in order to recover for a breach of an express warranty.' Ronald A. Anderson, Anderson on the Uniform Commercial Code, § 2–313:217 (3d ed. 1995))." Yarbrough and Shell recognize the clear distinction in 3 proof between Alabama Extended Manufacturer's Liability Doctrine law and Uniform Commercial Code law. 12 1121479 Therefore, the trial court properly submitted this issue to the jury for resolution. In the alternative, Barko maintains that Shepherd's improper maintenance of the 495ML loader precludes any breach- of-warranty claim. We are not persuaded by Barko's argument in that regard. The evidence was conflicting as to whether Shepherd properly maintained the 495ML loader, and that issue was likewise proper for jury resolution. Guy, G&S Equipment's owner and Barko's Prattville dealership representative, testified that his shop noticed that Shepherd's maintenance of the 495ML loader was not in accord with the manufacturer's specifications. Guy explained that moving parts were not being greased and that both hydraulic filters and air filters were not being changed in accordance with the manufacturer's recommended schedule. Both Shepherd and his employee, Oliver, however, disputed that the 495ML loader was not properly maintained. Shepherd and Oliver both testified that they regularly maintained the 495ML loader in a fashion similar to every other piece of logging equipment they had used in their many years -- approximately 20 and 30 years, respectively -- of working in the logging industry. 13 1121479 Shepherd emphasized that the written service records failed to indicate that the 495ML loader was not being properly maintained. Based on conflicting evidence, whether improper maintenance resulted in the failure of the hydraulic pumps in the 495ML loader and precluded any breach-of-warranty claim was a matter for the jury to determine. See, e.g., Royal Typewriter Co. v. Xerographic Supplies Corp., 719 F.2d 1092, 1103 (11th Cir. 1983) (providing that whether improper maintenance precluded any breach-of-warranty claim was a matter for the jury to determine). Regarding Barko's contention that the warranty period had already expired when the hydraulic pumps failed, we are likewise not persuaded. Barko had an obligation under the warranty. After four months of use, the 495ML loader began to overheat and to use excessive fuel and hydraulic fluid. After the 495ML loader was repeatedly serviced, the hydraulic pumps stopped working. Barko failed to correct the problems with the 495ML loader after repeated complaints and servicings. Given the numerous attempts at repair over the extended period, the jury could properly have concluded that the 495ML loader had not been repaired and that the warranty had failed 14 1121479 of its essential purpose. Barko breached its contract during 4 the warranty period. As is the case with any contract that is breached, Shepherd's damages were precipitated by Barko's failure to perform. Mere passage of time did not cure or excuse that breach or failure to perform. Accordingly, the trial court did not err in submitting the breach-of-express- warranty claim to the jury. B. Damages Barko argues that Shepherd's recovery was limited to the cost to repair of the 495ML loader. Barko also argues that the trial court erred in instructing the jury on mental- anguish damages. Shepherd says that, because the warranty See, e.g., Massey-Ferguson, Inc. v. Laird, 432 So. 2d 4 1259, 1264 (Ala. 1983) (holding that "[g]iven the numerous attempts at repair over the extended time period, the jury could properly conclude (as it presumably did, since it obviously awarded consequential damages) that the combine was not repaired within a reasonable time and that the limited warranty had failed of its essential purpose"); Courtesy Ford Sales, Inc. v. Farrior, 53 Ala. App. 94, 298 So. 2d 26, 33 (Ala. Civ. App. 1974), superseded by rule on other grounds, see Arnold v. Campbell, 398 So. 2d 301 (Ala. Civ. App. 1981) (stating that, when a manufacturer limits its obligation to the repair and replacement of defective parts and repeatedly fails to correct the defect as promised within a reasonable time, it is liable for the breach of that promise as a breach of warranty); Tiger Motor Co. v. McMurtry, 284 Ala. 283, 290, 224 So. 2d 638, 644 (1969) (providing that a seller does not have unlimited time to repair and/or to replace parts under a warranty). 15 1121479 failed of its essential purpose, he was entitled to an award of damages as allowed by the Uniform Commercial Code (the "UCC"), as well as damages for mental anguish. Shepherd claims that Barko failed to preserve its claim that the trial court erred in instructing the jury on mental-anguish damages.5 The measure of damages for breach of warranty arising from the sale of goods is governed by § 7-2-714 and § 7-2-715, Ala. Code 1975. Section 7-2-714(2) provides, in part: "(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount ...." Section 7-2-715 provides for the recovery of incidental and consequential damages in appropriate cases. It provides, in part: "(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and Our review of the record indicates that Barko adequately 5 preserved the mental-anguish-instruction issue for appellate review. 16 1121479 any other reasonable expense incident to the delay or other breach. "(2) Consequential damages resulting from the seller's breach include: "(a) Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise ...." Generally, mental-anguish damages are not recoverable in a breach-of-contract action. Bowers v. Wal–Mart Stores, Inc., 827 So. 2d 63, 68-70 (Ala. 2001). This Court, however, recognized in Bowers a limited mental-concern or solicitude exception to the general rule. Id. In this case, under the UCC, the jury could award the difference between the actual value of the 495ML loader and its value had it been as warranted and incidental or consequential damages. However, mental-anguish damages are not recoverable under the facts of this case. Shepherd alleged that he lost his business because of the problems with, and the failure of, the 495ML loader. Shepherd claimed that the loss of his logging business caused his divorce, resulting in his spending less time with his daughter. Here, Barko's contractual duty to Shepherd was not "'so coupled with 17 1121479 matters of mental concern or solicitude ... that a breach of that duty will necessarily or reasonably result in mental anguish or suffering ....'" F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 657, 141 So. 630, 631 (1932)(quoting 8 R.C.L. p 529, § 83). There must be some nexus between the 6 mental-anguish damages and the intention and contemplation of the parties at the time the contract was made; there is not substantial evidence to support the award of such damages under the circumstances of this case. In this case, the jury returned a general verdict. Because general damages were awarded, there is no way to determine the amount the jury attributed to each type of damages, some of which were properly awardable, and some of which were not. Accordingly, we reverse the judgment in its entirety and remand the case for a new trial. IV. Conclusion We reverse the judgment entered against Barko, and we remand the case for entry of an order granting Barko's motion for a new trial. See Bowers v. Wal–Mart Stores, Inc., 827 So. 2d 63, 68-70 6 (Ala. 2001), and its progeny for a discussion of cases in which exceptions to the general rule have been upheld. 18 1121479 REVERSED AND REMANDED WITH DIRECTIONS. Moore, C.J., and Bolin and Main, JJ., concur. Murdock, J., concurs specially. Shaw, J., concurs in the result. Parker and Bryan, JJ., concur in part and dissent in part. Stuart, J., concurs in the result in part and concurs in part and dissents in part as to the rationale. 19 1121479 MURDOCK, Justice (concurring specially). I concur in the main opinion, as well as in Justice Shaw's special writing regarding consequential and incidental damages. For its part, the main opinion holds that it is not necessary for a purchaser making a warranty claim under the Uniform Commercial Code to present expert testimony or other evidence to explain the specific defect giving rise to a warranty claim and that "[i]t is sufficient if, as here, the evidence shows, either directly or by permissible inference, that the 495ML loader was defective in its performance or function or that it otherwise failed to conform to the warranty." ___ So. 3d at ___. I agree with this statement in the context presented here, where the evidence of a failure is coupled with evidence upon which a jury could find that the purchaser properly maintained and used the product or that any deficiency in the maintenance or use was not the cause of the failure of the product. Were we to hold otherwise based on Ex parte Miller, 693 So. 2d 1372, 1376 (Ala. 1997), as Barko Hydraulics, LLC, urges, then it appears to me that we would have to ignore the logical inference possible in a case in which a jury is presented with substantial evidence showing no 20 1121479 lack of proper maintenance or use of the product that could have caused its failure and place too much weight on the discussion by Miller as to cases that might involve warranties against "defects in materials and workmanship," which Miller did not. 21 1121479 SHAW, Justice (concurring in the result). I concur in the result reached by the main opinion. I write specially to explain why the trial court did not err in submitting to the jury the issue of incidental and consequential damages. Incidental and consequential damages can be recovered for a seller's breach. Ala. Code 1975, §§ 7-2-714(3) and -715. Under Ala. Code 1975, § 7-2-719(1), parties may agree to limit remedies for breaches, including damages. However, § 7-2-719(2) states that "[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title." Under the authority of Massey-Ferguson, Inc. v. Laird, 432 So. 2d 1259 (Ala. 1983), when a limited remedy fails of its essential purpose, the damages available in § 7-2-714, including incidental and consequential damages, can be recovered, despite the limitations in the contract. In the instant case, the warranty issued by Barko Hydraulics, LLC ("Barko"), limited recovery to the replacement of defective parts and barred incidental and consequential damages. However, the main opinion holds that there was 22 1121479 sufficient evidence from which the jury could conclude that Barko's warranty failed of its essential purpose. Specifically, there were numerous complaints by Michael Shepherd as to the hydraulic system as early as four months after the 495ML loader was purchased. Those hydraulic-system issues apparently were not resolved. As the main opinion concludes: "Barko failed to correct the problems with the 495ML loader after repeated complaints and servicings. Given the numerous attempts at repair over the extended period, the jury could properly have concluded that the 495ML loader had not been repaired and that the warranty had failed of its essential purpose." ___ So. 3d at ___. Thus, the limitations on remedies and damages were not applicable in this case. 23 1121479 BRYAN, Justice (concurring in part and dissenting in part). I concur in all aspects of the main opinion except insofar as it reverses the judgment in its entirety and remands for a new trial. I would affirm the judgment as to liability, reverse the judgment as to damages, and remand for a new trial on the issue of damages only. See, e.g., LaFarge Bldg. Materials, Inc. v. Stribling, 880 So. 2d 415 (Ala. 2003). Parker, J., concurs. 24 1121479 STUART, Justice (concurring in the result in part and concurring in part and dissenting in part as to the rationale). I agree with the conclusion of the main opinion that the trial court erred by instructing the jury on mental-anguish damages and subsequently entering judgment on the general verdict returned by the jury, which presumably included such damages. However, I believe that it is ultimately unnecessary to address the damages issue because, in my view, the trial court erred by denying the motion filed by Barko Hydraulics, LLC ("Barko"), seeking a judgment as a matter of law on Michael Shepherd's breach-of-warranty claim. That motion was supported by the facts in the record and the law and should have been granted at the close of evidence before the case was submitted to the jury. Accordingly, although I too would reverse the judgment entered by the trial court in toto, I would remand the cause, not for a new trial, but for the trial court to enter a judgment as a matter of law in favor of Barko. The main opinion correctly cites Ex parte Miller, 693 So. 2d 1372, 1376 (Ala. 1997), for the proposition that express warranties are to be treated like any other type of contract 25 1121479 and interpreted according to general contract principles. ___ So. 3d at ___. Foremost among those principles is the idea that an agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms. Black Diamond Dev., Inc. v. Thompson, 979 So. 2d 47, 52 (Ala. 2007). In this case, the express warranty Barko is alleged to have breached was clear and unambiguous –– Barko warrantied that the 495ML loader purchased by Shepherd would be "free from defects in material and workmanship under normal use, maintenance and service." Importantly, this is the only warranty at issue in this case; we are not concerned with implied warranties –– only this express written warranty. Shepherd asserts that Barko has breached this warranty; however, he has not identified for this Court any evidence or testimony in the record indicating that the 495ML loader suffered from "defects in material and workmanship." Rather, he essentially argues that the mere fact that the hydraulic pumps on the 495ML loader failed is itself sufficient evidence that the 495ML loader was defective. This argument is encapsulated by the following excerpt from Shepherd's brief: "For at least 40 years, evidence that a product failed to function as warranted has been sufficient 26 1121479 to present a breach-of-warranty claim to a jury. Barko asks this Court to ignore that line of cases and hold –– for the first time –– that a plaintiff must present expert testimony detailing the exact defect which caused the product to fail. Barko's argument should be rejected. ".... "Mr. Shepherd's burden is to prove that the loader failed –– not why. If a loader is manufactured using proper materials and in a workmanlike fashion, it will not fail in the manner this Barko loader failed. The evidence was in dispute whether inadequate maintenance caused the loader to fail. The trial court correctly submitted this issue to the jury. "Barko argues that Mr. Shepherd was required to present evidence of the specific defect that caused the loader not to operate as warranted. No Alabama case law concerning a claim for breach of warranty supports Barko's argument." Shepherd's brief, pp. 14-16 (footnotes omitted). Shepherd's argument might be persuasive if we were considering whether there had been a breach of a broad implied warranty such as an implied warranty of merchantability; however, in the context of the express warranty in this case, his argument is, quite simply, incorrect. As shown below, our caselaw makes it clear that one asserting a breach-of-express-warranty claim based on a warranty warranting a product to be free from defects in 27 1121479 material or workmanship must present evidence of a specific defect that constitutes a breach of the warranty. The express warranty offered by Barko –– and accepted by Shepherd –– provided that Barko would repair or replace nonstructural components of the 495ML loader, such as the hydraulic pumps, if those parts "prove[d] to be defective in material or workmanship under normal use, maintenance and service within one (1) year or 2,000 hours, whichever occurs first from first day in service." (Emphasis added.) Notably, Barko did not agree to repair or replace nonstructural component parts of the 495ML loader merely upon proof of the failure of a part. This Court explained the significance of that difference in Ex parte Miller, another case involving a warranty dispute and a Barko-manufactured piece of logging equipment. In Miller, the trial court entered a judgment as a matter of law in favor of Pettibone Corporation, the parent company of Barko, on various claims asserted by Thomas Miller, the buyer of a Barko 775 feller buncher, after that feller buncher experienced numerous hydrostatic failures. 693 So. 2d at 1373-74. Many of the Barko 775 feller buncher's components, 28 1121479 including the hydrostat, were manufactured by Sauer- Sundstrand, Inc. ("Sundstrand"), and Barko and Sundstrand shared responsibility for the hydrostatic motor and pump under a component warranty that had been issued Miller: "'Sundstrand 36 series pumps and VII–160 motors shall be warranted to the original owner for a period of 24 months from in-service date of the machine. During the first 6 months or 1,000 hours, Barko/Sundstrand will determine if units are warrantable.... After the first 6 months or 1,000 hours, component warranty will be determined by Sundstrand.... It shall be the option of Barko and/or Sundstrand to replace any failed units with genuine Sundstrand rebuilt units. Such units may be replaced more than once during the warranty." 693 So. 2d at 1375 n. 5. After the Court of Civil Appeals affirmed the trial court's judgment, Miller petitioned this Court for certiorari review, and, after granting his petition, we ultimately reversed the judgment that that court had entered on Miller's breach-of-express-warranty claim, explaining: "Pettibone argued, and the Court of Civil Appeals agreed, that Miller had failed to present substantial evidence of any 'warrantable defect' in the hydrostat. Pettibone makes the same argument here. The component warranty says that the hydrostatic motor and pump 'shall be warranted to the original owner' (emphasis added). It further states that 'it shall be the option of Barko and/or Sundstrand to replace any failed units with genuine Sundstrand rebuilt units,' and that '[a]ny charges 29 1121479 for repairs to failed pumps and/or motors which are not warrantable as determined by Sundstrand will be borne by the customer' (emphasis added). ".... "The component warranty here does not specifically state that it warrants against 'defects' in the product: rather, it warrants the hydrostatic pumps and motors against 'failure.' The Court of Civil Appeals based its affirmance on the express warranty partly because it found that Miller did not provide substantial evidence of a 'warrantable defect.' In other words, the Court of Civil Appeals treated 'warrantable defect' as if it was something that had to be found in every express warranty claim, without reference to the language of the warranty itself. "On the contrary, '[c]are must be taken to avoid elevating a defect in the goods to the status of an essential element that must be shown in order to recover for a breach of an express warranty.' Ronald A. Anderson, Anderson on the Uniform Commercial Code, § 2–313:217 (3d ed. 1995). If a company such as Pettibone wishes to warrant only defects in material and workmanship, then it may do so; with such a warranty, the plaintiff would have to show that the product was defective in order to show that the goods did not conform to the warranty. Conversely, if a company wishes to warrant against all problems with its product, regardless of origin, then it may do that as well. See Anderson, supra, at § 2–313:205 ('A seller may make a warranty as broad as the seller requires and may go beyond the scope of those warranties that the law would imply'). "In light of the broad language used in this particular component warranty, we can see no other interpretation than that it warrants against 'failures' of the hydrostat. Miller met his prima 30 1121479 facie burden of showing that the hydrostat failed on April 18, 1991, and other previous times, by presenting testimony of the operators of the feller buncher and of those who worked on the hydrostat after it had broken down. We agree that, if this warranty provided coverage for 'defects in material and workmanship,' then Pettibone would have had at least a plausible argument that Miller had not met his evidentiary burden; however, Miller did offer substantial evidence that the hydrostat failed on April 18. Accordingly, we hold that Miller met his evidentiary burden of proof concerning the warrantability of the failure of the hydrostat." 693 So. 2d at 1376-77 (footnote omitted). Thus, in Miller we held that it was error for the trial court to require a party asserting a warranty claim to prove a specific defect in a warrantied product when the warranty itself broadly warranted against "failures" of the product. In the instant case, we are presented with the converse situation –– the trial court did not require a party asserting a warranty claim to produce evidence of a specific defect in a warrantied product even though the applicable warranty warranted only against defects in material or workmanship. For the reasons explained in Miller, this too was error. See Miller, 693 So. 2d at 1376 ("If a company ... wishes to warrant only defects in material and workmanship, then it may do so; with such a warranty, the plaintiff would have to show that the product was defective in 31 1121479 order to show that the goods did not conform to the warranty."). The main opinion quotes the admonition of Ex parte Miller, 693 So. 2d at 1376, that "'"[c]are must be taken to avoid elevating a defect in the goods to the status of an essential element that must be shown in order to recover for a breach of an express warranty,"'" ___ So. 3d at ___ n. 2 (quoting in turn Ronald A. Anderson, Anderson on the Uniform Commercial Code § 2–313:217 (3d ed. 1995)), but fails to recognize that that admonition was made in the context of a warranty broadly warranting a product from any failure –– not just a failure caused by a defect in material or workmanship. Moreover, the main opinion inexplicably fails to give any effect to the subsequent sentence in Ex parte Miller providing that "[i]f a company ... wishes to warrant only defects in material and workmanship, then it may do so," and, in fact, the main opinion effectively holds the exact opposite –– a company cannot warrant only defects in material and workmanship and, if a company clearly and unambiguously does so, this Court is providing notice in this opinion that it will nevertheless rewrite the warranty to generally protect 32 1121479 against any failure. This of course is contrary to our long- standing precedent that we will enforce contracts as they are written and will not rewrite them. Vankineni v. Santa Rosa Beach Dev. Corp. II, 57 So. 3d 760, 762 (Ala. 2010). Moreover, with regard to the global statement in the main opinion that "[w]e conclude that the identification of an existing defect is not essential to recovery upon an express warranty," ___ So. 3d at ___, I would note that the terms of an express warranty should dictate what evidence is required to prove a breach of that warranty, not an all embracing rule pronounced by this Court. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 525 (1992) ("A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty."). The Court of Special Appeals of Maryland explained this principle as follows in a breach-of-express-warranty case involving a tire: "It is axiomatic in Maryland that an express warranty is breached when a product fails to exhibit the properties, characteristics, or qualities specifically attributed to it by its warrantor, and therefore fails to conform to the warrantor's representations. The breach of an express warranty of materials and workmanship is established by proof of defects in the material or workmanship. The breach of an express warranty that a roof will not leak for 15 years is established by evidence that 33 1121479 during that period of time the roof leaked. The breach of an express warranty that pipes would seal upon spill going through is established by evidence that when the pipe was assembled and installed, the joints did not seal when spill was pumped through under pressure, and there was leakage. The breach of an express warranty that a product will last for four years is established by evidence that the product did not last for that period of time. Thus, no 'defect' other than a failure to conform to the warrantor's representations need be shown in order to establish a breach of an express warranty." McCarty v. E.J. Korvette, Inc., 28 Md. App. 421, 437, 347 A.2d 253, 264 (1975) (footnotes omitted). See also Mac Pon Co. v. Vinsant Painting & Decorating Co., 423 So. 2d 216, 219 (Ala. 1982) ("The reason liability is assessed for breach of warranty, whether the warranty be express or implied, is that goods have failed to conform to requirements imposed by the warranty."). The United States District Court for the Southern District of Alabama also properly applied this principle in Tull Bros., Inc. v. Peerless Products, Inc., 953 F. Supp. 2d 1245, 1257 (S.D. Ala. 2013), when it held that "[a] written warranty against defects in materials or workmanship does not encompass a warranty against defects in design." Finally, although I have already noted that Shepherd adduced no evidence of defects in material and/or workmanship 34 1121479 that might serve as the basis for a breach-of-warranty claim based on the express warranty in this case –– and, accordingly, the jury's verdict is necessarily based on nothing more than mere speculation that there might have been such a defect –– I write further to emphasize the absence of any expert testimony indicating that there was a defect in material or workmanship. In both its preverdict motion for a judgment as a matter of law and its renewed motion filed after judgment was entered on the jury's verdict, Barko argued that Shepherd had not established what caused the failure of the hydraulic pumps on the 495ML loader, much less that that failure was caused by a defect in material or workmanship. Barko also argued that Shepherd's failure to introduce any expert testimony establishing a defect was fatal to his case. In both motions it quoted the following passage from this Court's opinion in Brooks v. Colonial Chevrolet-Buick, Inc., 579 So. 2d 1328, 1333 (Ala. 1991): "In this case, the [plaintiffs], by their own admission, had no knowledge whatever regarding the brake system of an automobile. Furthermore, they offered no expert testimony as to the existence of a design defect –– they did not even attempt to offer any expert opinion related to the repair records concerning the complaints about the brakes that they had made to Colonial, nor did they attempt 35 1121479 to offer any expert testimony related to their allegations of a design defect in the brake system. The only evidence the [plaintiffs] presented concerning a defect in design was their own testimony as to the alleged defectiveness of the brakes and as to the alleged injuries they suffered as a result. Such evidence as to the cause of a product failure amounts to mere speculation and conclusory statements ...." Like Brooks, the only supposed "evidence" of a defect in material or workmanship in this case was the fact that a piece of equipment failed. Although it bears repeating that the 7 mere fact that a piece of equipment fails is not substantial evidence showing that there was a defect in materials or workmanship –– there was, after all, testimony indicating that the failure of the hydraulic pumps could be attributable to just normal wear and tear after approximately 4,300 hours of operation –– it is especially inappropriate to make that conclusion with regard to complicated equipment like the hydraulic system on heavy logging equipment in the absence of any expert testimony. As this Court further stated in Brooks: Also like the plaintiffs in Brooks, who admitted they had 7 no knowledge of an automotive brake system, 579 So. 2d at 1333, Shepherd acknowledged in his deposition that his mechanical expertise with regard to heavy logging equipment was essentially limited to changing oil and parts and that he was not equipped to diagnose problems in such equipment. 36 1121479 "The [plaintiffs] contend that the instant case does not present a situation so complex or complicated that an expert is necessary to explain the cause and effect of that situation to the jurors. However, an automobile brake system is composed of, among other parts, cali[p]ers, rotors, discs, rear wheel cylinders, brake shoes, and master cylinders; it is a system composed of parts that would not be familiar to the lay juror, and the lay juror could not reasonably be expected to understand that system and determine if it was defective, without the assistance of expert testimony. In essence, it is a system that appears to be precisely the type of complex and technical commodity that would require expert testimony to prove an alleged defect." 579 So. 2d at 1333. It seems uncontroversial to presume that a typical juror would likely be more familiar with the brake system on an automobile than the hydraulic system on heavy logging equipment; accordingly, Brooks would indicate that expert testimony was necessary in this case as well and that Shepherd's failure to present such evidence required the granting of Barko's motion for a judgment as a matter of law.8 In Ex parte General Motors Corp., 769 So. 2d 903, 912-13 8 (Ala. 1999), this Court distinguished Brooks and held that expert testimony was not required in a breach-of-warranty case involving a claim that an automobile was defective. However, the warranty at issue in that case was the implied warranty of merchantability, not an express warranty as in this case. A breach of the implied warranty of merchantability requires proof that a product was not "'fit for the ordinary purposes for which such goods are used,'" id. at 913 (quoting § 7-2- 314(2)(c), Ala. Code 1975), while a breach of an express warranty requires proof that the warrantied product failed to 37 1121479 Accordingly, because neither substantial evidence nor any expert testimony was adduced at trial indicating that the 495ML loader manufactured by Barko and purchased by Shepherd suffered from a defect in material and/or workmanship, the trial court erred by not granting Barko's motion for a judgment as a matter of law. This Court should accordingly direct the trial court to enter a judgment as a matter of law in favor of Barko; consideration of the other issues raised by the parties is unnecessary. conform with the representations made in the express warranty –– in this case that the 495ML loader would be free from "defects in material and workmanship." Thus, expert testimony might not have been necessary to establish a hypothetical breach-of-implied-warranty-of-merchantability claim in this case, because Shepherd arguably submitted substantial evidence indicating that the 495ML loader was not fit for its intended purpose. However, the only claim submitted to the jury in this case was a breach-of-express-warranty claim, and Shepherd submitted no evidence, much less the expert testimony required by Brooks, establishing a breach of the express warranty made by Barko that the 495ML loader would be free from "defects in material and workmanship." 38	September 26, 2014
e898f375-4163-4f70-8dca-fc210f18a193	Baldwin Mutual Insurance Company v. Adair et al.	N/A	1100872	Alabama	Alabama Supreme Court	REL: 09/30/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1100872 ____________________ Baldwin Mutual Insurance Company v. Melissa Adair et al. Appeal from Calhoun Circuit Court (CV-11-0002) MURDOCK, Justice.1 This case was originally assigned to another Justice on 1 this Court. It was reassigned to Justice Murdock on June 12, 2014. 1100872 Baldwin Mutual Insurance Company ("BMIC") appeals from an order of the Calhoun Circuit Court modifying a previous order granting BMIC injunctive relief. We reverse and remand. I. Facts and Procedural History On December 2, 2010, BMIC filed an "Application for Temporary Restraining Order, Motion for a Preliminary Injunction and Complaint for Declaratory Judgment" ("the complaint") in the Baldwin Circuit Court against 122 individuals who were insured under various insurance policies issued by BMIC ("the insureds"). According to the complaint, 2 the insureds, through their legal counsel, had sent a letter dated November 12, 2010, to BMIC. The November 2010 letter stated: "On behalf of each of our clients listed on the attached, please know that we invoke the appraisal provision contained within the Baldwin Mutual policies issued to these insureds for each loss or claim suffered previously. We hereby identify Samantha Ronquille-Green as our appraiser, and insist that you identify your appraiser within the time specified in the policies [i.e., 20 days]. Obviously, we are only seeking appraisal of claims for which there is prior coverage." Additional defendants were subsequently added as 2 insureds. In their briefs, the parties refer to there being approximately 130 insureds. 2 1100872 The letter also requested that BMIC provide the insureds' counsel with a copy of the policy file for each of the insureds, and the letter accused BMIC of "bad faith" as to its treatment of the insureds. According to BMIC's complaint, the various insurance policies at issue provided that BMIC or an insured could invoke an appraisal process if BMIC and the insured could not reach an agreement as to the amount of compensation due the insured for a loss covered under the insured's policy. The appraisal process entailed BMIC and the insured each choosing an appraiser to estimate the insured's loss, and the appraisers in turn choosing an umpire who would resolve differences in the loss estimates provided by the appraisers. BMIC alleged: "11. Under each of the appraisal provisions ..., a condition precedent to the demand of an appraisal is that there be a disagreement as to the amount of the loss. "12. The November 12, 2010 letter, by which the [insureds] demand appraisal, fails to satisfy this condition precedent, as the [insureds] fail to establish that there is a disagreement as to the amount of the loss. "13. Specifically, the purported appraisal demand fails to set forth, among other things, the date of the loss, the cause of the loss, the 3 1100872 location of the loss, any specifics concerning the nature of the loss, or why the [insureds] assert that there is a disagreement as to the amount of the loss. "14. Upon information and belief, [BMIC] avers that all claims and losses have been adjusted and settled properly and without any disagreement or complaint by said ... policyholders. "15. Under each of the appraisal provisions at issue, appraisal is proper only as to the 'amount of loss.' "16. Therefore appraisal is appropriate under said policies only where (1) no coverage issue exists, and (2) the policyholder and insurer agree on the scope of the damage. "17. To the extent the November 12, 2010 letter, by which the [insureds] demand appraisal, demands an appraisal as to issues concerning coverage or the scope of the loss, the appraisal demand is improper. "18. [The insureds], separately and severally, therefore, have no right to invoke the appraisal process. "19. [BMIC] further avers that the attorneys that demanded appraisal by way of the November 12, 2010 letter presently have filed nine (9) separate lawsuits against [BMIC], three of which set forth class action allegations (McCain v. Baldwin Mutual et al, CV-10-901266, Montgomery County ('McCain Class'), Moyers v. Baldwin Mutual et al, CV-10-900100, Escambia County ('Moyers Class'), and Smith v. Baldwin Mutual et al, CV-07-900258, Calhoun County ('Smith Class')). "20. The Complaint as last amended in Smith defines the putative class as follows: 4 1100872 "'The class includes all of those past and present ... policyholders, who, after suffering an insured loss, were subjected to Defendant [John] Bobo's nefarious ways [3] following his dispatch to adjust the loss by [BMIC].' "21. Upon information and belief, most, if not all, of the [insureds] were identified by their current attorneys and contacted by way of the Smith litigation. Specifically, the attorneys that now represent the [insureds] sent over two thousand (2,000) letters to various policyholders of [BMIC], including, most, if not all, of the [insureds]. "22. While simultaneously prosecuting the Smith class, the attorneys for the [insureds] are also seeking individual appraisals for the same individuals that would fall within the Smith class. "23. The Complaint as last amended in Moyer[s] defines the putative class as follows: "'The class includes past and present BMIC policyholders that suffered losses as a result of the occurrence of Hurricane Ivan for which they have not been duly compensated, upon whose land Defendants trespassed or who have otherwise been aggrieved by Defendants' conduct in the wake of Hurricane Ivan. "'Members of the class or a class also include those BMIC policy holders who suffered losses as a result of Hurricane Ivan and who were subjected to the abnormally low pricing scheme perpetrated by Defendants, as herein described above, "Defendant Bobo" allegedly is a claims adjustor for BMIC. 3 5 1100872 and whose claims were consequently underpaid.' "24. Count IX of the Second Amended Complaint in Moyers sets forth a demand for Appraisal. "25. The Complaint as last amended filed in McCain defines the putative class as follows: "'All holders of policies, issued by [BMIC], insuring properties within the State of Alabama who have suffered a loss within six (6) years of the filing of this complaint for which [BMIC] reduced the actual cash value of the same by reduction for the loss of value of undepreciable loss elements.' "26. The same Gloria McCain that serves as the class representative in the McCain class is among the Respondents on whose behalf appraisal has been demanded. "27. Because [the insureds] have failed to adequately identify the claims or losses for which they seek an appraisal, [BMIC] is unable to determine which of the [insureds] may fall within the class definitions set forth in the aforementioned class actions. "28. [BMIC] avers that proceeding with the appraisal process prior to a determination whether there exists a real dispute or disagreement and whether each [of the insureds], separately and severally, is entitled to invoke the appraisal process, will result in immediate and irreparable injury loss damage to [BMIC]." (Emphasis added.) 6 1100872 In its complaint, BMIC sought a temporary restraining order, "until such time as this court has the opportunity to rule on [BMIC's] Motion for a Preliminary Injunction." BMIC asked that the restraining order "enjoin[] the [insureds] from engaging in the appraisal process and stay[] the time in which [BMIC] has to identify an appraiser or otherwise participate in said process." Also, BMIC asserted that "it will be caused immediate and irreparable injury, loss or damage should it be required to engage in the appraisal process demanded prior to determining whether [the insureds] separately and severally are entitled to invoke the appraisal process." In regard to BMIC's motion for a preliminary injunction, the complaint requested that the court "conduct a hearing as to the issues set forth above and issue a preliminary injunction enjoining the [insureds] from proceeding with the appraisal process as requested herein during the pendency and until the final disposition of this cause." (Emphasis added.) As to the declaratory relief requested, BMIC's complaint alleged as follows: "40. The insurance policies issued to the [insureds] by [BMIC] serve as the basis for the [insureds'] claims for appraisal. [BMIC] has not been able to determine that all [the insureds] have 7 1100872 been insured with or suffered a covered loss while insured with [BMIC]. "41. Each policy issued by [BMIC] provides, as a condition to the appraisal process, that there be a failure to agree on the amount of the loss. "42. The appraisal demanded by the [insureds] does not identify the claims or losses for which appraisal is sought, but on information and belief, [BMIC] avers that all claims and losses have been adjusted and settled without any disagreement or complaint by said ... policyholders. "43. [The insureds] fall within [the] definition of one or more of the three class actions that the attorneys for the [insureds] have filed, and therefore, may not pursue individual appraisals. "44. [BMIC] seeks a determination from this Court pursuant to Alabama Code [1975,] § 6-6-220 et seq., as to the following issues: "(1) Whether the [insureds] may properly demand an appraisal, where, as is the case here, the [insureds] (1) have failed to identify the claims or losses for which appraisal is sought; (2) have failed to set forth any reason as to why the [insureds] contend there is a disagreement as to the amount of loss; and (3) have failed to establish that any alleged disagreement is over the amount of loss, as opposed to a disagreement over coverage under the policy or the scope of loss or some other matter not subject to appraisal. "(2) Whether the [insureds] may seek an appraisal, given the pendency of the three class actions filed by their attorneys. 8 1100872 "(3) Determine that those [insureds] who have not suffered a loss insured by [BMIC] are not entitled to appraisal."4 On December 21, 2010, the Baldwin Circuit Court held a hearing on BMIC's request for a preliminary injunction. During the hearing, the court summarized its understanding of the matter as follows: "[I]f the essence of your injunction request is, we don't want to proceed with an appraisal until we know what the basis of their disagreement is, that's a very reasonable claim. That's a very reasonable At the hearing on the temporary restraining order, the 4 Baldwin Circuit Court raised the issue of abatement as to BMIC's action. Thereafter, BMIC filed a brief on that issue. In the brief, BMIC stated that no class had been certified in any of the class actions described in BMIC's complaint and that the class representative in McCain v. Baldwin Mutual, CV-10-901266, filed in Montgomery County, was the only one of the insureds who was currently a party in an action in which BMIC also was a party. It is not clear from the materials before us whether the claims at issue in McCain or the other two class actions referred to in BMIC's complaint are also claims that might be at issue in the present case. Thus, it is not clear whether BMIC's claims might be considered compulsory counterclaims that are subject to abatement, whether as to McCain or as to other insureds in the various class actions. See Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849, 851 (Ala. 1999). Nor are we in a position to consider the issue whether or how abatement might apply where a class in a first-filed case has not been certified before a second action is filed. See Ex parte Water Works & Sewer Bd. of Birmingham, 738 So. 2d 783 (Ala. 1998)(discussing compulsory counterclaims in the context of a class action); see also Ex parte State Farm Mut. Ins. Co., 715 So. 2d 207 (Ala. 1997)(plurality opinion as to the issue of abatement in class actions). 9 1100872 position for [BMIC] to take, and that is, I paid you $5,000. You accepted $5,000. You're now saying $5,000 isn't enough. And they're simply saying, 'Well, why is it not enough? What are you basing that on?' And you give that to them and say, 'Here's why, because I've got estimates that it's going to cost another $2,500 to do the work or it did cost me an extra $2,500 to do the work.' Well, they may say, 'Okay. We agree with you. Here's another check for another $2,500,' and you don't need the appraisal process. It's not until you say it's worth more -- the claim is worth more and they say, 'No, it's not,' then you say, 'Well, then we're invoking the appraisal process.'" Counsel for the insureds responded, however, stating that "that's not the law of the State of Alabama." A later colloquy is as follows: "THE COURT: So if the insured goes back -– each of these insureds goes back and files an amended proof of loss -– "[BMIC'S COUNSEL]: We'll have -- what we're thinking is we should have a chance to investigate it. They could -- you're right. They could be a hundred percent right, Judge. We don't -- "THE COURT: -- had a chance to investigate it. "[BMIC'S COUNSEL]: We have not. We don't even know -- there are people with five losses. Judge. That letter says every claim ever made under every policy for these people. ".... "I mean, they've got to show us something that we can go back and investigate, and at that point, if we don't agree with what their appraiser says, 10 1100872 that's the disagreement that's triggered to invoke the appraisal process. ... ".... "... They can't just say we disagree when they don't even know what our position is. "[INSURED'S COUNSEL]: We know what your position is because you made a payment -- "[BMIC'S COUNSEL]: We made a payment under a claim that your person accepted. You've not sent us anything to let us know how it was deficient. "[INSURED'S COUNSEL]: We don't have to do that, Your Honor. ".... "THE COURT: How do you know if you don't say, you know, you underpaid us a thousand dollars, that they're not going to say you're right? ".... "I don't think the appraisal process has been properly initiated yet because the insureds have not responded to the basis of their disagreement for [BMIC] to make a determination of whether they disagree with the assessment by the insureds or not, that until there is -- as [counsel for BMIC] described it -— a mutual disagreement ... where the insureds say, 'Our claim is for this amount of money and you've only paid us this amount,' and Baldwin Mutual says, 'No,' there's not a mutual disagreement and so, therefore, the appraisal process, it's preliminary to invoke the appraisal process and that once that happens -- so, therefore, I think, the insureds have to invoke some type of basis for why they're disagreeing with whatever they have been paid so far and then whatever the policy says as far 11 1100872 as a reasonable time ... to investigate and then determine whether you accept what their proof of loss is or whether you reject it and that if you reject it, then the appraisal process can be invoked. "... It is the reopening of a claim that has been previously agreed to and the only way to logically reopen it is [for the insureds to] tell them what you disagree with what the amount of claim is. I mean, there ain't no other way to do it." Immediately after the hearing, the Baldwin Circuit Court issued an order ("the December 2010 order"), which states: "This matter is before the Court on a preliminary injunction filed by [BMIC] seeking a stay from the appraisal process attempted to be invoked by the [insureds], each being an insured of [BMIC], to re-open certain claims previously processed. Based on the legal and factual arguments presented, the Court finds that the appraisal process on these named [insureds] has not been adequately invoked because there is not a determination yet of whether there is an actual disagreement on the amount of loss. The [insureds] have notified [BMIC] that they now disagree with the amount of money offered to settle their claims. However, no insured has provided any basis for the current rejection of the offered amount or provided any amended claim of loss. [BMIC] cannot respond as to whether it can accept an insured's claim amount or not until it is presented with the new claimed amount. Therefore, since the appraisal process has not been triggered the time limit of 20 days for [BMIC] to disclose an appraiser is STAYED, pending each [insured] providing a basis for the rejection of [BMIC's] claim settlement offer." (Capitalization in original; emphasis added.) 12 1100872 In the December 2010 order, the Baldwin Circuit Court also noted that the parties disagreed as to whether each of the insureds was entitled to discovery of BMIC's claim file as to that insured. The court stated: "Because there exist 3 pending class action suits in other courts within Alabama, all awaiting class certification, this Court is not inclined to undertake potential discovery issues that might better be addressed by a court that might certify the class." Thereafter, the present action was transferred to the Calhoun Circuit Court ("the circuit court"), where Smith v. Baldwin Mutual, CV-07-900258, the first-filed of the class actions against BMIC, was pending. 5 On February 11, 2011, the insureds filed a motion in the circuit court entitled "Motion to Alter, Amend, or Vacate." The insureds alleged that "it is not clear on the face of the [December 2010] order whether the Circuit Court of Baldwin County intended to grant [BMIC's] application for a preliminary injunction," and they requested that the circuit court vacate the December 2010 order "to the extent that the Initially, the case was assigned to Calhoun Circuit Judge 5 John C. Thomason. It was reassigned to Calhoun Circuit Judge Brian P. Howell, before whom Smith was pending at the time of these proceedings. 13 1100872 same purports to grant injunctive relief." According to the insureds, the December 2010 order did not satisfy the requirements of Rule 65(d), Ala. R. Civ. P., because it allegedly did not "describe in reasonable detail ... the act or acts sought to be restrained." The insureds also argued that "the facts underlying the entry of the Court's order do not satisfy the requirements for the issuance of a preliminary injunction." BMIC filed a response to the insureds' "Motion to Alter, Amend, or Vacate." BMIC argued that the insureds' motion should be denied because, BMIC argued, the insureds failed to appeal from the December 2010 order pursuant to Rule 4(a)(1)(A), Ala. R. App. P. ("[T]he notice of appeal shall be filed within 14 days (2 weeks) of the date of the entry of the order or judgment appealed from: (A) any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction ...."). BMIC also argued that, even if the 6 circuit court could reconsider the December 2010 order, the BMIC also argued that the insureds' "Motion to Alter, 6 Amend, of Vacate" had not been timely filed pursuant to Rule 59, Ala. R. Civ. P. 14 1100872 insureds had failed to show that the Baldwin Circuit Court had exceeded its discretion as to the entry of the order. On March 15, 2011, the insureds filed an answer to BMIC's complaint and a counterclaim. The counterclaim alleged: "60. Each [of the insureds] is either a present or former BMIC policy holder or the successor in interest of a BMIC policy holder. "61. BMIC issued policies of property and casualty insurance to [the insureds] or their successors covering losses to property. "62. [The insureds] or their successors each made claims on the corresponding policies issued to them or to their successors. "63. [The insureds] aver that these claims were not paid in full. "64. [The insureds] aver further that there was widespread fraud associated with the manner in which their claims were adjusted. "65. [The insureds] aver that they each disagree or have failed to agree with BMIC regarding amounts of loss for each claim made by them or by their successors." Based on the foregoing allegations, the insureds asserted claims of breach of contract in their counterclaim, and they requested a judgment "declaring the various rights of the parties under the terms of each policy issued to [an insured] 15 1100872 or his or her or its successor-in-interest," particularly as to certain matters regarding the appraisal process. On March 18, 2011, the circuit court entered an order denying the insureds' "Motion to Alter, Amend, or Vacate" the December 2010 order. The March 2011 order further stated that the insureds "must present the appropriate information to properly trigger the appraisal process. The Stay shall remain in effect until such information is provided to [BMIC]." Thereafter, BMIC's counsel sent the insureds' counsel a letter dated April 11, 2011. The letter acknowledged that the insureds' counsel had provided "some information with respect to Hugh Bryan, Dora Bryan, Mary Bulger, Mary Hicks, Hattie Jemison, Gloria McCain, Robert Tubbs and LeAnna Williams. I need to have them submit to an Examination Under Oath, as per the express terms of their policies. "Also, it is imperative that your clients provide me with all of the requested documentation prior to the Examination Under Oath. Again, this information has been requested by way of the consolidated discovery, and must also be provided per the policies at issue. "Many of the [insureds] are attempting to submit multiple claims to appraisal. Further, the claims span over years and years. As a practical matter, it is very difficult to review the dwelling years after the fact and make any sort of accurate assessment. Having documentation, as has been requested, will certainly allow [BMIC] to determine 16 1100872 whether, in fact, it does disagree with any contentions of your clients. In addition, in the event that there is disagreement between [BMIC] and your clients, having this information readily available should permit the appraisers to make a more reasoned and accurate determination as to whether any additional amounts are owed under the claims in question." On April 15, 2011, the circuit court held a hearing as to various pending motions, and, at the conclusion of the hearing, the court requested that the parties submit briefs as to the issue of appraisal. The parties submitted briefs. BMIC noted in its brief: "To date, ... only 14 of the 130 [insureds] have provided any information other than the date of loss. Clearly, with respect to the 116 or so [insureds] that have provided nothing to [BMIC] since receiving payment from [BMIC] and thereby reaching an 'agreement' with [BMIC], there has been nothing presented that would tend to establish a disagreement. "Appraisal has been demanded again with respect to 7 of the [insureds] -- (1) Banks; (2) Bulger; (3) Hicks; (4) Key; (5) Kynard; (6) McNeal; (7) Williams. With respect to each and every one of the seven [insureds], the only thing that has been provided to [BMIC] following the 'agreement' wherein the [insureds] were initially paid is the report of Samantha Green, who has been retained by the [insureds] as their expert." On April 22, 2011, the circuit court entered an order giving BMIC "ten (10) calendar days to name an appraiser in 17 1100872 this case as required by the provisions of the policy" ("the April 2011 order"). Thereafter, BMIC sought clarification as to whether the April 2011 order "applies with respect to all of the approximately 130 [insureds], or just the [insureds] that have made the most recent demand for Appraisal. Second, [BMIC] seeks clarification as to whether this Order, in addition to requiring that [BMIC] name its appraiser, also holds that appraisal has been properly invoked." On April 29, 2011, the circuit court entered an order granting BMIC's motion for clarification. The order states: "The Court clarifies its earlier Order to state that the Court finds sufficient evidence of a disagreement as it relates to the fourteen (14) [insureds] that have made the most recent demand for appraisal. The Court finds that they have satisfied the terms of the policy necessary. Other [insureds] may be added to this initial group of [insureds] once they comply with the requirements of the policy to invoke the appraisal provision." BMIC appealed to this Court pursuant to Rule 4(a)(1)(A), Ala. R. App. P., governing appeals from "any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or modify an injunction." BMIC also filed a motion in the circuit court requesting that that court stay the April 2011 order, pending resolution of BMIC's appeal. The circuit court denied the 18 1100872 motion for a stay. BMIC then filed a motion with this Court asking that we stay the April 2011 order; this Court granted BMIC's motion. II. Standard of Review In the present case, a preliminary injunction was issued in December 2010. Thereafter, the April 2011 order (as clarified) modified the injunction as to 14 of the insureds and, in effect, permanently denied BMIC's claims for injunctive relief as those 14 insureds. The "facts" before 7 the circuit court were undisputed, and no ore tenus evidence was presented at the proceedings. Thus, the ore tenus rule is not applicable, and, as this Court has stated, "where the trial court's ruling rests upon a construction of facts indisputably established, this Court indulges no presumption of correctness in favor of the lower court's ruling." Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921, 923–24 As to those 14 insureds, the circuit court's order 7 disposes of the central dispute in this case: the timing of the appraisal process in relation to the insureds' fulfillment of their post-loss duties. It requires the parties to engage in the appraisal process before the insureds meet their post- loss duties. Once this happens pursuant to the court's order, it cannot "unhappen." This is not an order that maintains the status quo until relief can be entered or provides any sort of "preliminary" relief; the relief it orders is irreversible. 19 1100872 (Ala. 1984). "[W]hen the facts are undisputed and the '"ruling [is] a reconsideration of a question of law, ... the standard of review is de novo."'" Kappa Sigma Fraternity v. Price-Williams, 40 So. 3d 683, 694 (Ala. 2009)(quoting Bradley v. Town of Argo, 2 So. 3d 819, 824 (Ala. 2008), quoting, in turn, Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus., Chem. & Energy Workers Int'l Union Local 4–487, 328 F.3d 818, 820 (5th Cir.2003)). Further, as this Court noted in Twin City Fire Insurance Co. v. Alfa Mutual Insurance Co., 817 So. 2d 687, 691-92 (Ala. 2001): "A contract of insurance, like other contacts, is governed by the general rules of contracts. ... 'Insurance contracts, like other contracts, are construed so as to give effect to the intention of the parties, and, to determine this intent, a court must examine more than an isolated sentence or term; it must read each phrase in the context of all other provisions.'" (Quoting Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So. 2d 866, 870 (Ala. 1996).) "'When analyzing an insurance policy, a court gives words used in the policy their common, everyday meaning and interprets them as a reasonable person in the insured's position would have understood them. Western World Ins. Co. v. City of Tuscumbia, 612 So. 2d 1159 (Ala. 20 1100872 1992); St. Paul Fire & Marine Ins. Co. v. Edge Mem'l Hosp., 584 So. 2d 1316 (Ala. 1991). ... Only in cases of genuine ambiguity or inconsistency is it proper to resort to rules of construction. Canal Ins. Co. v. Old Republic Ins. Co., 718 So. 2d 8 (Ala. 1998). A policy is not made ambiguous by the fact that the parties interpret the policy differently or disagree as to the meaning of a written provision in a contract. Watkins v. United States Fid. & Guar. Co., 656 So. 2d 337 (Ala. 1994). ...' "B.D.B. v. State Farm Mut. Auto. Ins. Co., 814 So. 2d 877, 879–80 (Ala. Civ. App. 2001)." State Farm Mut. Auto. Ins. Co. v. Brown, 26 So. 3d 1167, 1169 (Ala. 2009). "'If there is no ambiguity, courts must enforce insurance contracts as written and cannot defeat express provisions in a policy ... by making a new contract for the parties.'" Shrader v. Employers Mut. Cas. Co., 907 So. 2d 1026, 1034 (Ala. 2005) (quoting St. Paul Mercury Ins. Co. v. Chilton–Shelby Mental Health Ctr., 595 So. 2d 1375, 1377 (Ala. 1992)). "'[I]nsurance contracts are subject to the same general rules of all written contracts, that is, in case of doubt or uncertainty of the meaning thereof, they are to be interpreted against the party drawing them.'" Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548, 555 (Ala. 1985) (quoting Aetna Life Ins. Co. v. Hare, 47 Ala. App. 478, 21 1100872 486, 256 So. 2d 904, 911 (1972)). In other words, "the rule that ambiguous insurance contracts are to be construed in favor of insureds ... may [not] be permitted to frustrate the parties' expressed intention if such intention can be otherwise ascertained." 43 Am. Jur. 2d Insurance § 299 (2013). See also Tinker v. Continental Ins. Co., 410 A.2d 550, 553-54 (Me. 1980) (discussing, to like effect, the use of the language of the contract as a whole as well as extrinsic evidence in the construction of an insurance agreement). III. Analysis BMIC argues that the April 2011 order requiring it to participate at this time in the appraisal process as to some of the insureds should be reversed: (1) because the insureds at issue have not complied with their post-loss obligations as described in provisions of the insured's insurance policy and (2) because the insureds have not established the precondition to the appraisal process, namely BMIC's 'failure to agree' or 'disagreement' with the insureds as to the value of the loss at issue. As discussed below, the first reason feeds into the second. 22 1100872 BMIC is correct in its position that the insureds must comply with their post-loss obligations as described in provisions of the respective insured's insurance policy before that insured may invoke the appraisal process. To conclude otherwise would reflect an unreasonable reading of the insurance policies at issue. That is, as to the satisfaction of the insured's post-loss obligations being a precondition to the insured's assertion of the right to an appraisal, the policy is not ambiguous. See Slagle v. Ross, 125 So. 3d 117, 136 (Ala. 2012) (Shaw, J., concurring in the result in part and dissenting in part) (recognizing that language is ambiguous where it "is susceptible to at least two reasonable interpretations"); Inter-Ocean Cas. Co. v. Scruggs, 24 Ala. App. 130, 132, 131 So. 549, 551 (1930) ("[W]hile it is practically everywhere the accepted rule that contracts of insurance must be most strongly construed against the insurer, this rule cannot be pressed to the extent of adopting a construction that is unreasonable. Its applicability is limited to those cases where the language of the policy is ambiguous and is susceptible of two reasonable constructions."). 23 1100872 Under the express terms of the insurance policies at issue, an appraisal is a step that may be demanded only after an insurance company and an insured come to a state of disagreement over the amount the insurer is to pay. Yet, the insurer has no obligation to pay any amount -- a condition necessary to put the parties in a state of disagreement over that amount -- until the insured meets his or her post-loss obligations. For example, the loss-payment clause in policy CP-00-99, one of the policies at issue here, states: "f. We will pay for covered loss or damages within 30 days after we receive the sworn statement of loss, if: "1. You have complied with all of the terms of this policy; and "2. a. We have reached an agreement with you on the amount of loss; or "b. An appraisal award has been made." Policy CP-00-99 further provides: "3. DUTIES IN THE EVENT OF LOSS OR DAMAGE. "You must see that the following are done in the event of loss or damage to Covered Property: "a. Notify the police if a law may have been broken. 24 1100872 "b. Give us prompt notice of the loss or damage. Include a description of the property involved. "c. As soon as possible, give us a description of how, when and where the loss or damage occurred. "d. Take all reasonable steps to protect the Covered Property from further damage by a Covered Cause of Loss. If feasible, set the damaged property aside and in the best possible order for examination. Also keep a record of your expenses for emergency and temporary repairs, for consideration in the settlement of the claim. This will not increase the Limit of Insurance. "e. At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed. "f. Permit us to inspect the property and records proving the loss or damage. Also permit us to take samples of damaged property for inspection, testing and analysis. "g. If requested, permit us to question you under oath at such times as may be reasonably required about any matter relating to this insurance or your claim, including your books and records. In such event, your answers must be signed. "h. Send us a signed, sworn statement of loss containing the information we 25 1100872 request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms. "i. Cooperate with us in the investigation or settlement of the claim." (Emphasis added.) The other policies contain similar provisions requiring an insured to submit proof of loss and imposing other post-loss obligations, such as providing notice, protecting the property from additional damages, etc., before payment of loss must be made. In other words, the insurance policies clearly condition BMIC's obligation to "pay for covered loss" upon its receipt (1) of a proper statement of loss from the insured, and (2) the insured's compliance with the insured's post-loss obligations described in the specific policy. The foregoing conclusion is corroborated when one considers the nature of the "duties after loss" at issue. Each of those is a duty that amounts to a precursor to the establishment of a fair and final loss amount. Yet, of the approximately 130 insureds, only 14 have provided even some of the documentation BMIC has requested in its investigation of the claimed losses. 26 1100872 Even the 14 insureds who have provided some documentation, however, have failed to submit to an examination under oath as BMIC has requested. In addition, the most that any of them has submitted is a report prepared by an appraiser chosen by the insured, or some confirmation of expenses allegedly incurred, as to a loss that is several years old. Although perhaps helpful, the submitted information does not provide BMIC with all the information to which it is entitled under the terms of the insureds' policies, and the insureds responses fall far short of completion of the duties required to trigger BMIC's duty to make an offer to settle the insured's claim for a particular amount in addition to the amount to which the insured apparently had previously agreed. We do not see how the parties can engage one another in a dispute over the amount of loss involved, and go even further to invoke an administrative process for resolving that dispute, unless and until (1) the insureds have provided the required notice of loss, including the basis for each insured's claimed loss and its value, and (2) the insureds have permitted BMIC to investigate and verify the claimed losses, as allowed under the terms of the 27 1100872 respective policies. See, e.g., Nationwide Ins. Co. v. Nilsen, 745 So. 2d 264, 267 (Ala. 1998)("An insurance company is entitled to require an insured to submit to an examination under oath as part of its claims investigation process. ... [A]n insurer's obligation to pay or to evaluate the validity of an insured's claim does not arise until the insured has complied with the terms of the contract with respect to submitting claims."). Moreover, the failure of the insureds to have complied with their post-loss duties may be particularly problematic in this case. It appears that a significant amount of time passed (two years or more) between all, or most of, the claimed losses and the November 2010 letter from the insureds' counsel, by which BMIC was informed that the insureds "disagreed" with the payments they had received in settlement of the claims the insureds initially had made -- in some cases, years earlier -- and that each of the insureds now was demanding an appraisal. As BMIC correctly notes in its brief, an insured must comply with his or her post-loss obligations when the insured is making a claim upon the insurer, and meeting those obligations is a precondition to any duty on the part of the 28 1100872 insurer to make a loss payment. See Nilsen, supra; Akpan v. Farmers Ins. Exch., Inc., 961 So. 2d 865, 872 (Ala. Civ. App. 2007). "[T]he obligation to pay or to evaluate the validity of the claim does not arise until the insured has complied with the terms of the contract with respect to submitting claims." United Ins. Co. of America v. Cope, 630 So. 2d 407, 411 (Ala. 1993). "[N]o case from this Court places on an insurance company an obligation to either investigate or pay a claim until the insured has complied with all of the terms of the contract with respect to submitting claims for payment." 630 So. 2d at 412; see also Reeves v. State Farm Fire & Cas. Co., 539 So. 2d 252, 254 (Ala. 1989)("Our cases have consistently held ... that the failure of an insured to comply within a reasonable time with such conditions precedent in an insurance policy requiring the insured to give notice of an accident or occurrence releases the insurer from obligations imposed by the insurance contract."). We also agree with BMIC that, absent the establishment of a duty to pay, there cannot be a genuine "disagreement" between the parties as to the issue of the proper amount of a payment. We find helpful in this regard the decision in 29 1100872 United States Fidelity & Guaranty Co. v. Romay, 744 So. 2d 467, 471 (Fla. Dist. Ct. App. 1999), in which the court held that the insured must comply with the policy's post-loss obligations before the appraisal clause is triggered. As the Romay court explained, "the disagreement necessary to trigger appraisal cannot be unilateral. ... In other words, by the terms of the contract, it was contemplated that the parties would engage in some meaningful exchange of information sufficient for each party to arrive at a conclusion before a disagreement could exist." Romay, 744 So. 2d at 469-70; see also Hailey v. Auto-Owners Ins. Co., 181 N.C. App. 677, 687, 640 S.E.2d 849, 855 (2007) ("[T]he unsupported opinion of the insured that the insurer's payment was insufficient does not rise to the level of a disagreement necessary to invoke appraisal. ... [T]o the extent Defendant requested that Plaintiff comply with Plaintiff's post-loss duties prior to invoking appraisal, such compliance was a necessary condition precedent to the invocation of appraisal."). The Romay court also stated: "[P]ermitting the insured to compel appraisal without first complying with the policy's post-loss obligations would place the insurer at a considerable disadvantage entering the appraisal 30 1100872 process. The nature of the post-loss obligations is merely to provide the insurer with an independent means by which to determine the amount of loss, as opposed to relying solely on the representations of the insured." 744 So. 2d at 471 n.4; see also Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 777 (11th Cir. 2000) (applying Romay and concluding that an "insurance company must be given an opportunity to investigate a supplemental claim before there can be a disagreement between the parties regarding the amount of property loss or damage to effectuate appraisal"); Hailey, supra. In other words, the insured must satisfy his or her post-loss obligations so that the insurer can know whether it does or does not agree with the insured's claim as to the amount of the loss at issue. IV. Conclusion Based on the foregoing, the circuit court erred by ordering BMIC to engage in the appraisal process before the insureds satisfied their respective post-loss obligations and before BMIC had sufficient information on which it could decide whether it disagreed with the respective claims of the insureds. Accordingly, we reverse the April 2011 order of the 31 1100872 circuit court and remand this matter for further proceedings consistent with this opinion. REVERSED AND REMANDED. Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 32 1100872 MOORE, Chief Justice (dissenting). I respectfully dissent. As the main opinion notes, Baldwin Mutual Insurance Company ("BMIC") raises two issues on appeal: (1) Whether the insureds may demand and invoke an appraisal in light of the fact that "the insureds ... have not complied with their post-loss obligations as described in provisions of the insured's insurance policy"; and (2) whether the insureds have "established the precondition to the appraisal process, namely BMIC's 'failure to agree' or 'disagreement' with the insureds as to the value of the loss at issue." ___ So. 3d at ___. As to the first issue, BMIC argues that the insureds may not demand or invoke an appraisal because, BMIC says, they have failed to comply with the post-loss obligations in their insurance policies. BMIC argues that, to properly invoke an appraisal under the various policies, the insureds were required to fulfill certain post-loss obligations. BMIC notes that no Alabama appellate court has addressed the effect of an insured's noncompliance with post-loss obligations on the insured's ability to invoke an appraisal. BMIC relies on cases from other jurisdictions for the proposition that an insured 33 1100872 may not demand an appraisal without first complying with the post-loss obligations in the underlying policies. See, e.g., United States Fid. & Gaur. Co. v. Romay, 744 So. 2d 467, 471 (Fla. Dist. Ct. App. 1999)("No reasonable and thoughtful interpretation of the policy could support compelling appraisal without first complying with the post-loss obligations."); Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 777 (11th Cir. 2000)("[W]e hold that these insureds must comply with the post-loss terms of their respective homeowner's policies, which enables the insurance companies to investigate the insureds' claims and to disagree with the loss amount before the appraisal term becomes effective."); Hailey v. Auto-Owners Ins. Co., 181 N.C. App. 677, 687, 640 S.E.2d 849, 855 (2007)("[T]o the extent Defendant requested that Plaintiff comply with Plaintiff's post-loss duties prior to invoking appraisal, such compliance was a necessary condition precedent to the invocation of appraisal."). According to BMIC, these foreign cases align with Alabama cases holding that an insurer is not obligated to pay an insured until the insured has submitted claims to the insurer pursuant to the terms of the policies. Nationwide Ins. Co. v. Nilsen, 745 So. 34 1100872 2d 264, 267 (Ala. 1998)("[A]n insurer's obligation to pay or to evaluate the validity of an insured's claim does not arise until the insured has complied with the terms of the contract with respect to submitting claims."). Therefore, BMIC asks this Court to hold that the insureds must satisfy certain post-loss obligations before demanding an appraisal according to their policies. By their terms, however, the policies do not require the insureds to first satisfy the post-loss obligations before demanding an appraisal. The parties stipulate that the appraisal provisions are roughly the same in each policy: "Appraisal. If you and we fail to agree on the values of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to an umpire. A decision agreed to by any two will be binding. Each party will: Pay its chosen appraiser and bear the other expenses of the appraisal and umpire equally." The section of the policies regarding post-loss obligations is entirely separate from the section of the policies regarding an appraisal. Neither section makes reference to the other. 35 1100872 Nothing in the policies states that post-loss provisions must be satisfied before the insureds may invoke the appraisal provisions. Instead, the policies maintain that either BMIC or the insureds may demand an appraisal if BMIC and the insureds disagree on the value of the property or the amount of loss. Such disagreement could arise at any time. The policies do not specify that the insureds must bring their disagreement to the attention of BMIC only after they have satisfied their post- loss obligations. The plain and unambiguous terms of the policies suggest that the insureds may demand an appraisal whenever they disagree with BMIC regarding the value of the property or the amount of loss. Although BMIC attempts to portray the performance of post-loss obligations as a condition precedent to appraisal, no language in the policies supports that interpretation. Public Bldg. Auth. of Huntsville v. St. Paul Fire & Marine Ins. Co., 80 So. 3d 171, 180 (Ala. 2010)("A court may not make a new contract for the parties or rewrite their contract under the guise of construing it."). BMIC would have us adopt holdings from other jurisdictions to establish a bright-line rule for all Alabama insurance cases, namely, that an insured must always satisfy 36 1100872 post-loss obligations before invoking appraisal provisions in an insurance policy. Such a rule impairs the obligation of existing contracts between insureds and insurers. "General rules of contract law govern an insurance contract." Safeway Ins. Co. of Alabama, Inc. v. Herrera, 912 So. 2d 1140, 1143 (Ala. 2005). "The Court must enforce the insurance policy as written if the terms are unambiguous." Id. Here, the policies are not ambiguous: They allow both BMIC and the insureds to demand an appraisal if the parties disagree about the value of the property or the amount of loss. Although to compel an appraisal in Florida requires a party first to comply with the post-loss provisions in an insurance policy, no such law exists in Alabama. Had the 8 parties wished to be bound by such a rule, they could have included it in their policies. It is unreasonable to hold that, when the insureds purchased their policies from BMIC, they should have expected Florida law to govern their policies. This Court should not read into a contract a provision that is not there. Harbison v. Strickland, 900 So. See, e.g., Citizens Prop. Ins. Corp. v. Mango Hill Condo. 8 Ass'n 12 Inc., 54 So. 3d 578, 581-82 (Fla. Dist. Ct. App. 2011). 37 1100872 2d 385, 391 (Ala. 2004)("'"[A] court should ... presume that the parties intended what the terms of the agreement clearly state."'" (quoting other cases)). Nor should this Court add provisions to an insurance policy according to what it perceives to be industry-wide insurance standards and practices as to which the policy is silent. Poole v. Henderson, Black & Green, Inc., 584 So. 2d 485, 487 (Ala. 1991)("'"The general rule of contract law is that, if a written contract exists, the rights of the parties are controlled by that contract, and parol evidence is not admissible to contradict, vary, add to, or subtract from its terms."'"(quoting Rime-Shatten Dev. Co. v. Birmingham Cable Commc'ns, Inc., 569 So. 2d 332, 334 (Ala. 1990), quoting in turn Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 11 (Ala. 1989))). Therefore, I would affirm the circuit court's April 2011 order as to the first issue. As to the second issue, BMIC argues that the insureds have failed to establish a "failure to agree" or a "disagreement" regarding the amount of loss and, therefore, may not demand an appraisal. In particular, BMIC contends that the insureds failed to provide sufficient evidence (e.g., 38 1100872 estimates from contractors) that the parties disagreed about the amount of loss either before or after BMIC compensated the insureds for the loss. In response, the insureds allege that they established a "disagreement" regarding the amount of loss when, after receiving a check from BMIC to cover their loss, they notified BMIC that the amount of the check was inadequate and that their demand for an appraisal is in accordance with their policies. The point of the appraisal, they contend, is to determine not whether a disagreement between the parties existed, but the amount on which the parties disagree. BMIC quotes from cases holding that there must be an actual disagreement between the parties regarding the value of the property or the amount of loss in order to effectuate an appraisal. These holdings are in keeping with the policies in 9 this case. BMIC does not argue that it disagrees with the insureds' allegation that BMIC inadequately compensated them for their loss. Rather, BMIC alleges that it does not have enough information to determine whether it disagrees with the insureds regarding the amount of the loss because the insureds have not identified, with sufficient evidence, what they E.g., Jersey Ins. Co. v. Roddam, 256 Ala. 634, 637-38, 9 56 So. 2d 631, 633-35 (1952); Romay, 744 So. 2d at 469-70. 39 1100872 consider the amount of loss to be. If the insureds had complied with the post-loss obligations in the policies, BMIC adds, there might have been sufficient evidence to allow BMIC to determine whether its assessment of the amount of loss differs from the insureds' assessment of the amount of loss. Accordingly, this Court must determine whether the circuit court erred by denying BMIC's motion for injunctive relief based on the circuit court's finding that 14 of the 130 insureds had proffered enough evidence of the amount of loss to effectuate an appraisal under the policy. BMIC declares that no such evidence exists or that the existing evidence does not support the circuit court's finding that these insureds presented sufficient evidence to invoke the appraisal. However, BMIC does not describe the evidence in the record and before the circuit court or explain how the specific contents of such evidence were inadequate to support the circuit court's order granting the appraisal. This Court has stated that the appellant "has a heavy burden when it seeks a reversal of an order on the ground that the decision is not supported by the evidence." Curtis White Constr. Co. v. 40 1100872 Butts & Billingsley Constr. Co., 473 So. 2d 1040, 1041 (Ala. 1985). "It is the function of a trial judge sitting as factfinder to decide facts where conflicts in the evidence exist. Such was the case here. The appellate courts do not sit in judgment of the facts, and review the factfinder's determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law. No error of law exists in this case, and where there is evidence to support the decision reached by the factfinder, we must affirm its judgment." 473 So. 2d at 1041. Because there is ample evidence in the record to support the decision reached by the circuit court, including detailed estimates, drawings, and photographs of the damage at issue, and because BMIC makes no attempt to explain in detail how this evidence does not support the circuit court's findings that the 14 insureds had properly invoked the appraisal provisions in the policies, I would affirm the circuit court's order. Finally, BMIC claims that, "if an insured has not retained a contractor or repairman, or obtained an estimate of the amount of loss from some other source, it is difficult to understand how an insured could, in fact, disagree with the insurer's determination of the amount of loss." Nevertheless, 41 1100872 the policies by their terms did not require the insured to retain a contractor or a repairperson or to obtain an estimate of the amount of loss from some other source as a condition precedent to invoking the appraisal provisions. "'Courts cannot make contracts for parties, but must give such contracts as are made a reasonable construction and enforce them accordingly.'" Charles H. McCauley Assocs., Inc. v. Snook, 339 So. 2d 1011, 1015 (Ala. 1976)(quoting R.P. Harris, & Co. v. Thomas, 17 Ala. App. 634, 635, 88 So. 51, 52 (1921)). "[W]e know of no canon of construction that warrants an interpretation the only effect of which is to relieve a party to the contract from consequences deemed by him hard or unfair." Lilley v. Gonzales, 417 So. 2d 161, 163 (Ala. 1982). "[I]t is the duty of the [C]ourt to enforce [the contract] as written." Kinnon v. Universal Underwriters Ins. Co., 418 So. 2d 887, 888 (Ala. 1982). To hold otherwise is to require consumers purchasing insurance policies to know not only what provisions appear in such policies, but also what judicially created provisions exist for such policies outside the four corners of the policies. Ordinary consumers of insurance policies are not lawyers and should not be expected to search 42 1100872 "caselaw" for provisions applicable to their policies that do not appear in such policies. For these reasons, I respectfully dissent. 43	September 30, 2014
d2f65145-b41c-4976-a350-d2f822633161	Ex parte V.S.T. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: V.S.T. v. R.W. and B.W.) (Bessemer Probate Court: 50041554; Civil Appeals : 2130112; 2130113; 2130114). Writ Denied. No Opinion.	N/A	1131077	Alabama	Alabama Supreme Court	REL: 08/29/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1131077, 1131081, and 1131082 _________________________ Ex parte V.S.T. PETITIONS FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: V.S.T. v. R.W. and B.W.) (Bessemer Probate Court, No. 50041554, No. 50041555, and No. 50041556; Court of Civil Appeals, 2130112, 2130113, and 2130114) WISE, Justice. 1131077, 1131081, and 1131082 1131077 -- WRIT DENIED. NO OPINION. 1131081 -- WRIT DENIED. NO OPINION. 1131082 -- WRIT DENIED. NO OPINION. Stuart, Bolin, Main, and Bryan, JJ., concur. Moore, C.J., and Parker and Murdock, JJ., dissent. 2 1131077, 1131081, and 1131082 MURDOCK, Justice (dissenting). The Court of Civil Appeals dismissed all of these appeals as untimely. It appears that a final judgment was entered in V.S.T.'s favor in a collateral action under § 26-10A-25(d), Ala. Code 1975; that she then filed a timely postjudgment motion pursuant to Rule 59, Ala. R. Civ. P.; and that she timely appealed within 42 days of the denial of that motion. Also, I find the petitions before us sufficiently compliant with the requirements of Rule 39, Ala. R. App. P. I therefore dissent from the Court's decision refusing to consider the petitions. 3	August 29, 2014
56b72725-9089-4ec2-865b-a2300b9bf114	Ex parte Kevin Waide Peoples. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Kevin Waide Peoples v. State of Alabama) (Jefferson Circuit Court: CC-12-1124; CC-12-1125; CC-12-1126; CC-12-1127; CC-12-1128; Criminal Appeals : CR-12-1697). Writ Denied. No Opinion.	N/A	1130921	Alabama	Alabama Supreme Court	REL: 08/29/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130921 _________________________ Ex parte Kevin Waide Peoples PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Kevin Waide Peoples v. State of Alabama) (Jefferson Circuit Court, CC-12-1124, CC-12-1125, CC-12- 1126, CC-12-1127, CC-12-1128; Court of Criminal Appeals, CR-12-1697) WISE, Justice. WRIT DENIED. NO OPINION. 1130921 Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., dissents. 2 1130921 MOORE, Chief Justice (dissenting). Kevin Waide Peoples walked into the Woodlawn Post Office on November 3, 2011, and placed a note on the counter in front of Andrea Jackson, a postal clerk. The note read: "Give me the money. I have gun." Peoples then placed one of his hands, which was wrapped in his jacket, on the counter, thus reinforcing the statement in the note that he had a gun in his possession. However, Jackson never saw a weapon. Jackson gave Peoples $1,000 from the cash drawer. He left the post office and fled in his truck. The police located the truck within 15 minutes, and Peoples led them on a chase before being apprehended. The police did not find a gun on Peoples's person or in his truck. Convicted of first-degree robbery and other offenses, Peoples was sentenced as a habitual felony offender to life imprisonment without the possibility of parole. He raises a single issue before this Court: Whether he was entitled to a jury instruction on the lesser-included offense of third- degree robbery. "[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, 3 1130921 however[] weak, insufficient, or doubtful in credibility." Ex parte Chavers, 361 So. 2d 1106, 1107 (Ala. 1978). In particular, "[a] person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses." MacEwan v. State, 701 So. 2d 66, 69 (Ala. Crim. App. 1997). A conviction for first-degree robbery requires proof that, at the time of the robbery, the accused was "armed with a deadly weapon or dangerous instrument." § 13A-8-41(a)(1), Ala. Code 1975. "[A]ny verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence ... that he was so armed." § 13A-8-41(b), Ala. Code 1975 (emphasis added). By presenting the note to the postal clerk and placing his arm on the counter wrapped in his jacket, Peoples represented that he was armed with a deadly weapon. Thus, the jury had adequate evidence from which to convict Peoples of first-degree robbery. Prima facie evidence, however, is not conclusive evidence. A prima facie case may be rebutted by contrary evidence. 4 1130921 Peoples did not display a weapon in the post office, and no gun was found on his person or in his truck when he was arrested. From these facts, the jury could reasonably have deduced that Peoples deliberately created a false impression that he had a weapon on him to facilitate the robbery. In that event, the jury would have been free to convict Peoples of third-degree robbery, namely "threaten[ing] the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of ... the property." § 13A-8-43(a)(2), Ala. Code 1975. But the jury did not have this option because the trial court refused to instruct the jury on third-degree robbery. Were the jury doubtful as to whether Peoples actually had a weapon with him during the robbery, it could have convicted Peoples of the lesser-included offense of third-degree robbery to avoid having to resolve the uncertainty, especially in light of the State's burden of proving Peoples's guilt beyond a reasonable doubt. In this case, where a gun was neither shown nor found, the jury easily could have entertained doubt as to whether Peoples had had a gun in the post office. Because evidence existed, though perhaps "weak, insufficient, 5 1130921 or doubtful in credibility," Chavers, 361 So. 2d at 1107, that Peoples did not have a gun on his person, he was entitled to have the jury instructed on the elements of third-degree robbery. "The defendant has the right to request instructions based upon any material hypothesis which the evidence in his favor tends to establish." Ex parte McGee, 383 So. 2d 205, 206 (Ala. 1980). For the above-stated reasons I would grant Peoples's petition for a writ of certiorari to review the holding of the Court of Criminal Appeals that "there was no reasonable theory from the evidence to support a charge on third-degree robbery." 6	August 29, 2014
f7120f17-4974-42e8-a4c8-d0f4722f0e16	D.C. Pruett Contracting Company, Inc. v. Jackson County Board of Education	N/A	1130738	Alabama	Alabama Supreme Court	REL: 09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130738 ____________________ Ex parte Jackson County Board of Education PETITION FOR WRIT OF MANDAMUS (In re: D.C. Pruett Contracting Company, Inc. v. Jackson County Board of Education) (Jackson Circuit Court, CV-13-900315) STUART, Justice. The Jackson County Board of Education ("the Board") petitions this Court for a writ of mandamus directing the 1130738 Jackson Circuit Court to enter an order dismissing the complaint of D.C. Pruett Contracting Company, Inc. ("Pruett Contracting"), on the ground of sovereign immunity. We grant the petition and issue the writ. Facts and Procedural History On April 25, 2012, Pruett Contracting submitted to the Board a proposal for renovations to the Pisgah High School gymnasium. On April 30, 2012, Kenneth Harding, the Jackson County superintendent of education, executed a purchase order authorizing Pruett Contracting to make certain renovations to the gymnasium, totaling $231,309. Pruett Contracting began renovating the gymnasium. On June 8, 2012, Harding received a letter from the State of Alabama Building Commission stating that "all work on the renovation of the Pisgah High School gymnasium [was] to stop immediately" because the project had not been submitted to or approved by the Building Commission. On June 20, 2012, the Board instructed Pruett Contracting to cease all work on the gymnasium. On July 22, 2012, Pruett Contracting submitted an invoice to the Board for $91,268, representing the work that had been performed. 2 1130738 On December 19, 2013, because it had not received payment for the work it had performed in renovating the gymnasium, Pruett Contracting sued the Board, alleging breach of contract and unjust enrichment and seeking recovery of damages on theories of quantum meruit, work and labor done, open account, and account stated. On January 31, 2014, the Board moved the court to dismiss the complaint, arguing that it is entitled to sovereign immunity as to the claims alleged by Pruett Contracting and that the court therefore lacked subject-matter jurisdiction over the action. On March 17, 2014, Pruett Contracting responded, arguing that this case involved a protected property interest, that immunity was thus precluded, and that the court had subject-matter jurisdiction over the action. On the same day, Pruett Contracting amended its complaint, naming as additional defendants the members of the Board in their official capacities and Harding in his official capacity as superintendent of education and asked for a writ of mandamus or an injunction requiring the members of the Board and Harding to pay the sums due and damages. On March 25, 2014, the circuit court denied the Board's motion to 3 1130738 dismiss. The Board then petitioned this Court for a writ of mandamus. Standard of Review "As this Court has consistently held, the writ of mandamus is a "'"drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court."' "Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002)(quoting Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993)). '"In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review...."' Drummond Co. v. Alabama Dep't of Transp., 937 So. 2d 56, 57 (Ala. 2006)(quoting Ex parte Haralson, 853 So. 2d 928, 931 (Ala. 2003)). "'In Newman v. Savas, 878 So. 2d 1147 (Ala. 2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction: "'"A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So. 2d 285, 4 1130738 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So. 2d at 299." "'878 So. 2d at 1148–49.' "Pontius v. State Farm Mut. Auto. Ins. Co., 915 So. 2d 557, 563 (Ala. 2005). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co., 937 So. 2d at 58." Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 20-21 (Ala. 2007). Discussion The Board contends that it has a clear legal right to the dismissal of the action filed against it by Pruett Contracting because, it says, that it is entitled to immunity from liability under § 14, Ala. Const. 1901. See Ex parte Tuscaloosa Cnty., 796 So. 2d 1100, 1103 (Ala. 2000)("Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state ...."). In support of its argument, the Board cites Ex parte Hale County Board of Education, 14 So. 3d 844, 848 (Ala. 2009), which held that "[b]ecause county boards of education are local agencies of 5 1130738 the State, they are clothed in constitutional immunity from suit." Pruett Contracting recognizes the holding in Ex parte Hale County Board of Education and its applicability to this case, but it maintains that that decision was ill advised. Pruett Contracting argues that this Court's determination that a county board of education is entitled to sovereign immunity is contrary to the United States Constitution, the Constitution of Alabama, caselaw, and public policy. First, Pruett Contracting argues that sovereign immunity must yield to the Takings Clause of the United States Constitution, Amendment V, and Art. I, § 10, of the United States 1 Constitution, in the context of contract rights created and 2 benefits received by a State agency. Next, although Pruett Contracting recognizes that county boards of education are charged by the legislature with supervising public education within their respective counties, Pruett Contracting contends Amendment V provides that private property shall not be 1 taken for public use without compensation. Article I, § 10, states: "No State shall ... pass any 2 Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts ...." 6 1130738 that, because the Constitution of Alabama provides that "[t]he public school fund shall be apportioned to [rather than among] the several counties," see In re Opinion of the Justices No. 3, 215 Ala. 524, 111 So. 312 (1927), construing Article XIV, § 256, Ala. Const. 1901, and provides, in the provision for the impeachment of county officials, see Article VII, § 175, Ala. Const. 1901, for the impeachment of superintendents of education, the authors of the Alabama Constitution intended for county boards of education to be county agencies and not "arms of the State." This Court has cloaked members and employees of school boards with § 14 immunity since its decision in Hickman v. Dothan City Board of Education, 421 So. 2d 1257 (Ala. 1982). In Ex parte Hale County Board of Education, this Court unanimously decided that school boards are entitled to § 14 immunity in all cases. The basis for our decision in Ex parte Hale County Board of Education is sound, and this decision has been applied in numerous cases. See, e.g., Board of Sch. Comm'rs of Mobile Cnty. v. Weaver, 99 So. 3d 1210, 1217 (Ala. 2012) ("[B]ecause the Board is an agency of the State of Alabama it is entitled to absolute immunity under § 14 ...."), 7 1130738 Ex parte Montgomery Cnty. Bd. of Educ., 88 So. 3d 837, 842 (Ala. 2012) ("[T]he motion for a summary judgment based on § 14 immunity was due to be granted as to the Board ...."), and Colbert Cnty. Bd. of Educ. v. James, 83 So. 3d 473, 479 (Ala. 2011) ("[T]he Board is absolutely immune under § 14 from the state-law claims filed against it ...."). Pruett Contracting does not present a persuasive reason to abandon our holding that county boards of education are local agencies of the State and, as such, are entitled to sovereign immunity. Pruett Contracting's argument that sovereign immunity should not protect the Board from a suit to enforce its contractual obligations is also unpersuasive. In State Highway Department v. Milton Construction Co., 586 So. 2d 872, 875 (Ala. 1991), this Court held that because an action seeking payment under a contract was "in the nature of an action to compel state officers to perform their legal duties," the action was not barred by the doctrine of sovereign immunity. See also Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 23 (Ala. 2007). As this Court recognized in Ex parte Moulton, 116 So. 3d 1119, 1131-41 (Ala. 2013): 8 1130738 "'... [C]ertain causes of action are not barred by § 14: "'"'There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So. 2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act ... seeking construction of a statute and its application in a given situation. 287 Ala. at 229–230, 250 So. 2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity ....'" "'Drummond Co. v. Alabama Dep't of Transp., 937 So. 2d 56, 58 (Ala. 2006)(quoting [Ex parte] Carter, 395 So. 2d [65,] 68 [(Ala. 1980)](emphasis omitted). ...' ".... "... [T]his Court today restates the sixth 'exception' to the bar of State immunity under § 14 as follows: "(6)(a) actions for injunction brought against State officials in their representative capacity where it is alleged 9 1130738 that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So. 2d 428 (1967), and (b) actions for damages brought against State officials in their individual capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, subject to the limitation that the action not be, in effect, one against the State. Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989)." These exceptions to sovereign immunity adequately address and negate Pruett Contracting's concerns that, with regard to the enforcement of contractual obligations, granting a county board of education sovereign immunity is unjust. Moreover, Pruett Contracting appears to recognize the exceptions to sovereign immunity in our caselaw. Indeed, Pruett Contracting maintains that the underlying action should not be dismissed because, it says, the amendment to its complaint adding as parties the proper officials in their official capacities and requesting that they "perform their legal duties" and pay Pruett Contracting as set forth in the contract remedies its error in not naming those parties initially. However, because the original complaint was filed solely against the Board, the trial court lacked subject- 10 1130738 matter jurisdiction to entertain the subsequent amendment to the original complaint. See Ex parte Alabama Dep't of Transp., 6 So. 3d 1126 (Ala. 2008). Furthermore, Pruett Contracting's argument that the amended complaint should be treated as an initial filing under Rule 3(a), Ala. R. Civ. P., is not properly before this Court. Although Pruett Contracting appears to have made this argument in a "rejoinder" to a response filed by the Board on April 10, 2014, the materials before us do not establish that Pruett Contracting moved the trial court to consider the amended complaint as an initial filing and that the trial court refused to do so. Therefore, this contention is not properly before us for consideration on this petition for a writ of mandamus. See Daugherty v. Gulf Shores Motel, Inc., 292 Ala. 252, 292 So. 2d 454 (1974)(noting that issues presented for review must be based on adverse rulings of the trial court). Conclusion The Board has established that it is entitled to sovereign immunity and that the trial court did not have subject-matter jurisdiction over this action; therefore, the action must be dismissed. Ex parte Alabama Dep't of Transp., 11 1130738 supra. Because the Board has demonstrated a clear legal right to an order directing the Jackson Circuit Court to dismiss Pruett Contracting's complaint against it, this Court grants the Board's petition for a writ of mandamus and directs the Jackson Circuit Court to dismiss Pruett Contracting's complaint. PETITION GRANTED; WRIT ISSUED. Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Murdock and Shaw, JJ., concur in the result. Moore, C.J., dissents. 12	September 26, 2014
cf1ddcdf-d2b2-4913-90c3-a6c2708c6786	Alabama v. Kelley	N/A	1130271	Alabama	Alabama Supreme Court	REL:09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130271 _________________________ Ex parte State of Alabama PETITION FOR WRIT OF MANDAMUS (In re: Ex parte Margie Morgan Kelley (In re: State of Alabama v. Margie Morgan Kelley)) (Etowah Circuit Court, CC-13-318.01, CC-13-318.02, and CC-13-318.03; Court of Criminal Appeals, CR-12-1765) SHAW, Justice. The Court of Criminal Appeals, in an unpublished order, issued a writ of mandamus directing the trial court in the 1130271 underlying case to "bar" the prosecution of the respondent, Margie Morgan Kelley, who had been indicted for three counts of capital murder. Ex parte Kelley (No. CR-12-1765, November 21, 2013), ___ So. 3d ___ (Ala. Crim. App. 2013) (table). The State of Alabama petitions this Court for a writ of mandamus directing the Court of Criminal Appeals to vacate its order. See Rule 21(e)(1), Ala. R. App. P. ("If an original petition has been granted by the court of appeals, review may be had by filing in the supreme court a petition for writ of mandamus ... directed to the court of appeals ...."). We grant the petition and issue the writ. Facts and Procedural History In its unpublished order, the Court of Criminal Appeals set out the facts and procedural history of this case: "Margie Morgan Kelley filed this petition for a writ of mandamus requesting that this Court direct Judge William Allen Millican to grant her motion to bar her prosecution for capital murder because, she says, to prosecute her for murder after she has been convicted of hindering prosecution and abuse of a corpse related to the same murders violates the Double Jeopardy Clause. In 2010, Kelley was charged with hindering the prosecution of her husband in the murders of Rocky Morgan and James Bachelor and with abuse of a corpse. In August 2011, she pleaded guilty to those charges and has since completed her sentence. Kelley's husband, Robert Kelley, has been charged with and pleaded guilty to murdering Morgan 2 1130271 and Bachelor. As a part of the plea agreement, Robert Kelley implicated his wife in the murders. In March 2013, Kelley was indicted for three counts of capital murder for allegedly murdering Morgan and Bachelor during one course of conduct and for murdering Morgan for pecuniary gain. Kelley moved that the capital murder charges be dismissed based on collateral estoppel and double-jeopardy grounds. After a hearing, Judge Millican denied the motion. Kelley then filed this petition for a writ of mandamus with this Court." As noted above and discussed in more detail below, the Court of Criminal Appeals granted Kelley's petition. The State then filed the instant petition with this Court. Standard of Review "Mandamus is an extraordinary remedy and will be issued only when there is '(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991). 'A decision of a court of appeals on an original petition for writ of mandamus or prohibition or other extraordinary writ (i.e., a decision on a petition filed in the court of appeals) may be reviewed de novo in the supreme court....' Rule 21(e)(1), Ala. R. App. P." Ex parte Sharp, 893 So. 2d 571, 573 (Ala. 2003). Discussion Hindering prosecution in the first degree is described in Ala. Code 1975, § 13A-10-43(a), as follows: 3 1130271 "A person commits the crime of hindering prosecution in the first degree if with the intent to hinder the apprehension, prosecution, conviction or punishment of another for conduct constituting a murder or a Class A or B felony, he renders criminal assistance to such person." A person renders "criminal assistance" to another if he or she: "(1) Harbors or conceals such person; "(2) Warns such person of impending discovery or apprehension; except that this subdivision does not apply to a warning given in connection with an effort to bring another into compliance with the law; "(3) Provides such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension; "(4) Prevents or obstructs, by means of force, deception or intimidation, anyone except a trespasser from performing an act that might aid in the discovery or apprehension of such person; or "(5) Suppresses, by an act of concealment, alteration or destruction, any physical evidence that might aid in the discovery or apprehension of such person." Ala. Code 1975, § 13A-10-42. The language of § 13A-10-43(a) does not provide that a person may be charged with and convicted of rendering criminal assistance to himself or of hindering his own prosecution: 4 1130271 "Neither the statutory definition of hindering prosecution in the first degree, § 13A-10-43, nor the statutory definition of criminal assistance, § 13A-10-42, 'states that a person may render criminal assistance to himself. If the legislature had so intended, it could have inserted that provision in the statute. Instead the legislature used the words "person" or "such person" throughout those sections and did not refer to the underlying principal.'" Washington v. State, 562 So. 2d 281, 282 (Ala. Crim. App. 1990) (quoting People v. Mercedes, 121 Misc. 2d 419, 420, 467 N.Y.S.2d 973, 974 (N.Y.Sup.Ct. 1983)). In Washington, the court was required to determine whether hindering prosecution was a lesser offense included in the offense of robbery. In holding that it was not a lesser-included offense, the court stated that "'[t]he charge of hindering prosecution is inapplicable to a person charged as a principal.'" 562 So. 2d at 282 (quoting Mercedes, 121 Misc. 2d at 420, 467 N.Y.S.2d at 974. The court then noted: "The history of the offense of hindering prosecution in Alabama shows that the offense has been limited to persons other than principals. "'Under Alabama law the conduct described under § 13A-10-42 and prohibited by §§ 13A-10-43 and 13A-10-44[, Ala. Code 1975,] would ordinarily make one an "accessory after the fact." Former §§ 13-9-1 and 13-9-2[, Ala. Code 1975]. Former § 13-9-1 provided that all persons concerned in the commission of a felony, 5 1130271 whether they directly commit the act constituting the offense or aid or abet in its commission, will be tried and punished as principals. Parsons v. State, 33 Ala. App. 309, 33 So. 2d 164 (1948)[,] established that participation in the crime may be proven by circumstantial evidence. Former § 13-9-2 dealt with accessories after the fact and provided [that] any person, other than parent, child, brother, sister, husband or wife of the offender, who gives aid to the offender with the intent to enable him to avoid or escape from arrest, trial, conviction, or punishment in connection with a felony may be imprisoned in county jail up to six months and/or fined up to $1,000.00.' "Commentary to §§ 13A-10-42 through 13A-10-44 (emphasis added). 'Although Section 13-9-1 has been repealed, there is--for purposes of indictment and trial--still no distinction between principals and accessories under Alabama law.' Lewis v. State, 469 So. 2d 1291, 1297 (Ala. Cr. App. 1984), affirmed, 469 So. 2d 1301 (Ala. 1985)." Washington, 562 So. 2d at 283. On the basis of this analysis, the court in Washington held that "hindering prosecution is not a lesser included offense of robbery." Id. The analysis in Washington was subsequently applied outside the context of determining whether hindering prosecution is a lesser-included offense. In Goodwin v. State, 644 So. 2d 1269 (Ala. Crim. App. 1993), four individuals, Dewey Goodwin, Daren Goodwin, David King, and 6 1130271 Xavier Murray, engaged in a scheme to commit a robbery. Dewey and Daren drove King and Murray to the house of the intended victim. King and Murray attempted to rob the intended victim and shot him three times in the attempt. Dewey and Daren later concealed King and Murray in the trunk of their automobile and drove them out of the State. King and Murray were charged with, among other things, attempted murder. Both Dewey and Daren were charged with hindering the prosecution of King and Murray for that charge. The Court of Criminal Appeals, however, held that the hindering-prosecution charge could not stand. Specifically, that court noted that Dewey and Daren had also been charged with robbery and with conspiracy to commit robbery. After repeating the analysis of Washington, the Court of Criminal Appeals stated: "While it is true that the indictment charged them with hindering the prosecution of King and Murray for the underlying offense of attempted murder, the attempted murder charge arose out of the same facts supporting the prosecution of Dewey and Daren for first degree robbery and for conspiracy to commit first degree robbery. To convict them of hindering the prosecution of King and Murray under these circumstances would, in essence, be convicting them of hindering their own prosecution, which is prohibited by Washington." 7 1130271 Goodwin, 644 So. 2d at 1274. Thus, Goodwin construed Washington's narrow holding--that hindering prosecution is not a lesser-included offense of the underlying criminal conduct because a person who was a principal in that underlying crime cannot be charged with hindering his own prosecution for that conduct--and expanded it to broadly hold that all persons who are "principals" in the underlying criminal conduct cannot be charged with hindering the prosecution of another who also committed that underlying crime. This rationale has been repeatedly applied, albeit in situations like Washington in which the court was determining whether the offense of hindering prosecution was a lesser-included offense of the charged crime. In Mangione v. State, 740 So. 2d 444, 456 (Ala. Crim. App. 1998), the Court of Criminal Appeals held: "Based on the reasoning in Goodwin[ v. State, 644 So. 2d 1269 (Ala. Crim. App. 1993)], and Washington [v. State, 562 So. 2d 281 (Ala. Crim. App. 1990)], the appellant could not be charged with hindering prosecution because he was a principal in the offense that resulted in the murder charge alleged to have been hindered. Although the appellant's action may arguably have hindered the prosecution of his accomplices, there is no dispute that he also hindered his own prosecution. Section 13A–10–43, Ala. Code 1975, is inapplicable where an accused has rendered assistance to himself." 8 1130271 See also Wingard v. State, 821 So. 2d 240, 245 (Ala. Crim. App. 2001) ("In Washington, Goodwin, and Mangione, this Court held, as a matter of law, that a person charged as an accomplice to a crime could not have hindered the prosecution of another charged as the principal."). In the instant matter, the Court of Criminals Appeals relied on the more recent decision of Davenport v. State, 968 So. 2d 27 (Ala. Crim. App. 2005), which restated the holding of Goodwin. In issuing the writ in this case, the Court of Criminal Appeals stated: "Kelley, relying on the case of Davenport v. State, 968 So. 2d 27 (Ala. Crim. App. 2005), argues that she cannot be prosecuted for capital murder after she already has been convicted and served her sentence for hindering prosecution and abuse of a corpse related to the same murders. ... In Davenport, this Court reviewed the propriety of Davenport's convictions for manslaughter and for hindering the prosecution of Davenport's son. In holding that Davenport could not be convicted of both offenses, this Court stated: "'[T]he appellant was convicted of manslaughter for the death of the victim. Because the hindering prosecution charge arose from the same facts as those supporting the manslaughter conviction, she could not properly be convicted of both manslaughter and first-degree hindering prosecution. Therefore, the trial court did not have jurisdiction to enter judgments on 9 1130271 both the manslaughter charge and the first-degree hindering prosecution charge.' "968 So. 2d at 36-37. See also Goodwin v. State, 644 So. 2d 1269 (Ala. Crim. App. 1993). "For the forgoing reasons, this petition for a writ of mandamus is hereby granted. Judge Millican [is] directed to grant Kelley's motion to bar her prosecution for capital murder, as she has already been convicted of hindering prosecution and abuse of a corpse related to the same facts." In its mandamus petition, the State contends that Davenport, in holding that an individual cannot be prosecuted for hindering the prosecution of another when the individual was also a principal, or participated, in that crime, misstated the law. We agree. "When the language of a statute is plain and unambiguous ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning--they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature." Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997). "'"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction ...."'" 10 1130271 DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998) (quoting Blue Cross & Blue Shield v. Nielsen, 714 So. 2d 293, 296 (Ala. 1998), quoting in turn IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)). See also Ex parte Ankrom, 143 So. 3d 58 (Ala. 2013). As quoted above, § 13A-10-43(a) provides that one "commits the crime of hindering prosecution in the first degree if," with the requisite intent "to hinder the apprehension, prosecution, conviction or punishment of another for conduct constituting" certain crimes, "he renders criminal assistance to such person." (Emphasis added.) The plain language of the Code section focuses on the criminal assistance rendered to another person by the one accused of hindering. Whether the accused also participated in the underlying criminal conduct is not addressed by the Code section, and there is no language preventing the prosecution of one who hindered prosecution of another if he or she also participated in the underlying conduct. Although in certain circumstances providing criminal assistance to an accomplice might also result in one's hindering his or her own prosecution, providing criminal assistance to another is 11 1130271 nevertheless a distinct act explicitly proscribed by the Code section. Nichols v. State, 500 So. 2d 92, 93 (Ala. Crim. App. 1986) ("[I]t is clear that hindering prosecution is distinguishable from the underlying prosecutorial offense that was alleged to have been committed."). As long as the one accused of hindering prosecution renders criminal assistance to another, nothing in the language of the Code section prevents his or her prosecution, even if the accused's criminal assistance also ultimately resulted in rendering criminal assistance to himself or herself. To hold otherwise creates a broad exception not found in, and arguably contrary to, § 13A-10-43. To the extent Davenport holds otherwise, it misapprehends the law and thus does not provide Kelley a clear legal right for the mandamus relief she sought in the Court of Criminal Appeals. Kelley argues that because under Davenport a person cannot be found guilty of hindering prosecution if she was involved in the underlying offense, then the fact that she was found guilty of hindering prosecution means, or ultimately proves, that she was not a principal in the murders in the instant case. Therefore, she maintains, the State is 12 1130271 collaterally estopped from asserting the contrary. See Ex parte Howard, 710 So. 2d 460 (Ala. 1997) (discussing the application of the doctrine of collateral estoppel in the context of a criminal prosecution). This would be true if Davenport accurately stated the law, but, as noted above, it does not. A conviction under § 13A-10-43 establishes only that one hindered the prosecution of another -- it does not contemplate or address whether the accused also participated in the underlying criminal conduct. 1 Conclusion For the foregoing reasons, we grant the State's petition and direct the Court of Criminal Appeals to vacate its writ of mandamus. Kelley further argues that to depart from Davenport in 1 her case "would be so unfair as to violate due process." She contends that such a departure -- applied retroactively to her case -- would violate the Supreme Court's decision in Rogers v. Tennessee, 532 U.S. 451, 462 (2000), which noted that due process protects "against vindictive or arbitrary judicial lawmaking by safeguarding defendants against unjustified and unpredictable breaks with prior law." Given that Davenport's holding, which we reject today, clearly deviates from the plain language of § 13A-10-43(a), we see nothing vindictive, arbitrary, unjustified, or unpredictable in holding that decision to be in error. 13 1130271 PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs in the result. Moore, C.J., recuses himself. 14 1130271 MURDOCK, Justice (concurring in the result). I respectfully disagree with the main opinion's rejection today of the holdings in Goodwin v. State, 644 So. 2d 1269 (Ala. Crim. App. 1993), and Davenport v. State, 968 So. 2d 27 (Ala. Crim. App. 2005). In the procedural context in which the Court of Criminal Appeals decided those particular cases, I believe that court reached the right result based upon sound reasoning. As the Court of Criminal Appeals explained in Goodwin: "While it is true that the indictment charged them with hindering the prosecution of [David] King and [Xavier] Murray for the underlying offense of attempted murder, the attempted murder charge arose out of the same facts supporting the prosecution of Dewey [Goodwin] and Daren [Goodwin] for first degree robbery and for conspiracy to commit first degree robbery. To convict them of hindering the prosecution of King and Murray under these circumstances would, in essence, be convicting them of hindering their own prosecution, which is prohibited by Washington [v. State, 567 So. 2d 281 (Ala. Crim. App. 1990)]. Thus, this conviction must be reversed and the case remanded." 644 So. 2d at 1274. Similarly, the Court of Criminal Appeals correctly reasoned in Davenport: "[T]he appellant was convicted of manslaughter for the death of the victim. Because the hindering prosecution charge arose from the same facts as those supporting the manslaughter conviction, she 15 1130271 could not properly be convicted of both manslaughter and first-degree hindering prosecution." 968 So. 2d at 36. It is critical to note, however, that Goodwin and Davenport simply were postured differently than the present case, and it is this difference in my view that justifies, indeed requires, a different result in the present case. That difference is this: Both Goodwin and Davenport were cases in which the defendants were prosecuted as both principals and "hinderers" at the same time and under circumstances in which the State was sufficiently aware of the evidence tending to prove that the defendants acted as principals in the very crimes in relation to which the State simultaneously sought to prosecute them as "hinderers." Here, at the time it prosecuted Margie Morgan Kelley for hindering, the State was unaware of the evidence implicating her as a principal. Whether the restraining principle at play in Goodwin and Davenport be considered double jeopardy (in which case the exception identified below would be more directly applicable) or judicial or collateral estoppel (in which case, given the connection between estoppel doctrines and double jeopardy in 16 1130271 the criminal context, it would apply by analogy), I believe 2 there is an exception to the restraining principle that should apply here. Specifically, the United States Supreme Court has held that, even in a case in which the Double Jeopardy Clause itself otherwise would apply because the defendant had already been prosecuted for a lesser-included offense, an exception to that bar exists "when the facts necessary to the greater offense were not discovered despite the exercise of due diligence before the first trial." Jeffers v. United States, 432 U.S. 137, 152 (1996) (citing Brown v. Ohio, 432 U.S. 161, 169 n. 7 (1977); Blackledge v. Perry, 417 U.S. 21, 28-29 and n. 7 (1974); Diaz v. United States, 223 U.S. 442 (1912); and Ashe v. Swenson, 397 U.S. 436, 453 n. 7 (1970)). This "exception" is properly extended to the holdings in Goodwin and Davenport and explains why Kelley's prosecution in the present case is not barred as were the prosecutions in those cases. See Ex parte Howard, 710 So. 2d 460, 463 (Ala. 1997) 2 (quoting S.W. v. State, 703 So. 2d 427 (Ala. Crim. App. 1997), and citing Ashe v. Swenson, 397 U.S. 436 (1970), and United States v. Sanchez, 992 F.2d 1143, 1154 (11th Cir. 1993), on reconsideration, 3 F.3d 366 (11th Cir. 1994)). 17 1130271 Based on the foregoing, I concur in the result reached by the main opinion. 18	September 26, 2014
fda08894-253c-42c5-b771-4ef8a2c7e4bb	Ex parte Willie Conner. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Willie Conner v. State of Alabama)(Baldwin Circuit Court: CC-12-1861; Criminal Appeals : CR-12-2005). Writ Denied. No Opinion.	N/A	1130650	Alabama	Alabama Supreme Court	REL:09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130650 _________________________ Ex parte Willie Conner PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Willie Conner v. State of Alabama) (Baldwin Circuit Court, CC-12-1861; Court of Criminal Appeals, CR-12-2005) SHAW, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Main, Wise, and Bryan, JJ., concur. 1130650 Shaw, J., concurs specially. Moore, C.J., and Parker and Murdock, JJ., dissent. 2 1130650 SHAW, Justice (concurring specially). I concur to deny the petition. The petitioner, Willie Conner, was seen at a home- improvement store placing a "roofing nailer" in his pants. Two "loss-prevention managers" approached Conner after he left the store without purchasing the nailer. When they attempted 1 to escort Conner back inside the store, Conner declared that he had a gun, and he attempted to reach into his pocket. He then struggled with the loss-prevention managers. After Conner was detained, a "folding knife" was found in his pocket. Conner was ultimately convicted of first-degree robbery. See Ala. Code 1975, § 13A-8-41. Conner raises one issue in his certiorari petition. That issue, even the authors of the dissenting opinions appear to agree, contains no probability of merit. See Rule 39(f), Ala. R. App. P. Chief Justice Moore and Justice Murdock, who dissent, however, have discerned another issue upon which to grant certiorari review: Whether there was sufficient evidence to sustain a conviction for first-degree robbery, namely, whether Conner was armed with a deadly weapon or The loss-prevention managers also suspected Conner of a 1 theft that had occurred earlier that day. 3 1130650 dangerous instrument. In this writing, I will explain why I do not believe a review of that issue is proper or necessary. First, it must be noted that on preliminary examination of a certiorari petition, i.e., when reviewing a request to take up the case on appeal from the lower appellate court, this Court has before it very limited facts. Here, the facts as stated in the Court of Criminals Appeals' unpublished memorandum are properly before this Court for review. Rule 39(k), Ala. R. App. P. A petitioner may attempt to add certain facts found in the record, but Conner has not attempted to do so. See Rule 39(d)(5)(A). Thus, only those facts stated in the Court of Criminal Appeals' unpublished memorandum are before us. Conner v. State (No. CR-12-2005, Jan. 31, 2014) ___ So. 3d ___ (Ala. Crim. App. 2014) (table). Additionally, the standard of review on appeal from a challenge to the sufficiency of the evidence in a criminal case is as follows: The appellate court must accept as true all evidence introduced by the State, recognize all legitimate inferences in favor of the State from that evidence, and consider all evidence in a light most favorable to the State. 4 1130650 See Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003).2 Conner was convicted of first-degree robbery. That crime is defined at Ala. Code 1975, § 13A-8-41: "(a) A person commits the crime of robbery in the first degree if he violates [Ala. Code 1975,] Section 13A-8-43 [robbery in the third degree] and he: "(1) Is armed with a deadly weapon or dangerous instrument ...." Further: "(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed." There is apparently no dispute that the elements of § 13A-8-43, Ala. Code 1975, were met in this case. Thus, the only remaining element that must be met for Conner to be convicted of first-degree robbery is that he was armed with "a deadly weapon or dangerous instrument." Conner's case is not yet before this Court on appeal; 2 it is pending on preliminary examination. Nevertheless, this standard is helpful in determining whether the petition presents probability of merit. 5 1130650 Conner makes no attempt to argue that he was not so armed. In fact, during the course of the underlying robbery, he was in possession of a "folding knife," as well as the roofing nailer. That a jury can find that a knife is "a deadly weapon or dangerous instrument" is a proposition beyond dispute. That a jury as a matter of law could not find that a roofing nailer is a deadly weapon is a conclusion I am not prepared to make, especially in light of the fact that we are not presented with such a question and, further, because there is not a hint in the facts before us indicating whether (1) the roofing nailer was in a condition capable of being fired when the robbery occurred or (2) whether a roofing nailer can produce a deadly injury. To call Conner's folding knife a "pocketknife" might minimize its nature as a weapon, but doing so requires the Court to make inferences in favor of Conner and against the State and further requires the Court to create nonexistent facts. As noted above, this would be contrary to the standard an appellate court would apply to view the evidence and contrary to the actual facts before us. 6 1130650 Chief Justice Moore cites Cline v. State, 571 So. 2d 368, 370-71 (Ala. Crim. App. 1990), for the proposition that a folding knife "is not considered a deadly weapon unless used as such." ___ So. 3d at ___. Cline discusses whether a "pocketknife" in that case was a deadly weapon. Nevertheless, in Smith v. State, 601 So. 2d 201 (Ala. Crim. App. 1992), a case decided two years after Cline, the court held that an object the perpetrator had in his hand and placed on a shelf, but that the victim could not identify and that was later determined to be a "pocketknife," was a deadly weapon: "Finally, the victim's testimony that Smith appeared to have something in his hand when he threatened her and that he placed this object on the shelf above her bed, coupled with evidence that an open pocket knife that did not belong to the victim was found on the shelf above the victim's bed, was clearly sufficient to establish that Smith had been armed with a knife while effecting entry or while in the victim's dwelling. See Pardue v. State, 571 So. 2d 333 (Ala. 1990). Because a knife is a deadly weapon ... the State clearly established that Smith was armed with a deadly weapon ...." 601 So. 2d at 205-06. The perpetrator in Smith did not "use" the pocketknife in any manner, much less as a deadly weapon. In Goodgame v. State, 593 So. 2d 153, 154 (Ala. Crim. App. 1991), what was described by a witness as "'a little bitty knife, a little knife,'" which the perpetrator displayed and 7 1130650 threatened to use to stab the victim but was not actually "used" as a deadly weapon, was nevertheless considered a deadly weapon for purposes of establishing the offense of first-degree robbery. In the instant case, Conner had a knife in his pocket. He attempted to reach into one of his pockets while he was struggling with the loss-prevention managers. His "use" of the knife was no less than the defendant's in Smith. The facts that the knife might have been a mere pocketknife or even a "little bitty" knife and was not "used" as a deadly weapon does not mean that the jury could not have concluded that it was a deadly weapon. Goodgame, supra. That Conner declared that he had a gun but actually had a knife is not material under § 13A-8-41(a)(1). Nevertheless, we do not have before us a description of the knife. We know nothing about it or what the jury observed. We cannot determine if it is a deadly weapon like the knives specifically described in Ala. Code 1975, § 13A-1-2(7). See Johnson v. State, 406 So. 2d 451 (Ala. Crim. App. 1981) (concluding from the description of a knife in the record and the fact that it could cut a telephone cord that, 8 1130650 despite the fact that it did not conform with the statutory description of knives that constituted deadly weapons, it nevertheless was a deadly weapon). In any event, it would require speculation to presume, and would be contrary to the standard of review, that the evidence regarding the knife does not support the State's case. I further point out that any notion that, if a person declares that he is armed with one type of deadly weapon but is instead armed with a different type of deadly weapon, then he, as a matter of law, was not "armed with a deadly weapon" under § 13A-8-41(a)(1) should not be inferred from this case and should be rejected as unprecedented. Although the Court of Criminal Appeals gratuitously examined whether Conner could be considered armed under § 13A-8-41(b)--I say gratuitously because the court held that the issue had not been preserved for review--nothing suggests that that issue was actually presented to the jury. Specifically, nothing before us suggests that the jury was instructed that it should find Conner guilty of first-degree robbery because he said he possessed a "gun." For all we know, the jury was instructed that it could find Conner guilty 9 1130650 if he simply possessed a deadly weapon, § 13A-8-41(a)(1), and I see sufficient facts before us that would indicate no probability of merit in an argument otherwise. When this Court, hamstrung by limited facts and arguments, searches for extraneous wrongs raised by no one and not preserved for review, it will undoubtedly believe that it has spotted some. In our adversarial system, however, we should rely on the parties to raise issues they believe worthy of review. Conner identified to the Court of Criminal Appeals certain issues he challenged on appeal. That court addressed them. He then asked this Court to review portions of that ruling. I see nothing indicating any probability of merit in the issue Conner actually raises. See Rule 39(f), Ala. R. App. P. Therefore, I concur to deny the petition. 10 1130650 MOORE, Chief Justice (dissenting). By an unpublished memorandum, the Court of Criminal Appeals affirmed Willie Conner's conviction for first-degree robbery and his sentence of life imprisonment as a habitual felony offender. Conner v. State (No. CR-12-2005, Jan. 31, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014) (table). Because the undisputed facts demonstrate that Conner was not armed with a gun at the time of the theft, he could not be guilty of first-degree robbery. Therefore, I respectfully dissent from the decision to deny his petition for a writ of certiorari. The relevant facts are as follows. On July 5, 2012, a cashier at a Lowe's home-improvement store in Foley informed Alvin Barnard, a loss-prevention manager at the store, that he had seen a man leave the store and it "looked like he had something in his pants." Later that day the cashier informed Barnard that the same man, subsequently identified as Conner, was back in the store. Barnard viewed Conner on the store's video-surveillance system and saw him take a roofing nailer from a shelf in the tool department, place it down the front of his pants, and leave the store without paying for the roofing nailer. 11 1130650 Barnard and a colleague followed Conner, stopped him, identified themselves as loss-prevention managers, and asked Conner to come back into the store. Once inside the store, Conner said "I have a gun" and stuck his hand in his right- front pants pocket. Perceiving Conner's statement and movement as a threat of physical harm, Barnard wrestled Conner to the ground and subdued him. Barnard then searched Conner's pockets, finding only a folding knife, which he removed. Conner also surrendered the nailer to Barnard. Without resisting, Conner allowed Barnard to escort him to the security office, where he signed a statement admitting the theft. After a Foley police officer arrived, Conner told the officer that he had not intended to resist Barnard but had lost his balance because of the weight of the nailer in his pants. He admitted that he had said he had a gun but stated that he was referring to the nailer as a "nail gun." Barnard and the police officer testified for the prosecution at trial. The defense rested without calling any witnesses. The trial court charged the jury on first-degree robbery and the lesser- included offenses of third-degree robbery and third-degree 12 1130650 theft of property. The jury returned a verdict finding Conner guilty of first-degree robbery as charged in the indictment. Conner appeared for sentencing on August 30, 2013. The State presented uncontested evidence that Conner had been convicted of three prior Class C felonies for theft of property in the second degree. See § 13A-8-4, Ala. Code 1975. Because first-degree robbery is a Class A felony, the trial court was compelled to sentence Conner as a habitual felony offender to either life imprisonment or life imprisonment without the possibility of parole. See § 13A-5-9, Ala. Code 1975. The trial judge sentenced Conner to life imprisonment. Conner appealed, arguing that the reference to a gun and the ensuing scuffle occurred after the theft was completed and therefore could not convert the theft into a robbery. See Ex parte Sapp, 497 So. 2d 550 (Ala. 1986). The Court of Criminal Appeals disagreed, citing Ingram v. State, 878 So. 2d 1208 (Ala. Crim. App. 2003), for the proposition that "the force in this case was used in the immediate flight after the theft and not after the theft had clearly ceased." Conner also argued that he did not represent that he was armed because, when he said he had a gun, he was referring to the nailer as a "gun" 13 1130650 and not to a firearm. Viewing the evidence in a light most favorable to sustain the verdict, the Court of Criminal Appeals held that, even though Conner did not have a gun, his oral representation to that effect was sufficient to satisfy the armed-with-a-deadly-weapon element of first-degree robbery. § 13A-8-41(a)(1), Ala. Code 1975. In his pro se petition for a writ of certiorari, Conner argues only that the Court of Criminal Appeals was incorrect in finding that the theft had not ceased at the time Conner allegedly threatened Barnard. The Court of Criminal Appeals decided that the sequence of events that followed Conner's concealment of the nailer in his pants was a continuous course of conduct in which Conner attempted to escape with the merchandise and was thwarted by the loss-prevention officers. In Ex parte Sapp, in which this Court held that the theft had ceased before an altercation occurred, the thief successfully left the store with a stolen jacket. When on his own initiative he returned 5 to 10 minutes later wearing the jacket, a security officer recognized the store's merchandise and apprehended him. 497 So. 2d at 551. In this case Conner did not return voluntarily to Lowe's with the 14 1130650 nail gun. Instead, the loss-prevention officers stopped him as he left the store and escorted him back inside where Conner uttered the alleged threat. "[Section] 13A-8-41 ... creates the offense of robbery in the first degree: "'(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he: "'(1) Is armed with a deadly weapon or dangerous instrument; or "'(2) Causes serious physical injury to another. "'(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.' "Under that section, the offender must violate § 13A-8-43: "'(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he: "'(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or 15 1130650 "'(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.'" Ex parte Sapp, 497 So. 2d at 550-51 (emphasis added). "Thus, to be found guilty under these statutes, the force or threat must have been used 'in the course of committing' the theft, which, by statutory definition, § 13A-8-40, 'embraces acts which occur ... in immediate flight after the attempt or commission.'" Sapp, 497 So. 2d at 551. Because Conner's alleged threat of force occurred in the course of committing a theft, namely "in immediate flight" after the commission of the theft, § 13A-8-40(b), his petition, which raises no other ground for issuing the writ, is unavailing. Ordinarily that would be the end of the matter. However, a significant error on the face of the Court of Criminal Appeals' unpublished memorandum compels me to dissent. In rare circumstances this Court may consider an issue that the petitioner failed to raise. "In the interest of expediting decision, or for other good cause shown, an appellate court may suspend the requirements or provisions of any of these rules in a particular case on application of a 16 1130650 party or on its own motion ...." Rule 2(b), Ala. R. App. P. (emphasis added). The Committee Comments to Rule 2 state: "This rule contemplates that an appellate court may relieve a litigant of the consequences of default where manifest injustice would otherwise result." (Emphasis added.) The crux of the Court of Criminal Appeals' error is its misconstruction of the following passage in the first-degree- robbery statute: "Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed." § 13A-8-41(b), Ala. Code 1975 (emphasis added). Conner's statement that he had a gun was not conclusive evidence that he was "so armed"; it was only prima facie evidence. The jury was entitled to rely on the threat alone as evidence that Conner was armed only if that evidence was not contradicted. "Prima facie evidence" is "[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced." Black's Law Dictionary 677 (10th ed. 2014) (emphasis added). 17 1130650 When a robber claims to have a weapon but does not actually display one, the evidence going to prove whether he actually was armed may be disputed. If the robber escapes before being apprehended, the jury may infer that he discarded the alleged weapon. But when a perpetrator like Conner is apprehended on the spot immediately after threatening the use of force by stating that he had a "gun," and no gun is found on his person, the presumption that he is armed is conclusively rebutted. In this case evidence was presented that a threat of imminent use of force occurred, thus satisfying the third-degree-robbery statute, § 13A-8-43(a)(2), but the element in the first-degree-robbery statute of being "armed with a deadly weapon or dangerous instrument" was not proven. "The presence of a gun elevates third degree robbery 3 Justice Shaw's special concurrence argues unconvincingly 3 that the folding knife could be considered a deadly weapon. As Justice Murdock notes in his dissent, Conner made no oral representation about the folding knife. Additionally, I note that a pocketknife is not considered a deadly weapon unless it is used as such. "While a pocketknife may not be deadly per se and ordinarily has lawful functions and uses, it may or may not be deemed a deadly weapon, depending on the manner of its use." Cline v. State, 571 So. 2d 368, 371 (Ala. Crim. App. 1990). See also Goodgame v. State, 593 So. 2d 153 (Ala. Crim. App. 1991) (holding that where a defendant displayed the blade of a pocketknife and threatened to stab the victim, the question of whether the knife was a deadly weapon was for the jury to decide); Thomas v. State, 31 Ala. App. 1, 4, 9 So. 2d 18 1130650 to first degree robbery." Ex parte Curry, 471 So. 2d 476, 478 (Ala. 1984). The commentary to §§ 13A-8-40 through -44 notes that "it is sometimes difficult to prove that defendant actually was armed with a dangerous weapon, unless he is apprehended at the scene." (Emphasis added.) Conner was apprehended at the scene, and he did not have a gun. "If in fact the defendant refutes [the presumption that he is armed], he may still be convicted of robbery in a lesser degree." §§ 13A-8-40 through 13A-8-44 Commentary. Because the Court of Criminal Appeals' unpublished memorandum states as a fact that Conner did not have a gun, the presumption was rebutted by the State's own evidence that was introduced at trial and that was before the Court of Criminal Appeals on appeal. Conner may therefore be convicted of "robbery in a lesser degree," but not of first-degree robbery. Nevertheless, the Court of Criminal Appeals concluded that the State provided sufficient evidence to prove that Conner was armed with a deadly weapon: "Although Conner did not have a gun at the time, his claim that he had a gun was a 150, 153 (1942) (noting that "a penknife is a deadly weapon -- when used as here shown" (final emphasis added)). Conner neither used nor threatened to use the knife in any fashion. 19 1130650 sufficient verbal representation that he was armed with a deadly weapon. The State therefore presented sufficient evidence to satisfy the elements of first-degree robbery." The Court of Criminal Appeals thus converted a rebuttable presumption into a conclusive presumption, contrary to the plain language of § 13A-8-41(b).4 A more adequate analysis occurred in James v. State, 405 So. 2d 71 (Ala. Crim. App. 1981). In that case "while no weapon was actually displayed, the defendant, by placing his hand inside his coat pocket, gave the victim the impression that he was armed with a pistol." 405 So. 2d at 72. Because the victim reasonably believed that James was armed with a deadly weapon, the State had made a prima facie case that James was armed with a deadly weapon. Section 13A-8-41(b) may also be unconstitutional on its 4 face by impermissibly shifting to the defendant the burden of proof on the deadly weapon element. By using the phrase "is prima facie evidence" rather than the phrase "may be considered as prima facie evidence," § 13A-8-41(b) appears to create a mandatory rather than a permissive presumption. "Mandatory presumptions 'violate the Due Process Clause [because] they relieve the State of the burden of persuasion on an element of an offense.'" Townes v. State, [Ms. CR-10- 1892, June 13, 2014] ___ So. 3d ___, ___ (Ala. Crim. App. 2014) (quoting Francis v. Franklin, 471 U.S. 307, 314 (1985)). See also Beard v. State, 612 So. 2d 1335 (Ala. Crim. App. 1992). 20 1130650 "A conviction of first degree robbery does not require evidence that the accused brandished or displayed any weapon. Indeed, in order to be convicted of first degree robbery an accused need not even be armed with a deadly weapon or dangerous instrument where (1) he possesses any object reasonably believed to be a deadly weapon or dangerous instrument or represents in some manner that he has one and (2) there is no evidence to rebut or refute this reasonable belief or representation." James, 405 So. 2d at 73 (emphasis added). Although the James court incorrectly stated that "in order to be convicted of first degree robbery an accused need not even be armed with a deadly weapon or dangerous instrument," 405 So. 2d at 73, it 5 did correctly acknowledge that the prima facie case could be rebutted. The court concluded: "Here the defendant's actions instilled in the victim the reasonable belief that he was armed with a pistol. Under Section 13A-8-41(b) this constituted prima facie evidence that the defendant was so Other cases have made this error. See, e.g., Dick v. 5 State, 677 So. 2d 1267, 1270 (Ala. Crim. App. 1996) (noting that "'[t]his court has held on several occasions that it is not necessary to prove that a defendant displayed a gun during a robbery or that he actually had a gun to sustain a conviction for Robbery in the First Degree'" (quoting Stewart v. State, 443 So. 2d 1362, 1363-64 (Ala. Crim. App. 1983)) (emphasis added)); Holt v. State, 960 So. 2d 726, 739 n.6 (Ala. Crim. App. 2006) (stating that "an accused need not actually be armed with a deadly weapon to be convicted of robbery in the first degree"). For an analysis of this problem, see Lucas v. State, 45 So. 3d 380, 394-98 (Ala. Crim. App. 2009) (Welch, J., dissenting). 21 1130650 armed. Since there was no evidence to rebut this presumption and as the State proved all the other elements of robbery in the first degree, the defendant's conviction must stand." 405 So. 2d at 73 (emphasis added). See also Herndon v. State, 563 So. 2d 1065, 1070 (Ala. 1990) (noting "that the presumption in § 13A-8-41(b) can be rebutted"). In this case, by contrast, the evidence conclusively rebutted the presumption that Conner was armed with a gun. By omitting an essential step of the analysis, the Court of Criminal Appeals erred in affirming Conner's conviction for first-degree robbery and the mandatory minimum sentence of life imprisonment.6 Good cause exists under Rule 2(b), Ala. R. App. P., for this Court, on its own motion, to grant Conner's petition based on (1) an erroneous conclusion of law by the trial court and by the Court of Criminal Appeals (and now ignored by this Court) that Conner is guilty of first-degree robbery although he was not in possession of a gun, and (2) the affirming of a Justice Shaw's special concurrence notes that we do not 6 have the jury instructions before us or the actual testimony, if any, as to the perceived role of the folding knife. In my view these uncertainties, when coupled with the clear legal error on the face of the unpublished memorandum of the Court of Criminal Appeals, provide additional argument for granting the petition. 22 1130650 life sentence for a crime Conner could not be guilty of committing under the facts of this case. Although stating facts that demonstrate that Conner was not guilty of first- degree robbery -- "Conner did not have a gun" -- the Court of Criminal Appeals nonetheless affirmed his conviction for that crime. If we were to overturn Conner's conviction for first- degree robbery, a Class A felony, and remand for resentencing on the lesser-included offense of third-degree robbery, a Class C felony, Conner's minimum sentence under the habitual- felony-offender statute would be 15 years as opposed to life imprisonment. § 13A-5-9(c)(1) and (3), Ala. Code 1975. Surely a mandatory minimum sentence of life imprisonment is a manifest injustice when, under a correct reading of the robbery statutes, the minimum available sentence is 15 years. 23 1130650 MURDOCK, Justice (dissenting). I respectfully dissent from the denial of certiorari review. As a threshold matter, I note my agreement with the reasons cited by Chief Justice Moore for which this Court, in the interest of justice in this particular case, should overlook the failures that characterize the pro se petition before us. As for the merits of this case, I acknowledge that Willie Conner was found to be in possession of a pocketknife at the time of his arrest. There is no suggestion in the unpublished memorandum of the Court of Criminal Appeals, however, that any person saw that knife or had any reason to believe that Conner was possessed of a deadly weapon in the form of such a knife. The discussion by the Court of Criminal Appeals as to whether Conner was armed with a deadly weapon or dangerous instrumentality focuses solely on his "verbal representation" that "he had a gun." I likewise will limit the focus of my comments. In order to prove first-degree robbery in the absence of "serious physical injury to another," see Ala. Code 1975, § 13A-8-41(a)(2), the State must prove that the defendant was 24 1130650 "armed with a deadly weapon or dangerous instrument," see § 13A-8-41(a)(1). A requirement that the defendant be "armed" means that defendant must have been armed. I know of no other way to read those words. Yet, somehow, the fact that § 13A-8-41(b) provides methods, short of direct evidence of the defendant's being armed, by which the State can present a prima facie case that the defendant was armed, has led to restatements of the necessary elements of first-degree robbery that suggest that it is not necessary for the defendant actually to be armed. In the present case, for example, after quoting Rice v. State, 620 So.2d 140, 141-42 (Ala. Crim. App. 1993), for the proposition, in a different context, that "'the State does not have to prove the defendant actually had a gun in order to sustain a conviction of first-degree robbery,'" the Court of Criminal Appeals states that, "[a]lthough Conner did not have a gun at the time, his claim that he had a gun was a sufficient verbal representation that he was armed with a deadly weapon." Even the passage in James v. State, 405 So. 2d 71, 73 (Ala. Crim. App. 1981), noted by Chief Justice Moore in his special writing contributes to the confusion, 25 1130650 stating that, "[i]n order to be convicted of first-degree robbery, an accused need not even be armed with a deadly weapon or dangerous instrument" under certain circumstances. That simply is not true. What is true is that, in the absence of any evidence deemed sufficient by the factfinder to rebut the prima facie case established through presentation of certain evidence as described in § 13A-8-41(b), the State will have proven that the defendant was armed. It is not true, however, that the State need not prove that the defendant was armed; at the end of the day, the required element of the defendant's being armed is still a required element of the offense. That which is set out in § 13A-8-41(b) as prima facie evidence of that element is only that, prima facie evidence. Section 13A-8- 41(b) does not change what the State must prove under s 13A-8- 41(a)(2); it merely provides a tool designed to aid the State in proving it. 26	September 26, 2014
493ab3c2-41fd-465b-844b-ba675824cea0	Gentry III v. Lindsey, Sr., et al.	N/A	1121380	Alabama	Alabama Supreme Court	Rel: 8/15/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1121380 ____________________ Andrew J. Gentry III v. Daniel L. Lindsey, Sr., et al. Appeal from Lee Circuit Court (CV-11-0188) BRYAN, Justice. Andrew J. Gentry III ("Drew Gentry") appeals the Lee Circuit Court's judgment dismissing his claims against Daniel Lindsey, Sr., Jackson Thornton & Co., P.C. ("Jackson Thornton"), Daniel Lindsey, Jr., Justin M. Parnell ("Matt Parnell"), Parnell & Crum, and Wilbur Investments, LLC 1121380 ("Wilbur Investments"). For the reasons set forth herein, we conclude that the Rule 54(b) certification was improper, and we dismiss the appeal. Facts and Procedural History In 1992, Andrew J. Gentry, Jr. ("Andy Gentry"), petitioned for bankruptcy, pursuant to Chapter 11 of the Bankruptcy Code. Andy Gentry hired Charles N. Parnell III ("Nick Parnell"), an attorney at Parnell & Crum, to represent him in the bankruptcy proceedings. Nick Parnell hired Daniel Lindsey, Sr., a certified public accountant with Jackson Thornton, to assist him. According to Drew Gentry, who is Andy Gentry's son, Andy Gentry suffered throughout his life from a mental illness, which, Drew Gentry argues, was not controllable by medication at the time of the bankruptcy proceedings. Drew Gentry argues that, at the time of the bankruptcy proceedings, Nick Parnell and Daniel Lindsey, Sr., knew of Andy Gentry's reduced mental capacity and also knew that Andy Gentry was terminally ill with AIDS. Andy Gentry died in 1995, while the bankruptcy proceedings were pending. During the bankruptcy proceedings and prior to Andy Gentry's death, Nick Parnell and Daniel Lindsey, Sr., 2 1121380 incorporated LeeCo Properties, Inc. ("LeeCo"), in the names of their minor sons, Matt Parnell and Daniel Lindsey, Jr. Nick Parnell and Daniel Lindsey, Sr., persuaded Andy Gentry and the bankruptcy court to allow the transfer of certain real estate owned by Andy Gentry to LeeCo in return for either payment of the debts owed on those properties or the assumption of those debts. The bankruptcy proceedings terminated in 1997. In 2010, Nick Parnell and Matt Parnell acquired the interests of Daniel Lindsey, Sr., and Daniel Lindsey, Jr., in LeeCo. LeeCo's assets were later transferred to Wilbur Investments, and LeeCo was dissolved in December 2010. Drew Gentry argues that neither he nor the bankruptcy court received notice of the transfer of assets from LeeCo to Wilbur Investments. In April 2011, Michael Kent, who had had some business dealings with Andy Gentry, sued Nick Parnell and LeeCo, alleging claims related to Nick Parnell's conduct during and after his representation of Andy Gentry in the bankruptcy proceedings. In May 2011, Kent moved to add Drew Gentry as a "second-party plaintiff," arguing that the defendants had inflicted substantial harm upon the Gentry family and that 3 1121380 "[t]he interests of justice and the interests of judicial economy [would] be served" by adding Drew Gentry as a plaintiff. Drew Gentry was added as a party to the action on June 2, 2011, and, on that same day, he filed a complaint against Nick Parnell, LeeCo, Parnell & Crum, and various fictitiously named parties, alleging claims of breach of fiduciary duty and fraud against Nick Parnell, of conspiracy to defraud against Nick Parnell, LeeCo, and fictitiously named defendants, and of negligence against Nick Parnell and Parnell & Crum. Drew Gentry also requested "that the assets of the defendants be impressed with a constructive trust in favor of ... Drew Gentry. Specifically, that the Defendants be judicially restrained from continuing to convert the monthly rents from the Mexican Restaurant presently known as 'Cancun' to the Defendants' own use and benefit." Kent's claims were eventually dismissed on Kent's own motion, and Drew Gentry remains the only plaintiff in the underlying action. On June 23, 2011, Nick Parnell and Parnell & Crum moved to have Drew Gentry's complaint dismissed. After a hearing, 1 Nick Parnell and Parnell & Crum noted in their motion to 1 dismiss that LeeCo was not included in that motion because it 4 1121380 the circuit court entered an order on November 2, 2011, denying the motion to dismiss as to the breach-of-fiduciary- duty claim and the request for a constructive trust and granting the motion as to the fraud, conspiracy, and negligence claims. The circuit court determined that the fraud, conspiracy, and negligence claims were governed by the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975 ("the ALSLA"), because they were related to Nick Parnell's representation of Andy Gentry during the bankruptcy proceedings. The circuit court went on to find that those claims would not form a basis for an action by Drew Gentry and, in the alternative, would be barred by the applicable statute of limitations. Drew Gentry moved the circuit court to alter, amend, or vacate the November 2 order as to the fraud and conspiracy claims only. He argued that, in order to conclude that those claims were governed by the ALSLA, the circuit court had to find that Nick Parnell was acting at all relevant times in his capacity as a lawyer for Andy Gentry as opposed to his capacity as an officer of LeeCo. Drew Gentry argued that this had been dissolved in December 2010. LeeCo was later dismissed from the action by consent of the parties. 5 1121380 finding was based on facts that had not yet been established and that Alabama law allows for recovery by a nonclient for harm caused "by a fraud directed at [a] client" by the client's attorney. In May 2012, Drew Gentry amended his complaint, adding as defendants Wilbur Investments, Daniel Lindsey, Sr., Matt Parnell, Daniel Lindsey, Jr., and Jackson Thornton. He also amended his conspiracy claims to include allegations against the newly added defendants as well as Nick Parnell and added new claims of unjust enrichment and violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO") against Nick Parnell and the newly added defendants. He also added claims of negligence and willful and wanton misconduct against Nick Parnell. Parnell & Crum was not listed as a defendant in the amended complaint. Nick Parnell, Matt Parnell, and Wilbur Investments moved the circuit court to dismiss the amended complaint. Daniel Lindsey, Jr., filed a separate motion to dismiss the amended complaint. Daniel Lindsey, Sr., and Jackson Thornton (collectively referred to as "the Jackson Thornton defendants") also filed a motion to dismiss the amended 6 1121380 complaint. The defendants argued, among other things, that the amended complaint failed to state a claim upon which relief can be granted because, they asserted, the claims did not survive Andy Gentry's death, the claims were barred by the statutes of limitations, and Drew Gentry did not have standing to bring the claims. Drew Gentry opposed those motions. The defendants filed various motions in reply to Drew Gentry's opposition. In August 2012, the circuit court held a hearing on the motions to dismiss the amended complaint and, in February 2013, entered an order granting those motions ("the February 2013 order"). The circuit court found that dismissal based on statute-of-limitations grounds was "inappropriate at [that] time" because "it [could not] be said as a matter of law that the statutes should not be tolled due to [Drew Gentry's] incompetency." The circuit court went on to find, however, 2 that "the claims expressed in the First Amended Complaint [did] not survive the death of Andy Gentry and that [Drew Drew Gentry argued that, like his father, he suffered 2 from a mental illness, which, he says, should have tolled the statutes of limitations on his claims. 7 1121380 Gentry] lack[ed] standing to bring them." The circuit court concluded: "In sum, the First Amended Complaint makes allegations which could conceivably be brought by Andy Gentry or the estate of Andy Gentry. It does not appear that any of the claims contained in the First Amended Complaint can be asserted by Drew Gentry. ... "For the foregoing reasons, the Court finds that [Drew] Gentry's First Amended Complaint is due to be and is hereby DISMISSED." The Jackson Thornton defendants, Daniel Lindsey, Jr., and the Parnell defendants (comprising Nick Parnell, Matt Parnell, Parnell & Crum, and Wilbur Investments) moved the circuit court to make its February 2013 order a final judgment, pursuant to Rule 54(b), Ala. R. Civ. P. Drew Gentry "conditional[ly] assent[ed]" to the Rule 54(b) motions, arguing that he "ha[d] no objection to the February [2013] order being made final" but only after he had had time to file, and the circuit court had had time to consider, a motion to alter, amend, or vacate the February 2013 order. He filed a motion to alter, amend, or vacate the order on March 7, 2013. He later amended that motion to add additional authority in support of his arguments. Daniel Lindsey, Jr., and the Jackson Thornton defendants separately responded to 8 1121380 the motion to alter, amend, or vacate, and the Parnell defendants adopted their arguments. The circuit court denied Drew Gentry's motion and, on March 20, 2013, entered a certification, pursuant to Rule 54(b), making final the dismissal of the claims against Daniel Lindsey, Jr., the Jackson Thornton defendants, Matt Parnell, Parnell & Crum, and Wilbur Investments. The circuit court did not make final the dismissal of the claims in the amended complaint against Nick Parnell, presumably because claims remained pending against him in the original complaint. Drew Gentry appealed the circuit court's judgment to the Court of Civil Appeals. In August 2013, the Court of Civil Appeals transferred the appeal to this Court, citing a lack of subject-matter jurisdiction. Daniel Lindsey, Jr., and Nick Parnell separately moved this Court to dismiss them from the appeal. Daniel Lindsey, Jr., argued that Drew Gentry had not listed him on the notice of appeal and that the notice of appeal did not "give[] any indication of an intent to appeal the judgment in favor of [Daniel] Lindsey, Jr." Nick Parnell argued that claims remained pending against him in the circuit court, that "there ha[d] been no final judgment against him," 9 1121380 and that "the [circuit] court's [March 20 judgment] did not include him." This Court denied the motion filed by Daniel Lindsey, Jr., but granted Nick Parnell's motion and dismissed him from the appeal. Discussion Drew Gentry raises several issues that, he argues, this Court must address on appeal. However, we cannot consider the merits of his arguments because the circuit court's Rule 54(b) certification was improper and, thus, Drew Gentry's appeal is due to be dismissed. See generally Fuller v. Birmingham- Jefferson Cnty. Transit Auth., [Ms. 1090436, December 20, 2013] ___ So. 3d ___, ___ (Ala. 2013) (concluding that "the trial court's certification of finality under Rule 54(b) is ineffective, and, there being no final judgment, both the appeal and cross-appeal are dismissed for lack of jurisdiction"). This Court recently stated in Grant v. Breland Homes, LLC, [Ms. 1121405, June 13, 2014] ___ So. 3d ___, ___ (Ala. 2014): "'With respect to the finality of judgments adjudicating fewer than all claims in a case, Rule 54(b), Ala. R. Civ. P., provides: 10 1121380 "'"When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. ... [I]n the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." "'"If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment." Baugus v. City of Florence, 968 So. 2d 529, 531 (Ala. 2007) (emphasis added). However, this Court will not consider an appeal from a judgment certified as final under Rule 54(b) if it determines that the trial court exceeded its discretion in concluding that there is "no just reason for delay." Rule 54(b); see also Scrushy v. Tucker, 955 So. 2d 988, 996 (Ala. 2006) ("Whether there was 'no just reason for delay' is an inquiry 11 1121380 committed to the sound discretion of the trial court, and, as to that issue, we must determine whether the trial court exceeded its discretion."). "'A trial court exceeds its discretion in determining that there is "no just reason for delay" when "the issues in the claim being certified and a claim that will remain pending in the trial court '"are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results."'" Schlarb v. Lee, 955 So. 2d 418, 419–20 (Ala. 2006) (quoting Clarke–Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So. 2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987)). See also Centennial Assocs., Ltd. v. Guthrie, 20 So. 3d 1277, 1281 (Ala. 2009) ("'It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.'" (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998))).' "Loachapoka Water Auth., Inc. v. Water Works Bd. of Auburn, 74 So. 3d 419, 422-23 (Ala. 2011). "In Smith v. Slack Alost Development Services of Alabama, LLC, 32 So. 3d 556 (Ala. 2009), Slack Alost sued Tony Smith and Albert Weems, alleging breach of contract for failing to complete their condominium purchase. Smith & Weems Investments, LLC, was added as a party because it was the entity named in a standby letter of credit obtained as part of the 12 1121380 contract for the purchase of a condominium unit. Slack Alost moved for a summary judgment against Weems, but not against Smith or Smith & Weems Investments. The trial court granted the motion and certified the summary judgment as final pursuant to Rule 54(b). Smith and Smith & Weems appealed. On appeal, this Court held: "'In the instant case, it is apparent that at least some of the issues presented in the still pending claim against Smith are the same as the issues presented in the appeal now brought by Smith and Smith & Weems Investments. Weems and Smith are business partners accused of breaching the same real-estate contract, and ... Weems and Smith have both argued that Slack Alost never presented them with the original offering statement or the amended offering statement for the Bel Sole condominium development, in violation of § 35–8A–408. In Centennial Associates, Ltd.[ v. Guthrie, 20 So. 3d 1277 (Ala. 2009,] we stated that "'[i]t is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.'" 20 So. 3d at 1281 (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998)). Repeated appellate review of the same underlying facts would be a probability in this case, and, in light of this Court's stated policy disfavoring appellate review in a piecemeal fashion, see Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala. 2004), we accordingly hold that the trial court exceeded its discretion in 13 1121380 certifying the judgment entered against Weems as final pursuant to Rule 54(b).' "32 So. 3d at 562-63. "In the present case, review of the nonfinal summary judgment in favor of Gulf Coast and of the summary judgment entered in favor of Horton and Breland that is before this Court on appeal requires resolution of the same threshold issue: whether Gulf Coast had authority to approve the construction applications for lots 13 and 26 in Oak Grove when the same applications had already been denied by the ARC. Horton, Breland, and Gulf Coast presented the same arguments in their summary-judgment motions and the same defenses to the plaintiffs' claims. Although the summary judgment in favor of Breland and Horton is before this Court on appeal, the summary judgment in favor of Gulf Coast is not. Because the threshold issue in the judgment before this Court is identical to the threshold issue in a claim still pending before the trial court, we conclude that the claims are '"'"so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results."'"' Loachapoka Water Auth., 74 So. 3d at 423 (quoting Schlarb v. Lee, 955 So. 2d 418, 419-20 (Ala. 2006)). Further, as in Smith, supra, '[r]epeated appellate review of the same underlying facts would be a probability in this case.' 32 So. 3d at 562. Thus, 'in light of this Court's stated policy disfavoring appellate review in piecemeal fashion,' id. at 562- 63, we conclude that the trial court exceeded its discretion in determining that there was no just reason for delay and in certifying as final pursuant to Rule 54(b) the summary judgment in favor of Horton and Breland." As was the case with the claims in Smith v. Slack Alost Development Services of Alabama, LLC, 32 So. 3d 556 (Ala. 14 1121380 2009), which was discussed in Grant, "it is apparent that at least some of the issues presented in the still pending claim[s] against [Nick Parnell] are the same as the issues presented in the appeal now brought [against Daniel Lindsey, Jr., the Jackson Thornton defendants, Matt Parnell, Parnell & Crum, and Wilbur Investments]." 32 So. 3d at 562. In fact, all the claims now before us on appeal were also alleged against Nick Parnell and are based on the same underlying facts. Moreover, as in Grant, Nick Parnell and the defendants before us on appeal presented many of the same arguments in their motions to dismiss and raised the same defenses to Drew Gentry's claims. Thus, this Court's review of the nonfinal dismissal of the claims in the amended complaint against Nick Parnell in the amended complaint and the dismissal of the claims against Daniel Lindsey, Jr., the Jackson Thornton defendants, Matt Parnell, Parnell & Crum, and Wilbur Investments will "require[] resolution of the same ... issue[s]." Grant, ___ So. 3d at ___. We conclude here, as we did in Grant, "that the claims are '"'"so closely intertwined that separate adjudication would pose an unreasonable 15 1121380 risk of inconsistent results."'"' Loachapoka Water Auth.[, Inc. v. Water Works Bd. of Auburn], 74 So. 3d [419,] 423 [(Ala. 2011)] (quoting Schlarb v. Lee, 955 So. 2d 418, 419-20 (Ala. 2006)). Further, as in Smith[ v. Slack Alost Development Services of Alabama, LLC, 32 So. 2d 556 (Ala. 2009)], '[r]epeated appellate review of the same underlying facts would be a probability in this case.' 32 So. 3d at 562. Thus, 'in light of this Court's stated policy disfavoring appellate review in piecemeal fashion,' id. at 562-63, we conclude that the trial court exceeded its discretion in determining that there was no just reason for delay and in certifying as final pursuant to Rule 54(b) the [dismissal of Drew Gentry's claims against Daniel Lindsey, Jr., the Jackson Thornton defendants, Matt Parnell, Parnell & Crum, and Wilbur Investments]." Grant, ___ So. 3d at ___. Because the Rule 54(b) certification was improper, Drew Gentry's appeal is due to be dismissed. See Stephens v. Fines Recycling, Inc., 84 So. 3d 867, 879 (Ala. 2011) (holding that the trial court's Rule 54(b) certification was erroneous and concluding that, "[i]n the absence of a final judgment, this appeal is due to be dismissed"). APPEAL DISMISSED. Moore, C.J., and Bolin and Main, JJ., concur. Murdock, J., concurs in the result. 16	August 15, 2014
55c896d0-6938-4357-bdbc-03c137bb6aae	Donahey, Jr. v. Ruffin	N/A	1130324	Alabama	Alabama Supreme Court	Rel: 08/29/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130324 _________________________ Ex parte Harvey Ruffin, Shelton Patterson, Sandra Giles, and Kenneth Jones PETITION FOR WRIT OF MANDAMUS (In re: Thomas Donahey, Jr. v. Harvey Ruffin, Shelton Patterson, Sandra Giles, and Kenneth Jones) (Montgomery Circuit Court, CV-12-0702) MAIN, Justice. 1130324 Lt. Harvey Ruffin, a correctional officer at the Bullock Correctional Facility ("the facility"); Sgt. Shelton Patterson, a correctional officer at the facility; Sandra Giles, the deputy warden of the facility; and Kenneth Jones, the warden of the facility (hereinafter referred to collectively as "the petitioners"), the defendants in an action filed by Thomas Donahey, Jr., petition for a writ of mandamus directing the Montgomery Circuit Court to grant their motion for a summary judgment on the ground that they are entitled to immunity. We grant the petition and issue the writ. I. Facts and Procedural History On July 25, 2010, Donahey was attacked and injured while in the custody of the Mental Health Residential Therapeutic Unit of the facility. Donahey was stabbed several times with an ink pen by another inmate, Bruce Smith. During the incident, one of the facility's correctional officers observed several inmates running from one of the inmate dorms. The fleeing inmates reported that another inmate was being stabbed. The correctional officer radioed for immediate assistance. Two correctional officers responded to the call 2 1130324 for assistance, including Lt. Ruffin. Lt. Ruffin responded and observed Donahey "sitting on the side of his bed bleeding" and Smith "standing behind Donahey, with his hands held over his head, and stating that 'the voices' had told him to attack Donahey." Donahey was taken to the facility's health-care unit for medical treatment and was later released back to his dormitory. Smith was handcuffed and taken to the facility's stabilization/segregation unit and was charged with assaulting another inmate. On July 6, 2012, Donahey, acting pro se, sued Lt. Ruffin, Warden Jones, Deputy Warden Giles, and Sgt. Patterson, who was allegedly present while Donahey was being treated in the health-care unit following the attack. Donahey alleged that the petitioners negligently, wantonly, and recklessly failed to protect him from an attack by another inmate. In his complaint, Donahey alleged that the petitioners knew that Smith had a history of violence and that he had attacked other inmates and prison guards. Donahey also alleged that the petitioners knew that Smith did not like Donahey and that they should not have housed Donahey and Smith together. Donahey also alleged that the failure to protect him from the attack 3 1130324 constituted a violation of his rights under the Eighth Amendment to the United States Constitution. Donahey demanded judgment in the amount of $250,000 in compensatory damages and $250,000 in punitive damages.1 On August 28, 2013, the petitioners jointly moved for a summary judgment on the ground that they are immune from Donahey's lawsuit. Each petitioner submitted an affidavit in support of the summary-judgment motion. Lt. Ruffin testified that, contrary to Donahey's claims that Smith was known to be violent, Smith's last disciplinary infraction involving any form of violence was in 2005. The petitioners testified that both Donahey and Smith were housed at the mental-health unit and both were receiving treatment for mental-health issues. Warden Jones testified that inmates are routinely housed together unless there is a compelling reason to segregate particular inmates from the general population. The petitioners described the attack as "spontaneous." They testified that the security staff responded immediately to the attack and that medical aid was promptly rendered to Donahey, while Smith was placed in the segregation unit and charged Donahey did not request injunctive or declaratory relief. 1 4 1130324 with a disciplinary violation. Deputy Warden Giles testified that there was nothing that would have given the correctional- security staff reason to foresee Smith's attack on Donahey. Although Sgt. Patterson testified that he did not recall being present at the time of the incident, he stated that security personal quickly notify the mental-health staff any time they witness an inmate in mental distress. Donahey filed no response and submitted no evidence in opposition to the summary-judgment motion. Thus the sworn 2 statements submitted by the petitioners were uncontroverted. A hearing on the motion was held on November 6, 2013. On 3 November 7, 2013, the trial court entered an order denying the summary-judgment motion without explanation. The petitioners jointly petitioned for a writ of mandamus ordering the Montgomery Circuit Court to enter a summary judgment in their favor on the basis that they are immune from liability. II. Standard of Review Although the denial of a motion for a summary judgment is generally not appealable, this Court has held that the denial Nor did Donahey file an affidavit pursuant to Rule 56(f), 2 Ala. R. Civ. P., seeking time to conduct additional discovery. No transcript of the hearing is in the record. 3 5 1130324 of a motion for a summary judgment grounded on a claim of immunity is reviewable by a petition for a writ of mandamus. Ex parte Kennedy, 992 So. 2d 1276, 1280 (Ala. 2008). In such case, we apply the following standard of review: "'"While the general rule is that the denial of a motion for summary judgment is not reviewable, ... the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus." Ex parte Rizik, 791 So. 2d 911, 912 (Ala. 2000). A writ of mandamus is an extraordinary remedy available only when there is: "(a) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001).'" Kennedy, 992 So. 2d at 1280 (quoting Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003)). III. Analysis The petitioners invoke a pantheon of immunity defenses. With regard to Donahey's claims that the petitioners "negligently, wantonly, and recklessly" failed to protect Donahey from harm, the petitioners contend that they are entitled to State-agent immunity. As to Donahey's 42 U.S.C. § 1983 claim, based on the alleged violation of his Eighth Amendment rights, the petitioners assert that they are 6 1130324 entitled to qualified immunity. Finally, the petitioners argue that, to the extent they are sued in their official capacities, they are entitled to sovereign immunity. We discuss each argument in turn. A. State-law claims The petitioners contend that they are entitled to the protection of State-agent immunity with regard to Donahey's claims that the petitioners "negligently, wantonly, and recklessly" failed to protect him from attack. The petitioners are all employees of the Alabama Department of Corrections ("the DOC"). We have previously held that "employees of the DOC are entitled to State-agent immunity when in conducting the activities made the basis of the action they were exercising 'judgment in the administration' of the DOC." Carpenter v. Tillman, 948 So. 2d 536, 538 (Ala. 2006). The restatement of State-agent immunity as set out in Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), governs the determination of whether a State agent is entitled to 7 1130324 immunity. This Court, in Cranman, stated the test for 4 State-agent immunity as follows: "A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's "(1) formulating plans, policies, or designs; or "(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as: "(a) making administrative adjudications; "(b) allocating resources; "(c) negotiating contracts; "(d) hiring, firing, transferring, assigning, or supervising personnel; or "(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or "(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; or The test set out in Cranman, a plurality opinion, was 4 subsequently adopted by a majority of the Court in Ex parte Butts, 775 So. 2d 173 (Ala. 2000). 8 1130324 "(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students. "Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity "(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or "(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law." Cranman, 792 So. 2d at 405. This Court has also stated: "'This Court has established a "burden-shifting" process when a party raises the defense of State-agent immunity.' Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006). A State agent asserting State-agent immunity 'bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity.' 946 So. 2d at 452. Should the State agent make such a showing, the burden then shifts to the plaintiff to show that one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable. The exception being argued here is that 'the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.' 946 So. 2d at 452. One of the ways in which a plaintiff can show that a State agent acted beyond his or her authority is by proffering evidence that the State agent failed '"to 9 1130324 discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist."' Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003) (quoting Ex parte Butts, 775 So. 2d [173,] 178 [(Ala. 2000)])." Ex parte Kennedy, 992 So. 2d at 1282–83. There appears to be no dispute that the petitioners are State agents who, at the time of the incident, were performing a function -– managing the confinement of and/or guarding prisoners with mental illness -– that entitles them to State- agent immunity. See Howard v. City of Atmore, 887 So. 2d 201, 206 (Ala. 2003)("Categories (3) and (4) of [the Cranman] restatement are clearly broad enough to contemplate the confinement of prisoners, which is the conduct in controversy here."). Accordingly, the burden shifted to Donahey to establish the applicability of one of the Cranman exceptions. He failed to do so. The record before us indicates that Donahey filed no response in opposition to the petitioners' motion for a summary judgment, nor has Donahey offered any evidence indicating that one of the exceptions in Cranman to State- agent immunity is applicable. Therefore, Donahey did not meet his burden of establishing that the petitioners were not 10 1130324 entitled to State-agent immunity with regard to the State-law claims asserted against them in their individual capacities. Accordingly, the respondents are entitled to State-agent immunity as to the claims that they "negligently, wantonly, and recklessly" failed to protect Donahey from an attack by Smith. B. Civil-rights claims Next the petitioners assert that Donahey's claim that the petitioners violated his civil rights under the Eighth Amendment, a claim made pursuant to 42 U.S.C. § 1983, is barred by the doctrine of qualified immunity. The doctrine of qualified immunity generally shields government officials who are performing discretionary functions from liability for civil damages unless their conduct violates "clearly established statutory or constitutional rights." Ex parte Madison County Bd. of Education, 1 So. 3d 980, 990 (Ala. 2008). The United States Supreme Court has recently described the doctrine as follows: "'The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."' Pearson v. Callahan, 555 U.S. 223, 231 11 1130324 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity 'gives government officials breathing room to make reasonable but mistaken judgments,' and 'protects "all but the plainly incompetent or those who knowingly violate the law."' Ashcroft v. al-Kidd, 563 U.S. __, __ [131 S.Ct. 2074, 2085] (2011)(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). '[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the "objective legal reasonableness" of the action, assessed in light of the legal rules that were "clearly established" at the time it was taken.' Anderson v. Creighton, 483 U.S. 635, 639 (1987)(citation omitted)." Messerschmidt v. Millender, 565 U.S. ___, ___, 132 S.Ct. 1235, 1244-45 (2012). This Court has recognized a two-part test to determine whether a public official is entitled to qualified immunity in a § 1983 action: "In deciding whether a public official ... is entitled to qualified immunity in a § 1983 action, this Court employs the following two-step analysis: "'"'1) The defendant public official must first prove that "he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." "'"'2) Once the defendant public official satisfies his burden of moving forward with the evidence, the burden shifts to the plaintiff to show lack of good faith on the defendant's part. This burden is met by proof demonstrating that the defendant public official's actions 12 1130324 "violated clear l y e stablished constitutional law."'"'" Ex parte Sawyer, 876 So. 2d 433, 439 (Ala. 2003)(quoting Couch v. City of Sheffield, 708 So. 2d 144, 155 (Ala. 1998), quoting in turn Roden v. Wright, 646 So. 2d 605, 610 (Ala. 1994)). The second prong is satisfied if the plaintiff proves that "'(1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation.'" Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010) (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)). In the present case, there appears to be no dispute that the petitioners were acting within the scope of their discretionary authority at the time of the incident. The United States Court of Appeals for the Eleventh Circuit has defined the term "discretionary authority" to include "all actions of a governmental official that (1) 'were undertaken pursuant to the performance of his duties,' and (2) were 'within the scope of his authority.'" Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)(quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)). From all the evidence before us, the petitioners were each working within the line and 13 1130324 scope of their various positions at the facility at the time of the allegedly wrongful acts complained of by Donahey, who has submitted no evidence to the contrary. Accordingly, the burden shifted to Donahey to show that the petitioners' actions violated clearly established constitutional law. Donahey contends that his injuries resulted from the petitioners' alleged "deliberate indifference" to his safety. "'A prison official's "deliberate indifference" to a substantial risk of serious harm to an inmate violates the Eighth Amendment.' Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L. Ed. 2d 811 (1994); see Helling v. McKinney, 509 U.S. 25, 1135 S.Ct. 2475, 125 L. Ed. 2d 22 (1993). '"[P]rison officials have a duty ... to protect prisoners from violence at the hands of other prisoners."' Farmer, 511 U.S. at 833, 114 S.Ct at 1976 (quotations and citations omitted). 'It is not, however, every injury suffered by one inmate at the hands of another that translates into a constitutional liable for prison officials responsible for the victim's safety.' Id. at 834, 114 S.Ct at 1977." Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003). In order to defeat the petitioners' properly supported motion for a summary judgment on Donahey's Eighth Amendment "deliberate indifference" § 1983 claim, Donahey was required to produce substantial evidence of "'(1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation.'" Carter, 352 F.3d at 1349 14 1130324 (quoting Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995)). Donahey, however, has submitted no evidence indicating that the petitioners were "subjectively aware" of the "substantial risk of serious harm" created by trusting him with Smith. See Farmer v. Brennan, 511 U.S. 825, 829-38 (1994) (defining the term "deliberate indifference" to require a showing that the officer was "subjectively aware of the risk"). To the contrary, the uncontroverted evidence in the record suggests that the attack on Donahey was "spontaneous" and unexpected. Lt. Ruffin testified that Smith, the inmate who attacked Donahey, had received no disciplinary action for any act of violence since 2005; Deputy Warden Giles testified that "[t]here was nothing that would give the correctional security staff reason to expect an attack." Accordingly, Donahey did not provide sufficient evidence showing that his injuries were caused by the petitioners' "deliberate indifference"; thus, Donahey failed to meet his burden of establishing that the petitioners violated clearly established constitutional law. C. Claims against the petitioners in their official capacities 15 1130324 Finally, we note that Donahey did not designate whether the petitioners were being sued in their individual or official capacities. Although the above analysis assumes that the petitioners were sued in their individual capacities, the petitioners argue, and we agree, that, to the extent Donahey asserts claims against them in their official capacities, they are also immune from suit. To the extent that Donahey's action, which seeks only monetary damages, is against the petitioners in their official capacities, his State-law claims are barred by the doctrine of sovereign immunity. See Ala. Const. 1901, § 14; Haley v. Barbour Cnty., 885 So. 2d 785, 788 (Ala. 2004); and Lyons v. River Road Constr., Inc., 858 So. 2d 257, 261 (Ala. 2003). Likewise, Donahey is not permitted to assert a § 1983 claim for money damages against the petitioners in their official capacities. See Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) (holding that a state official sued in his or her official capacity for damages is not a "person" who may be sued under § 1983). IV. Conclusion Based on the uncontroverted evidence, the petitioners are entitled to immunity from all the claims asserted against them 16 1130324 by Donahey. Accordingly, the petitioners have shown a clear legal right to the relief sought, and the trial court is directed to enter a summary judgment in their favor. PETITION GRANTED; WRIT ISSUED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur. 17	August 29, 2014
b00b7983-f128-4113-86a0-993637229ada	Cadence Bank N.A. v. Goodall-Brown Associates, L.P.	N/A	1111422, 1111449, 1111526, 1121455, 1130054	Alabama	Alabama Supreme Court	REL:09/19/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1111422 _________________________ Cadence Bank, N.A. v. Goodall-Brown Associates, L.P. _________________________ 1111449 _________________________ Sloss Real Estate Group, Inc., et al. v. Goodall-Brown Associates, L.P. _________________________ 1111526 _________________________ Ex parte Sloss Real Estate Group, Inc., et al. PETITION FOR WRIT OF MANDAMUS (In re: Goodall-Brown Associates, L.P. v. Sloss Real Estate Group, Inc., et al.) _________________________ 1121455 _________________________ Second Avenue Holdings, LLC v. Goodall-Brown Associates, L.P. _________________________ 1130054 _________________________ Second Avenue Holdings, LLC v. Goodall-Brown Associates, L.P. Appellate proceedings from Jefferson Circuit Court (CV-12-900435 and CV-10-903160) SHAW, Justice. These consolidated appeals and petition for a writ of mandamus arise out of litigation pending in the Jefferson Circuit Court stemming from the alleged breach of a lease 2 1111422; 1111449; 1111526; 1121455; 1130054 agreement, which litigation was originally initiated by Goodall-Brown Associates, L.P. ("Goodall-Brown"), the lessor. Following the entry of an order compelling the matter to arbitration, the defendants below, Sloss Real Estate Group, Inc. ("SREG"), the lessee; Sloss Goodall-Brown, LLC ("Sloss Goodall"), the assignee of SREG; Cadence Bank, N.A. ("Cadence"), and Second Avenue Holdings, LLC ("Second Avenue"), the successors in interest to Goodall-Brown's original mortgage lender; and Leigh Ferguson, Catherine S. Crenshaw, Jack Peterson, A. Page Sloss, Jr., Ronald J. Capello, and Vicki H. Bolton (hereinafter collectively referred to as "the individual defendants"), and Sloss Real Estate Company ("SREC"), the alleged alter ego of the individual defendants in conjunction with SREG and Sloss Goodall (the individual defendants, SREG, SREC, and Sloss Goodall are sometimes hereinafter collectively referred to as "the Sloss defendants"), unsuccessfully sought dismissal of Goodall-Brown's claims based on the trial court's alleged lack of subject-matter jurisdiction to order the matter to arbitration because, they argued, Goodall-Brown lacked standing to assert the claims. 3 1111422; 1111449; 1111526; 1121455; 1130054 In case no. 1111422, Cadence appeals from the trial court's order effectively compelling it to arbitration. In case no. 1111449, the Sloss defendants renew their contention that the trial court lacked the requisite subject-matter jurisdiction to compel the parties to arbitration. Alternatively, in case no. 1111526, the Sloss defendants petition this Court for a writ of mandamus directing the trial court to void its order compelling the matter to arbitration and to dismiss the underlying action based on Goodall-Brown's alleged lack of standing and that court's resulting lack of subject-matter jurisdiction. In case no. 1121455 and case no. 1130054, Second Avenue appeals from the trial court's denial of its request to enjoin discovery in the arbitration proceeding ordered by that court as to Second Avenue, pending resolution of the above-captioned appeals and petition. At the request of the parties, we have consolidated these matters for the purpose of writing one opinion. For the reasons 1 stated below, in case no. 1111422, we affirm; in case no. The final two appeals in these consolidated matters were 1 submitted for review on April 23, 2014, thus allowing us to consider all the appeals and the petition for a writ of mandamus together. 4 1111422; 1111449; 1111526; 1121455; 1130054 1111526, we deny the petition; and we dismiss the appeals in cases nos. 1111449, 1121455, and 1130054. Facts and Procedural History Goodall-Brown is an Alabama limited partnership; it owns a parcel of real property located in downtown Birmingham, which is commonly referred to as the "Goodall-Brown Building." In 2001, Goodall-Brown obtained from a lender called "The Bank" a $2,975,000 construction loan, evidenced by a note, to finance planned renovations to the Goodall-Brown Building. In connection with that loan, Goodall-Brown executed a "Future Advance Mortgage, Assignment of Rents and Leases and Security Agreement" assigning to The Bank as security, among other collateral, the Goodall-Brown Building, all future rents and revenues from the Goodall-Brown Building, and "all leases, subleases, and lease guaranties" relating to the Goodall-Brown Building. The loan documents were executed on Goodall-Brown's behalf by Roy Thomas Latimer, Jr., the managing member of Goodall-Brown Management, L.L.C. ("GBM"), an Alabama limited- liability company that was a general partner in Goodall-Brown. 5 1111422; 1111449; 1111526; 1121455; 1130054 Additionally, Latimer personally guaranteed repayment of the note.2 In October 2005, SREG entered into a "Master Lease" agreement ("the lease") with Goodall-Brown pursuant to which SREG leased from Goodall-Brown space in the Goodall-Brown Building. The lease specifically provided that future disputes among the parties would be submitted to arbitration. 3 As permitted by the terms of the lease, and with Goodall- Brown's consent, in December 2005, SREG purported to assign The record reflects that, in addition to Latimer, Adam 2 S. Cohen and Stacey C. Dulin, the other members of GBM at that time, were also initially guarantors of the indebtedness; however, all guarantors excepting Latimer were subsequently released from their guarantees. The pertinent provision provides, in full: 3 "13.1.2.2 Arbitration. Any Dispute, which remains unresolved at the end of [the] thirty (30) day [informal-negotiation] period [provided for in section 13.1.2.1 of the lease], shall be submitted to binding arbitration in accordance with Chapter I, Title 9 of the United States Code (Federal Arbitration Act). Arbitration shall be administered by the American Arbitration Association ('AAA') in accordance with its Commercial Arbitration Rules as supplemented by its Supplementary Procedures for Complex Cases." Pursuant to a preceding paragraph in the same document, namely section 13.1.2, the referenced "Dispute[s]" subject to arbitration include "any and all such disputes of any nature whatsoever." 6 1111422; 1111449; 1111526; 1121455; 1130054 its rights under the lease to Sloss Goodall, which was wholly 4 owned by SREG. The Bank's interest in the Goodall-Brown note and mortgage was later assigned by the Federal Deposit Insurance Corporation ("the FDIC"), as receiver of and legal successor to The Bank, to Superior Bank ("Superior"). In 2006, Superior and SREG entered into a "Subordination, Non-Disturbance and Attornment Agreement" ("the attornment agreement") pursuant 5 to which they agreed, among other things, that SREG would not be added as a party to any foreclosure proceedings that Superior might initiate against Goodall-Brown; that, in the event Superior should succeed Goodall-Brown as owner of the Goodall-Brown Building, the lease would remain in effect; and that Superior was entitled to exercise the same remedies in relation to a breach as were afforded Goodall-Brown under the lease. There is some indication in the record that, at the time 4 of the purported assignment, Sloss Goodall had not yet been properly organized; in fact, it appears that Sloss Goodall was not legally formed until December 8, 2009. However, no party raises any challenge to the validity of the lease assignment on that ground. This agreement specifically identified Superior as 5 "mortgagee," SREG as "lessee," and Goodall–Brown as "owner." 7 1111422; 1111449; 1111526; 1121455; 1130054 The record further reflects that, in July 2010, Goodall- Brown provided notice to Sloss Goodall via certified mail that it was terminating the lease as a result of the alleged continuing default of Sloss Goodall. In August 2010, 6 Superior and Goodall-Brown executed an agreement called the "Eighth Amendment to Loan Documents And Forbearance Agreement." This agreement, among other things, acknowledged that there had been a default under the lease. In September 2010, Goodall-Brown sued SREG and Sloss Goodall in the trial court asserting various claims and seeking to terminate the lease and requesting damages related to Sloss Goodall's alleged breach (case no. CV-10-903160). In response, both SREG and Sloss Goodall moved to dismiss case no. CV-10-903160 or to compel arbitration of the claims asserted therein, pursuant to the lease. In the interim, Latimer filed for Chapter 11 bankruptcy protection in January 2011; his case was later converted to a proceeding under Chapter 7 of the Bankruptcy Code. According Pursuant to the notice, the lease and Sloss Goodall's 6 tenancy were to terminate 10 days following service of the notice, which was, according to the record, effected July 21, 2010. 8 1111422; 1111449; 1111526; 1121455; 1130054 to the pleadings from the bankruptcy court, Latimer was identified in that proceeding as the sole debtor. In April 2011, the FDIC seized Superior and transferred its assets to a bank of the same name, i.e., Superior Bank, N.A. ("Superior II"). After the addition of other parties and claims in case no. CV-10-903160, and upon the agreement of 7 all parties, the trial court, on June 24, 2011, entered an order jointly proposed by the parties staying the action as to certain parties but requiring that the claims between Goodall-Brown and SREG and Sloss Goodall proceed to arbitration, where they remain pending. No party appealed from that order. In July 2011, Superior II notified Goodall-Brown of Goodall-Brown's default on the note secured by the Goodall- Brown Building. Thereafter, as a result of Goodall-Brown's continued default, Superior II accelerated the indebtedness, Goodall-Brown subsequently amended its original complaint 7 to add claims against fictitiously named defendants; against SREC, the incorporating member of Sloss Goodall; and against the individual defendants. The individual defendants comprise the membership and/or management of SREG, Sloss Goodall, and SREC. Goodall-Brown added the additional defendants based on its belief that SREG both fraudulently formed Sloss Goodall and induced Goodall-Brown to agree to the assignment of the lease to what it refers to as a "sham" corporation. 9 1111422; 1111449; 1111526; 1121455; 1130054 undertook efforts to seize rents due from tenants of the Goodall Brown Building, and initiated foreclosure proceedings on the Goodall-Brown Building. In October 2011, however, before completing the scheduled foreclosure, Superior II sold the note and assigned all of its interest therein to Second Avenue. In November 2011, Superior II entered receivership, 8 at which time Cadence purchased Superior II from the FDIC, as its receiver. Superior was thus acquired by and merged with Cadence. In December 2011, despite their earlier demands for arbitration and their agreement to arbitrate, the Sloss defendants jointly sought the dismissal of case no. CV-10- 903160 based on the trial court's alleged lack of subject- matter jurisdiction. More specifically, they contended that Second Avenue, according to Goodall-Brown, was organized 8 in September 2011 by the management and/or members of SREG and Sloss Goodall, purportedly "as part of an elaborate scheme for defendants to 'buy' their way out of the fraud they committed on Goodall[-Brown]" and/or to "obtain the [Goodall-Brown] building for far less than the option price in the ... [l]ease." Further, also according to Goodall-Brown, before forming Second Avenue, SREG and Sloss Goodall purposely defaulted on the lease payments in order to ensure Goodall- Brown's resulting default on the note. Goodall-Brown amended its original complaint in case no. CV-10-903160 to add additional factual allegations and claims related to the formation of Second Avenue and the alleged tortious conduct of the Sloss defendants. 10 1111422; 1111449; 1111526; 1121455; 1130054 Goodall-Brown lacked "standing" to prosecute the litigation because, they argued, it had assigned away its interest in the note and the mortgage, including all claims arising under those documents, to The Bank. At or around that same time, Goodall-Brown allegedly filed a supplemental demand for arbitration with the arbitrators seeking to include Cadence and Second Avenue in the arbitration proceedings ordered by the trial court in case no. CV-10-903160 in order that Goodall-Brown might challenge the validity of the underlying foreclosure. The Sloss defendants later added, as additional 9 support for their contention that the trial court lacked jurisdiction, the claim that the personal bankruptcy filing of Latimer, GBM's sole remaining member, resulted in the This attempt to include Cadence in the pending 9 arbitration proceedings was apparently premised on Goodall- Brown's belief that Cadence, one of its previous lenders, was, based on the contents of the loan documents, both a party to the lease and guilty of tortious conduct in connection with the administration of Goodall-Brown's mortgage. Goodall-Brown explains the rationale for this decision as follows: "Goodall[-Brown] maintained that Cadence and Second Avenue were subject to the arbitration provision in the [lease], and addenda thereto, by virtue of being successors in interest to Superior ... and having assumed the position of 'Owner' in the [lease] by virtue of the Attornment Agreement." Goodall-Brown's brief, at pp. 3-4. 11 1111422; 1111449; 1111526; 1121455; 1130054 dissolution of GBM and that Goodall-Brown's default and the resulting foreclosure also terminated any standing that Goodall-Brown previously possessed with regard to claims stemming from the Goodall-Brown Building, i.e., "the lawsuit is being prosecuted and managed by a nonexistent former general partner of [Goodall-Brown] who has no authority to act on behalf of the entity." 10 Also in December 2011, Second Avenue initiated an adversary proceeding in Latimer's bankruptcy case seeking to except from Latimer's bankruptcy discharge a debt allegedly owed by him to Second Avenue in connection with his purported conversion of rents allegedly due Superior II, from which Second Avenue obtained its interest in the note. Second Avenue subsequently foreclosed and ultimately purchased the Goodall-Brown Building at the foreclosure sale conducted on January 3, 2012. In February 2012, Cadence sued Goodall-Brown in the trial court, seeking declaratory and injunctive relief (case no. CV- 12-900435). More specifically, Cadence sought a declaration 11 See § 10A-5-6.06(b)(1), Ala. Code 1975. 10 Cadence subsequently amended its complaint in case no. 11 CV-12-900435 to add the American Arbitration Association ("the 12 1111422; 1111449; 1111526; 1121455; 1130054 from the trial court that it was not a party to and had not succeeded to Goodall-Brown's interest under the lease and was not, therefore, required to submit to arbitration; Cadence also sought an injunction preventing Goodall-Brown from proceeding in arbitration against it. At Cadence's request, and upon the agreement of all parties, the trial court consolidated Cadence's declaratory-judgment action (case no. CV-12-900435) with case no. CV-10-903160. Goodall-Brown later asked that the trial court also order that the individual defendants named in case no. CV-10-903160 be required to participate in the arbitration proceedings on the ground, among others, that conspiracy claims and efforts to pierce the corporate veils of SREG and Sloss Goodall, which Goodall-Brown was pursuing in arbitration, were necessarily intertwined with Goodall-Brown's claims against the individual defendants. In conjunction with that request, and in an alleged attempt to corral the parties' various claims into a single forum and to eliminate the potential for inconsistent results, Goodall-Brown also requested that the bankruptcy court before which Latimer's bankruptcy was pending stay the AAA") as a defendant; however, Cadence later stipulated to the dismissal of the AAA. 13 1111422; 1111449; 1111526; 1121455; 1130054 adversary proceeding initiated against Latimer by Second Avenue and compel Second Avenue to participate in the arbitration ordered by the trial court. Thereafter, upon the motion of Goodall-Brown, the trial court, in July 2012, denied Cadence's request for injunctive relief and stayed case no. CV-12-900435 based on its alternative conclusions that the question of arbitrability was for the arbitrators to determine, pursuant to the incorporation into the lease of the Rules of the American Arbitration Association ("the AAA"), or that Cadence was subject to the arbitration provision in the lease pursuant to both the plain language of the mortgage or of the attornment agreement. More specifically, as to its alternative holding that Cadence was, in fact, bound to arbitrate, the trial court held as follows: "Second, and alternatively, if this Court is the proper forum to decide questions of arbitrability, then there is substantial evidence that Cadence is subject to the terms of the [lease] and the arbitration agreement set forth within it. The Federal Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). There is undisputed evidence of several lending documents which tie Cadence to the [lease]. Each will be discussed in turn. 14 1111422; 1111449; 1111526; 1121455; 1130054 "A. The Mortgage. "Cadence concedes in paragraph 9 of its Complaint that the December 31, 2001, Future Advance Mortgage, Assignment of Rents and Leases and Security Agreement (the 'Mortgage') included an absolute and present assignment and transfer of all rents and leases, including future leases (such as the [lease]):5 "The operative provisions provide as follows: "'2.01 Assignment. Borrower, in consideration of Lender's making the Loan as aforesaid and for other good and valuable consideration, ... does hereby sell, assign and transfer unto the Lender all leases, subleases and lease guaranties of or relating to all or part of the Mortgaged Property, whether now existing or hereinafter created or arising, including without limitation those certain leases, if any, specifically described on an exhibit to this Mortgage.... "'.... "'2.04 Present Assignment. It is the intention of the parties that this assignment of rents and leases shall be a present assignment.... "'.... "'2.06 Instruction to Lessees. The Borrower does further specifically authorize and instruct each and every present and future lessee, tenant, sublessee or subtenant of the whole or any part of the Mortgaged Property to pay all unpaid rental agreed upon in any lease, sublease or tenancy to the Lender upon 15 1111422; 1111449; 1111526; 1121455; 1130054 receipt of demand from said Lender to pay the same. "'2.07. Default (Assignment). Upon the occurrence of any Event of Default, as described in Paragraph 4.01 of this Mortgage, then, in addition to the right to demand and collect directly from tenants rents accruing from leases of the Mortgaged Property, Lender shall have all rights and remedies set forth in Article IV or elsewhere in this Mortgage.... "'.... "'4.03 Right of Lender to Enter and Take Possession. "'.... "'(b) (iii) [The Lender has the right to] manage and operate the Mortgaged Property (or any portion thereof selected by Lender) and exercise all the rights and powers of the Borrower in its name or otherwise, with respect to the same, including legal actions for the recovery of rent, legal dispossessory actions against tenants holding over and legal actions in distress of rent, and with full power and authority to cancel or terminate any lease or sublease for any cause or on any ground which would entitle the Borrower to cancel the same, and to elect to disaffirm any lease or sublease made subsequent to this Mortgage or subordinated to the lien hereof....' "(Mortgage, Cadence Complaint, Exhibit B, pp. 8-11.) "Thus, the provisions of the Mortgage grant the lender ... a present Assignment of rights under every present and future lease, which must 16 1111422; 1111449; 1111526; 1121455; 1130054 necessarily include the [lease]. Importantly, the lender's rights under the [lease] are not contingent upon a default; rather, the Mortgage evidences a present assignment of rights whereby the lender has standing immediately as an assignee of any lease. The Mortgage provides that any assignee of the mortgage (such as Cadence) is subject to the Mortgage and related documents, including the [lease]:6 "'5.01 Binding Effect. Wherever in this Mortgage one of the parties hereto is named or referred to, the heirs, administrators, executors, successors, assigns, distributes [sic], and legal and personal representatives of such party shall be included, and all covenants and agreements contained in this Mortgage by or on behalf of the Borrower or by or on behalf of Lender shall bind and inure to the benefit of their respective heirs, administrators, executors, successors, assigns, distributes [sic], and legal and personal representatives, whether so expressed or not.' "(Mortgage, Cadence Complaint, Exhibit B, p. 14.) As such, Cadence is an assignee of the Mortgage and is likewise subject to the [lease]. "B. The Attornment Agreement. "In paragraph 12 of its Complaint, Cadence concedes that it entered into a separate Attornment Agreement with [SREG]: "'The Borrower, the Tenant and Superior Bank, a federal savings bank (the 'Former Bank'), executed a subordination, non-disturbance and attornment agreement dated November 20, 2006....' 17 1111422; 1111449; 1111526; 1121455; 1130054 "The Attornment Agreement gave the mortgagee/lender and the tenants -- [SREG] and [Sloss Goodall] -- a direct contractual relationship: "'1. LESSEE TO ATTORN TO MORTGAGE. ... "'.... "'(b) In the event that the Mortgagee shall succeed to the interest of Owner under such Lease, the Lease shall continue with the same force and effect as if the Mortgagee, as Lessor, and the Lessee had entered into a Lease for a term equal to the then unexpired term of the Lease..., and the Lessee hereby attorns and agrees to attorn to the Mortgagee as its Landlord, such attornment to be effective and self operative without the execution of any further instruments on the part of either of the parties hereto immediately upon the succession of Mortgagee to the interest of Owner under the Lease.... The respective rights and obligations of the Lessee and the Mortgagee upon such attornment and their relationship shall be as tenant and landlord respectively, for the remaining term of the Lease, including any renewal periods set forth in said Lease....' "(Attornment Agreement, Cadence Complaint, Exhibit D, p. 2.) The Attornment Agreement provides in paragraph 8 that it applies to any successors and assigns (including Cadence): "'This Agreement shall bind and inure to the benefit of the parties hereto, their successors and assigns. As used herein, (a) the term "Lessee" shall include any subtenant, successors and/or assigns of Lessee named herein; ... (c) the word "Mortgagee" shall include the Mortgagee specifically named and any successors and 18 1111422; 1111449; 1111526; 1121455; 1130054 assigns and shall include anyone or any entity who shall have succeeded to Owner's interest in the Leased Premises by, through or under foreclosure of the Mortgage or as a result of any other means.' "(Attornment Agreement, Cadence Complaint, Exhibit D, p. 4.) "The Attornment Agreement is actually a 3-party agreement, which links Goodall[-Brown] (the Owner) to [SREG] (the Tenant) and the lender and its successors (Cadence): "'APPROVALS. The Owner has joined in this Agreement for the purpose of expressing its consent and agreement to be bound by the provisions of Paragraph 1(b) and Paragraph 4 hereof.' "Id. "C. The Eighth Amendment. "On August 5, 2010, the lender and Goodall[- Brown] executed the Eighth Amendment by which the lender succeeded to the interest of Goodall[-Brown] under the [lease]. In regard to the Sloss [defendants'] Default, the Eighth Amendment provides in paragraph 4 as follows: "'[The] Sloss [defendants have] ceased paying rent and [have] requested an adjustment to the terms of the [lease]. [Goodall-Brown] and [the] Sloss [defendants] have conducted negotiations on a modification of the [lease] to resolve the default by [the] Sloss [defendants], but no agreement has been reached by the parties thereto, and the [lease] remains in default (the "Sloss Default"). The Sloss Default is an Event of Default under the Loan Agreement.' 19 1111422; 1111449; 1111526; 1121455; 1130054 "(Eighth Amendment, Cadence Complaint, Exhibit A, p. 3.) "The language of the Attornment Agreement, when combined with the Eighth Amendment, establishes that the lender becomes the 'Landlord' under the [lease] when 'an Event of Default under the Mortgage, the Assignment of Rents and Leases or other mortgage loan documents has occurred.' When [the] Sloss [defendants] stopped making rent payments in December of 2009, this was an 'event of default under the Loan Agreement.' (Promissory Note, Cadence Complaint, Exhibit A, p. 3, ¶ 6.) Consequently, when the Sloss [defendants'] Default occurred in December 2009, it was an 'Event of Default under the Loan Agreement' that then triggered the operation of the attornment provision of the Attornment Agreement which, in turn, made the lender -- now the Landlord -- a direct party to the [lease]. The [lease] includes an arbitration agreement, and Cadence is subject to that agreement. __________________ " It is undisputed that the [lease] was pledged 5 as additional security for the loan from Cadence's predecessor in interest and was added to the loan documents by the October 31, 2006, Seventh Amendment to the Loan Documents. (Seventh Amendment, Cadence Complaint, Exhibit A.) " The [lease] provides that it applies to any 6 successor of the original Landlord, Goodall[-Brown]: 'this Lease shall inure to the benefit of and be binding upon Landlord and Tenant and their respective heirs, executors, legal representatives, successors and assigns....' (See the [lease], Cadence's Complaint, Exhibit C, pp. 34, ¶ 14.12.)" (Some emphasis added; footnotes 7 and 8 omitted.) Cadence appeals from that decision (case no. 1111422). 20 1111422; 1111449; 1111526; 1121455; 1130054 Additionally, by separate orders, the trial court granted Goodall-Brown's motion seeking to also compel the individual defendants to arbitration and further concluded that the Sloss defendants' motions based on the trial court's alleged lack of subject-matter jurisdiction were "moot" in light of its June 2011 and July 2012 arbitration orders. The Sloss defendants also appeal (case no. 1111449). In addition, the Sloss defendants filed the above-described petition for a writ of mandamus (case no. 1111526) seeking relief from the trial court's decision; this Court subsequently ordered answers and briefs to that petition. Thereafter, Goodall-Brown again amended its complaint to add to the pending litigation in case no. CV-10-903160 claims against Second Avenue and Cadence, including, among others, its "veil-piercing," wrongful-foreclosure, conspiracy, and fraud-based claims. It further filed, in that action, a new 12 According to Goodall-Brown, this amendment added claims 12 that Goodall-Brown had previously been pursuing solely in arbitration in an effort to dispel any future argument that its claims against the added defendants were barred by the applicable statutes of limitations. See Porter v. Colonial Life & Accident Ins. Co., 828 So. 2d 907, 908 (Ala. 2002) ("If a plaintiff's court action be dismissed to enforce an arbitration agreement, but, through no fault of the plaintiff's, the arbitration be not concluded or some of the plaintiff's claims be not arbitrated, a statute of limitations 21 1111422; 1111449; 1111526; 1121455; 1130054 motion to compel SREC to participate in the already pending arbitration proceedings. Subsequent to its inclusion as a defendant, Second Avenue, incorporating the prior pleadings of the other named defendants in this regard, both moved to dismiss the consolidated litigation on the ground that Goodall-Brown lacked standing and sought a motion to stay the pending arbitration proceedings as to Second Avenue. At the request of SREG and Sloss Goodall in case no. 1111449, this Court entered an order staying the arbitration proceedings as to those parties pending the outcome of these appeals and petition; however, by subsequent order clarifying, at the request of the parties, our stay ruling, this Court specifically declined to stay proceedings against Second Avenue on the ground asserted by the parties that Second Avenue was not a party to the underlying proceeding at the time the appeals in case no. 1111422 and case no. 1111449 were filed and was, therefore, not properly before this Court. In March 2013, the bankruptcy court entered a memorandum opinion and corresponding order staying Second Avenue's could bar a refiling of the unarbitrated claims in court."). It, therefore, requested that the trial court extend its previous order staying the litigation to include its second amended complaint. 22 1111422; 1111449; 1111526; 1121455; 1130054 adversary proceeding against Latimer until the conclusion of the state-court arbitration based on its conclusion that "Second Avenue is subject to the arbitration provision in the lease as a result of the automatic assignment of leases provision in the security agreement." On September 11, 2013, at the request of Second Avenue, the trial court entered, in light of the pending appeals described above, an order preliminarily enjoining the scheduled arbitration proceeding set for October 28, 2013, and the collection of prehearing fees associated therewith; however, the trial court's order permitted the continuation of "[a]ll other aspects" of the arbitration proceeding, including discovery in accordance with the schedule previously established by the AAA. Second Avenue has appealed that order to this Court (case no. 1121455). Goodall-Brown, however, sought clarification as to the trial court's September 11 order. More specifically, Goodall-Brown sought an explanation from the trial court as to whether the injunction with respect to the fee payment applied solely to fees associated with an October 28 final hearing and not to fees associated with prehearing discovery and/or any other aspect of the proceeding. Following Second Avenue's initial appeal, and 23 1111422; 1111449; 1111526; 1121455; 1130054 Second Avenue's renewed request for injunctive relief, the trial court purported to enter two subsequent orders amending its September 11, 2013, order; each amended order reiterated the trial court's refusal to, as requested by Second Avenue, enjoin discovery in the arbitration proceedings. In response to the trial court's amended orders, Second Avenue filed a second notice of appeal (case no. 1130054). Thereafter, this Court granted Second Avenue's motion to stay discovery in the arbitration proceedings. I. Case No. 1111422 In case no. 1111422, Cadence appeals from the trial court's orders staying case no. CV-12-900435 and refusing Cadence's request for injunctive relief to prevent Goodall- Brown from proceeding against it in arbitration -- thus, in effect, compelling Cadence to arbitrate. Cadence contends 13 Although Goodall-Brown contends that the trial court's 13 order was not "[a]n order granting or denying a motion to compel arbitration" from which an appeal will lie pursuant to Rule 4(d), Ala. R. App. P., we disagree. As Cadence notes, although styled as a request for injunctive relief, the denial of Cadence's motion effectively compelled Cadence to arbitration with the remaining parties. In a sense, Cadence preempted a motion to compel arbitration by first filing a declaratory-judgment action seeking to determine whether it was required to arbitrate. Moreover, as set out above, the trial court's order concluded, alternatively, that Cadence was subject to the arbitration provision in the lease. Further, as 24 1111422; 1111449; 1111526; 1121455; 1130054 that the trial court's rulings were in error because, it maintains, it is not a signatory to any document containing an agreement to arbitrate and because the assignment pursuant to which it assumed certain rights under the lease specifically excluded the corresponding assumption of duties or obligations enumerated in the lease. Although the trial court's ruling was not in response to a formal motion to compel arbitration, see note 13, supra, our traditional standard of review in such scenarios is appropriate: "'[T]he standard of review of a trial court's ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or Cadence also argues, even if, as Goodall-Brown contends, the trial court's order staying case no. CV-12-900435 was insufficient to sustain the present appeal, its related order denying Cadence's accompanying request for injunctive relief is sufficient to support the present appeal under our rules. See Rule 4(a)(1)(A), Ala. R. App. P. (providing for an appeal as of right to our appellate courts "from ... any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction"). Finally, even assuming, as Goodall-Brown argues in response to Cadence's claims in this regard, that the appropriate vehicle for consideration of Cadence's arguments is a petition for a writ of mandamus, and not a direct appeal, it is well established that this Court possesses the inherent authority to treat Cadence's notice of appeal as a petition for a writ of mandamus. See, generally, F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So. 2d 366, 372 (Ala. 2006). 25 1111422; 1111449; 1111526; 1121455; 1130054 legal issue to the substantial prejudice of the party seeking review.' Ex parte Roberson, 749 So. 2d 441, 446 (Ala. 1999). Furthermore: "'A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So. 2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. "After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question."' "Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277, 280 (Ala. 2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995) (emphasis omitted))." Vann v. First Cmty. Credit Corp., 834 So. 2d 751, 752–53 (Ala. 2002). Goodall-Brown met its burden of producing a contract calling for arbitration. On appeal, Cadence presents 14 arguments as to why the arbitration provision allegedly does There appears to be no dispute among the parties that 14 the contract at issue "'"evidences a transaction affecting interstate commerce."'" Vann, 834 So. 2d at 753 (quoting Fleetwood Enters., 784 So. 2d at 280). 26 1111422; 1111449; 1111526; 1121455; 1130054 not apply in its case. Specifically, it argues that it did 15 not "sign" the lease, which contains the arbitration clause. Cadence also contends that the arbitration provision is narrow in that it specifically limits the obligation to arbitrate to "the parties" to the lease, i.e., Goodall-Brown and SREG. See note 3, supra. The trial court held that the mortgage "provide[d] that any assignee of the mortgage (such as Cadence) is subject to the Mortgage and related documents, including the [lease]," and thus "Cadence is an assignee of the Mortgage and is likewise subject to the [lease]." Further, the attornment 16 agreement "gave the mortgagee/lender and the tenants -- [SREG] and [Sloss Goodall] -- a direct contractual relationship" and applied "to any successors and assigns (including Cadence)." Further, the trial court held that the attornment agreement was "actually a 3-party agreement, which links Goodall[-Brown] (the Owner) to [SREG] (the Tenant) and the lender and its Cadence makes no contention that the provision itself is 15 invalid. The trial court stated, as indicated above, that Cadence 16 conceded in its complaint that the "Future Advance Mortgage, Assignment of Rents and Leases and Security Agreement" included an assignment of all rents and leases. 27 1111422; 1111449; 1111526; 1121455; 1130054 successors (Cadence)." Additionally, the trial court held 17 that, under the eighth amendment to the loan documents, the "lender" succeeded to the interests of Goodall-Brown under the lease. When the Sloss defendants defaulted in December 2009, the trial court held, the "lender" became the landlord under the lease. At that time, Superior was the "lender" and thus a direct party to the lease, which contained the arbitration provision. The mortgage ultimately passed to Superior II, which retained the status of "lender." Superior II then sold the note to Second Avenue and later merged with Cadence. Although Cadence, as it existed before the merger with Superior II, had never held the mortgage and its related agreements, Goodall-Brown's claims against Cadence arise out of the actions of Superior II, which has now merged with Cadence. Cadence, of course, never "signed" a contract containing an arbitration agreement; instead, through Superior II, it bought the note and its attendant rights and obligations. Superior II is now Cadence; Cadence stands in the shoes of Superior II. Atlantic Nat'l Trust, LLC v. The final "lender" in this case is Second Avenue. 17 28 1111422; 1111449; 1111526; 1121455; 1130054 McNamee, 984 So. 2d 375, 378 (Ala. 2007) ("Under Alabama common law, '[a] valid assignment gives the assignee the same rights, benefits, and remedies that the assignor possesses,' such that the assignee 'simply steps into the shoes of the assignor ....'" (quoting Nissan Motor Acceptance Corp. v. Ross, 703 So. 2d 324, 326 (Ala. 1997))). Cadence's claim that it was not a signatory to the lease is without merit. Cadence also contends that the assignment provision in the mortgage clearly excepted from assignment any obligations or duties arising under the lease. Specifically, Cadence 18 contends that section 2.05 of the mortgage recites that Cadence accepted no "duties" under any lease. That provision states: "No Obligation of Lender Under Leases. The Lender shall not be obligated to perform or discharge, nor does it hereby undertake to perform or discharge, any obligation, duty or liability under any leases, subleases or rental agreements relating to the Mortgaged Property, and the Borrower shall and does hereby agree to indemnify and hold the Lender harmless of and from any and all liability, loss or damage which it may or might incur under any leases, subleases or agreements or under or by reason of the This Court presumes, as set out in some of the 18 authorities Cadence identifies, that this provision was aimed at avoiding "'mak[ing] [the lender] responsible for fixing roofs, unclogging drains, and other obligations of landlords.'" Cadence's reply brief, at p. 20 n.8. 29 1111422; 1111449; 1111526; 1121455; 1130054 assignment thereof and of and from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in said leases, subleases or agreements. ..." The language of this provision appears to relate to obligations to perform under any lease the buyer might enter into, not a disclaimer of any portion of a lease later assigned to the lender that the lender might characterize as an obligation or duty. In any event, as Goodall-Brown argues, the subsequently executed attornment agreement provides that the lender "agrees to be bound to the Lessee under all of the terms, covenants and conditions of the Lease...." (Emphasis added.) Cadence also argues that because it did not foreclose on the Goodall-Brown Building, it did not succeed to Goodall- Brown's interest under the attornment agreement. That agreement, however, does not limit succession merely to instances of foreclosure. Instead, it provides that the lender also could have assumed Goodall-Brown's role as owner and landlord "under foreclosure of the Mortgage or as a result of any other means," presumably including Goodall-Brown's default. As set out in the trial court's order and quoted 30 1111422; 1111449; 1111526; 1121455; 1130054 above, the original assignment executed by Goodall-Brown specifically provided Cadence's predecessor in interest the right to assume management and operation of the Goodall-Brown Building upon Goodall-Brown's default. It is undisputed that the assignment inured to the benefit of the original lender's successors and assigns, such as Superior II. Further, according to the trial court's order, the subsequently executed lease was specifically incorporated into and made a part of the mortgage. The record establishes that, in 2011, Superior II, Cadence's predecessor, acted on those assigned rights when it provided notice to Goodall-Brown and to then tenants of the Goodall-Brown Building of Goodall-Brown's default and of its intent to exercise its rights under the loan documents to seize rental payments due Goodall-Brown from tenants pursuant to extant lease agreements. Thus, as a direct result of Goodall-Brown's default and triggering of the assignment and attornment agreement, "Cadence [(Superior II)] was the lender 19 According to the definition included in Cadence's brief 19 and in the trial court's order compelling Cadence to arbitrate, the term "attorn" is defined as follows: "'To agree to become tenant to one as owner or landlord of an estate previously held of another, or to agree to recognize a new owner of a property or estate and promise payment of rent to 31 1111422; 1111449; 1111526; 1121455; 1130054 and ... the new, temporary landlord." Therefore, as Goodall- Brown argues, even if the application of the arbitration provision is limited specifically to parties to the lease, when Superior II--now Cadence--obtained the defaulted mortgage, it stepped into the shoes of Goodall-Brown as the original landlord. Atlantic Nat'l Trust, LLC, supra. The assignment did, then, despite Cadence's claims to the contrary, make Cadence, through Superior II, a party to the lease. Therefore, in case no. 1111422, we affirm the trial 20 court's judgment as to Cadence. II. Cases No. 1111449 and No. 1111526 In case no. 1111526, the Sloss defendants petition for a writ of mandamus directing the trial court to dismiss the underlying litigation in case no. CV-10-903160 based on its alleged lack of subject-matter jurisdiction. In case no. him.'" Cadence's brief, at p. 23 n.10 (quoting Black's Law Dictionary 128 (6th. ed. 1990)). Because of our disposition of this claim, we pretermit 20 discussion of the remaining issue raised by Cadence on appeal, namely that the trial court erred in denying Cadence's request for a permanent injunction barring Goodall-Brown from proceeding against it in arbitration. See Favorite Market Store v. Waldrop, 924 So. 2d 719, 723 (Ala. Civ. App. 2005) (stating that the court would pretermit discussion of further issues in light of the dispositive nature of another issue). 32 1111422; 1111449; 1111526; 1121455; 1130054 1111449, they seek essentially the same relief in that they purport to collectively appeal from the trial court's June 24, 2011, order mooting their motions to dismiss. See LaConsay 21 v. Langley, 13 So. 3d 989, 991-92 (Ala. Civ. App. 2009) ("A ruling that an issue is moot is not an adjudication on the merits and is not a final judgment on the pending issue." (citing Ferguson v. Commercial Bank, 578 So. 2d 1234, 1236-37 (Ala. 1991))). Because "[t]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus," we dismiss the appeal in case no. 1111449 and proceed to consideration of the merits of their petition seeking a writ of mandamus. Ex parte Liberty Nat'l Life Ins. Co., 888 So. 2d 478, 480 (Ala. 2003). See also Ex parte Johnson, 993 So. 2d 875, 881 (Ala. 2008) ("Although the normal To the extent that, in that same order, the trial court 21 also granted Goodall-Brown's motion to compel the individual defendants to join the previously ordered arbitration, that order would clearly have supported a challenge on direct appeal by the individual defendants. See Rule 4(d), Ala. R. App. P. ("An order granting or denying a motion to compel arbitration is appealable as a matter of right ...."). However, the Sloss defendants' filings in case no. 1111449 make clear that they are proceeding only with their standing- based challenge on appeal. The individual defendants make no argument concerning the actual merits of the trial court's order compelling them to arbitrate. 33 1111422; 1111449; 1111526; 1121455; 1130054 basis upon which this Court reviews orders granting or denying arbitration is by way of direct appeal, see Rule 4(d), Ala. R. App. P., in this proceeding, the homeowners' contention that the trial court lacks subject-matter jurisdiction is appropriately reviewed by way of a petition for a writ of mandamus."). Standard of Review "'The writ of mandamus is a drastic and extraordinary writ, to be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993); see also Ex parte Ziglar, 669 So. 2d 133, 134 (Ala. 1995).' Ex parte Carter, [807 So. 2d 534,] 536 [(Ala. 2001)]." Ex parte McWilliams, 812 So. 2d 318, 321 (Ala. 2001). "Mandamus review is available where the petitioner challenges the subject-matter jurisdiction of the trial court based on the plaintiff's alleged lack of standing to bring the lawsuit." Ex parte HealthSouth Corp., 974 So. 2d 288, 292 (Ala. 2007). Discussion The Sloss defendants contend in their petition that Goodall-Brown lacked the requisite "standing" to initiate the 34 1111422; 1111449; 1111526; 1121455; 1130054 underlying litigation in case no. CV-10-903160 in the trial court, pursuant to which the Sloss defendants were ultimately ordered to arbitration. See, e.g., State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999) ("When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction."). The Sloss defendants explain in their petition that they base this claim on the fact that, before it initiated the underlying litigation based on the lease transaction, Goodall-Brown purportedly had assigned away all of its rights and interest in the lease to a third party –- Goodall-Brown's original lender, The Bank. Additionally, the Sloss defendants contend that, as a result of Latimer's personal-bankruptcy filing, GBM was dissolved and "the [underlying] lawsuit is being prosecuted and managed by a nonexistent former general partner without authority to act on behalf of the plaintiff." Petition, at p. 8. Assuming, without deciding, that the Sloss defendants' contention is, in fact, a challenge to Goodall- Brown's "standing" and not a claim that Goodall-Brown is not the proper party in interest to pursue the claims asserted by Goodall-Brown in the underlying litigation, see, e.g., Ex 35 1111422; 1111449; 1111526; 1121455; 1130054 parte MERSCORP, Inc., 141 So. 3d 984 (Ala. 2013), both grounds are, nonetheless, meritless.22 We first address the second of the Sloss defendants' claims. The Sloss defendants note that pursuant to Goodall- By addressing this argument as presented by the parties, 22 and assuming, without deciding, that the Sloss defendants' contention is a challenge to Goodall-Brown's "standing," this Court is in no way signaling a retreat from our recent caselaw clearly "reject[ing] the notion that questions ... regarding the cognizability of the plaintiffs' legal theories, or claims, are 'standing' issues rather than 'cause of action' issues." Ex parte MERSCORP, 141 So. 3d at 992. "This Court has recently noted: '[T]he concept [of standing] appears to have no necessary role to play in respect to private-law actions, which, unlike public cases ..., come with established elements that define an adversarial relationship and "controversy" sufficient to justify judicial intervention.'" Poiroux v. Rich, [Ms. 1120734, March 14, 2014] ___ So. 3d ___, (Ala. 2014) (quoting Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, September 13, 2013] ___ So. 3d ___, ___ (Ala. 2013)). Further, "[i]n private-law actions (e.g., a claim of negligence ...), if the elements are met, the plaintiff is entitled to judicial intervention; if they are not met, then the plaintiff is not entitled to judicial intervention. Everything necessary to justify judicial intervention, by definition, inheres in those elements that we say constitute a 'cause of action' in and by our courts. ... At a very fundamental level, the concept of standing is already embodied in the various elements prescribed, including the common requirement of proof of a sufficient existing or threatened injury." Ex parte BAC, ___ So. 3d at ___. See also Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So. 3d 1216, 1220 (Ala. 2010). 36 1111422; 1111449; 1111526; 1121455; 1130054 Brown's partnership agreement, a co-general partner's interest terminates immediately upon the dissolution of that general partner. It is, as they argue, undisputed that GBM, which is owned solely by Latimer, is one of two co-general partners of Goodall Brown. The Sloss defendants further cite GBM's operating agreement, which provides that a member's ownership interest in GBM is terminated upon the filing of a bankruptcy petition, and the undisputed fact that Latimer, the sole owner and member of GBM, personally filed for bankruptcy protection. Thus, they argue that pursuant to the terms of the GBM operating agreement, Latimer's ownership interest in GBM was terminated as a result of his bankruptcy filing; that termination of the membership interest of its sole member dissolved GBM as a matter of law; and that GBM's dissolution automatically terminated its partnership interest in Goodall- Brown. Contrary to the claims of the Sloss defendants, however, and as Goodall-Brown argues in opposition, "[s]tanding is '"'[t]he requisite personal interest that must exist at the commencement of the litigation.'"'" Cadle Co. v. Shabani, 4 So. 3d 460, 462–63 (Ala. 2008) (emphasis added) (quoting Pharmacia Corp. v. Suggs, 932 So. 2d 95, 98 (Ala. 2005), 37 1111422; 1111449; 1111526; 1121455; 1130054 quoting in turn In re Allison G., 276 Conn. 146, 156, 883 A.2d 1226, 1231 (2005)). See also Bernals, Inc. v. Kessler-Greystone, LLC, 70 So. 3d 315, 319 (Ala. 2011). Here, Latimer's bankruptcy filing may, in fact, have had the effect of dissolving GBM, as the Sloss defendants claim. Regardless, however, the filing date of Latimer's bankruptcy did not occur until after the 2010 filing date of Goodall-Brown's complaint initiating case no. CV-10-903160. Thus, irrespective of Latimer's present interest in GBM or GBM's current legal status, it is undisputed that, at the time of commencement of the litigation, the alleged event of dissolution on which this particular claim is based had not yet occurred and, therefore, had not worked to deprive Goodall-Brown of standing as the Sloss defendants contend. Moreover, § 10A-9-8.03, Ala. Code 1975, provides, in pertinent part, that "a limited partnership continues after dissolution ... for the purpose of winding up its activities," including "prosecut[ing] and defend[ing] actions and proceedings, whether civil, criminal, or administrative ... , [and] settl[ing] disputes." There is, therefore, nothing suggesting that a party without standing purported to commence or to continue the underlying action. See Property at 2018 Rainbow Drive, supra. 38 1111422; 1111449; 1111526; 1121455; 1130054 We now turn to the Sloss defendants' claim that Goodall- Brown's assignment in connection with the construction loan originally obtained from The Bank constituted a transfer of all of Goodall-Brown's legally protected rights under the assigned leases and the mortgage. In support of their contentions in this regard, the Sloss defendants rely primarily on Associates of Selma, Inc. v. Whetstone, 628 So. 2d 578 (Ala. 1993). Whetstone involved the appeal of, among other claims, a deficiency judgment obtained by Whetstone against the corporate defendant to whom Whetstone had sold a trailer park. 628 So. 2d at 579. In connection with the sale, the defendant executed a note to Whetstone for a portion of the purchase price, which note was secured by a mortgage on the trailer park. Whetstone later assigned the note to Peoples Bank and Trust Company of Selma ("Peoples Bank") as collateral for a mortgage loan Whetstone obtained from Peoples Bank. The language of the assignment specifically included the transfer of "'all rights accrued or to accrue to [Whetstone] under said Mortgage.'" Id. Despite the assignment, Whetstone continued to collect the defendant's monthly rental payments, which he then remitted to Peoples Bank. Id. Thereafter, however, the defendant defaulted and 39 1111422; 1111449; 1111526; 1121455; 1130054 Peoples Bank foreclosed; Whetstone purchased the park at foreclosure, then successfully sued the defendant in the trial court to recover the deficiency balance remaining on the original purchase-money mortgage. Id. On appeal, this Court considered the following issue: "[W]hether Whetstone's assigning to [Peoples Bank] the note and mortgage executed by [the corporate defendant] to Whetstone operated to cut off Whetstone's right to sue for a deficiency following the default by Associates and the resulting foreclosure and sale by [Peoples Bank]." Id. We ultimately answered that question in the affirmative based on the following rationale: "The language of the assignment executed by Whetstone to the Bank is that of an unconditional or unqualified assignment; therefore, '[i]t is a complete transfer of the whole thing granted or a completed transfer of the entire interest of [Whetstone] in the particular subject matter [here, the note and mortgage executed by Associates].' 6A C.J.S. Assignments § 2, p. 591 (1975). "Whetstone's unconditional assignment to the Bank was an unqualified transfer of Whetstone's interest in the note and mortgage executed by [the corporate defendant]; therefore, '[u]nless the assignment is void or otherwise invalid, [Whetstone lost] all right to control or enforce' the terms of the note and mortgage, 'and he has no right except as he may sue for the benefit of his assignee, to recover judgment on the claim, or to recover damages for breach of the contract assigned.' 6A C.J.S. Assignments § 96, p. 753 (1975)." 328 So. 2d at 579-80 (third emphasis added). 40 1111422; 1111449; 1111526; 1121455; 1130054 In the present case, pursuant to the plain language of the assignment included in Goodall-Brown's original mortgage, the parties intended that the assignment be "a present assignment." Nonetheless, that same agreement indisputably provided that Goodall-Brown retained the right to collect rents "so long as there exist[ed] no event of default" on Goodall-Brown's mortgage obligation. Thus, unlike the facts in Whetstone, here, despite the assignment, Goodall-Brown retained, as the original lessor, rights attendant to the assigned leases if and until it defaulted on the obligation secured by the leases. See Chattanooga Sav. Bank v. 23 Crawford, 206 Ala. 530, 532, 91 So. 316, 317 (1921) ("A general statement of the effect of an assignment as collateral security for a debt, in equity, is that it gives the assignee only a qualified interest in the assigned chose to the extent of 'the debt or liability secured, although the assignment is absolute on its face' ... and, when the debt for which the This fact also distinguishes the present case from 23 Bernals, on which the Sloss defendants also rely in their petition. Specifically, in Bernals, we concluded that the party commencing the litigation, who was not a party to the lease agreement, lacked standing to sue. 70 So. 3d at 319. 41 1111422; 1111449; 1111526; 1121455; 1130054 collateral is given has been paid, the right to hold and enforce the same in equity ceases."). The record suggests that, in or around 2008, the Sloss defendants reduced their rental payments to less than the agreed upon amount and that, in or around December 2009, they halted all lease payments but continued to collect rents from tenants who occupied the Goodall-Brown Building pursuant to sublease agreements. According to the petition, Goodall-Brown did not default until 2011. Petition, at 4. We have previously observed that the concept of standing to sue turns upon the demonstration of an injury to a legally protected right held by the plaintiff: "Standing requires injury in fact. This Court stated in State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025 (Ala. 1999): "'Standing ... turns on "whether the party has been injured in fact and whether the injury is to a legally protected right." Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo. 1998) (Kourlis, J., dissenting) (emphasis added [in Property at 2018 Rainbow Drive]). See also NAACP v. Town of East Haven, 892 F. Supp. 46 (D.Conn. 1995)...." "'....' "740 So. 2d at 1027–28. 42 1111422; 1111449; 1111526; 1121455; 1130054 "'If a named plaintiff has not been injured by the wrong alleged in the complaint, then no case or controversy is presented and the plaintiff has no standing to sue either on his own behalf or on behalf of a class.' Ex parte Prudential Ins. Co. of America, 721 So. 2d 1135, 1137 (Ala. 1998); see also Ex parte Blue Cross & Blue Shield of Alabama, 582 So. 2d 469, 474 (Ala. 1991). A party's injury must be 'tangible,' see Reid v. City of Birmingham, 274 Ala. 629, 639, 150 So. 2d 735, 744 (1963); and a party must have 'a concrete stake in the outcome of the court's decision.' Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932, 937 (Ala. 1983)." Kid's Care, Inc. v. Alabama Dep't of Human Res., 843 So. 2d 164, 166-67 (Ala. 2002). Here, whatever other rights and interests were assigned by Goodall-Brown, it clearly retained the right to collect rents from its tenants of the Goodall-Brown Building so long as it remained current on its mortgage obligation. In its complaint initiating case no. CV-10-903160, Goodall-Brown alleged that the Sloss defendants "failed to make payments [they were] contractually obligated [to make] under the terms of the [l]ease." Similarly, as the petition notes, Goodall- Brown's amended complaint also includes, among other theories of recovery, claims based on the Sloss defendants' alleged failure to make payments under the lease -- payments to which Goodall-Brown was contractually entitled before its mortgage 43 1111422; 1111449; 1111526; 1121455; 1130054 default –- and also alleges that during the time the Sloss defendants were not making payments due Goodall-Brown under the lease, they were converting rent moneys remitted by subtenants. Thus, Goodall-Brown has clearly alleged a discernible injury to a legally protected right, namely the Sloss defendants' purported interference with its right to collect rent moneys pursuant to tenant lease agreements.24 "A writ of mandamus is a drastic and extraordinary remedy, and to justify issuance of such a writ there must be a clear showing of injury to the petitioner." Ex parte Thomas, 628 So. 2d 483, 485 (Ala. 1993) (citing Ex parte J.E.W., 608 So. 2d 728 (Ala. 1992) (emphasis added)). Because we conclude that there is sufficient evidence establishing Goodall-Brown's standing to initiate the underlying litigation, we must necessarily find that the Sloss defendants, the petitioners, have not made a sufficient showing of a clear legal right to the relief sought. We, therefore, deny their petition for a writ of mandamus. Under this same analysis, Goodall-Brown would similarly 24 be the proper party in interest to pursue the unpaid-rent claim for the period before Goodall-Brown's mortgage default. See MERSCORP, Inc., supra. See also Ex parte Simpson, 36 So. 3d 15, 24-25 (Ala. 2009). 44 1111422; 1111449; 1111526; 1121455; 1130054 III. Case No. 1121455 and Case No. 1130054 In case no. 1121455 and case no. 1130054, Second Avenue appeals from the orders of the trial court staying the pending arbitration proceedings as to Second Avenue but refusing to also enjoin the discovery process while these consolidated appeals remained pending. Based on our resolution of case no. 1111422, above, any challenge to the trial court's refusal to stay the discovery process in the pending arbitration proceeding is moot. See Ex parte Connors, 855 So. 2d 486, 488 (Ala. 2003) ("[I]f a case has become moot, or [if a] judgment would not accomplish an end recognized as sufficient in law, there is no necessity for the judgment, the court will decline to consider the merits, and [the court] will dismiss the case." (emphasis omitted)). See also note 12, supra. We, therefore, dismiss these two appeals -- case no. 1121455 and case no. 1130054. 1111422 -- AFFIRMED. Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs in the result. Moore, C.J., dissents. 45 1111422; 1111449; 1111526; 1121455; 1130054 1111449 -- APPEAL DISMISSED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur. Main, J., concurs in the result. 1111526 -- PETITION DENIED. Moore, C.J., and Stuart, Bolin, Parker, Wise, and Bryan, JJ., concur. Murdock and Main, JJ., concur in the result. 1121455 -- APPEAL DISMISSED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. 1130054 -- APPEAL DISMISSED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. 46 1111422; 1111449; 1111526; 1121455; 1130054 MURDOCK, Justice (concurring in the result in case no. 1111422 and case no. 1111526). As a general rule, a court's order denying a motion to dismiss or a motion for a summary judgment is not reviewable on appeal by way of a petition for a writ of mandamus. Ex parte Jackson, 780 So. 2d 681, 684 (Ala. 2000). As the main opinion notes, among the exceptions to this general rule are a trial court's order denying a motion to dismiss or a motion for a summary judgment where the basis for the motion is a purported lack of standing on the part of the plaintiff, which, in turn, gives rise to a question of subject-matter jurisdiction on the part of the trial court. ___ So. 3d at ___ (citing Ex parte Liberty Nat'l Life Ins. Co., 888 So. 2d 478, 480 (Ala. 2003)). In the present case, the basis for the motion in question is the allegation by the Sloss defendants that, "before it 25 initiated the underlying litigation based on the lease transaction, Goodall-Brown [Associates, L.P.,] purportedly had Because of the number of defendants defined in the main 25 opinion as "the Sloss defendants," I am using that term as defined in the main opinion. 47 1111422; 1111449; 1111526; 1121455; 1130054 assigned away all of its rights and interest in the lease to a third party" and/or the fact, as alleged by the Sloss defendants, that "as a result of [Thomas] Latimer's personal- bankruptcy filing, [Goodall-Brown Management, L.L.C.,] was dissolved and 'the [underlying] lawsuit is being prosecuted and managed by a nonexistent former general partner without authority to act on behalf of the plaintiff.'" ___ So. 3d at ___. Consistent with the authorities cited in note 22 of the main opinion, these issues are not, in fact, standing issues but, instead, are issues that go either to the merits of the claims asserted by Goodall-Brown Associates (e.g., whether Goodall-Brown Associates can prove that, notwithstanding its assignment of certain rights under the lease agreement, it retained sufficient rights or interest in that agreement to be able to prove the elements of a breach-of-contract claim (and the elements of any other claims it may assert related to the lease agreement) or to the question of who is the real party in interest in this case. In any event, they are not properly framed as "standing" issues under this Court's recent precedents, and I would deny the petition for the writ of 48 1111422; 1111449; 1111526; 1121455; 1130054 mandamus on this basis alone without discussion of the elements of standing. Therefore, in case no. 1111526 I concur in the result. I also concur in the result in case no. 1111422. As the main opinion observes: "'"[A] valid assignment gives the assignee the same rights, benefits, and remedies that the assignor possesses," such that the assignee "simply steps into the shoes of the assignor ...."'" ___ So. 3d at ___ (quoting Atlantic Nat'l Trust, LLC v. McNamee, 984 So. 2d 375, 378 (Ala. 2007), quoting in turn Nissan Motor Acceptance Corp. v. Ross, 703 So. 2d 324, 326 (Ala. 1997)). Here, there was an assignment of the mortgage from Superior Bank ("Superior I") to Superior Bank, N.A. ("Superior II"). In addition, however, it is the fact that there was a merger of Superior II and Cadence Bank, N.A. ("Cadence"), that ultimately subjects the resulting entity, which in this case retained the name "Cadence," to the alleged obligations and liabilities of Superior II arising from Superior II's actions before that merger. That is, I find apposite the principle that, "[a]s a general rule, a corporation formed by consolidation or merger 49 1111422; 1111449; 1111526; 1121455; 1130054 is responsible for the debts and liabilities of the constituent corporations, whether based on contractual or tort liability," 19 C.J.S. Corporations § 910 (2007) (footnote omitted), and that, therefore, "[l]iability may be imposed upon a successor corporation for the tortious conduct of its predecessor, if there has been a merger or consolidation," 19 C.J.S. Corporations § 913 (2007) (footnote omitted). This principle has been codified in the laws of Alabama governing corporations and, specifically, corporate mergers: "(a) When a merger takes effect: ".... "(3) The surviving corporation shall be responsible and liable for all the liabilities and obligations of each corporation party to the merger; and neither the rights of creditors nor any liens upon the property of any corporation party to the merger shall be impaired by the merger; "(4) Any claim existing or action or proceeding pending by or against any corporation party to the merger may be prosecuted, or continued, as if the merger had not taken place, or the surviving corporation may be substituted in the action or proceeding for the corporation whose existence ceased ...." Ala. Code 1975, § 10A-2-11.06. 50	September 19, 2014
20358b42-e5da-42c5-abdb-21ff1fac362a	Phylena Babbitt, individually, and as personal representative of Janet Broadbrooks, deceased. v. Cullman Regional Medical Center, Inc; Cullman Emergency Medical Service; The Health Care Authority of Cullman County; and Andrew Blake Hartley (Appeal from Cullman Circuit Court: CV-2011-900297). Affirmed. No Opinion.	N/A	1130490	Alabama	Alabama Supreme Court	REL:09/05/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130490 ____________________ Phylena Babbitt, individually, and as personal representative of Janet Broadbrooks, deceased. v. Cullman Regional Medical Center, Inc; Cullman Emergency Medical Service; The Health Care Authority of Cullman County; and Andrew Blake Hartley Appeal from Cullman Circuit Court (CV-2011-900297) BOLIN, Justice. AFFIRMED. NO OPINION. Stuart, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. 1130490 Moore, C.J., and Murdock, J., dissent. 2 1130490 MOORE, Chief Justice (dissenting). Phylena Babbitt, the plaintiff below, individually and as the personal representative of the estate of her deceased mother, Janet Broadbrooks, appeals from a summary judgment in favor of the defendants, Cullman Regional Medical Center, Inc., Cullman Emergency Medical Service ("Cullman EMS"), the Health Care Authority of Cullman County, and Andrew Blake Hartley. Today this Court affirms the summary judgment, without an opinion. I respectfully dissent because I believe a jury should have been allowed to consider the facts of this case to determine whether Hartley was negligent and whether Broadbrooks was contributorily negligent in the accident that caused Broadbrooks's death. On May 12, 2011, Hartley, who was employed by Cullman EMS, was driving an ambulance to the scene of a motor-vehicle collision. He had been dispatched from Cullman Regional Medical Center. He was driving the ambulance eastbound on Highway 157 when he encountered traffic and decided to continue in the same direction in the westbound lane, which is to say that he decided to drive the wrong way in the oncoming lane of traffic. Hartley testified that he was driving between 3 1130490 40 and 45 miles per hour as he drove the wrong way on the road. The speed limit was 55 miles per hour. Broadbrooks was driving a truck that was pulling a horse trailer with a young horse inside. Babbitt testified that Broadbrooks wanted to turn the vehicle around because the horse had been inside the trailer for about two hours before traffic came to a stop. Broadbrooks turned on her blinker to signal that she was turning left into a parking lot where she would then turn around to drive westbound on Highway 157. Hartley testified that he saw movement coming from his right as he passed an 18-wheeler or semi-trailer truck. Babbitt testified that she did not hear the ambulance sirens, and Hartley testified that he attempted to avoid the collision with Broadbrooks's truck as it turned left in front of him. The vehicles collided; Broadbrooks died from her injuries. On November 9, 2011, Babbitt sued the defendants, alleging negligence and wantonness. The defendants answered by asserting the affirmative defense of contributory negligence; they later moved for a summary judgment on this ground. On January 7, 2014, the trial court entered a summary judgment for the defendants, stating that, pursuant to § 32-5A-7, Ala. 4 1130490 Code 1975, "[Babbitt has] failed to present substantial 1 Section 32-5A-7 provides: 1 "(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated. "(b) The driver of an authorized emergency vehicle may: "(1) Park or stand, irrespective of the provisions of this chapter; "(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation; "(3) Exceed the maximum speed limits so long as he does not endanger life or property; "(4) Disregard regulations governing direction of movement or turning in specified directions. "(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of Section 32-5-213 and visual requirements of any laws of this state requiring visual signals on emergency vehicles. "(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the 5 1130490 evidence of a breach of [the defendants'] duty of care or wantonness" and that, "under the unique facts of this case," the defendants were "also entitled to summary judgment as a matter of law based on contributory negligence." Whether Hartley was negligent under § 32-5A-7 was, I believe, a question for the jury, as was whether Broadbrooks was negligent in failing to observe the ambulance on the wrong side of the road before the ambulance struck her vehicle. I do not agree that, as a matter of law, driving an ambulance between 40 and 45 miles per hour on the wrong side of the road in a 55-mile-per-hour zone is not negligent. Therefore, I dissent. driver from the consequences of his reckless disregard for the safety of others." 6	September 5, 2014
92db1d50-9d04-4cfe-81d1-b820e28c9ae9	Ex parte Monique Jackson. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Monique Jackson v. Geneva County Board of Education et al.) (Geneva Circuit Court: CV-12-900066; Civil Appeals : 2120549). Writ Denied. No Opinion.	N/A	1130194	Alabama	Alabama Supreme Court	REL:08/29/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130194 _________________________ Ex parte Monique Jackson PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Monique Jackson v. Geneva County Board of Education et al.) (Geneva Circuit Court, CV-12-900066; Court of Civil Appeals, 2120549) SHAW, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. Shaw, J., concurs specially. Moore, C.J., dissents. 1130194 SHAW, Justice (concurring specially). I concur in denying the petition for certiorari review. The petitioner, Monique Jackson, was a probationary teacher employed by the Geneva County Board of Education ("the Board"). Near the end of Jackson's third year of employment, the Board opted to "nonrenew" her employment contract, and Jackson was fired. Jackson sued the Board, several members of the Board, and the superintendent of the Geneva County school system (hereinafter referred to collectively as "the defendants"). She alleged that she had been fired for impermissible political and personal reasons. The trial court dismissed the action, and Jackson appealed to the Court of Civil Appeals, which affirmed the trial court's dismissal. Jackson v. Geneva County Bd. of Educ., [Ms. 2120549, August 30, 2013] ___ So. 3d ___ (Ala. Civ. App. 2013). Jackson then sought certiorari review of the Court of Civil Appeals' judgment. Jackson's termination is governed by the Students First Act of 2011, Act No. 2011–270, Ala. Acts 2011 ("the Act"). Section 4 of the Act, codified at Ala. Code 1975, § 16-24C-4, provides how probationary teachers obtain tenure and how other probationary employees obtain "nonprobationary status": 2 1130194 "No action may be proposed or approved based upon personal or political reasons on the part of the employer, chief executive officer, or governing board. A teacher shall attain tenure, and a classified employee shall attain nonprobationary status as follows: "(1) ... [A] teacher ... shall attain tenure upon the completion of three complete, consecutive school years of full-time employment as a teacher with the same employer unless the governing board approves and issues written notice of termination to the teacher on or before the last day of the teacher's third consecutive, complete school year of employment. ..." Jackson contended on appeal in the Court of Civil Appeals, and she contends in her certiorari petition to this Court, that the broad language of § 16-24C-4 prohibiting the consideration of "personal or political reasons" applies to decisions regarding the termination of the employment of probationary teachers. However, the Court of Civil Appeals noted that different Code sections apply to the termination of teachers' employment. Specifically, § 5 of the Act, now codified at Ala. Code 1975, § 16-24C-5, governs the termination of the employment of probationary teachers like Jackson. That Code section states, in pertinent part: "(c) Probationary teachers ... may be terminated at the discretion of the employer upon the written recommendation of the chief executive officer, a majority vote of the governing board, and issuance 3 1130194 of written notice of termination to the teacher on or before the fifteenth day of June. ... Upon issuance of such notice, the teacher may submit a written statement to the chief executive officer and the governing board explaining why such action should not be taken. ... "(d) The decision to terminate the employment of any probationary employee shall be final ...." (Emphasis added.) The Court of Civil Appeals explained that the prohibition in § 16-24C-4 on acting "based upon personal or political reasons" refers to the granting of tenure, not the termination of the employment of probationary teachers. In other words, tenure is granted by mere passage of time, and it is not to be granted based on personal or political reasons. Termination of the employment of a probationary teacher, however, is outside the scope of § 16-24C-4 and is instead within the gambit of § 16-24C-5. The Court of Civil Appeals held: "Looking to the plain language of the statute, § 16-24C-4(1) clearly states that a probationary employee 'shall' attain tenured status 'upon the completion of three complete, consecutive school years of full-time employment as a teacher with the same employer.' Thus, pursuant to the plain language of the statute, tenured status is automatic based upon the completion of working as a teacher for a specific consecutive period and cannot be attained based on 'political or personal reasons.' Section 16-24C-4 is a general statute governing the manner in which a probationary employee, depending upon his or her classification, automatically attains tenure. However, the Students First Act 4 1130194 contains several other more specific statutes detailing the procedure for termination of an employee based upon his or her classification. It is a well settled rule of statutory construction that '[w]here statutes in pari materia are general and specific, the more specific statute controls the more general statute.' Crawford v. Springle, 631 So. 2d 880, 882 (Ala. 1993). "In this case, it is undisputed that Jackson was a probationary teacher at the time of her termination because she was 'a teacher who ha[d] not attained tenure.' [Ala. Code 1975,] § 16-24C-3(8). As noted previously, § 16-24C-5 provides the specific provision regarding the termination of a probationary teacher, such as Jackson, prior to his or her attainment of tenured status. Section 16- 24C-5(c) states that a probationary teacher 'may be terminated at the discretion of the employer.' Thus, this provision explicitly allows an employer to terminate a probationary teacher at his discretion prior to the employee's attaining tenured status without any prohibition that the termination not be based on political or personal reasons. Additionally, § 16-24C-5(d) goes on to state that any discretionary termination of a probationary teacher 'shall be final.'" Jackson, ___ So. 3d at ___. Although § 16-24-4 does mention a written notice of termination, it is not specifying the procedure for terminating a probationary teacher's employment and barring the consideration of "personal or political reasons" for the termination of that employment; instead, it is generally discussing how tenure is obtained and mentioning the role of a written termination notice as part of that process. It is 5 1130194 § 16-24-5--a completely different Code section and section of the Act--that discusses the termination of the employment of probationary employees, and it contains no explicit prohibition on the consideration of personal or political reasons for that termination. To remove any doubt that the prohibition on the consideration of "personal or political reasons" was apparently purposefully omitted from the process for terminating the employment of probationary teachers under § 16-24C-5, the Court of Civil Appeals contrasts it with § 6 of the Act, codified at Ala. Code 1975, § 16-24C-6, which provides for the termination of the employment of tenured teachers and nonprobationary employees: "In contrast, § 16-24C-6 provides the procedure for termination of a tenured teacher or nonprobationary classified employee and states, in pertinent part: "'(a) Tenured teachers and nonprobationary classified employees may be terminated at any time because of a justifiable decrease in the number of positions or for incompetency, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner, or other good and just cause, subject to the rights and procedures hereinafter provided. However, a vote or decision to approve a recommended termination on the part of ... the 6 1130194 governing board shall not be made for political or personal reasons.' "(Emphasis added.) Moreover, § 16-24C-6 goes on to provide detailed procedures for an appeal of a tenured teacher's or nonprobationary classified employee's termination. Thus, we must conclude that if the legislature had wished to state that probationary teachers could not be terminated for political or personal reasons in the language of § 16-24C-5, it knew how to do so because it clearly included that language in § 16-24C-6." Jackson, ___ So. 3d at ___. The Court of Civil Appeals concluded: "Accordingly, looking to the Students First Act as a whole, as we must do, because § 16-24C-5 is the specific provision that provides an employer authority to terminate a probationary employee at its discretion prior to the employee's attainment of tenure and because the more specific statute controls the more general statute under the rules of statutory construction, we conclude that § 16-24C-4 does not control Jackson's termination under the Students First Act and, thus, that the trial court did not err in dismissing Jackson's complaint. See Ex parte McCormick, 932 So. 2d 124, 132 (Ala. 2005) ('In any case involving statutory construction, our inquiry begins with the language of the statute, and if the meaning of the statutory language is plain, our analysis ends there.'). Therefore, we affirm the trial court's judgment." Jackson, So. 3d at . In sum, § 16-24C-4 controls how tenure is obtained and explicitly prohibits the consideration of personal or political reasons in granting tenure; § 16-24-6 controls how a tenured teacher's employment is terminated and explicitly 7 1130194 prohibits the consideration of personal or political reasons for such termination; and § 16-24C-5 controls how a probationary teacher's employment is terminated but contains no language discussing the consideration of personal or political reasons for such termination. Thus, there is no portion of the applicable section of the Act--§ 5, codified at § 16-24C-5--that the Court of Civil Appeals has failed to apply or give effect. Because Jackson's complaint was premised on § 16-24C-4, which, as noted above, does not apply to the termination of a probationary employee's employment, I see nothing indicating any "probability of merit" in Jackson's argument that the Court of Civil Appeals erred in affirming the trial court's dismissal of her action. Rule 39(f), Ala. R. App. P. With no probability of merit, there are no "special and important reasons" to grant the petition. Rule 39(a), Ala. R. App. P. 8 1130194 MOORE, Chief Justice (dissenting). Monique Jackson claims that the Geneva County Board of Education ("the Board") denied her tenure as a schoolteacher because she had supported the previous principal, whom the Board had ousted. She filed a complaint seeking reinstatement, tenure, and backpay, citing a section of the Code that prohibits teacher firings for "personal or political reasons." § 16-24C-4, Ala. Code 1975. The trial court dismissed the case, and the Court of Civil Appeals affirmed that dismissal. This case presents a question of first impression as to whether a nontenured teacher can be fired for personal or political reasons. Because I believe that the Court of Civil Appeals erred in affirming the dismissal of Jackson's case, I would grant the petition for a writ of certiorari to explicate the meaning of § 16-24C-4. Analysis The relevant portion of § 16-24C-4 reads as follows: "No action may be proposed or approved based upon personal or political reasons on the part of the employer, chief executive officer, or governing board. A teacher shall attain tenure ... as follows: "(1) ... [A] teacher ... shall attain tenure upon the completion of three complete, consecutive school years of full-time employment as a teacher with the same employer unless the governing board 9 1130194 approves and issues written notice of termination to the teacher on or before the last day of the teacher's third consecutive, complete school year of employment. ..." Because a teacher automatically attains tenure after three years of full-time employment without any need for action by the governing board, the opening clause prohibiting actions "based upon personal or political reasons" would be meaningless if § 16-24C-4 addressed only the time for attaining tenure. Section 16-24C-4 also states, however, that tenure is automatic "unless the governing board approves and issues written notice of termination to the teacher on or before the last day of the teacher's third consecutive, complete school year of employment." The phrase "approves and issues written notice of termination" parallels the preceding statement that "[n]o action shall be proposed or approved based upon personal or political reasons ...." Thus, the Board is prohibited from approving a written notice of termination "based upon personal or political reasons" for the purpose of denying a teacher tenure prior to completion of "the teacher's third consecutive, complete school year of employment." The Court of Civil Appeals, treating § 16-24C-4 as establishing merely the time period for the automatic 10 1130194 attainment of tenure, did not consider that the "personal or political reasons" prohibition could apply to the termination clause of § 16-24C-4. The Court of Civil Appeals further held that the Code section applicable to Jackson's termination was § 16-24C-5, which provides that a probationary teacher, i.e., one who has not attained tenure, "may be terminated at the discretion of the employer." Because § 16-24C-5 does not contain a "personal or political reasons" limitation on the termination decision, the Court of Civil Appeals upheld the trial court's dismissal of Jackson's case. The Court of Civil Appeals erred in holding that the "personal or political reasons" prohibition of § 16-24C-4 did not apply to the Board's decision to terminate Jackson's employment. "'There is a presumption that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.'" Sheffield v. State, 708 So. 2d 899, 909 (Ala. Crim. App. 1997) (quoting 82 C.J.S. Statutes § 316 (1953)). Contrary to the canon of construction that every provision in a statute is "intended for some useful purpose," the Court of Civil Appeals' interpretation of § 16-24C-4 rendered the opening 11 1130194 clause superfluous and of no effect. "The court must give effect to each part of the statute, if possible, without doing violence to some other portion of the statute." Sheffield, 708 So. 2d at 909. Interpreting "every word, sentence, or provision" of § 16-24C-4 to be fully operative gives effect to the statute as written without doing any violence to § 16-24C-5, which provides general direction for the termination of the employment of probationary teachers in contrast to the specific application of § 16-24C-4 to the decision to terminate the employment of a teacher who is on the brink of tenure. The prohibition against terminating the employment of a teacher for "political or personal reasons" for the purpose of denying that teacher tenure is a significant statutory protection that the Court of Civil Appeals, in my view, erroneously invalidated. Conclusion Because I believe that the Court of Civil Appeals erred in nullifying the "political or personal reasons" language in § 16-24C-4, I would grant the petition for a writ of certiorari to address this question of first impression. 12	August 29, 2014
1d7abca3-4028-4b6a-8e82-7a0092a83278	Ex parte George Willie Pollard. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: State of Alabama v. George Willie Pollard, alias)	N/A	1121414	Alabama	Alabama Supreme Court	REL: 08/29/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1121414 _________________________ Ex parte George Willie Pollard PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: State of Alabama v. George Willie Pollard) (Lee Circuit Court, CC-11-418; Court of Criminal Appeals, CR-10-1560) WISE, Justice. The writ of certiorari is quashed. 1121414 In quashing 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 Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT QUASHED. Stuart, Bolin, Parker, Murdock, Main, and Bryan, JJ., concur. Moore, C.J., and Shaw, J., dissent. 2 1121414 SHAW, Justice (dissenting). I dissent from quashing the writ of certiorari in this case. On January 12, 2011, law-enforcement officials received an e-mailed "Meth Check Alert," apparently as part of the National Precursor Law Enforcement Exchange Program, indicating that George Willie Pollard had purchased pseudoephedrine at a store in Opelika. The alert was relayed to Detective Michael Rogers, a narcotics investigator with the Opelika Police Department. Rogers drove to a position near Interstate 85 to observe vehicular traffic traveling north, apparently in an attempt to observe Pollard's vehicle. Rogers was familiar with both Pollard and Pollard's wife, Christy. He spotted a vehicle driving past his location that was occupied by "two black males and a redheaded female." Rogers knew that Christy had red hair, so he decided to follow the vehicle to determine whether Christy was the female in the vehicle and whether Pollard was with her. When Rogers saw Pollard in the vehicle, he performed a check of the vehicle's tag number and determined that the vehicle was registered to Steve Madden, 3 1121414 who allegedly had an outstanding warrant. According to Rogers, he then conducted a traffic stop based on the outstanding warrant for Madden coupled with the information he had that Pollard had recently purchased pseudoephedrine. After the vehicle was stopped, the driver, Madden, consented to a search of the vehicle. During the course of the search, Rogers discovered several items commonly used in the manufacture of methamphetamine. Pollard was ultimately indicted for first-degree unlawful manufacture of a controlled substance. Ala. Code 1975, § 13A-12-218. He filed a pretrial motion to suppress the evidence seized from the vehicle, arguing that the traffic stop and the resulting search were illegal. The issue discussed at the hearing on the motion to suppress was whether the e-mailed "alert" received by law- enforcement officials was sufficient cause to initiate a traffic stop. It appears from the record that the issue was extensively argued by both Pollard and the State. Ultimately, the trial court granted the motion to suppress under the rationale that the e-mail alert did not provide a sufficient 4 1121414 basis for an investigatory stop of the vehicle. The State appealed to the Court of Criminal Appeals. On appeal, the State contended that the trial court erred in overlooking Rogers's testimony that the driver of the vehicle, Madden, had a warrant outstanding for his arrest. The Court of Criminal Appeals agreed, holding that the evidence of the arrest warrant for Madden established a second, independent reason for conducting the investigatory stop. State v. Pollard, [Ms. CR-10-1560, August 13, 2013] ___ So. 3d ___ (Ala. Crim. App. 2013). On appeal to the Court of Criminal Appeals (and in his certiorari petition to this Court), Pollard contended that the State's argument that the outstanding arrest warrant for Madden provided a basis for the investigatory stop was improper because the State failed to raise this claim first in 5 1121414 the trial court. In its opinion, the Court of Criminal 1 Appeals addressed this issue as follows: "The Alabama Supreme Court has noted that "'"[a]lthough on appeal from an intermediate court the higher court may be limited to the questions of law raised or argued at the trial, it is not limited to the arguments there presented." 5 C.J.S. Appeal and Error § 978 (2007) (emphasis added). In other words, "[n]ew arguments or authorities may be presented on appeal, although no new questions can be raised." 4 C.J.S. Appeal and Error § 297 (emphasis added).' "Ex parte Jenkins, 26 So. 3d 464, 473 n. 7 (Ala. 2009). Thus, under Jenkins, a party waives on appeal questions of law not first raised in circuit court. "As stated above, the only question of law before the circuit court was whether the 'evidence and statements are due to be suppressed in that [the] search leading to the discovery of [the] evidence and statements [was] conducted without a search warrant.' (C. 24.) The State on appeal is Both the State's failure to raise the issue of the 1 outstanding arrest warrant and the trial court's failure to recognize it are understandable. On a motion to suppress, the State responds to the specific arguments presented by the movant. Here, Pollard raised a novel legal issue, the State responded to that issue, and the trial court endeavored to determine what the law would require with respect to what appeared to be an issue of first impression. That an arrest warrant for Madden existed was only briefly mentioned in testimony, and both the parties and the trial court instead focused their efforts on the unique legal issue concerning the e-mail alert. 6 1121414 merely asserting an argument--based on undisputed evidence presented to the circuit court--as to why the circuit court erred in ruling on the question of law that Pollard raised in his motion to suppress." Pollard, ___ So. 3d at ___ n.3. I have serious concerns as to whether Ex parte Jenkins, 26 So. 3d 464 (Ala. 2009), relied on by the Court of Criminal Appeals, was correctly decided. Assuming that it is easy to distinguish between a legal "question" and a mere "argument" as to that question, it seems that, if any "question" is defined broadly enough, anything can be preserved for review and considered on appeal. This drastically alters the traditional duties of parties to preserve issues for appellate review. Further, there should be consideration as to whether the parties must take some initiative to ensure that the trial court has the opportunity to make the correct decision. Parties should be required to direct the trial court to the correct "arguments" instead of allowing the focus to dwell on immaterial issues or, intentionally or not, "sandbagging" the trial court with inconsequential "arguments," while leaving the appellate courts to address the true "questions" never before brought to the attention of the lower court. In his brief, Pollard asks this Court to "revisit" Jenkins and to 7 1121414 clarify its holding. I would do so. I thus dissent from quashing the writ. 8	August 29, 2014
95d5d4ef-fee0-4216-9d89-23b09e576373	White v. John et al.	N/A	1111554	Alabama	Alabama Supreme Court	REL: 09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1111554 ____________________ Thomas L. White, Jr., as Comptroller of the State of Alabama v. Karen John et al. Appeal from Montgomery Circuit Court (CV-12-901064) MURDOCK, Justice. The State Comptroller, Thomas L. White, Jr. ("the comptroller"), appeals from a preliminary injunction entered by the Montgomery Circuit Court in response to an action for declaratory and injunctive relief brought by Karen John, the 1111554 Alabama Education Association ("the AEA"), Randy Hebson, and the Alabama State Employees Association ("the ASEA"). We reverse and remand.1 I. Statement of Facts This is the third time a case involving the question of deductions by the comptroller from a State employee's salary for payment of contributions and dues has come before this Court recently. The first case, Davis v. Alabama Education 2 The plaintiffs filed this action against both the 1 comptroller in his official capacity and against "the Office of the State Comptroller," and "the Office of the State Comptroller" is listed as an appellant in the notice of appeal in this case. For the reasons discussed in Part III.A. of this opinion, it appears that there is no such entity as "the Office of the State Comptroller," and, therefore, no such entity is named as a party in the style of this case. Subject to certain conditions, § 36–1–4.3, Ala. Code 2 1975, provides that the comptroller may make deductions from the salary of a State employee upon the employee's request. Specifically, § 36–1–4.3(a), Ala. Code 1975, provides: "The state Comptroller shall adopt statewide policies which provide for deductions from the salaries of state employees or groups of state employees whenever a request is presented to the state Comptroller by a group of participating state employees equal in number to at least 200 provided, however, that deductions being made as of April 23, 1985, shall continue to be made. The deductions shall be made at least monthly and shall be remitted to the appropriate company, association, or organization as specified by the employees. The deductions may be made for membership dues, and 2 1111554 Ass'n, 92 So. 3d 737 (Ala. 2012), concerned the comptroller's implementation on or about June 28, 2010, of a new policy stopping certain deductions from the paychecks of State employees. Specifically, the comptroller interpreted then existing § 17-17-5, Ala. Code 1975, as preventing him from 3 executing salary deductions and remitting the deducted funds as contributions to the political-action committees of organizations -- including the political-action committees of the AEA and the ASEA. By the same token, based on his determination that some portion of the deductions designated for remittance to the AEA was being transferred by the AEA to its political-action committee, the comptroller ceased execution of all salary deductions designated for remittance to the AEA. The comptroller also understood the then existing statute therefore to prevent him from making payroll voluntary contributions, and insurance premiums. Any deduction provided under the provisions of this section may be terminated upon two months' notice in writing by a state employee to the appropriate company, association, or organization and to the appropriate payroll clerk or other appropriate officials as specified by the state Comptroller." Section 17-17-5 was substantially amended effective 3 March 20, 2011, by Act No. 2010-761, Ala. Acts 2010. See discussion infra. 3 1111554 deductions for the purpose of, in turn, making remittances to the AEA itself. As then codified, § 17-17-5 provided in part that "[n]o person in the employment of the State of Alabama ... shall use any state ... funds, property, or time, for any political activities." The comptroller also based his position on § 36-12-61, Ala. Code 1975, which provides: "It shall be unlawful for any officer or employee of the State of Alabama to use or to permit to be used any state-owned property of any character or description, including stationery, stamps, office equipment, office supplies, automobiles or any other property used by him, in his custody or under his control for the promotion or advancement of the interest of any candidate for the nomination or election to any public office of the State of Alabama." The AEA, the ASEA, and their political-action committees filed a declaratory-judgment action challenging the comptroller's change in policy and sought a preliminary injunction to force the comptroller to continue executing salary deductions as he had previously. The Montgomery Circuit Court granted the requested preliminary injunction; the State finance director and the comptroller appealed the circuit court's order to this Court. That appeal was the subject of Davis. 4 1111554 Subsequently, in a special session, the legislature enacted, and the governor signed into law on December 20, 2010, Act No. 2010–761, Ala. Acts 2010 ("the Act"). The Act amended § 17–17–5, Ala. Code 1975, to state explicitly as follows: "(a) No person in the employment of the State of Alabama ... shall use any state, county, city, local school board, or other governmental agency funds, property, or time, for any political activities. "(b)(1) No person in the employment of the State of Alabama ... may arrange by salary deduction or otherwise for any payments to a political action committee or arrange by salary deduction or otherwise for any payments for the dues of any person so employed to a membership organization which uses any portion of the dues for political activity. ... ".... "(2) Any organization that requests the State of Alabama, a county, a city, a local school board, or any other governmental agency to arrange by salary deduction or otherwise for the collection of membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall certify to the appropriate governmental entity that none of the membership dues will be used for political activity. Thereafter, at the conclusion of each calendar year, each organization that has arranged for the collection of its membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall provide the appropriate governmental entity a detailed breakdown of the expenditure of 5 1111554 the membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency collected by the governmental entity. ..." The Act became effective on March 20, 2011. Before the Act became effective, the AEA and six of its members filed an action in federal court on February 25, 2011, against various State officials challenging the constitutionality of the Act under the First and Fourteenth Amendments to the United States Constitution. See Alabama Educ. Ass'n v. State Superintendent of Educ., 665 F.3d 1234 (11th Cir. 2011). This lawsuit and matters pertaining to it were described in this Court's opinion in Davis, 92 So. 3d at 743-45: "On March 8, 2011, the finance director and the comptroller notified this Court that on February 25, 2011, the plaintiffs had filed in the United States District Court for the Northern District of Alabama an action against the governor, the finance director, the comptroller, and other defendants ('the federal-court defendants') challenging the constitutionality of the Act under the First and Fourteenth Amendments to the United States Constitution. Specifically, the complaint alleged that the Act's ban on salary deductions in support of political activities is 'overbroad' and vague, that enforcement of the Act would result in 'viewpoint' discrimination, and that the Act violates the Equal Protection Clause of the Fourteenth Amendment. Subsequent filings in this Court by the finance director and the comptroller 6 1111554 notified this Court that the federal district court on March 18, 2011, entered a preliminary injunction against the federal-court defendants that 'enjoined and restrained [them] from implementing or enforcing [the Act].' The federal district court's injunctive order further stated that '[a]ll defendants named above must honor employee requests for payroll deductions to the Alabama Education Association ("AEA"), and must remit the deducted amounts (including amounts representing contributions to "A-VOTE" [Alabama Voice of Teachers for Education, a political-action committee affiliated with the AEA]) to AEA.' The federal-court defendants filed a notice of appeal of the preliminary injunction, as well as a motion to stay the injunction, to the United States Court of Appeals for the Eleventh Circuit. "On April 5, 2011, the Eleventh Circuit Court of Appeals entered an order denying the motion to stay the federal district court's preliminary injunction insofar as it prohibited the implementation of the Act. The Eleventh Circuit granted a stay, however, of the portion of the preliminary injunction that required the federal-court defendants to honor employee requests for salary deductions designated for the AEA that represented contributions to A-VOTE. The Eleventh Circuit noted that, before the enactment of the Act, the comptroller, based on preexisting Alabama law, already had ceased executing salary deductions from applicable State employees' paychecks that represented contributions to political-action committees. In particular, the Eleventh Circuit noted: "'If, as the district court has preliminarily concluded, the new Act is unconstitutional and its provisions are nonseverable, the provisions of the Alabama Code on which the Comptroller's June 28, 2010 policy was based are unaffected by the new Act. There is nothing in the district 7 1111554 court's memorandum opinion, or in the law of which we are aware, to justify a federal court injunction preventing the [federal-court] defendants from refusing to deduct for, or remit to, any organization amounts representing contributions to A-VOTE or any other [political-action committee], based on their interpretation of pre-Act 2010-761 state law. To the contrary, Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 129 S.Ct. 1093 (2009), clearly permits the defendants to refuse to collect and remit PAC contributions.'6 "Thus, the Eleventh Circuit upheld the federal district court's preliminary injunction of the implementation of the Act, except that it stayed the injunction "'insofar as the preliminary injunction: 1) requires any defendant to honor employee requests for payroll deductions for contributions to A-VOTE or to any other [political-action committee]; 2) requires any defendant to remit or pay over any PAC payroll deductions to any entity or person other than the employees from whose pay they were deducted; and 3) prevents any defendant from remitting or refunding any PAC payroll deduction to the employee from whose pay it has been deducted.' "On December 27, 2011, the Eleventh Circuit Court of Appeals filed with this Court certified questions pertaining to the Act in relation to the constitutional challenge filed by the AEA and A-VOTE, which query has been docketed as case no. 1110413. Those questions concern the interpretation of the Act and specifically ask: "'1. Is the "or otherwise" language in [the Act] limited to the use of state mechanisms 8 1111554 to support political organizations, regardless of the source? "'2. Does the term "political activity" refer only to electioneering activities?' "_______________ " In Ysursa, the United States Supreme Court 6 concluded that 'nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities.' 555 U.S. 353, 355, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009)." (Some footnotes omitted.) In its submission of the certified questions, the United States Court of Appeals for the Eleventh Circuit further limited the federal district court's preliminary injunction, stating: "Although the ultimate resolution of this matter may depend on the Alabama Supreme Court's resolution of the certified questions, we believe it is appropriate to narrow the district court's injunction in the interim. In its memorandum opinion, the district court issued a preliminary injunction barring the Act's enforcement in toto. However, a state's restriction on payroll deductions for organizations engaged in electioneering activities would likely be found constitutional under Ysursa. To the extent the state limits its enforcement of the Act in this way, it may proceed. The preliminary injunction remains in place as to enforcement that extends beyond that range of conduct." 665 F.3d at 1239. 9 1111554 This Court released Davis on March 23, 2012. We ruled that the enactment of the Act rendered moot the action that had been filed by the AEA, the ASEA, and their political- action committees because the newly amended § 17-17-5 constituted the effective law on the subject of the legality of salary deductions for contributions to political-action committees. For approximately six months following the Eleventh Circuit's submission of the certified questions to this Court, the comptroller continued to execute payroll deductions for dues from State employees who were members of the AEA and the ASEA. On June 29, 2012, the comptroller issued a "memorandum" to "Affected Organizations" regarding "Act 2010-761 Guidelines (State Comptroller Payroll Deductions, Revised June 2012)" ("the guidelines"). The memorandum first recounted the comptroller's authority to "adopt statewide policies which provide for deductions from the salaries of state employees" as provided in § 36–1–4.3, Ala. Code 1975. It then related the substance of § 17-17-5 as amended by the Act. The memorandum then detailed the "Procedure for Requesting Payroll Deductions for Membership Dues": 10 1111554 "As required by § 36–1–4.3, at least 200 state employees must submit a request for a payroll deduction for membership dues to a particular organization using a form prescribed by the Comptroller. "The request must include the Certification of an authorized representative of the organization certifying that the representative has exercised due diligence to determine that the information provided in the Certification is true and correct and agreeing to comply with the requirement of Code § 17-17-5(b)(1) to provide the annual 'detailed breakdown' of the expenditures of the membership dues collected by the State by payroll deduction. That detailed breakdown for the previous calendar year must be received by the Comptroller not later than April 30 of the immediately following calendar year, unless the Comptroller specifies a different deadline." Following the statement of procedure, the memorandum provided "Guidelines for Determining if an Organization is Engaged in Political Activity and not Eligible to Receive Dues Via Salary Deduction." This portion of the memorandum provided: "For purposes of [the Act], § 1(b), the term 'political activity' refers to the organization's activity which advocates or opposes the election of any person who is a candidate for public office. The organization's activity can be 'political' if it mentions the name of a particular political party in a communication, but only if the activity also includes advocating or opposing election of candidates, or requests financial support related to such election. Further, 'political activity' includes only the following forms of activity: 11 1111554 "1. Distributing political literature of any type. "2. Engaging in or paying for any type of political advertising in any medium. "3. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate. "4. Phone calling for any political purpose. "5. Engaging in or paying for public opinion polling. "6. Providing any type of in-kind help or support to or for a political candidate. "7. Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate. "The following are not considered 'political activity' by a certifying organization prohibited by Section 1(b) of the Act: "1. Communications, and the coordination of communications, to or from public officials about issues of public concern (i.e., lobbying), if there is no mention of the words 'elect,' 'vote,' 'support,' 'oppose,' 'ballot' or 'for' in relation to the election of a person to office. 12 1111554 "2. Advertising, distributing literature, phone calling, polling, and communicating about issues of public concern without mention of any person by name. "3. Advertising, distributing literature, and communicating about a person who has not publicly announced as a candidate and not made any filing required of a candidate for the next election under Alabama law or federal law. "4. Advertising, distributing literature, and communicating regarding a person who is a publicly announced candidate, or who made a filing required of a candidate for the next election, but only if the communication does not mention the person's status as a candidate, and does not use the words 'elect,' 'vote,' 'support,' 'oppose,' 'ballot' or 'for' (or substantially similar word) in relation to the election of a person to office. "5. Public opinion polling on any subject that does not include the name of a person who is a publicly announced candidate or of a person who has made a filing required of a candidate for the next election. "6. Public opinion polling of voters on the day of an election about candidates, if limited to asking for which candidate they voted (i.e., exit polling). "7. The use of office space, which is under the ownership or control of the 13 1111554 certifying organization, by a person who is a publicly announced candidate, or of a person who has made a filing required of a candidate for the next election, but only if the space is not used for planning political activity. "8. Individual, private, insubstantial use of the certifying organization's phone equipment, not made to multiple recipients in simultaneous fashion, and not coordinated with multiple phone calls made by another person. "9. The private expression of opinion orally about a candidate by a person who also is merely an officer of the certifying organization receiving dues via salary deduction. "10. The private solicitation of contributions for a candidate by a person [who also is] merely an officer of the certifying organization receiving dues via salary deduction. "11. The private participation in the management of a political action committee by a person who also is merely an officer of the certifying organization receiving dues via salary deduction. "12. Contributing to or contracting with an entity that is not a political party, a political action committee (including a principal campaign committee) and that is not for the purpose of political communication. "Before an organization is barred from arranging for the collection of its membership dues, or other 14 1111554 payment, through payroll deduction, the Comptroller will give written notice to the organization stating how the organization has violated [the Act], and will provide it a reasonable opportunity to demonstrate that a violation has not occurred. "These guidelines are focused on 'political activity' that is 'electioneering,' and they do not list all possible circumstances in which an organization may be engaged in 'political activity,' or 'electioneering.' Organizations receiving dues or other payments, via deduction from the salaries of public employees[,] are urged to make inquiry to resolve uncertainty about anticipated activity that may be covered. Further, these guidelines are merely interpretive guidelines to enforcing [the Act], and, given that [the Act] has never been enforced previously, are subject to revision. For any such revision, it is intended that notice will be provided to affected public employees and organizations, if feasible." The memorandum also contained a sample "Act 2010-761 Certification Form for Organizations." The form contains spaces for an organization's name and contact information. If the organization wishes to receive salary deductions from State employees, the form requires an individual from the organization to provide a notarized signature and to certify under penalty of being barred from receiving deductions that the organization "will not use any portion of the membership dues collected by payroll deduction from the pay of its members who are State employees for political activity as that 15 1111554 term is defined in [the Act]" and that the organization will "provide to the State Comptroller a detailed breakdown of the expenditure of those membership dues not later than the deadline, and using the forms, prescribed by the Comptroller from time to time." The comptroller sent copies of the memorandum to the AEA, the ASEA, and other organizations that were receiving dues from State-employee members via salary deductions. On August 1, 2012, the ASEA submitted its certification to the comptroller, along with a letter from its counsel, stating, in part, that the organization submitted the certification "under protest and without waiving any of its rights as they relate to any ongoing litigation concerning [the Act], or related to the rules and regulations promulgated in your 'Memorandum to Affected Organizations' dated June 29, 2012. ASEA feels compelled to submit the Certification in order to continue the withholding of its membership dues which are vital to ASEA's ongoing operations and continued existence." The AEA declined to submit a certification form and thus was deemed ineligible to receive dues via payroll deductions. The guidelines went into effect July 25, 2012. On August 17, 2012, the AEA, AEA member and State employee Karen John, the ASEA, and ASEA president Randy Hebson 16 1111554 (hereinafter sometimes referred to collectively as "the plaintiffs") sued White in his official capacity as comptroller and the "Office of the State Comptroller" in the Montgomery Circuit Court seeking a judgment declaring that the guidelines are void because, the plaintiffs maintained, they had been promulgated without following the procedures required in the Alabama Administrative Procedure Act, §§ 41-22-1 through 41-22-27, Ala. Code 1975 ("the AAPA"), and an injunction preventing the comptroller from implementing or enforcing the guidelines in any manner until and unless the comptroller complied fully with the AAPA. On the same date, the plaintiffs filed a separate motion seeking a preliminary injunction prohibiting the implementation of the guidelines. The comptroller filed a motion to dismiss the complaint for lack of jurisdiction and for failure to state a claim; he also filed opposition to the motion for a preliminary injunction. On August 30, 2012, the circuit court issued a preliminary injunction enjoining the implementation of the guidelines. In pertinent part, the order stated: "The Court finds and concludes that, unless preliminary injunctive relief is granted, Plaintiffs 17 1111554 will suffer irreparable harm, for which there is no adequate remedy at law. The harm consists primarily of the fact that the Plaintiffs will not be receiving the funds that their members have sought to have deducted and forwarded to the Plaintiffs. The irreparable nature of this harm and the absence of an adequate remedy at law are confirmed by the prospect that the doctrine of sovereign immunity would shield Defendants from many (perhaps all) forms of retrospective monetary relief in this case. "The Court finds and concludes that no appreciable and legally cognizable harm will occur to Defendants by virtue of a preliminary injunction; certainly any such harm, if there is any, does not outweigh the harm that Plaintiffs would suffer absent an injunction. Defendants will not have substantial difficulty maintaining the system of deductions that has existed for years. ".... "It is hereby ordered that Defendants, and all those acting in concert with them: "a) must not enforce the Guidelines (Rules) that are the subject of this lawsuit; and "b) until further order of this Court, must, in all future pay periods, honor all employee requests for payroll deductions pertaining to, or involving, AEA and ASEA. "This injunctive order will remain in effect during the pendency of this case, unless and until modified by the Court. "The case will be set for final hearing on the merits in due course, unless it is first resolved through ruling on motion(s)." 18 1111554 On October 25, 2013, this Court issued its opinion answering the two questions certified to it by the Eleventh Circuit Court of Appeals. State Superintendent of Educ. v. Alabama Educ. Ass'n, [Ms. 1110413, Oct. 25, 2013] ___ So. 3d ___ (Ala. 2013). We held in response to the first certified question that the "or otherwise" language in § 17-17-5 as amended by the Act is, in fact, limited to the use of State mechanisms to arrange for payments to political-action committees and other organizations that use any portion of their dues for political activities. As for the second certified question –- whether the term "political activity" refers only to "electioneering activities" -- we answered it in the negative. Among other things, we quoted from Black's Law Dictionary the definition of "political" as "'pertaining to or relating to the policy or the administration of government .... [O]f or pertaining to exercise of rights and privileges or the influence by which individuals of a state seek to determine or control its public policy ...." ___ So. 3d at ___. On February 5, 2014, in response to this Court's answers to its certified questions, the Eleventh Circuit Court of 19 1111554 Appeals released its opinion in Alabama Education Ass'n v. State Superintendent of Education, 746 F.3d 1135 (11th Cir. 2014). Having received this Court's answers to the certified questions previously posed by it, the Eleventh Circuit explained, among other things, that "[s]ome of AEA and A–VOTE'S conduct indisputably falls within the Act's definition of political activity, and therefore the challengers cannot bring a facial challenge arguing that the term is vague based on other action applications." 746 F.3d at 1140. Holding that it was "not substantially likely [that] the challengers will succeed on the merits" of their claim, the Eleventh Circuit held that the district court had erred in entering a preliminary injunction on the ground that the Act was void as being vague. 746 F.3d at 1140. On February 4, 2014, the day before the Eleventh Circuit Court of Appeals released its opinion, the comptroller filed a motion in the present case seeking permission to submit to this Court a "Second Supplemental Brief" that would incorporate additional argument based upon this Court's answers to the Eleventh Circuit's certified questions in State Superintendent of Education v. Alabama Education Ass'n, supra. 20 1111554 The comptroller's motion noted that our decision in that case "altered the legal landscape for the appeal at bar" and further stated: "This Court's ruling construed [the Act] to give it a broader reach than the Comptroller did when he announced the Guidelines that are disputed in this case. As a result, the Comptroller is due to revise the limits on his enforcement of [the Act] reflected in the Guidelines. Particularly, the Comptroller is due to revise his view that [the Act] does not apply to limit salary deduction for organizations spending dues on issue-based ballot measures." The comptroller's motion advised the Court of "the impending and possible changes to the Guidelines that may alter the factual circumstances underlying the Court's decision in this appeal." The comptroller also stated that "[a]bandonment of the Guidelines would be permissible because [this Court's] October 2013 ruling itself offers sufficient guidance to persons effected by [the Act]." After taking note of the more expansive definition of "political activity" in this Court's decision in response to the certified questions, the comptroller's Second Supplemental Brief concluded: "The Comptroller is due to revise his Guidelines to be consistent with Ysursa, with the Eleventh Circuit's direction, and with this Court's interpretation of the Act. The Comptroller plans to 21 1111554 formulate revisions to the Guidelines and hopes to implement revisions by March 31, 2014. "In addition to revising the Guidelines, the Comptroller is also considering rescinding them altogether now that the October 2013 ruling itself provides guidance about applying [the Act]. Abandoning the Guidelines would end the unseemly, uneven enforcement of [the Act] caused by the [trial] court's overreaching injunction.... By eliminating the Guidelines, the Comptroller would eliminate the basis for the injunction against Act 761, and end the special treatment it accords AEA and ASEA." Several days later, the AEA and Karen John filed a "Response" to the comptroller's motion to supplement his brief. This response was filed on February 11, 2014, i.e., following the release by the Eleventh Circuit Court of Appeals of its opinion in the certified-question case. AEA and John did not oppose the motion for supplemental briefing, but "point[ed] out that the status of the case is now in an unsettled posture; and ... suggest[ed] that the time for filing a responsive brief should not begin to run until certain further developments have made this case truly ready for final consideration." Taking note of this Court's decision in State Superintendent of Education v. Alabama Education Ass'n, supra, answering the certified questions posed by the Eleventh Circuit and the latter court's 22 1111554 incorporation of those answers into its February 5, 2014, opinion, the AEA and John stated: "Thus it is now known that the Comptroller's 'Guidelines' do not reflect a correct interpretation of the Act." The response goes on to state that, as a result of these decisions, "the situation is still in flux in two important ways, and these appellees respectfully suggest that it would be wiser and more efficient for this Court to receive supplemental briefs when the now-fluid situation has resolved into a settled form." The first way in which the AEA and John asserted that the situation was still "in flux" was to explain that the Eleventh Circuit's opinion of February 5, 2014, was not yet final and that the parties to the appeal pending in this Court should await a "final decision and mandate" by that court. The AEA and John also stated: "[T]he situation is in flux in that the Comptroller has now stated -- in his latest motion to this Court -- that he no longer stands behind his own 'Guidelines' that are at issue this present appeal. But the Comptroller has told this Court that he has not yet decided what he will do, in that regard -- he is keeping his options open, as between (a) issuing new Guidelines, or (b) simply revoking the current Guidelines and not replacing them with any revised version. See Second Supplemental Brief of Appellant[], pp. 6-8. 23 1111554 "The Comptroller's new disavowal of his Guidelines may change the complexion of this case and may affect how the Court rules. But this Court should be able to know, before undertaking to rule, what the Comptroller's real position is: will he issue new Guidelines, or abandon Guidelines altogether? At present, the Comptroller has placed the Court in a state of uncertainty. This Court should not have to rule in this case without clarity from the Comptroller as to which choice he will make." The Eleventh Circuit Court of Appeals issued its mandate in Alabama Education Ass'n v. State Superintendent of Education on April 14, 2014. Some time has now passed since the filings of the comptroller and the AEA and John described above and the April 14 issuance by the Eleventh Circuit Court of Appeals of the mandate anticipated by those filings. During this time, this Court has not been notified that the guidelines have been withdrawn, as the parties suggested they might be. Nor have we been notified of any modification to the guidelines, as was represented to be "due" and "impending." We therefore proceed to address the merits of the appeal before us. Because the issue upon which we dispose of this appeal is one that has already been briefed by the parties, we 24 1111554 do not find a need for any further briefing as has been offered by the parties. II. Standard of Review A preliminary injunction should be issued only when the party seeking the injunction demonstrates the following four elements: "'"(1) that without the injunction the plaintiff will suffer immediate and irreparable injury; (2) that the plaintiff has no adequate remedy at law; (3) that the plaintiff is likely to succeed on the merits of the case; and (4) that the hardship imposed upon the defendant by the injunction would not unreasonably outweigh the benefit to the plaintiff."'" Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65, 78 (Ala. 2009) (quoting Blount Recycling, LLC v. City of Cullman, 884 So. 2d 850, 853 (Ala. 2003), quoting in turn Blaylock v. Cary, 709 So. 2d 1128, 1130 (Ala. 1997)). Rulings about the law imbedded in the decision to issue a preliminary injunction are reviewed de novo. See State Bd. of Educ. v. Mullins, 31 So. 2d 91, 96 (Ala. 2009). "'[T]o the extent that the trial court's issuance of a preliminary injunction is grounded only in questions of law based on undisputed facts, our longstanding rule that we review an injunction solely to determine whether the trial court exceeded its discretion should not apply.'" 25 1111554 Barber, 42 So. 3d at 78 (quoting Holiday Isle, LLC v. Adkins, 12 So. 3d 1173, 1176 (Ala. 2008)). III. Analysis A. The "Office of the State Comptroller" as a Defendant The plaintiffs filed this action against the comptroller in his official capacity and against "the Office of the State Comptroller." The comptroller asserts that "[n]o entity known as 'the Office of the State Comptroller' exists." The comptroller points to § 41-4-51, Ala. Code 1975, which provides that "[t]he division of control and accounts shall be headed by and be under the direction, supervision and control of an officer who shall be designated the Comptroller. The Comptroller shall be appointed by the Director of Finance, with the approval of the Governor." The AEA notes that "office of the State comptroller" is mentioned in § 34-25-5, Ala. Code 1975, and that "the Office of the Comptroller" is listed in § 40-1-16, Ala. Code 1975. In addition to these statutory references, §§ 17-16-2.1, 32-6- 441, and 41-4-65, Ala. Code 1975, reference "the Comptroller's office," and § 40-5-3, Ala. Code 1975, mentions "the office of the Comptroller." 26 1111554 The aforesaid statutory references appear, in effect, to serve as references to the State comptroller. Based on our review of those statutes and, with particular reliance on § 41-4-51 as described above, it appears that there is no such official entity of State government as "the Office of the State Comptroller." In any event, if such an entity did exist, the attempt to sue it as such in the present case would run afoul of the proscriptions of § 14 of the Alabama Constitution of 1901, immunizing the State and State agencies from liability. The action before us, therefore, is due to be dismissed insofar as it purports to state a claim against "the Office of the Comptroller." B. Merits of the Appeal of the Preliminary Injunction As indicated above, a preliminary injunction is appropriate only in circumstances where, "without the injunction the [party would] suffer immediate and irreparable injury," Barber, 42 So. 3d at 78, as a result of the activity sought to be enjoined. In other words, a party has not demonstrated that a preliminary injunction is justified if there is no demonstration that the injunction will prevent the threatened injury that is alleged. See, e.g., Ex parte B2K 27 1111554 Sys., LLC, [Ms. 1130742, Sept. 12, 2014] ___ So. 3d ___ (Ala. 2014) (reversing the trial court's entry of a preliminary injunction intended to protect against the loss of a computer- software "source code" on the ground that the source code was no less threatened without the imposition of the preliminary injunction than with it). In the present case, the alleged injury with which the plaintiffs allege they are threatened -- their inability to receive payments by way of automated payroll deductions -- is no greater without the requested injunction than with it. Section 17-17-5(a) explicitly states that "[n]o person in the employment of the State of Alabama ... shall use any state, county, city, local school board, or other governmental agency funds, property, or time, for any political activities." Even more specifically, § 17-17-5(b) explicitly states "[n]o person in the employment of the State of Alabama ... may arrange by salary deduction or otherwise for any payments to a political action committee or arrange by salary deduction or otherwise for any payments for the dues of any person so employed to a membership organization which uses any portion of the dues for political activity." More specifically still, § 17-17-5(b) 28 1111554 goes on to prescribe detailed mechanics by which an organization requesting to receive payments by way of salary deductions is to certify certain information and when it is to certify that information, in order that the appropriate governmental entity can be assured that a payroll deduction related to that organization will not conflict with the above- quoted prohibitions. Indeed, the lack of the necessity for the guidelines in order to implement the policy by which the plaintiffs claim to be threatened is borne out by the fact that, even under the previous version of § 17-17-5, which was lacking much of the explicit directives contained in the above-quoted passages added by the Act, the State was able to adopt and execute a policy beginning on or about July 1, 2010, by which it ceased making the types of automated deductions at issue. In its April 5, 2011, order, the Eleventh Circuit Court of Appeals stayed that portion of the federal district court's preliminary injunction that required the State defendants to honor employees' requests for salary deductions designated for the AEA that represented contributions to Alabama Voice of Teachers for Education, a political-action committee 29 1111554 affiliated with the AEA (known as "A-VOTE"). As we noted in Davis, 92 So. 3d at 744: "The Eleventh Circuit noted that, before the enactment of the Act, the comptroller, based on preexisting Alabama law, already had ceased executing salary deductions from applicable State employees' paychecks that represented contributions to political-action committees. In particular, the Eleventh Circuit noted: "'If, as the district court has preliminarily concluded, the new Act is unconstitutional and its provisions are nonseverable, the provisions of the Alabama Code on which the Comptroller's June 28, 2010 policy was based are unaffected by the new Act. There is nothing in the district court's memorandum opinion, or in the law of which we are aware, to justify a federal court injunction preventing the [federal-court] defendants from refusing to deduct for, or remit to, any organization amounts representing contributions to A- VOTE or any other [political-action committee], based on their interpretation of pre-Act 2010-761 state law. To the contrary, Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 129 S.Ct. 1093 (2009), clearly permits the defendants to refuse to collect and remit PAC contributions.'" (Emphasis added.) In other words, as both this Court and the Eleventh Circuit Court of Appeals acknowledged, the provisions of the prior version of § 17-17-5 were fully capable of being executed, and were being executed, by the executive branch of 30 1111554 State government before the enactment of the 2010 amendments to § 17-17-5 effected by the Act. A fortiori, the much more specific provisions of the Act are and would be amenable to executive implementation without the necessity of the "guidelines." There is nothing in the record before us to indicate that, in the absence of the guidelines, the Act would not be enforced just as its predecessor was. Like its predecessor, the Act itself explicitly prohibits payroll deductions for remittance to organizations for use in "political activities." The Act, however, now provides much more direction with respect to this prohibition, and it explicitly establishes specific, statutorily required mechanisms by which the prohibitions of the Act are to be implemented. It is the Act that is the source of the alleged harm the plaintiffs seek to avoid. Enjoining the implementation of the guidelines will not eliminate that source. Yet, in this case, we are asked to address a complaint and, specifically, a preliminary injunction that focus solely on the alleged invalidity of the guidelines. The plaintiffs have not sought, and do not seek here to defend, any order 31 1111554 barring enforcement of the Act itself. It is critical to observe, as does the comptroller, that "the identified harm [is] the loss of dues payment by payroll deduction" and that this alleged harm is mandated by the Act itself. As the comptroller further explains, "even if plaintiffs are fully successful in having the court declare the Guidelines void and enjoin their enforcement, Plaintiffs will still 'not be [permitted to] receiv[e] the funds that their members have sought to have deducted and forwarded to the Plaintiffs.'" 4 Indeed, the plaintiffs do not dispute that they would be disqualified from receiving remittances resulting from payroll deductions because each engages in at least some activity that qualifies as "political activity" under the Act. See also Alabama Educ. Ass'n v. State Superintendent of Educ., 746 F.3d at 1140 ("Some of AEA and A–VOTE'S conduct indisputably falls within the Act's definition of political activity."). "A court will not grant ... an injunction that would be of no benefit to the person seeking it." 42 Am Jur. 2d As the comptroller also notes, the plaintiffs will not 4 necessarily fail to receive "the funds that their members have sought to have deducted and forwarded" but will receive those funds in a different manner than as a result of automated payroll deductions. 32 1111554 Injunctions § 23 (2010). "It is true that a court of equity may refuse to give any relief when it is apparent that that which it can give will not be effective or of benefit to the plaintiff." Virginia Ry. v. System Fed'n No. 40, 300 U.S. 515, 550 (1937). "The rule is stated in 32 C.J. 75, 76 Section 61 that: 'An injunction will be refused ... where for any reason it can be of no benefit to complainant ....'" Mitchell Irrigation Dist. v. Whiting, 59 Wyo. 52, 69, 136 P.2d 502, 508 (1943). By the same token, § 41-22-10 of the same AAPA upon which the plaintiffs rely provides that a court may issue injunctive relief as to the validity of a purported rule only "if the court finds that the rule, or its threatened application, interferes with or impairs or threatens to interfere with or impair, the legal rights or privileges of the plaintiff." In this case, it is not the purported rule that "interferes with or impairs, or threatens to interfere with or impair," a right of privilege of the plaintiffs -- it is the underlying statute itself. In the absence of an identified harm that will be ameliorated by a requested injunction, there 33 1111554 is no warrant for the exercise of judicial authority and the intrusion into the parties' affairs represented thereby.5 IV. Conclusion As noted, the plaintiffs' action is due to be dismissed insofar as it purports to name "the Office of the State Comptroller" as a defendant, and the circuit court is instructed to dismiss the action in that regard. For the reasons stated above, the preliminary injunction issued by the circuit court is reversed, and this caused is remanded for further proceedings consistent with this opinion. Among other things, the comptroller also seeks reversal 5 of the circuit court's judgment on the ground that the guidelines are not a "rule" under Ala. Code 1975, § 41-22- 3(9). Among their specific contentions is the argument that § 41-22-3(9)a. specifically excludes from the definition of a "rule" any "[s]tatements concerning only the internal management of an agency and not affecting private rights or procedures available to the public." The comptroller contends that, even if the plaintiffs qualify as "the public" for purposes of § 41-22-3(9)a., the guidelines impose no material "procedure" not already specifically prescribed in the text of the applicable statutes, themselves, see § 17-17-5 and § 35-1- 4.3 and -4.4, and that the plaintiffs have no "private right" to payment of dues by State-assisted salary deductions. Ysursa, 555 U.S. at 359. In light of our reversal of the preliminary injunction on the ground discussed above, it is not necessary to address this and other additional arguments asserted by the comptroller as bases for relief from that injunction. 34 1111554 REVERSED AND REMANDED WITH INSTRUCTIONS. Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., concurs specially. 35 1111554 MOORE, Chief Justice (concurring specially). I fully concur in the main opinion. I write separately to comment on that portion of the preliminary injunction entered by the Montgomery Circuit Court that states that the State comptroller, Thomas L. White, Jr., "must, in all future pay periods, honor all employee requests for payroll deductions pertaining to, or involving," the Alabama Education Association ("the AEA") and the Alabama State Employees Association ("the ASEA"). This portion of the order effectively absolves the plaintiffs from having to obey § 17- 17-5(b)(1), Ala. Code 1975, which states: "No person in the employment of the State of Alabama ... may arrange ... by salary deduction or otherwise for any payments for the dues of any person so employed to a membership organization which uses any portion of the dues for political activity." Under the trial court's injunction, the comptroller must honor "all employee requests for payroll deductions" for the benefit of the AEA and the ASEA regardless of whether those organizations use that revenue for political activity. The complaint seeks relief from enforcement of guidelines issued by the comptroller on the ground that the guidelines 36 1111554 were improperly implemented. The complaint does not seek to enjoin the statute itself. Even though the validity of § 17- 17-5(b)(1) is not at issue in this case, the trial court's preliminary injunction effectively suspends operation of that statute as it applies to the AEA and the ASEA and is due to be reversed. 37	September 26, 2014
30e328f5-db28-45e2-aba4-53aeaa3044f5	Ex parte Ronald Eugene Hollander, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Ronald Eugene Hollander, Jr. v. State of Alabama) (Lauderdale Circuit Court: CC-12-350; Criminal Appeals : CR-12-0297). Writ Quashed. No Opinion.	N/A	1121121	Alabama	Alabama Supreme Court	REL:09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1121121 ____________________ Ex parte Ronald Eugene Hollander, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Ronald Eugene Hollander, Jr. v. State of Alabama) (Lauderdale Circuit Court, CC-12-350; Court of Criminal Appeals, CR-12-0297) PER CURIAM. WRIT QUASHED. NO OPINION. 1121121 Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. Moore, C.J., and Bryan, J., dissent. 2 1121121 MOORE, Chief Justice (dissenting). The Lauderdale Circuit Court denied the motion filed by Ronald Eugene Hollander, Jr., to withdraw his guilty plea to attempted first-degree assault. The Court of Criminal Appeals affirmed the trial court's denial by an unpublished memorandum. Hollander v. State (No. CR-12-0297, May 24, 2013), ___ So. 3d ___ (Ala. Crim. App. 2013) (table). Because I believe that Hollander has satisfied the legal standard for the withdrawal of a guilty plea and that the result in this case works an injustice, I dissent. I. Facts and Procedural History The statement of facts attached to the criminal complaint alleges that on January 7, 2012, Chris Weldon, a City of Florence police officer, received information that an individual was acting suspiciously in a parking lot in Florence. Arriving at the scene, Weldon observed an 1 individual looking into the window of a vehicle. As Weldon The complaint does not set forth the factual basis upon 1 which the allegations against Hollander are based. The statement of facts attached to the complaint is unsigned and unsworn, contrary to the requirements of § 15-7-2, Ala. Code 1975. Although the statement of facts does not indicate which police officer witnessed the alleged crimes, the grand jury's indictment identifies the officer as Chris Weldon. 3 1121121 approached, the individual got into a different vehicle. Weldon then spoke with the individual, who identified himself as Ronald Hollander. The officer detected an odor of paint coming from the vehicle and observed that Hollander had a can of gold spray paint and a plastic bag. When Hollander started his engine, Weldon told him to turn it off, but Hollander instead drove away. Weldon pursued Hollander in his patrol car. The statement of facts continues: "Hollander turned into the Med Plus parking lot[,] which dead ends. Hollander turned his vehicle around and accelerated towards Officer's vehicle[,] striking it in the front. Hollander then sideswiped the officer's vehicle[,] causing more damage to the officer's vehicle. Hollander then drove through Crocodile Ed's parking lot in a reckless manor [sic][,] which endangered patrons and property. He then ran two stop signs and exited the parking lot West bound [sic] on Mal[l] Road. While exiting the parking lot Hollander lost control[,] almost striking several vehicles at the intersection of Mall Rd. and Cloyd Blvd. He then accelerated to over 65 MPH (twice the speed limit). Hollander then turned West bound [sic] on Florence Blvd. Other officers joined the pursuit at this time. Hollander made a right turn onto Arlington Blvd. He was blocked by several patrol officers and he stopped at Monticello Ave. and Arlington Blvd. He was taken into custody without further incident. The time f[r]ame is from 7:26 PM to 7:55 PM." 4 1121121 A Lauderdale County grand jury indicted Hollander for four misdemeanors and for the felony of attempted assault in the first degree, which Hollander allegedly accomplished by "ramming" Weldon's patrol car with his vehicle, in violation of §§ 13A-4-2 and 13A-6-20, Ala. Code 1975. Hollander's trial counsel filed a motion seeking discovery of certain listed items, which the trial court granted. On June 6, 2012, the State served on Hollander's attorney a notice of discovery, indicating that a CD, containing 30 pages of documents, and a DVD had been provided to the defendant. In plea negotiations the State rejected Hollander's request to attend a residential drug-treatment program as an alternative to prison. Because Hollander had three prior felonies, a conviction of attempted first-degree assault, a Class C felony, would mandate a sentence under the 2 Habitual Felony Offender Act ("the HFOA"), § 13A-5-9, Ala. Code 1975, of 15 years to 99 years or life imprisonment. The State offered Hollander a plea agreement for a 15-year sentence. Although first-degree assault is a Class B felony, § 13A- 2 6-20(b), the offense is reduced to a Class C felony when charged as an attempt. § 13A-4-2(d)(3), Ala. Code 1975. 5 1121121 Hollander's attorney, seeking to avoid the severe consequence of a fourth felony conviction for her client, sought to convince the court to continue the case until Hollander finished a long-term drug-treatment program. A record of rehabilitation, she believed, could induce the State to recommend a plea that would avoid a fourth felony conviction. Although Hollander's case was assigned to Judge Michael Jones, a different judge, Judge Gilbert Self, whom Hollander's counsel considered sympathetic to residential drug-treatment programs, was assigned to conduct the pretrial and settlement conferences. On August 9, 2012, during the pretrial conference before Judge Self, Hollander's counsel argued the motion for in- patient drug treatment. "Judge, Mr. Hollander is a notorious paint huffer. He has been huffing paint since, I think, thirteen years old.[3] ".... "I've represented Mr. Hollander for years, Judge, on various matters. And as an officer of the court, I can represent to you that I've never seen Ronnie in this state of mind. ".... At the time of the hearing, Hollander was 30 years old. 3 6 1121121 "He has never come to me and said, 'Please get me into treatment. I want to be clean and sober.' He has done that now." Counsel then explained her strategy: "He is charged with a very serious offense, and it is an offense that probably really doesn't need to be tried. We are asking the Court to continue the trial and allow this defendant to go to long-term in-patient drug treatment. "And frankly, Your Honor, I think if he does that and completes it and is successful at it, I think the State may be in a better position to negotiate a settlement in this case. "I am, I have never been optimistic about Ronnie Hollander being clean and sober until this day. And I am, and I would ask you under those facts and circumstances to continue his trial and allow him to go." The Lauderdale County District Attorney was unimpressed. Noting previous unfruitful attempts to work with Hollander, he was "not agreeable to him avoiding prison by going to treatment now" and was "opposed to him avoiding the consequences for endangering the lives of law enforcement while under the influence, by now, at this eleventh hour, trying to go to treatment." 7 1121121 Noting that he had discussed the matter with Judge Jones, Judge Self denied the motion to continue the case pending drug treatment. "THE COURT: All right. I'm not going to continue it. This is based on my conversation with Judge Jones. This was Judge Jones's file before he left, that was, you know -- "[Hollander's counsel]: I understand, Judge. "THE COURT: You know, so if you all want to discuss that with Judge Jones Tuesday, that is fine. Okay. But as far as I'm concerned, we'll leave it set for trial." Judge Self reiterated: "So I'm going to deny the motion to continue. It remains set for next week. And then let the chips fall where they may. And you just need to take this up with Judge Jones. It's Judge Jones's file." Thus, trial now loomed for Hollander before Judge Jones early in the following week. Seeking to avoid trial and a subsequent imposition of sentence by Judge Jones, counsel advised Hollander to reappear before Judge Self in a continuation of the pretrial conference to plead guilty and seek a lenient sentence. Counsel calculated that the potential detriment of pleading guilty would be more than offset by 8 1121121 having Judge Self, rather than Judge Jones, as the sentencing judge. On Friday, August 10, Hollander reappeared before Judge Self to plead guilty to attempted first-degree assault, a Class C felony, under an "open plea." Although the minimum punishment under the HFOA was 15 years, trial judges have the option under the Split Sentence Act, § 15-18-8, Ala. Code 1975, to split a sentence of 20 years or less into a combination of time served in prison and on probation. The prison portion of that sentence can be as little as three years. § 15-18-8(a)(1), Ala. Code. 1975. Alternatively, the 4 trial judge may sentence the defendant to a rehabilitation program of 90 to 180 days. Upon successful completion of the program, the rest of the defendant's sentence may be suspended and a period of probation ordered. § 15-18-8(a)(2), Ala. Code. 1975. Hollander thus entered an "open" plea in the hope that Judge Self would agree to suspend or to split his sentence.5 The prison portion of a split sentence may itself be 4 suspended, and probation ordered. § 15-18-8(c), Ala. Code. 1975. See Ex parte McCormick, 932 So. 2d 124 (Ala. 2005). Conviction of certain offenses disqualifies a defendant 5 from receiving a split sentence. However, the crime of attempted assault to which Hollander pleaded guilty is not a disqualifying offense. 9 1121121 As his counsel stated: "[I]t's been explained to him over the course of the last two days that he's pleading open, but the minimum punishment is fifteen years, subject to suspension or a split by this Court." The district attorney explained: "He wants to appeal to the Court for something less than [15 years in prison], that involves a drug treatment option. Hence, his willingness to plead open." Because the State opposed any sentence of less than 15 years in prison, Judge Self decided "to defer adjudication of guilt and acceptance of the plea until I've had an opportunity to look at the [presentencing] report. And given the two opposing views, I'm going to need that report." He rescheduled Hollander's sentencing for September 26. Up to this point, Hollander's strategy of avoiding a trial before Judge Jones and positioning himself to be sentenced by Judge Self had succeeded. However, for reasons not fully set forth in the record, Hollander's sentencing was rescheduled for September 27 before Judge Jones. This development suddenly confronted Hollander with the ominous flip side of the open plea -- that Judge Jones might sentence him to more than 15 years. He 10 1121121 hastened to instruct his attorney to move to withdraw his guilty plea. Hollander's counsel, arguing for the withdrawal of the guilty plea, candidly explained to Judge Jones why "I advised my client at the time he entered his plea to enter an open, best interest, guilty plea in front of Judge Self": [6] "Your Honor, Judge Self took the plea and set this matter for sentencing. At that time we fully believed that Judge Self would hear this matter at sentencing. I don't think it's any secret that Judge Self typically views a request for drug treatment more favorably than this court does, and Mr. Hollander certainly needed to make a very strong argument on that point." Counsel then explained how this strategy was potentially about to boomerang: "Subsequent to the guilty plea this court changed the way the system was working and reassigned cases based on their original judge; that caused this defendant to be reassigned to this court unbeknownst to my client. That, in effect, de facto resulted in me giving my client poor legal advice to enter into an open plea." A judge may order a split sentence if "satisfied that the 6 ends of justice and the best interests of the public as well as the defendant will be served thereby." § 15-18-8(a), Ala. Code 1975. 11 1121121 As a further argument in support of withdrawing the guilty plea, Hollander's counsel explained that she had recently become aware of a police video of Hollander's arrest: "[P]rior to the plea my client entered and subsequent to the plea my client asked me more than once if I had reviewed the video in this case. I instructed him I had no video and assumed there was no video because I did not have a video; however, subsequent to the plea my client instructed me to investigate and find why there was no video, that all police cars have dash cam videos and why didn't I have it. I did that, and yesterday I located two DVDs in the district attorney's file that I reviewed. With their permission I took those to my office. One of them did, in fact, contain a dash cam video that recorded the entire series of events as they unfolded. Your Honor, if that video was ever provided to me or my staff, either myself or my staff misplaced it or lost it. Therefore it was never provided. My client never had an opportunity to review the video and I stand here before you today stating that that video supports my client's version of events much more than the State's version of events. Therefore my client entered into a guilty plea without his lawyer having all the facts and without him having the opportunity to review all the evidence ...." (Emphasis added.) Judge Jones denied Hollander's motion to withdraw his guilty plea, adjudicated him guilty of attempted assault, dismissed the remaining misdemeanor charges, and sentenced Hollander as a habitual felony offender to 20 years in prison. 12 1121121 On October 24, 2012, Hollander filed a postjudgment motion to set aside his guilty plea. Forgoing argument about the misadventure of the unexpected change of sentencing judge, the motion relied completely on the belated discovery of the police-chase video. Prior to entering a guilty plea, the motion stated, Hollander had inquired of his attorney "numerous times" as to why no "dash-cam" video was provided in discovery. Counsel had told him that a video had not been produced and therefore must not exist. Because of Hollander's repeated requests about the video both before and after the guilty plea, counsel finally inquired of the district attorney's office and obtained a copy, which Hollander had yet to view. The video, stated the motion, "painted a different light on the facts of the case." Counsel explained in the motion how not having the video had skewed her advice to Hollander's disadvantage. "Had the undersigned had the opportunity to review the video tape prior to the plea, the legal advice given to the defendant would have been far different from the legal advice that the defendant received. It was on the undersigned's advice that the defendant pled guilty to the crime for which he is charged." 13 1121121 On November 2, 2012, the circuit court denied Hollander's motion to withdraw his guilty plea. The Court of Criminal Appeals affirmed Hollander's conviction for attempted first- degree assault and his sentence as a habitual felony offender. Hollander then petitioned this Court for a writ of certiorari, which we granted and which this Court today quashes. II. Standard of Review "[W]hether a defendant should be allowed to withdraw a plea of guilty is a matter solely within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing of abuse of discretion." Ex parte Heaton, 542 So. 2d 931, 933 (Ala. 1989). III. Analysis Before the Court of Criminal Appeals, Hollander argued that his constitutional right to effective assistance of counsel had been violated in two respects. First, trial counsel advised Hollander to plead guilty in the expectation that he would be sentenced by Judge Self. However, this strategy failed, exposing Hollander to the hazard of an open plea before Judge Jones. Second, trial counsel, despite multiple requests by Hollander, failed to obtain and to review 14 1121121 the dashboard-camera video that recorded the events leading to his arrest. "In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that his counsel's performance was deficient, and (2) that he was prejudiced by the deficient performance." Burtram v. State, 733 So. 2d 921, 922 (Ala. Crim. App. 1998) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "In the context of guilty plea proceedings, a petitioner must show that, but for his counsel's errors, he would not have pleaded guilty but would have insisted on proceeding to trial." Burtram, 733 So. 2d at 922 (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). "The court shall allow withdrawal of a plea of guilty when necessary to correct a manifest injustice." Rule 14.4(e), Ala. R. Crim. P. A. The Strategy of Seeking Sentencing Before Judge Self Simply because counsel's strategy to present Hollander for sentencing before Judge Self did not succeed does not mean counsel was ineffective. Otherwise, every convicted defendant would have a viable ineffective-assistance claim. Instead, the "petitioner must show that counsel's performance was so 15 1121121 deficient as to fall below an objective standard of reasonableness." Ex parte Baldwin, 456 So. 2d 129, 134 (Ala. 1984). Counsel's strategy, with which Hollander agreed, to seek sentencing before Judge Self rather than a trial before Judge Jones may have failed because of circumstances beyond counsel's control, but it certainly was objectively reasonable. As the Court of Criminal Appeals stated: "Because counsel was familiar with Hollander's long- standing struggles with substance abuse, it was not unsound trial strategy for counsel to suggest a plea agreement in front of a judge normally sympathetic to requests for drug treatment. That trial counsel did not predict the case would be transferred to another judge cannot be considered deficient performance ...." Because Hollander has not met his burden of showing that counsel's tactical decision to seek sentencing before Judge Self was objectively unreasonable, we need not ask whether that decision caused him prejudice. "[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697. B. Counsel's Failure to Locate the Police Dashboard-Camera Video 16 1121121 The Court of Criminal Appeals, conceding that counsel's failure to discover the dashboard-camera video in a timely manner satisfied the first Strickland prong of deficient performance, nonetheless held that the failure did not prejudice Hollander's decision to plead guilty. "Hollander's argument that his trial counsel's assistance was deficient based on trial counsel's failure to investigate whether there was an exculpatory dashboard video satisfies the first Strickland prong. Counsel admitted to either misplacing the video if it had been sent, or failing to look in the district attorney's file for the video even after repeated requests by Hollander to investigate the existence of the video. Because it was unreasonable not to determine whether there was a dashboard-camera video that contained potentially exculpatory evidence, Hollander's trial counsel's performance was arguably deficient under the first Strickland prong. ... "Although counsel's performance was arguably deficient, Hollander has not demonstrated the prejudice necessary to satisfy the second Strickland prong." The Court of Criminal Appeals stressed that, despite counsel's statements that the video favored Hollander's version of the events, its absence from the record means that "there is nothing to indicate that the video would exonerate Hollander." However, Hollander did not need to show that the missing video would exonerate him, only "that there is a 17 1121121 reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694 (emphasis added). See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (stating that "whether the error 'prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea" (emphasis added)); Waters v. State, 963 So. 2d 693, 696 (Ala. Crim. App. 2006) (holding that because the defendant "did not have complete information upon which to base his decision" the trial court should have afforded him the opportunity to withdraw his guilty plea). In this case we need not estimate the "likelihood" that counsel would have changed her recommendation, because the record indicates that she did and that she so informed the trial court at the sentencing hearing. Further, when decisive evidence, which the defendant sought diligently to discover, but counsel negligently failed to acquire, suddenly surfaces 18 1121121 after the entry of a guilty plea, counsel's failure to offer that evidence into the record when moving for withdrawal of the plea at the sentencing hearing further undermines confidence in the outcome. The Court of Criminal Appeals additionally reasoned that the evidence against Hollander was so strong that even the availability of the video would not have changed his decision to plead guilty. "The record indicates that Hollander was observed by police officers huffing paint in the driver's seat of an automobile. Hollander refused to turn off his car when police ordered him to do so, and then led police on a high-speed chase once officers tried to apprehend him. During that high-speed chase Hollander ended up in a dead-end alley, and in his attempt to reverse course and escape, he rammed into a police car. Hollander was charged with five separate crimes for his actions, and the State had numerous police witnesses that would testify to Hollander's guilt for each of those crimes. Considering the State's evidence, it is unlikely that Hollander would not have agreed to plead guilty given the evidence against him and the number of crimes for which he was charged." These assertions do not conform with the facts alleged in the indictment and the criminal complaint. According to the indictment, only Officer Chris Weldon witnessed Hollander huffing paint, driving off, eluding Weldon, striking Weldon's patrol car with his vehicle, recklessly driving through the 19 1121121 parking lot of a mall, and leading Weldon in a police pursuit that created a substantial risk of serious physical injury to Weldon. According to the statement of facts attached to the complaint, the other officers joined the pursuit only after Hollander committed the alleged crimes. Considering that the State's evidence of attempted first-degree assault hinges on the testimony of only one witness, it is unlikely that Hollander pleaded guilty on account of "numerous police witnesses." Likewise, the number of crimes charged is not conclusive of Hollander's decision to plead guilty. Each of the four misdemeanors carried a maximum sentence of 12 months. They pale in comparison, even collectively, to the potential sentence of 15 years to life for the attempted-assault charge as magnified by the habitual-felony-offender enhancement. Knowing that evidence was available that could conclusively exonerate him from the attempted-assault charge would certainly have altered Hollander's decision to plead guilty. Deficient performance, but not prejudice, may be found, for instance, when a purported error of counsel is harmless. For example, trial counsel may fail to object to hearsay 20 1121121 testimony, but other properly admitted evidence may be so probative of the defendant's guilt as to render the improper evidence duplicative and thus nonprejudicial. In this case, however, the dashboard-camera video is unique and likely conclusive, in that it portrays the actual events underlying the guilty plea. In the absence of the video, the jury would have to weigh Hollander's credibility against that of the police officer. With the video, Hollander has the assistance of incontrovertible evidence that could conclusively exonerate him. Counsel's statements indicate that, in her view, Hollander would not have pleaded guilty had he been able to view that evidence on a timely basis. She freely confessed that her error in this regard induced Hollander to plead guilty. Hollander's insistence that the video was essential to his defense indicates that he understood that it would benefit him. Repeatedly asking counsel to inquire about the existence of the video would have been irrational if Hollander knew that he had indeed directly rammed the police vehicle in full view of the dashboard-camera recording device. "An ineffectiveness claim ... is an attack on the fundamental fairness of the proceeding whose result is 21 1121121 challenged." Strickland, 466 U.S. at 697. When deficient performance of counsel causes unique dispositive evidence to be unavailable on a timely basis for consideration in making the decision whether to plead guilty or go to trial, the unfairness to the defendant who pleads guilty without knowledge of the existence of this evidence is palpable. The failure of trial counsel to offer the video into evidence, and thus its absence from the record on appeal, prohibits us from determining the precise degree of prejudice Hollander suffered from its absence. Nonetheless, to require Hollander to suffer 7 the effects of a guilty plea he would not otherwise have entered into but for counsel's deficient performance is fundamentally unfair. See Ex parte Thomas, 616 So. 2d 352 (Ala. 1992) (holding that a refusal to permit the withdrawal of a guilty plea in light of misrepresentations about lost evidence "constituted a manifest injustice" justifying withdrawal of the plea). Indeed, counsel's failure to offer the video into 7 evidence at the hearing on Hollander's motion to withdraw his guilty plea is further evidence of deficient performance and resulting prejudice to Hollander. If the video were in the record, this Court would have had a firmer basis on which to evaluate Hollander's petition. 22 1121121 Allowing Hollander to withdraw his guilty plea does not mean he will go free. "Upon withdrawal of a guilty plea, the charges against the defendant as they existed before any amendment, reduction, or dismissal made as part of a plea agreement shall be reinstated automatically." Rule 14.4(e), Ala. R. Crim. P. Unless he repleaded, Hollander would still face trial for attempted first-degree assault and four misdemeanors. But at his side he would have not only counsel, but also the perfect witness: a video of the events giving rise to his indictment. IV. Conclusion Because under governing law Hollander is entitled to withdraw his guilty plea, I dissent from quashing the writ of certiorari. 23	September 26, 2014
30ae545b-ce22-4ced-8420-b4de17c7cd4e	In the matter of the Estate of Alice Earle F. Harper	N/A	1130587, 1130884	Alabama	Alabama Supreme Court	REL: 9/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130587 ____________________ Alice Lynn Harper Taylor v. In the matter of the Estate of Alice Earle F. Harper, deceased Appeal from Escambia Probate Court (Probate No.: 10058) 1130884 ____________________ Alice Lynn Harper Taylor v. In the matter of the Estate of Alice Earle F. Harper, deceased Appeal from Monroe Probate Court (Probate No.: 3330) BOLIN, Justice. These consolidated appeals involve the estate of Alice Earle F. Harper, deceased (hereinafter the "decedent"). Alice Lynn Harper Taylor, the decedent's daughter (hereinafter "Alice"), appeals in case no. 1130587, pursuant to § 12-22-21, Ala. Code 1975, from the Escambia Probate Court's admission to probate of a 2007 will allegedly executed by the decedent and filed for probate in the probate court in Escambia County. Alice also appeals in case no. 1130884 from the Monroe Probate Court's order granting a motion to dismiss Alice's petition to probate a 1995 will allegedly executed by the decedent and filed for probate in the probate court in Monroe County. Facts and Procedural History On March 1, 2013, the decedent died in Monroe County. She had three adult children who survived her: Alice, William C. Harper, and James R. Harper. The decedent's husband died in 2002. On November 12, 2013, Alice filed in Monroe County a petition to probate a 1995 will allegedly executed by the decedent. In her petition, Alice acknowledged that there was 2 1130587; 1130884 in existence a 2007 will that purported to be the will of the decedent. Alice challenged the validity of the 2007 will on several grounds, including lack of mental capacity and the existence of a reciprocal will by the decedent's husband that had been admitted to probate in 2002. On December 10, 2013, the Monroe Probate Court set a hearing for January 28, 2014. On January 22, 2014, the probate judge recused himself from hearing the petition. On February 20, 2014, this Court entered an order appointing a special probate judge to hear the probate proceedings in Monroe County. Meanwhile, on January 8, 2014, William filed a petition in Escambia County to probate a 2007 will allegedly executed by the decedent. On January 17, 2014, in the Escambia Probate Court, Alice filed a motion to dismiss and/or to stay the proceeding in Escambia County until the proper venue for the probate proceeding was determined. Alice cited § 43-8-21, Ala. Code 1975, which addresses a situation like this one where there are multiple probate proceedings, and argued that under § 43-8-21 the Monroe Probate Court is the proper venue. On February 19, 2014, the Escambia Probate Court admitted the 2007 will to probate and issued letters testamentary to 3 1130587; 1130884 William, as the personal representative named in the 2007 will. On March 3, 2014, Alice filed a notice of appeal pursuant to § 12-22-21(2), Ala. Code 1975, which allows an appeal to the circuit court or to the Alabama Supreme Court of a probate court's "judgment or order on an application claiming the right to execute a will or administer an estate" (case no. 1130587). On April 11, 2014, William filed in the Monroe Probate Court a motion to dismiss Alice's petition to probate the 1995 will. William argued that the 2007 will revoked all earlier wills and that the 2007 will gave the personal representative the right to choose the county in which the will would be probated. On April 14, 2014, the Monroe Probate Court granted William's motion to dismiss on the ground that it lacked subject-matter jurisdiction. Alice filed an appeal pursuant to § 12-22-21 from the Monroe Probate Court's grant of the motion to dismiss her petition to probate the 1995 will (case no. 1130884). Discussion "The jurisdiction of the probate court is limited to the matters submitted to it by statute." Wallace v. State, 507 4 1130587; 1130884 So. 2d 466, 468 (Ala. 1987). The statute governing the subject-matter jurisdiction of the probate court, § 12-13-1, Ala. Code 1975, provides, in pertinent part, that the probate court has original and general jurisdiction as to all matters enumerated in the statute, which includes the probate of wills. The general venue statute setting out the venue for the probate of a will in Alabama is set out in § 43-8-162, Ala. Code 1975, and provides: "Wills must be proved in the several probate courts as follows: "(1) When the testator, at the time of his death, was an inhabitant of the county, in the probate court of such county. "(2) When the testator, not being an inhabitant of the state, dies in the county, leaving assets therein, in the probate court of such county. "(3) When the testator, not being an inhabitant of the state, dies out of the county, leaving assets therein, in the probate of the county in which such assets, or any part thereof, are. "(4) When the testator, not being an inhabitant of the state, dies, not leaving assets therein, and assets thereafter come into any county, in the probate court of any county into which such assets are brought. 5 1130587; 1130884 "(5) In the probate court of the county designated by testator in the will if the testator owns property in such county at the time of his death." Section 43-8-162 does not give priority to any one of the five venues specified therein as a venue where a will may be probated over another. Section 43-8-21 establishes venue when a probate proceeding may be maintained in more than one place in Alabama: "(a) Where a proceeding under this chapter could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed. "(b) If proceedings concerning the same estate are commenced in more than one court of this state, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court. "(c) If the court finds that in the interest of justice a proceeding or a file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court." In the present case, the decedent died in Monroe County. Alice filed a petition to probate the decedent's 1995 will in Monroe County. It is undisputed that the decedent was 6 1130587; 1130884 domiciled in Monroe County at the time of her death. Section 43-8-162(1) provides that venue is proper in the probate court where the decedent was an inhabitant at the time of her death. This Court has equated the term "inhabitant" with the word "domiciliary," and a domicile consists of a residence at a particular place accompanied by an intent to remain there permanently or for an indefinite length of time. Ambrose v. Vandeford, 277 Ala. 66, 167 So. 2d 149 (1964). Subsequently, William filed a petition to probate the decedent's 2007 will in Escambia County. The 2007 will provided that William, as the personal representative, had the discretion to probate the will in any county were the decedent owned property at the time of her death. It is undisputed that the decedent owned property in Escambia County at the time of her death. Section 43-8-162(5) provides that probate of a will is proper in the county designated by the testator in the will if the testator owns property in that county at the time of her death. Alice challenges the validity of the 2007 will; William challenges the validity of the 1995 will. Both challenges go to the merits of the case, i.e., whether either of the 7 1130587; 1130884 tendered wills is entitled to be admitted to probate, and, if so, which one. Simply because William has submitted a will with a later date, which purports to revoke all prior wills, does not mean that the 2007 will is valid, nor does it mean that the Escambia Probate Court is the proper venue. The legislature has provided for the proper venue in probate matters when more than one probate court has venue. That is what we have before us in this case. The Monroe Probate Court is the proper venue under § 43-8-162(1), and the Escambia Probate Court is the proper venue under § 43-8-162(5). The legislature has determined that when there are multiple venues for a probate proceeding, the probate court in which the proceeding was first commenced shall have the exclusive right to proceed. § 43-8-21(a). Section 43-8-21(b) provides that if multiple proceedings are commenced in more than one probate court and those proceedings involve the same estate, then the probate court where the proceeding was first commenced shall hear the matter, and the other court shall hold the matter in abeyance until the question of venue is decided. William cites DuBose v. Weaver, 68 So. 3d 814 (Ala. 2011), for the proposition that the administration of an 8 1130587; 1130884 estate does not begin merely upon the filing in the probate court of a petition for letters of administration or of a petition to probate a will and for letters testamentary. DuBose involved a situation in which a party sought to remove the administration of the estate from a probate court to a circuit court under § 12-11-41. We concluded in DuBose that the circuit court had not acquired jurisdiction, stating: "In regard to the administration of estates, the probate court is a court of general and original jurisdiction. See Ala. Const. 1901, § 144; Ala. Code 1975, § 12–13–1(b). The circuit court can obtain jurisdiction over a pending administration of an estate only by removing the administration from the probate court to the circuit court pursuant to Ala. Code 1975, § 12–11–41; see Ex parte Terry, 957 So. 2d 455, 457–58 (Ala. 2006); Ex parte McLendon, 824 So. 2d 700, 704 (Ala. 2001). ... "'....' "In Ex parte Smith, 619 So. 2d 1374, 1376 (Ala. 1993), this Court stated that '[t]he circuit court cannot initiate the administration of an estate, because the initiation of administration is a matter exclusively in the jurisdiction of the probate court.' As this Court more recently explained in Ex parte Berry, 999 So. 2d 883 (Ala. 2008): "'In stating in Ex parte Smith that "[t]he circuit court cannot assume jurisdiction over the administration of an estate when the administration has not yet begun," 619 So. 2d at 1375–76, this Court was referring to subject-matter jurisdiction. "Subject matter jurisdiction 9 1130587; 1130884 concerns a court's power to decide certain types of cases." Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006). Our decision in Ex parte Smith relied on § 12–13–1, Ala. Code 1975, which grants probate courts "original and general jurisdiction" over all matters enumerated in that statute, including the probate of wills and disputes over the right of executorship and administration.' "999 So. 2d at 887–88 (emphasis omitted). "Further, the administration of an estate does not begin merely upon the filing in the probate court of a petition for letters of administration or of a petition for probate of a will and for letters testamentary. As to the former, this Court has recognized that 'the mere filing of a petition for the administration of an estate does not in itself begin the administration; rather, the probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to the circuit court.' Ex parte Smith, 619 So. 2d at 1376; see also, e.g., Allen v. Estate of Juddine, 60 So. 3d 852, 855 (Ala. 2010) ('The administration of the estate was initiated by the probate court when it granted Willie Jr. letters of administration.'); Ex parte Berry, 999 So. 2d at 886 ('[T]his Court in Ex parte Smith[, 619 So. 2d 1374 (Ala. 1993),] held that removal of the will proceeding from the probate court to the circuit court was premature because the probate court had not initiated the administration of the estate by acting on the petition.'); and Ex parte Kelly, 243 Ala. 184, 187, 8 So. 2d 855, 857 (1942). As to the latter, this Court has noted that, where no letters of general administration have issued from the probate court and where the decedent's will has not yet been admitted to probate, the circuit court 'is without jurisdiction to make an order' removing the administration of the estate from the probate court 10 1130587; 1130884 to the circuit court. Ex parte Pettus, 245 Ala. 349, 351, 17 So. 2d 409, 410–11 (1944)." 68 So. 3d at 821-22. DuBose is distinguishable because it involved the removal of the administration of an estate from the probate court to the circuit court. Section 12-11-41, Ala. Code 1975, expressly provides that the circuit court can obtain jurisdiction over a pending administration of an estate from a probate court only by removing the administration from the probate court. The "administration" of an estate, so as to allow the circuit court to have jurisdiction to order a removal, does not begin upon the mere filing of a petition to probate a will. Rather, the probate court must act by granting the petition and opening an estate, either testate or intestate, and issuing the appropriate probate letters to a personal representative. Our holding in DuBose that "administration" does not begin with the filing of a petition to probate a will is not analogous with "commencing" a probate proceeding under § 43-8-21. Section 43-8-21(b) involves venue as between multiple probate courts, each with subject-matter jurisdiction, and the question is in which probate court is venue proper. For purposes of § 43-8-21, "commencing" is the filing of the petition to probate a will or administer an 11 1130587; 1130884 estate in the probate court, whereas removal of a probate proceeding to the circuit court is allowed only when the probate court has acted upon a petition and created a probate estate. Based on the foregoing, we hold that venue in this case is proper in the Monroe Probate Court, by virtue of § 43-8-162 and § 43-8-21. Any argument as to whether the 1995 will or the 2007 will is the valid last will and testament of the decedent and entitled to admission to probate is a question on the merits and has yet to be determined. We reverse the judgment of the Escambia Probate Court admitting the 2007 will to probate and appointing William as a personal representative because, under § 43-8-21, the Monroe Probate Court has the "exclusive right to proceed." We remand the cause (probate no. 10058) to the Escambia Probate Court, which shall set aside its order admitting the 2007 will to probate and appointing William as personal representative, recalling and revoking any letters testamentary issued therewith. William's petition filed in Escambia County shall be held in abeyance in accordance with § 43-8-21(b). We reverse the judgment of the Monroe Probate Court because it erred in dismissing Alice's 12 1130587; 1130884 petition to probate the 1995 will. We remand the cause (probate no. 3330) to the Monroe Probate Court for proceedings consistent with this opinion, i.e., to proceed with Alice's petition to probate the 1995 will allegedly executed by the decedent in light of its status as the first "commenced" probate proceeding of the decedent's estate under § 43-8-21. 1130587 –- REVERSED AND REMANDED. 1130884 –- REVERSED AND REMANDED. Moore, C.J., and Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. 13	September 26, 2014
b5bc8df5-2267-4b72-9c62-fb32bb6346d6	Craig v. Anderson	N/A	1121181	Alabama	Alabama Supreme Court	REL: 09/30/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1121181 ____________________ Ex parte Robert E. Anderson, M.D., and Selma Doctors Clinic, PC, d/b/a Selma Doctors Clinic PETITION FOR WRIT OF MANDAMUS (In re: Barbara G. Craig, as administrator of the Estate of William James Craig, deceased v. Robert E. Anderson, M.D., and Selma Doctors Clinic, PC, d/b/a Selma Doctors Clinic) (Dallas Circuit Court, CV-09-900107) MURDOCK, Justice. 1121181 Robert E. Anderson, M.D. ("Dr. Anderson"), and Selma Doctors Clinic, PC, d/b/a Selma Doctors Clinic ("SDC"),1 petition this Court for a writ of mandamus directing the Dallas Circuit Court to vacate its order of May 27, 2013, granting plaintiff Barbara Craig's Rule 60(b), Ala. R. Civ. P., motion, and to reinstate the final judgment entered in favor of Dr. Anderson and SDC on October 24, 2012. We grant the petition and issue the writ. I. Facts and Procedural History This petition concerns a medical-malpractice/wrongful- death action filed by Barbara G. Craig ("Mrs. Craig") as the administrator of the estate of her husband William James Craig ("Mr. Craig"). On January 29, 2009, Dr. Anderson performed a left inguinal hernia repair on Mr. Craig ("the hernia surgery") at Vaughan Regional Medical Center ("VRMC"). On February 9, 2009, Mr. Craig was admitted to the intensive-care unit of VRMC suffering from extreme pain in his abdominal region. Selma Doctors Clinic is Dr. Anderson's employer; it was 1 sued solely on the basis of Dr. Anderson's alleged failures in providing proper medical care to William Craig. 2 1121181 On February 10, 2009, Dr. Anderson ordered a CT scan for Mr. Craig. Radiologist Dr. Robert Simpson interpreted the CT scan and concluded that it showed that Mr. Craig had a perforated duodenal ulcer. According to medical records, 2 Dr. Anderson performed surgery on Mr. Craig on February 10, 2009, to close the perforated ulcer ("the ulcer surgery"). Dr. Anderson's operation report of the procedure provided the 3 following relevant notations: "Under satisfactory general anesthesia the patient was propped and draped in sterile fashion. Upper midline incision was made and carried down through the skin and subcutaneous tissue. There was a lot of thin brownish material within the stomach which was removed with the suction. The duodenum was inspected and a large duodenal perforation could be seen. Several stitches were placed across the perforation in order to close it and then a portion of omentum was tacked down around and over the perforation to seal as a patch. The wound was then irrigated with copious amounts of saline. The There was no dispute at trial that the CT scan showed the 2 existence of an ulcer. The operation report contains a printed date for the 3 procedure of February 16, 2009. The printed date is struck through with a line and a handwritten "10" is above the printed "16." At trial, Dr. Anderson testified that he did not correct the date of the surgery in the report but that February 10, 2009, was the correct date. He also related that he initially dictated the operation report the day of the surgery but that the hospital's dictation system went down and he had to re-dictate it on February 16, 2009. Mrs. Craig did not dispute this testimony. 3 1121181 abdomen was closed with a running suture of 10 Vicryl, the fascia with interrupted sutures of #0 Vicryl, the subcutaneous tissue with #4-0 Vicryl, and the skin with staples.... I should mention that there were a lot of peritoneal changes around the duodenum precluding any formal procedure other than simply patching the duodenal perforation ...." Thus, according to the operation report, Dr. Anderson used "Vicryl" sutures to close the abdomen, but the report did not detail the type of sutures he used to close the duodenal perforation or to patch the area with the omentum. It is undisputed that Vicryl sutures are absorbable and dissolvable in the body. On February 13, 2009, Mr. Craig died while he was still a patient at VRMC. On February 14, 2009, Mrs. Craig hired Dr. Boris Datnow, a semiretired pathologist, to perform a private autopsy on Mr. Craig to determine the cause of his death. Dr. Datnow determined the cause of death to be "acute purulent peritonitis and purulent ascites following an elective inguinal hernia repair." In layman's terms, Dr. Datnow concluded that Mr. Craig died of an infection he contracted after the hernia surgery. In his autopsy report, dated February 14, 2009, Dr. Datnow noted that he observed the 4 1121181 healed surgical incision from the hernia surgery. He also noted that "[t]here is an upper abdominal central vertical surgical incision with staples 5.5 inches in length." The latter notation is consistent with a second surgery having been performed on Mr. Craig; however, Dr. Datnow expressly noted in the report that "[a]n ulcer cannot be found." In his deposition taken on May 31, 2011, Dr. Datnow explained that when he performed the autopsy on February 14, 2009, he did not have Mr. Craig's medical records, and he therefore was not aware of the reason for the second surgery. Subsequently, Mr. Craig's medical records were forwarded to Dr. Datnow and he gleaned from them that the purpose of the second surgery was to repair a perforated duodenal ulcer. Because he had not located an ulcer in the autopsy of February 14, 2009 ("the first autopsy"), Mrs. Craig's counsel asked Dr. Datnow in May 2009 to perform a second autopsy, paying particular attention to the region where the ulcer would be located ("the second autopsy"). Dr. Datnow performed the second autopsy solely on the gastrointestinal tract in order to see if he could find the ulcer and evidence of the 5 1121181 repair. In an undated addendum to his first autopsy report, 4 Dr. Datnow stated that "[t]he operative site in and around the duodenum is soft and friable and a dissection[] in this area is difficult with the tissue breaking apart and crumbling. The operative site thus cannot be studied and described." In his deposition, Dr. Datnow confirmed that "[w]hen I went back to look at it, I did not actually see an ulcer, but the tissue at this stage was kind of friable and a bit distorted. So I could not verify the absence thereof or the presence [of an ulcer]." Dr. Datnow also stated in his deposition that during both autopsies he found no trace of sutures in the area where the ulcer surgery occurred. He explained that if silk sutures were used, they would have been present in the body for "many, many years" but that other types of sutures could have dissolved in the few days between the ulcer surgery and the first autopsy. Dr. Datnow further stated that during the second autopsy the condition of the tissue was such that he could not rule in or out whether Mr. Craig had an ulcer and whether there had been Dr. Datnow stated in his deposition that he had kept 4 Mr. Craig's organs in jars in his garage, which is why he was able to reexamine the area in question. 6 1121181 an ulcer repair. Specifically, Dr. Datnow testified that the 5 tissue was so friable that the sutures could have become obscured, but "I certainly had no evidence of a suture I could pick and say, ah ... this is a suture." In both his report and his deposition testimony, Dr. Datnow stated that his findings pertaining to the presence or lack of an ulcer did not change his conclusion as to the cause of Mr. Craig's death. On July 10, 2009, Mrs. Craig sued Dr. Anderson, SDC, and VRMC in the Dallas Circuit Court, alleging that the defendants were negligent in their care and treatment of Mr. Craig and that their conduct proximately caused his death. Specifically with regard to Dr. Anderson, the complaint alleged that he negligently/wantonly "nipped" Mr. Craig's colon while performing the hernia surgery; that he failed to timely In his deposition, Dr. Datnow was asked: 5 "So, as we move forward, then, we do so on the presumption and your acceptance of the fact that these medical records describe the presence of a duodenal ulcer and a surgical procedure by which it was repaired, even though the condition of the tissue did not permit you to verify that at autopsy; is that fair?" Dr. Datnow responded: "I would say that is fair." 7 1121181 diagnose and seriously treat Mr. Craig's intra-abdominal condition; that he failed at various times to perform full examinations of Mr. Craig, which led to a failure to discover the severity of Mr. Craig's condition; that he failed to admit Mr. Craig to the hospital in a timely fashion so that he could receive proper care; and that, "[o]n the night of the operation to repair the duodenal ulcer (02/10/2009), Dr. Anderson negligently or wantonly failed to broaden Mr. Craig's antibiotic coverage in light of a grossly contaminated abdominal cavity and worsening infection .... This failure directly contributed to Mr. Craig's ongoing sepsis and ultimate death." The last claim constituted the only claim in the original complaint mentioning the ulcer surgery. On November 15, 2010, Mrs. Craig filed her first amended complaint. The amended complaint contained more detailed allegations against the defendants, but the claims still centered on the defendants' failures in diagnosis, care, and treatment of Mr. Craig's intra-abdominal infection. The amended complaint did not make a claim against Dr. Anderson for failure to repair the duodenal ulcer. Instead, it faulted him for allegedly failing to perform a "thorough examination 8 1121181 of the entire abdominal cavity" during that surgery. In this regard, the amended complaint stated: "It is incumbent upon the operating surgeon to explore the entire abdomen to rule out other pathology as well as diminish the amount of contamination. There is no evidence that Dr. Anderson made any effort to significantly lower the infection burden through debridement of the contamination present within the abdomen. And, most egregious is the fact that the 13 cm fluid collection seen in the cul-de-sac on CT, and noted by the radiologist to be pathologic was not addressed. There is absolutely no justification not to explore this area and drain this collection that more likely than not arose from the alleged perforated ulcer and was infected. By not draining that collection, Dr. Anderson performed an incomplete exploration that left an undrained collection within Mr. Craig's abdomen. This failure to perform a complete operation was a breach of the standard of care and this breach contributed to the worsening of the emergent condition (sepsis) of Mr. Craig and probably and proximately caused his subsequent wrongful death." The defendants answered Mrs. Craig's complaints, and discovery commenced. In the course of discovery, VRMC provided Mrs. Craig with a hospital bill for the ulcer surgery that reflected the use of three different types of sutures in that surgery. Mrs. Craig's standard-of-care expert, Dr. Carlton Young, was deposed on April 8, 2011. In his deposition, Dr. Young criticized Dr. Anderson for a delay in the diagnosis and treatment of a perforated ulcer with an 9 1121181 intra-abdominal infection. Dr. Young did not state or imply that the ulcer surgery did not occur, nor did he criticize Dr. Anderson's actions during the ulcer surgery. Dr. Young confirmed that the CT scan of February 10, 2009, showed that Mr. Craig had a perforated ulcer. Dr. Anderson was deposed on August 31, 2010. Concerning the ulcer surgery, Dr. Anderson testified in his deposition as follows in response to questions posed by Mrs. Craig's counsel: "Q. What changes in Mr. Craig's care did you institute after seeing the CT results? "A. We needed to patch his ulcer or fix his ulcer and irrigate his abdomen. "Q. So you performed another operation; correct? "A. Correct. ".... "Q. What did the CT show? ".... "A. It showed a perforated ulcer. "Q. All right. And is that what was causing the fluid in the cul-de-sac to accumulate? "A. (Witness nods head.) 10 1121181 "Q. And so at about 19:33, you performed a surgery on Mr. Craig. What did you do? "A. I opened his abdomen, removed fluid, found his perforated ulcer and patched it, put a couple of stitches across it and patched it with omentum. Then I irrigated with copious amounts of saline his right upper quadrant, his left upper quadrant, above his liver, below his liver, both lower quadrants, his cul-de-sac. All the fluid was removed from his abdomen. ... ".... "Q. Did you close the wound? "A. Yes." Dr. Anderson was not asked in the deposition what kind of sutures he used during the surgery. On November 10, 2011, VRMC filed a motion for a summary judgment. In the hearing on that motion, on May 17, 2012, 6 Mrs. Craig's counsel argued as follows concerning the ulcer surgery: "Mr. Gaiser [counsel for Mrs. Craig]: Yes sir. To begin with, the man died of an infection. He didn't die of anything else. That's what he died of. He died of sepsis. There was an autopsy done by a pathologist, Mayo [Clinic] trained, board-certified pathologist. He testified -- he testified on two trips through that autopsy that there was no surgery for a peptic ulcer. Furthermore, if there was a The trial court entered a summary judgment in favor of 6 VRMC on June 6, 2012. 11 1121181 surgery for a peptic ulcer, he would have been so infected at the time that it would have spread the infection. But there was no evidence of a -- we are not doctors. We don't have the capacity to -- when I read that and saw no peptic ulcer in it from the autopsy after the client came in, we got the client right shortly after the death. So we were there fairly quickly. So I asked him to go ahead. I contacted him, asked him, I don't see anything here. He [Dr. Datnow] says, well, I am going to make another look. ".... "Mr. Gaiser: The pathologist, he made another look. There were no sutures. You take fat, and you make a patch, and you sew it up. And there is no evidence that there was a hole or that there was a peptic ulcer. ... And by the way, the only evidence that exists at all about a peptic ulcer was from the anesthesiologist. Anesthesiologists are just -- they are doing their job independent of everyone else. It wasn't until after he [Mr. Craig] died on the [13th] that a tape recording thing that you make that they don't have any longer -- there is no evidence now. It was dictated by somebody. They wrote it out, and the report comes in and says that he took care of a peptic ulcer." (Emphasis added.) The trial of the case against Dr. Anderson and SDC was scheduled to begin on October 15, 2012, before Judge Thomas R. Jones. On October 8, 2012, Dr. Anderson and SDC filed a motion in limine in which they requested that the trial court preclude from trial, among other things, 12 1121181 "d) any argument or inference that Dr. Anderson did not perform a duodenal ulcer repair on the evening of February 10, 2009. While each medical witness, whether for the Plaintiff or Defendant, has conceded that such an operation was performed, counsel for the Plaintiff, Mr. Ron Gaiser, has, at times, and during oral argument, suggested that Dr. Anderson did not perform a surgical repair of the decedent's duodenal ulcer on the evening in question. Regardless, no such claim is pled, no medical witnesses proffered this opinion, and any such suggestion is without basis in fact." The trial court heard arguments on the motion in limine on October 15, 2012, before the trial began. During the argument, the following exchange occurred: "Mr. McCall [counsel for Dr. Anderson and SDC]: Now Your Honor focusing on (d) [of the motion in limine], the only time I've ever heard this and we heard it again a couple of minutes ago from Mr. Gaiser. And it's an argument or inference that there was no duodenal ulcer repair performed in this case. Dr. Anderson obviously performed a duodenal ulcer repair. [The ulcer] was diagnosed. "The Court: What does Datnow's report say with regard to that? Did he say that he didn't find any evidence of it, or did he say in his report -- because I can't remember -- he didn't find any evidence of it or it was not done? What specifically did he write in his report? Mr. Gaiser [counsel for Mrs. Craig]: Twice. The first time [Dr. Datnow] said that there was no duodenal ulcer in his original report. But I called him up. I said, you did an autopsy, and I told him what it was. And I said would you make another pass through. ... And he went back through it again. And again he couldn't find it. There was no hole 13 1121181 that he could find. There was no hole that he could find. "The Court: Is that part of his report? "Mr. McCall: Your Honor, he says it couldn't be located. The tissues were very friable. He did not say no repair was done. I don't think it provides Mr. Gaiser a platform to be allowed to argue that Dr. Anderson, the nursing personnel, et cetera, including the anesthesiologist, decided not to perform a repair on the evening in question. "The Court: It sounds to me like it's going to be a disputed fact. And at least to the extent that his report says that he didn't find a repair, it will be up to you to convince this jury that it was merely not reported rather than not, that he did not perform it versus whether it was just not found. ".... "The Court: Well, you know, to the extent that you have two different versions and two different arguments, I am not going to prohibit the Plaintiffs from talking about what they believe to be the evidence. Is Datnow going to be here to testify? "Mr. Gaiser: He is out of the state, but we have his deposition. "The Court: You are going to use his deposition? "Mr. Gaiser: Yes. "The Court: The evidence will be what it's going to be. "Mr. McCall: Your Honor, I would like to add just one last thing for the record's sake, that it's certainly our position -- and while they had attempted to plead certain claims in reference to 14 1121181 what Dr. Anderson should or should not have done in reference to a particular surgery, they have never pled that he didn't perform the surgery. And they are trying to have it both ways. "The Court: Well, you know, the evidence is what it is. The testimony is what it is. Whatever he may make in terms of an argument to this jury, if he misrepresents the evidence to this jury, I presume you are going to stand up and you are going to show Datnow's report and highlight his testimony and straighten the jury out on what your version of the facts are. So, you know, we are not going to change the evidence." The trial took place over five days between October 15, 2012, and October 19, 2012. Dr. Anderson testified at trial that he surgically repaired Mr. Craig's perforated duodenal ulcer on February 10, 2009. In relevant part, Dr. Anderson testified as follows: "Q. (By Mr. Johnston) [Mrs. Craig's counsel:] You did an operation on Mr. Craig on the evening of the 10th of February. What did you do? What did you repair? "A. I opened his upper abdomen up, found his duodenal ulcer, sewed the ulcer up and put an omentum patch where you take the fat apron, and you just take a piece of it and put it over the ulcer and sew it down around it. And that's a patch. And that suffices to support the plug, the duodenal ulcer. ".... "Q. (By Mr. Johnston) All right. So looking at your second entry, 2-11, is it 8:30? 15 1121181 "A. That's correct. "Q. Which should be 2-10 according to you, what does your note read? "A. Pre and post-operative diagnosis. That puts it on the 10th, perforated duodenal ulcer. Operation, exploratory left, meaning you open up somebody's abdomen and look and see what's going on, and suture and patch closure duodenal ulcer. Under general anesthesia, estimated blood loss was less than a hundred cc's. ".... "Q. (By Mr. Johnston) Was this a typical surgery that you performed on Mr. Craig? "A. A typical ulcer patch? "Q. That's what I mean. "A. Yes. "Q. And you say you went in and patched it with the omentum, and I think you described the procedure for us, correct? "A. Correct. "Q. And that involves sutures? "A. I sutured the wall of the ulcer back together and then put the patch on top of the small suture line, three stitches. "Q. So you sutured the hole, and then you sutured the patch? "A. Yes. 16 1121181 "Q. How much sutures did you use? "A. I used about three on the ulcer, and probably five or six with the patch. ".... "Q. (By Mr. Wright) [Dr. Anderson & SDC's counsel:] We can look at your operative note if we need to if you will step down please one more time, Dr. Anderson, and I want you to explain to these ladies and gentlemen using this illustration how you performed this operation? "A. Well, we opened up the abdomen, made a small incision in the upper abdomen above the belly button. And then we exposed the stomach, and here's the ulcer that we had seen before. What we did was -- "Q. Let me stop you right there. When you say we, you have got the surgeon. You have got the anesthesiologist in there, a certified registered nurse anesthetist. You have got a scrub nurse and a circulating nurse. There's an OR team that has to be assembled; is that right? "A. Yeah. "Q. Who is doing the operation? "A. I am doing the operation. "Q. All right. Then tell me what you did? "A. So what I did after finding the ulcer, put about three stitches across in order to close the hole. And then this is the fat apron that hangs off the stomach and colon. "Q. What's that called? 17 1121181 "A. It's called the omentum. What we did after closing to insure better closure of this or protection of leak, what you do is pull the omentum up, and you tack it around the perforation. And that seals it, and that's just a second layer if you will. Q. Y'al1 went through the substance of your operative note yesterday. So I'm not going to take us through every word of that, but I want to ask you. Are these procedures that you have described here, the identification of the ulcer, the closing it with the sutures, and I mean do you just pull those tight like somebody might sewing a piece of cloth, and that just closes up the hole? "A. Yes. "Q. And then you tie it off, and then you also described in your operative note this pulling up the omentum to form a patch; is that right? "A. That's absolutely correct. ".... Q. (By Mr. Johnston) [Mrs. Craig's counsel:] What kind of sutures did you use to repair the ulcer? "A. Silk. "Q. Silk. All right. How long do those take to dissolve in the body? "A. They don't. They don't." (Emphasis added.) 18 1121181 Dr. Young testified after Dr. Anderson. Following some preliminary questioning of Dr. Young pertaining to his experience and practice, Dr. Anderson and SDC's counsel argued that Dr. Young's area of expertise was too remote for him to testify as to the standard of care applicable to Dr. Anderson. In the course of that argument, the following exchange occurred between Mrs. Craig's counsel and the trial court: "Mr. Gaiser: To start with, there is no evidence, there will be -- when this is over with, there will be no evidence that there was a duodenal ulcer surgery. The reason is it is because the sutures would have been left behind. "The Court: Wait a minute, Mr. Gaiser. Go back over that again. "Mr. Gaiser: Okay. The last question we asked Dr. Anderson was, what kind of sutures did he use. He said silk. Silk sutures never dissolve. That's the reason I told Dr. Datnow to go back and make another look. And he looked, and he said unequivocally even the second time there was no hole. There was no repair. The sutures were not there. He said it twice. "The Court: Mr. Gaiser, are you seriously going to argue to this jury when we get there and if we get there that this was all a fabrication? Is that what you're arguing? "Mr. Gaiser: No sir. I'm not. "The Court: Are you going to tell this jury that this was not done? 19 1121181 "Mr. Gaiser: What was done was a hernia surgery and it was a hernia surgery that killed the man, not the other surgery anyway. "The Court: That's not my question to you. Your comment to me was you thought there was no ulcer surgery. Are you telling me, Mr. Gaiser, that you're going to argue to this jury that there was no surgery done to this, to repair this man's ulcer? "Mr. Gaiser: Sir, when we read the evidence from Dr. Datnow, he is going to testify that he could not find a duodenal ulcer. He could not find a duodenal ulcer. He had the whole body open on the table, and he could not find it. And I asked him what is this? It's crazy. How could this be? And he went back and did it again. He did it twice, and he could not find a hole. And he couldn't find the sutures. He couldn't find it. The operation and the record says it was performed on the 11th, not the 10th. He does his report on the -- "The Court: Got you. How about refocus to where we need to be, and that's with regard to Dr. Young's qualifications and the Holcomb [v. Carraway, 945 So. 2d 1009 (Ala. 2006),] case and the standards. ".... "Mr. Gaiser: Your Honor, he [Dr. Young] testified in his deposition that in his opinion he doesn't know of any fault that he [Dr. Anderson] did with respect to the duodenal ulcer. I mean, I don't know what the argument is. If we hired all of the king's horses and all of the king's men, we wouldn't -- we wouldn't want to change our guy's testimony. He has testified that he found no fault in it [the ulcer surgery]. They are arguing that he can't testify that there was no fault in it. That's amazing because he is not here to testify there was any fault in that. Like I said, we don't even know that the evidence is going to show there was one. ..." 20 1121181 (Emphasis added.) At the conclusion of the argument excerpted above, the trial court decided to allow Dr. Young to continue testifying to the jury. As he did in his deposition, Dr. Young testified at trial that the CT scan "showed evidence of the perforation of the duodenal ulcer." Dr. Young stated that he would have ordered some tests sooner than did Dr. Anderson; however, he also admitted that he was not in the same general line of practice as Dr. Anderson. The following exchange also occurred between defendants' counsel and Dr. Young: "Q: So now in reflection, Dr. Young, and all of this, is it fair for me to characterize your testimony that while you have explained to us that had you been in this situation there are some things that you may have done differently at different times based on what has been suggested to you by what Mrs. Craig has said or what was suggested to you about the situation that existed in the hospital. But at the same time you recognize that even with all of that information, the care and treatment that Dr. Anderson provided to Mr. Craig was reasonable, appropriate and a course that is recognized to be within the standard of care for surgeons although you may have followed another course? Is that fair? ".... "A. Given everything with the history that I have been privy to, yes. 21 1121181 ".... "Q. You are still firm that you want these people to understand you don't say this man committed malpractice, do you? "A. Based on all of the information, I can't stand by that and say that, no. "Q. You can't say that at all, can you? "A. No." Following the conclusion of Dr. Young's testimony, the trial court excused the jury for lunch and proceeded to discuss Dr. Young's testimony with Mrs. Craig's counsel. "The Court: ... There is some concern about Dr. Young's testimony, especially in regard to his testimony as to [no breach of] the standard of care. And I think you know what I'm talking about Mr. Gaiser. "Mr. Gaiser: Unfortunately. We think though that we can rehabilitate our case through Dr. Datnow, however. "The Court: Well, sir, I fail to see how your causation expert, if he is allowed to testify, is going to be qualified to rehabilitate as to the standard of care. "Mr. Gaiser: It's a fact. It will be a fact aspect, a fact. There's a particular fact that he would be able to testify to, that he has testified to on two occasions that when he did his pathology, when he did his, when he opened the body up and he looked at the organs and he looked at the cause of death, he determined that there was no -- there was an incision, and there was an operation done in the 22 1121181 peritoneal area and the -- excuse me, in the abdomen. And he did not find the sutures or whatever is necessary to determine that there was an operation to close an ulcer. If there was no operation to close an ulcer, then their entire defense in this case is flawed. And that's his sworn testimony. And then I asked him to do it again. I asked him. I said this, are you sure? I asked him. I called him up on the telephone. I said, are you sure? I asked him. I said, Dr. Datnow, this is a very important matter. Can you verify that. He said, I still have the organs. So he went out and verified it. And he said -- and Dr. Anderson testified that the sutures that were used were silk sutures. He testified that silk sutures would not decompose. ... I mean, either the sutures were there or they weren't there. If they weren't there, he didn't do the operation. ..." (Emphasis added.) Mrs. Craig was unable to call Dr. Datnow to testify because he was out of the country from October 2, 2012, to November 9, 2012. Instead, she sought to read Dr. Datnow's deposition to the jury. In response, Dr. Anderson and SDC objected that Mrs. Craig had failed to establish in the deposition that Dr. Datnow was a medical doctor at the time he performed the autopsies, and, therefore, they argued, Mrs. Craig had failed to qualify Dr. Datnow as a medical expert. The following day, the trial court entertained motions from Dr. Anderson and SDC pertaining to Dr. Young's testimony and the qualifications of Dr. Datnow. In the course of the 23 1121181 argument on those motions, Dr. Anderson and SDC requested that the trial court enter a judgment as a matter of law in their favor because Mrs. Craig had failed to establish that Dr. Anderson had violated the applicable standard of care. At the conclusion of the parties' arguments on those motions, the trial court indicated that it would enter a judgment as a matter of law and that it would rule that Dr. Datnow "was not in fact properly qualified." On October 24, 2012, the trial court entered an order that provided, in pertinent part: "The issue presented before the Court is with respect to defendants' oral motion to exclude the plaintiff's standard of care expert witness, Dr. Carlton Young. Dr. Young has testified that he is a board certified surgeon practicing at the University of Alabama at Birmingham, primarily as a transplant surgeon. Dr. Young has acknowledged to the Court that he does not accept 'on-call' responsibilities as a general surgeon at UAB. Dr. Young acknowledged to the Court that the sole issue which he has raised in criticism of the defendants is the issue of an alleged delay in the diagnosis and surgical treatment of a perforated duodenal ulcer and the postoperative care for a patient having undergone that surgical procedure. "Dr. Young has admitted to the Court that he has never performed this operation as a board certified surgeon. Moreover, Dr. Young has admitted that he is not in 'the same general line of practice' as the defendant, Dr. Anderson. This testimony is undisputed. Furthermore, Dr. Young has admitted in 24 1121181 his testimony that his board certification is issued by the administrative board of the American College of Surgeons, an organization that, among other things, has promulgated and adopted standards regarding the nature and degree of experience required of its members testifying as expert witnesses in matters such as this. In acknowledging that he has never performed the surgical procedure at issue in this case as a board certified surgeon, Dr. Young admits that his participation in this litigation is violative of the policy standards adopted by the American College of Surgeons which has issued his board certification. (This is but one factor considered by the Court in addition to those matters set forth herein above). "The Court has held the defendants' motion under consideration and allowed Dr. Young to testify such that the Court could consider his testimony as a whole in ruling on defendants' motion. "After consideration of Dr. Young's testimony in its entirety, having afforded the plaintiff opportunity to develop Dr. Young's testimony as fully as she could, the Court has determined that Dr. Young is not in the same general line of practice as the defendant, Dr. Anderson, and, as such, his testimony is due to be excluded. "The Court notes that, aside from Dr. Young's concession that he does not practice in the same general line of practice as Dr. Anderson, the substance of Dr. Young's testimony (even if he were competent to testify as an expert in this cause) does not warrant submission of the plaintiff's case to the jury. Considering Dr. Young's substantive testimony in its entirety, the Court has observed that Dr. Young ultimately testified that all of the care and treatment provided by Dr. Anderson was in compliance with the standard of care, although Dr. Young stated that he personally would have done some things differently. Dr. Young stated unequivocally 25 1121181 that the defendant, Dr. Anderson, did not commit medical malpractice in providing care to plaintiff's decedent. Accordingly, Dr. Anderson and his employer, Selma Doctors Clinic, PC, are entitled to judgment as a matter of law. "Following the testimony of Dr. Young, the plaintiff announced her intention to read the deposition of Dr. Boris Datnow. The parties concede that Dr. Datnow is a board certified pathologist and not a general surgeon. As such, Dr. Datnow is not a similarly situated health-care provider to Dr. Anderson under the terms and provisions of the Alabama Medical Liability Act, § 6-5-543(c), [Ala. Code 1975,] and his testimony is not, under any circumstances, admissible to establish a breach of the standard of care by Dr. Anderson. The parties also concede that the deposition transcript contains no testimony to the effect that Dr. Datnow was a licensed physician at the time that he allegedly performed a private autopsy on the body of plaintiff's decedent. The Court has determined that this is a necessary qualification which the plaintiff had the burden of establishing prior to eliciting his testimony from Dr. Datnow regarding the conclusions expressed in his autopsy report or opinion testimony which is based on the autopsy. Dr. Datnow's mere statement that he was a board certified pathologist on the date that his deposition was taken does not establish that he was a physician licensed to practice medicine and authorized under Alabama law to perform autopsy procedures at the time he allegedly performed the autopsy in question in this case, February 14, 2009. Accordingly, the Court has excluded the deposition of Dr. Datnow as inadmissible in this case. "The Court having determined as a matter of law on the basis of undisputed testimony that Dr. Young is not in the same general line of practice as the defendant, Dr. Anderson, and, otherwise, having determined as a matter of law that the substantive 26 1121181 testimony of Dr. Young would completely absolve the defendants of any liability in this case, even if he were in the same general line of practice, hereby directs entry of judgment as a matter of law in favor of defendant Robert E. Anderson, MD, and Selma Doctors Clinic, PC, pursuant to Rule 50(a)(1)-(2) of the Alabama Rules of Civil Procedure. Plaintiff's claims against said defendants are hereby dismissed with prejudice." On November 21, 2012, Mrs. Craig filed a Rule 59, Ala. R. Civ. P., motion to vacate the judgment or for a new trial. In the motion, Mrs. Craig contended that the trial court erred in excluding Dr. Young's testimony because "it was not necessary for Dr. Young to have performed a surgical repair of a perforated duodenal ulcer in order for him to have been similarly situated. Dr. Young was not critical of the actual surgical repair of the duodenal ulcer performed by Dr. Anderson. Dr. Young was critical of the pre- surgical diagnosis and treatment and post-surgical diagnosis and treatment of Mr. Craig's intra- abdominal infection from which he suffered and died." Mrs. Craig added that the standard of care in this action was that of a general surgeon and that Dr. Young is a board- certified general surgeon; thus, she asserted, he should have been deemed qualified to testify as to the applicable standard of care. Mrs. Craig also argued in the motion that the trial court erred by denying her "the right to access the original medical records of the decedent William James Craig that were 27 1121181 retained by Defendant Dr. Anderson." Mrs. Craig presented no other arguments in her Rule 59 motion. The trial court denied Mrs. Craig's Rule 59 motion on December 28, 2012. In January 2013, Judge Collins Pettaway, Jr., succeeded Judge Jones in the Dallas Circuit Court. On February 7, 2013, Mrs. Craig filed a motion pursuant to Rule 60(b)(3), Ala. R. Civ. P., in which she argued that Dr. Anderson had committed perjury and had perpetrated a fraud upon the trial court by testifying that he had performed the ulcer surgery when, in fact, he had not done so. Mrs. Craig noted that until Dr. Anderson testified at trial, the only indication of the kind of sutures Dr. Anderson had used in the ulcer surgery had been provided in Dr. Anderson's operation report, in which he stated that he had used Vicryl sutures, which dissolve within a few days of an operation. At trial, however, Dr. Anderson stated that in the ulcer surgery he used silk sutures, which do not dissolve. Mrs. Craig contended that this revelation at trial demonstrated that Dr. Anderson lied about performing the ulcer surgery. Mrs. Craig also accused defendants' counsel of participating in the fraud and that counsel's reason for doing so was that Dr. Anderson's 28 1121181 health-care-professional-liability policy allegedly contained an incentive for taking a malpractice action to trial rather than entering into a settlement with a plaintiff. In support of her argument, Mrs. Craig submitted an affidavit from Dr. Datnow executed on January 8, 2013, in which he concluded: "I have again been contacted by Mr. Gaiser [Mrs. Craig's counsel] and he reported to me that Dr. Anderson testified during the June 2012 trial of this matter that he used 8 or 9 silk sutures (3 sutures on the ulcer and 5-6 sutures on the patch) to repair Mr. Craig's perforated ulcer, and that the silk sutures he used do NOT dissolve. Based upon Dr. Anderson's testimony at trial, I can say with absolute certainty that my initial finding that Mr. Craig had no ulcer as stated in my February 14, 2009, Autopsy Report was correct, and I can further state with absolute certainty that I saw no gross evidence of pathology that a duodenal ulcer repair was performed by Dr. Anderson in February 2009, for if such a surgery had been performed, I would have discovered the non- absorbable silk sutures during both [the first] autopsy and my reexamination of Mr. Craig's organs in May 2009. "In conclusion, based upon Dr. Anderson's trial testimony, I am absolutely certain that Dr. Anderson did not perform a perforated duodenal ulcer repair during the February 10, 2009, exploratory/surgical laparotomy on Mr. Craig, and any testimony to the contrary would be untrue." (Some emphasis added.) 29 1121181 In opposing Mrs. Craig's Rule 60(b) motion, Dr. Anderson and SDC primarily contended that the Rule 60(b) motion actually constituted a second Rule 59 motion because all the information contained in the Rule 60(b) motion was known to Mrs. Craig at the time she filed her Rule 59 motion, and yet it was not presented in her Rule 59 motion. Dr. Anderson and SDC also argued that Dr. Anderson's statement in his operation report and his testimony at trial were not necessarily contradictory because his operation report had stated only the type of sutures he had used to close the abdomen, but the report did not detail the type of sutures he had used to close the duodenal perforation or to patch the area with the omentum. He also noted that hospital records showed that there were charges for three types of sutures used in the surgery. Thus, the evidence indicated that Dr. Anderson may have used both Vicryl sutures and silk sutures in the ulcer operation. Dr. Anderson and SDC also asked Judge Pettaway to strike Dr. Datnow's affidavit on the ground that the assertions therein could have been stated within the time limits for filing a Rule 59 motion but Mrs. Craig failed to take the steps necessary to make that happen. 30 1121181 On February 8, 2013, Mrs. Craig filed a notice of appeal of the trial court's October 24, 2012, judgment in favor of Dr. Anderson and SDC. Craig v. Anderson (No. 1120649, 7 June 6, 2013).8 On April 18, 2013, Judge Pettaway heard arguments on Mrs. Craig's Rule 60(b) motion. In the hearing on the Rule 60(b) motion, Mrs. Craig's counsel, seeking to clarify her fraud argument, stated: "One last thing. We've never said the man didn't have an ulcer. We said the man never had an ulcer operation. And there's a good reason for that because the man was so infected, you could not have operated." Mrs. Craig's counsel also abandoned his contention that defendants' counsel participated in the alleged fraud. On May 27, 2013, Judge Pettaway entered an order granting Mrs. Craig's Rule 60(b)(3) motion. The order recited some of the facts related above, including Dr. Anderson's testimony at trial pertaining to the type of sutures he had used during the Mrs. Craig's notice of appeal did not deprive the trial 7 court of jurisdiction to hear her Rule 60(b) motion. See Rule 60(b), Ala. R. Civ. P.; Harville v. Harville, 568 So. 2d 1239, 1240 (Ala. Civ. App. 1990). The appeal in case no. 1120649 was dismissed on 8 Mrs. Craig's motion on June 6, 2013. 31 1121181 ulcer surgery. Judge Pettaway concluded that "Defendant Anderson's February 16th Operative Report was a forged and fraudulent medical record" because of the crossed-out date of February 16, 2009, for the surgery date and because Dr. Anderson admitted the report was dictated three days after Mr. Craig's death. The order contained the following additional conclusions: "(1) Plaintiff's fraud claims are properly raised under Ala. R. Civ. P. 60(b)(3). "(2) There is clear and convincing evidence that Defendant Anderson did not perform a perforated duodenal ulcer repair on decedent Mr. Craig and thus he engaged in fraud, misrepresentation, and deceit. "(3) Defendant Anderson committed fraud in procuring the Court's October 24, 2012, Order of Judgment. "(4) The fraud committed by Defendant Anderson was both intrinsic and extrinsic in nature in that (1) it occurred during the trial of this matter and was accompanied by perjury. Defendant Anderson's use of false and/or forged medical records, and his misrepresentation of evidence pertaining to his having performed a perforated duodenal ulcer repair such that it affected tho Court's determination of tho issues presented therein; and (2) it was collateral to the issues tried in this mater such that this Court was deceived into believing that Defendant Anderson performed a perforated duodenal ulcer repair when in fact he had not. "(5) Defendant Anderson misled this Honorable Court and in so doing both this Court and Defendant 32 1121181 Anderson prevented Plaintiff Craig from fully and fairly presenting her case. "(6) The fraud committed by Defendant Anderson has resulted in a judgment whose integrity is lacking, and absent relief an extreme and unexpected hardship will result. "(7) The fraud committed by Defendant Anderson was not obtainable by the due diligence of Plaintiff prior to the time of entry of the Court's Order of Judgment nor prior to or during the pendency of Plaintiff's Ala. R. Civ. P. 59 motion. "(8) Plaintiff currently has an appeal pending before the Supreme Court of Alabama and, thus, Plaintiff's Ala. R. Civ. P. 60(b)(3) motion is not a substitute for an appeal and does not subvert the principle of finality of judgments. "The Court further states that the circumstances of this case are precisely the type of extraordinary circumstances provided for under Ala. R. Civ. P. 60(b)(3) for which the extreme remedy of relief from a final judgment is permitted. As such, Plaintiff's Ala. R. Civ. P. 60(b)(3) Motion to Set Aside the Court's October 24, 2012, Final Order of Judgment is hereby granted. "Furthermore, Defendants' Motion to Strike the Affidavit of Dr. Boris Datnow is hereby denied. As set forth above, this Court finds that Plaintiff's 'lack of surgery' argument is not fanciful nor baseless as suggested by Defendants but in fact is supported by clear and convincing evidence." Dr. Anderson and SDC filed their petition for the writ of mandamus in this Court on July 8, 2013. The Court ordered answers and briefs on August 23, 2013. 33 1121181 II. Standard of Review "Relief from a judgment under Rule 60(b) is proper only where the moving party shows exceptional circumstances which justify relief. Grover v. Grover, 516 So. 2d 667 (Ala. Civ. App. 1987). A trial court has wide discretion to set aside a judgment which it deems invalid because of fraud practiced by a party in the procurement of the judgment. Reynolds v. Reynolds, 516 So. 2d 663 (Ala. Civ. App. 1987). Because the trial court possesses such wide discretion, its judgment will be affirmed on appeal unless there is an abuse of that discretion." Smith v. Smith, 668 So. 2d 846, 848 (Ala. Civ. App. 1995). We also note, however, that "'the broad power granted by Rule 60(b) cannot be used to relieve a party from free, deliberate, and calculated choices.'" Wal-Mart Stores, Inc. v. Pitts, 900 So. 2d 1240, 1245 (Ala. Civ. App. 2004) (quoting State ex rel. Croson v. Croson, 724 So. 2d 36, 38 (Ala. Civ. App. 1998)). III. Analysis Rule 60(b)(3) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for ... fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other 34 1121181 misconduct of an adverse party ...." Rule 60(b)(3), Ala. R. Civ. P. "One who contends that an adverse party has obtained a verdict through fraud, misrepresentation, or other misconduct (Rule 60(b)(3)) must prove by 'clear and convincing evidence (1) that the adverse party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case. [Citation omitted.] The resolution of these two issues is within the trial court's discretion, and on review, our only inquiry is whether the trial court abused its discretion.' Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir. 1979). See, also, Penn v. Irby, 496 So. 2d 751 (Ala. 1986)." Pacifico v. Jackson, 562 So. 2d 174, 179 (Ala. 1990). Mrs. Craig alleges that Dr. Anderson committed fraud by submitting documentation pertaining to, and testifying both in deposition and at trial that he performed, a repair of a perforated duodenal ulcer on Mr. Craig on February 10, 2009. It appears Mrs. Craig concedes that Dr. Anderson performed a surgery on her husband on that date because Mrs. Craig alleged in her amended complaint that Dr. Anderson failed to perform a thorough exploratory surgery and failed to thoroughly treat the infection in the abdomen during the surgery on February 10, 2009, and because Dr. Datnow stated in his autopsy report and testified in his deposition that he found 35 1121181 an abdominal incision for the second surgery performed on Mr. Craig. Mrs. Craig contends, however, that because Dr. Datnow did not find sutures in the abdominal area and because Dr. Anderson stated at trial that he used silk sutures during the ulcer surgery, which do not dissolve, it can only be concluded that Dr. Anderson did not perform the ulcer repair as he testified he did. 9 Dr. Anderson and SDC argue that Judge Pettaway exceeded his discretion in granting Mrs. Craig's Rule 60(b) motion because, they say, Mrs. Craig failed to demonstrate that the alleged fraud prevented her from fully and fairly presenting It is less clear whether Mrs. Craig believes her husband 9 had an ulcer. During the Rule 60(b) hearing, Mrs. Craig's counsel stated that Mrs. Craig had "never said [her husband] didn't have an ulcer," but before the Rule 60(b) hearing her counsel repeatedly stated in arguments to the trial court that Dr. Datnow never found an ulcer during his autopsy investigations. Indeed, in one exchange before the trial court concerning the fraud allegation, Mrs. Craig's counsel sought to explain away the results of the CT scan by comparing it to his own experience of once having been falsely diagnosed with cancer. Moreover, in her respondent brief Mrs. Craig questions whether the CT scan performed on Mr. Craig showed a perforated duodenal ulcer because the CT scan itself was not proffered as evidence; only the radiologist's report interpreting the CT scan was admitted. This observation ignores that Mrs. Craig did not question the radiologist's report at trial and that her own expert, Dr. Young, testified that the CT scan showed a perforated duodenal ulcer inside her husband. 36 1121181 her case. In support of their argument, Dr. Anderson and SDC quote Pacifico, which states, in relevant part: "On the broader public policy issue of reviewing post-trial claims of fraud, the United States Supreme Court, in [United States v.] Throckmorton, [98 U.S. [61,] 68-69 [(1878)], had this to say: "'[T]he mischief of retrying every case in which the decree was rendered on false testimony by perjured witnesses, or on documents whose genuineness was in issue and which are afterward ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.' "First National Life Ins. Co. v. Bell, 174 La. 692, 699, 141 So. 379, 381 (1932), is of interest in this connection: "'If a judgment could be annulled on the showing made by plaintiff, litigation would be endless. Another judgment in favor of [defendant] could be annulled on allegations of newly discovered evidence, and so on to the end of time. If an unsuccessful litigant were permitted to attack a judgment as fraudulent on the ground that his opponent failed to disclose certain facts within his knowledge, which by the exercise of reasonable diligence the unsuccessful litigant could have ascertained for himself, there would be no finality to a judgment. In legal effect, it would be nothing more than an order to show cause why it should not be set aside.' "The same principle is stated, in different language, in the case of Porcelli v. Schlitz Brewing 37 1121181 Co., 78 F.R.D. 499, 501 (E.D. Wisc. 1978), as follows: '[Movant] must ... satisfy the Court that he has substantial evidence of fraud which was not obtainable by due diligence prior to the time of entry of the order.' "One who contends that an adverse party has obtained a verdict through fraud, misrepresentation, or other misconduct (Rule 60(b)(3)) must prove by 'clear and convincing evidence (1) that the adverse party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case. ...'" 562 So. 2d at 179 (emphasis added). Mrs. Craig dismisses Pacifico's statement concerning a due-diligence requirement for fraud claims under Rule 60(b)(3) by arguing that the Pacifico Court was not stating the law of Alabama, but rather the law in the United States District Court for the Eastern District of Wisconsin as it existed in 1978. Mrs. Craig contends that "Defendants' 'due diligence' argument applies only to Ala. R. Civ. P. 60(b)(2) motions pertaining to newly discovered evidence. Plaintiff's motion is not based on newly discovered evidence. Plaintiff's motion is based upon fraud committed by Defendant Anderson that prevented Plaintiff from fully and fairly presenting her case and resulted in a judgment whose integrity is lacking, and absent relief an extreme and unexpected hardship will result, which is the type of fraud provided for in Rule 60(b)(3)." 38 1121181 Mrs. Craig fails to cite any authority for her proposition that due diligence applies only to claims under Rule 60(b)(2), Ala. R. Civ. P. Moreover, her characterization of Pacifico ignores the fact that the Pacifico Court quoted cases from two other courts for essentially the same proposition stated by the federal district court in Porcelli v. Schlitz Brewing Co., 78 F.R.D. 499 (E.D. Wis. 1978). In any event, the principle at issue -- or at least its equivalent -- is embedded in the second element that was identified in Pacifico as required in order for a movant to succeed in a Rule 60(b)(3) motion: The movant "must prove 'by clear and convincing evidence ... that [the] misconduct prevented the moving party from fully and fairly presenting [her] case.'" 562 So. 2d at 179. As one federal district court succinctly explained: "The case law has repeatedly 10 emphasized that a party is not prevented from fully and fairly presenting its case if it had access to the information at issue." Halliburton Energy Servs., Inc. v. NL Indus., 618 "Federal cases construing the Federal Rules of Civil 10 Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure, which were patterned after the Federal Rules of Civil Procedure." Hilb, Rogal & Hamilton Co. v. Beiersdoerfer, 989 So. 2d 1045, 1056 n.3 (Ala. 2007). 39 1121181 F. Supp. 2d 614, 641 (S.D. Tex. 2009). See also Tunnell v. Ford Motor Co., CIVA.4:03-CV-00074, June 26, 2006 (W.D. Va. 2006) (not reported in F. Supp. 2d) ("[T]he fact that Plaintiff was already aware of the essential information in the AML/Tyco documents speaks to the third prong of a Rule 60(b)(3) inquiry. Because eight months before trial Plaintiff already knew the crucial information regarding the BCO manufactured by Tyco and used by Aston Martin, Defendant's misconduct did not prevent Plaintiff from fully proving this aspect of his case."); Casey v. Albertson's Inc., 362 F.3d 1254, 1260 (9th Cir. 2004) (stating that "'[F]ederal Rule of Civil Procedure 60(b)(3) require[s] that fraud ... not be discoverable by due diligence before or during the proceedings'" (quoting Pacific & Arctic Ry. & Navigation Co. v. United Transp. Union, 952 F.2d 1144, 1148 (9th Cir. 1991)); Taylor v. Texgas Corp., 831 F.2d 255, 260 (11th Cir. 1987) (noting that "given the fact that Texgas itself knew that it had been making pension payments to Taylor, even if its counsel were not aware of that fact, Texgas cannot show that Taylor's failure to mention the pension payments prevented Texgas 'from fully and fairly presenting its case'" (quoting 40 1121181 Harre v. A.H. Robins Co., 750 F.2d 1501, 1503 (11th Cir. 1985))). The rendition of the facts above makes clear that Mrs. Craig's counsel was aware long before trial of purportedly "crucial information" regarding the supposed lack of an actual duodenal repair. Indeed, he repeatedly expressed with certitude that there had been no such repair and that the evidence he possessed based on Dr. Datnow's two autopsies clearly established that "fact." The results of Dr. Datnow's first autopsy were known to Mrs. Craig two years and eight months before trial and the results of the second autopsy were known to her two years and five months before trial. Nonetheless, Mrs. Craig's counsel did not ask Dr. Anderson in his deposition, which was taken two years before trial, what kind of sutures he used in the ulcer surgery, nor did he attempt at any time during the ensuing two years to engage in any supplemental discovery aimed at obtaining this information from Dr. Anderson. When Dr. Anderson was asked at trial what kind of sutures he used in the ulcer surgery, Mrs. Craig's counsel did not follow up Dr. Anderson's answer with a question regarding any apparent discrepancy between the 41 1121181 statement in his operation report that he used Vicryl sutures and his statement at trial that he used silk sutures. Nor did he otherwise attempt to make use of this testimony in support of the claims before the court. 11 Dr. Anderson's trial testimony that he used silk sutures to perform the duodenal repair is indeed additional evidence in support of Mrs. Craig's assertion that no such repair actually occurred. It is only that, however -- "additional" evidence of a "fact" already known by and allegedly provable by Mrs. Craig. Insofar as Dr. Anderson's testimony that he did perform the repair, this, of course, was nothing new. To allow Mrs. Craig to assert new claims based on either aspect of Dr. Anderson's trial testimony at this juncture would be to allow her to piecemeal her claims and, indeed, to use Rule 60(b) to avoid the"'free, deliberate, and calculated choices'" made by her in the management and presentation of her action. Even if the possibility of a lack of an actual duodenal 11 repair had not been known to Mrs. Craig until trial, she failed to express to the trial court, and has not even articulated in her brief to this Court, a cogent explanation or factual theory as to how the failure to actually perform a duodenal repair would support or otherwise relate to some other, pleaded failure on the part of Dr. Anderson that caused Craig's death. See Ala. Code 1975, § 6-5-551. 42 1121181 See Wal-Mart Stores, 900 So. 2d at 1245 (quoting Croson, 724 So. 2d at 38). Further, despite the fact that Mrs. Craig never pleaded her "fake surgery" allegation in her complaints, the trial 12 court was willing to allow Mrs. Craig's counsel to present Dr. Datnow's deposition to the jury, concluding that the issue was a "disputed fact." The only reason Mrs. Craig was prevented from presenting Dr. Datnow's deposition was a failure to qualify him as an expert, a ruling that Mrs. Craig did not challenge in her Rule 59 motion. This failure of pleading, alone, is fatal to any attempt 12 by Mrs. Craig to assert the supposed lack of a duodenal repair as an act of malpractice in and of itself. Section 6-5-551, Ala. Code 1975, of the Alabama Medical Liability Act plainly requires that "[t]he plaintiff shall amend his complaint timely upon ascertainment of new or different acts or omissions upon which his claim is based; provided, however, that any such amendment must be made at least 90 days before trial." Despite purported foreknowledge of the alleged lack of any duodenal repair, Mrs. Craig failed to assert a claim in this regard or to incorporate any allegation of this "fact" into any amended claim. Allowing her to use a Rule 60(b) motion to do so now would sanction the piecemealing of claims into separate lawsuits and allow her to use a Rule 60(b) motion to achieve "'relie[f] ... from free, deliberate, and calculated choices'" made by her in the management and presentation of her lawsuit. Wal-Mart Stores, 900 So. 2d at 1245 (quoting Croson, 724 So. 2d at 38). 43 1121181 In addition, the trial court entered its judgment on October 24, 2012. By Mrs. Craig's own admission, Dr. Datnow returned from his absence on November 9, 2012. Mrs. Craig filed her Rule 59 motion on November 21, 2012. Mrs. Craig could have presented her fraud argument and affidavit from Dr. Datnow in her Rule 59 motion, and yet she did not do so. Instead, she waited another month and a half -- and after a new trial judge had succeeded Judge Jones -- to present the argument and affidavit in her Rule 60(b) motion. The foregoing facts demonstrate that even if Dr. Anderson's trial testimony concerning the ulcer surgery could be considered fraudulent, Mrs. Craig was not prevented as a result of that fraud from fully and fairly presenting her allegation of a fake surgery. Instead, she deliberately waited to present the argument in her Rule 60(b) motion. Indeed, in her brief Mrs. Craig does not deny that she could have presented the argument sooner, at least in her Rule 59 motion. She simply contends that she did not have to do so because she filed her Rule 60(b) motion within the four-month period prescribed in Rule 60(b) as the outer limit for the filing of motions under Rule 60 (b)(1)-(3). Under the 44 1121181 circumstances presented in this case, however, the fact that Mrs. Craig filed a Rule 60(b)(3) motion within that four-month period does not excuse her failure to present her fraud argument sooner. Once again, "'the broad power granted by Rule 60(b) cannot be used to relieve a party from free, deliberate, and calculated choices.'" Wal-Mart Stores, 900 So. 2d at 1245 (quoting Croson, 724 So. 2d at 38). Mrs. Craig has failed to demonstrate how the alleged fraud prevented her from fully and fairly presenting her claims at trial or in a posttrial Rule 59 motion. Mrs. Craig's counsel repeatedly asserted that Mr. Craig did not die as a result of the performance by Dr. Anderson of an ulcer surgery or the lack thereof. Instead, Mrs. Craig's theory of the case was that Mr. Craig died of an intra- abdominal infection acquired after the hernia surgery and that Dr. Anderson was responsible for Mr. Craig's death because he failed to timely diagnose and treat the infection. Mrs. Craig's case did not fail as the result of any statement by Dr. Anderson pertaining to the ulcer surgery. It failed because of a lack of proof of the claims asserted. 45 1121181 IV. Conclusion Based on the foregoing, we conclude that the trial court exceeded its discretion in granting Mrs. Craig's Rule 60(b)(3) motion setting aside the October 24, 2012, final order in favor of Dr. Anderson and SDC. Therefore, we grant Dr. Anderson and SDC's petition for a writ of mandamus and direct the trial court to reinstate its final order of October 24, 2012. PETITION GRANTED; WRIT ISSUED. Stuart, Shaw, Main, Wise, and Bryan, JJ., concur. Bolin and Parker, JJ., concur in the result. Moore, C.J., dissents. 46	September 30, 2014
001f06dd-e4dc-496a-b8f9-975533ce5b5c	Ex parte Billy E. Pipkin and Sandra T. Pipkin. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Fairfield Place Homeowners Association, Inc. v. Billy E. Pipkin and Sandra T. Pipkin)	N/A	1130985	Alabama	Alabama Supreme Court	REL:09/12/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130985 ____________________ Ex parte Billy E. Pipkin and Sandra T. Pipkin PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Fairfield Place Homeowners Association, Inc. v. Billy E. Pipkin and Sandra T. Pipkin) (Baldwin Circuit Court, CV-11-901334; Court of Civil Appeals, 2120267) MOORE, Chief Justice. The petition for the writ of certiorari is denied. 1130985 In denying 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). WRIT DENIED. Stuart, Parker, and Wise, JJ., concur. Shaw, J., concurs in the result. 2	September 12, 2014
148dc098-6237-41d1-badc-48e736a8860c	Alabama v. Simmons	N/A	1130541	Alabama	Alabama Supreme Court	REL: 06/20/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130541 ____________________ Ex parte State of Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: State of Alabama v. Charles Marquis Simmons) (Lowndes Circuit Court, CC-12-46; Court of Criminal Appeals, CR-12-1393) STUART, Justice. 1130541 Charles Marquis Simmons was convicted of a Class A misdemeanor in the Lowndes District Court; he appealed the conviction to the Lowndes Circuit Court for a trial de novo. He was convicted in the circuit court and appealed the circuit court's judgment to the Court of Criminal Appeals. The Court of Criminal Appeals reversed the judgment and remanded the case. Simmons v. State, [Ms. CR-12-1393, November 8, 2013] ___ So. 3d ___ (Ala. Crim. App. 2013). The State petitioned this Court for certiorari review of the decision of the Court of Criminal Appeals. We reverse and remand. Facts and Procedural History The mother of the victim filed a complaint, stating that Simmons, a teacher, had had sexual contact with her daughter, who at the time the sexual contact occurred was under 19 years old. Simmons was convicted in the district court for having sexual contact with a student less than 19 years old, a violation of § 13A-6-82, Ala. Code 1975. Simmons filed a timely notice of appeal to the circuit court for a trial de novo. It is undisputed that the mother's complaint was not included in the file forwarded to the circuit court by the district court clerk. An information, however, was filed in 2 1130541 the circuit court by the district attorney after Simmons had filed his notice of appeal for a trial de novo. Before the trial in the circuit court commenced, Simmons moved to dismiss the case against him because, he said, the original charging instrument from the district court, the mother's complaint, was not being used to prosecute his case, and he objected to being prosecuted on the information filed by the district attorney subsequent to his conviction in the district court. The circuit court denied his motion, and the trial proceeded. Simmons was convicted in the circuit court and appealed to the Court of Criminal Appeals. The Court of Criminal Appeals held that, "[i]n the absence of a proper charging instrument, the circuit court could not exercise jurisdiction over Simmons's appeal," ___ So. 3d at ___, and that the circuit court's judgment was void and due to be set aside, and it reversed the judgment and remanded the case. Standard of Review "'"'This Court reviews pure questions of law in criminal cases de novo.'"' Ex parte Brown, 11 So. 3d 933, 935 (Ala. 2008) (quoting Ex parte Morrow, 915 So. 2d 539, 541 (Ala. 2004), quoting in turn Ex parte Key, 890 So. 2d 1056, 1059 3 1130541 (Ala. 2003))." Hiler v. State, 44 So. 3d 543, 546 (Ala. 2009). Discussion The State contends that the decision of the Court of Criminal Appeals that the circuit court could not exercise jurisdiction over Simmons's appeal for a trial de novo because the original charging instrument was not used to prosecute the case conflicts with Ex parte Seymour, 946 So. 2d 536 (Ala. 2006), and Stegall v. State, 628 So. 2d 1006 (Ala. Crim. App. 1993). In Ex parte Seymour, this Court established that a court's subject-matter jurisdiction is determined by "whether the trial court [has] the constitutional and statutory authority to try the offense" with which a defendant has been charged. 946 So. 2d at 538. Section 12-11-30(3), Ala. Code 1975, provides: "The circuit court shall have appellate jurisdiction of ... criminal ... cases in district court .... Appeals to the circuit court shall be tried de novo, with or without a jury, as provided by law." In this case, Simmons was convicted in the district court of a Class A misdemeanor. He appealed his conviction to the circuit court for a trial de novo. In accordance with § 12- 4 1130541 11-30(3), Ala. Code 1975, and Ex parte Seymour, the circuit court had subject-matter jurisdiction over Simmons's case. The decision of the Court of Criminal Appeals acknowledges Ex parte Seymour and does not appear to dispute the fact that the circuit court had subject-matter jurisdiction over Simmons's case; rather that court asserts that "the filing of the proper charging instrument was required for the jurisdiction belonging to the circuit court to attach." ___ So. 3d at ___ (emphasis added). In other words, according to the Court of Criminal Appeals, the circuit court's jurisdiction in this particular case was not invoked because the original charging instrument used in the district court was not used in the circuit court to prosecute the case. In support of its assertion, the Court of Criminal Appeals cites State v. Thomas, 550 So. 2d 1067, 1072 (Ala. 1989). State v. Thomas, however, does not support the Court of Criminal Appeals' decision that jurisdiction in the circuit court did not "attach" in Simmons's case. In State v. Thomas, this Court considered whether the juvenile court had jurisdiction over the mother of a child when no judicial proceeding had been initiated against the child. In that 5 1130541 case, the child had been arrested and released into the mother's custody without being charged for any offense. When the mother refused to bring the child in for further questioning by law-enforcement officers, the law-enforcement officers moved the juvenile court for a pickup order for the child. The juvenile court issued the order. When the officers executed the order, the mother informed them that she did not know the child's whereabouts. After being advised of the mother's statement, the juvenile court issued a pickup order for the mother, conducted a hearing, and ordered the mother to produce the child. When the mother did not appear with the child as ordered, the juvenile court placed the mother in jail for contempt of court for failing to comply with the court's order to produce the child. This Court recognized that the statutory authority applicable at that time to establish the juvenile court's jurisdiction required the filing of a petition with the intake officer alleging that the child is delinquent, dependent, or in need of supervision, and the juvenile court had to determine, after conducting a preliminary inquiry, that the child was within its jurisdiction. See former §§ 12-15-30 through -36, Ala. Code 6 1130541 1975 (now repealed). Because the statutory requirements to establish the juvenile court's jurisdiction had not been satisfied, this Court held in State v. Thomas that the juvenile court did not have jurisdiction over the child and, consequently, did not have jurisdiction over the mother. The facts and circumstances in this case are clearly distinguishable from those in State v. Thomas. In State v. Thomas, no action had been initiated in the juvenile court with regard to the child for the juvenile court's jurisdiction to attach; therefore, the juvenile court could not exercise its jurisdiction over the child's mother. Here, an action had been initiated in the circuit court. After Simmons was convicted in the district court, Simmons filed a notice of appeal for a trial de novo in the circuit court. As previously established, the circuit court has jurisdiction over appeals from the district court. Thus, unlike State v. Thomas, where no action was taken to commence a judicial proceeding for the juvenile court's jurisdiction to attach, Simmons's action of filing a notice of appeal of his district court conviction in the circuit court for a trial de novo satisfied the statutory requirements for the circuit court's 7 1130541 jurisdiction and the circuit court's jurisdiction "attached" to his case. Moreover, the decision of the Court of Criminal Appeals that the circuit court could not exercise jurisdiction over Simmons's appeal because of the absence of the original charging instrument conflicts with Stegall v. State, 628 So. 2d 1006 (Ala. Crim. App. 1993). In Stegall, the Court of Criminal Appeals held that "[t]he filing of a solicitor's complaint [from the district court] is not a jurisdictional prerequisite to an appeal to the circuit court for a trial de novo." 628 So. 2d at 1008. Furthermore, in Ex parte Young, 611 So. 2d 414, 415 (Ala. 1992), this Court stated: "[A] prosecuting attorney's complaint is not the mechanism that confers upon the circuit court jurisdiction to proceed with a de novo appeal. The complaint is a statutory right of the accused that can be waived. Young [v. City of Hokes Bluff], 611 So. 2d [401,] 405 [(Ala. Crim. App. 1992)], Bowen, J., concurring and citing Moss v. State, 42 Ala. 546 (1868). Certainly, if the right to a complaint can be waived, then it is not the mechanism that confers subject matter jurisdiction on the circuit court in a de novo appeal." (Footnote omitted.) 8 1130541 Accordingly, if the filing in the circuit court of the original charging instrument by which the action was commenced in the district court is not a jurisdictional prerequisite to an appeal to the circuit court for a trial de novo, the filing in the circuit court of the original charging instrument from the district court cannot be a requirement for "jurisdiction to attach" or to be exercised. Therefore, the decision of the Court of Criminal Appeals that the circuit court's jurisdiction did not attach in this case conflicts with Stegall. When Simmons filed his notice of appeal for a trial de novo in the circuit court, the circuit court's jurisdiction over his appeal for a trial de novo "attached," and the fact that the case was not prosecuted using the original charging instrument from the district court did not affect the circuit court's jurisdiction. Conclusion Based on the foregoing, the Court of Criminal Appeals erred in holding that the circuit court could not exercise its jurisdiction or that the circuit court's jurisdiction did not attach because the charging instrument from the district court was not used to prosecute Simmons's case in the circuit court. 9 1130541 The judgment of the Court of Criminal Appeals is reversed, and this case is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. Bolin, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Stuart, J., concurs specially. Moore, C.J., and Parker, J., dissent. 10 1130541 STUART, Justice (concurring specially). As the main opinion recognizes, our caselaw provides that the complaint does not confer jurisdiction upon the circuit court to proceed with a de novo appeal from a district court conviction, and a defendant can waive the right to a complaint in a de novo appeal. ___ So. 3d at ___; Ex parte Young, 611 So. 2d 414, 415 (Ala. 1992). Therefore, the absence of the district court's original charging instrument in the circuit court's file of a de novo appeal cannot impact the circuit court's jurisdiction over the appeal. Applying the law to the facts of this case, the majority properly concludes that, "[w]hen Simmons filed his notice of appeal for a trial de novo in the circuit court, the circuit court's jurisdiction over his appeal for a trial de novo 'attached,' and the fact that the case was not prosecuted using the original charging instrument from the district court did not affect the circuit court's jurisdiction." ___ So. 3d at ___. It is also important to recognize that the main opinion does not address whether Simmons properly exercised his constitutional and statutory right and demanded a copy of the original charging instrument and whether the circuit court improperly denied his request or whether Simmons waived this 11 1130541 right. This nonjurisdictional issue was not before this Court and, if properly preserved and presented, remains for the Court of Criminal Appeals to resolve. 12 1130541 MOORE, Chief Justice (dissenting). I respectfully dissent. I believe the Court of Criminal Appeals properly held that in the absence of the original charging instrument, as required by Rule 2.2(d), Ala. R. Crim. P., and by Art. I, § 6, Ala. Const. 1901, the circuit court could not exercise its jurisdiction over Charles Marquis Simmons's appeal from the district court to the circuit court for a trial de novo. I. Discussion The controlling issue is whether the circuit court could exercise jurisdiction over Simmons's appeal for a trial de novo in the absence of the original charging instrument, as required by Rule 2.2(d), Ala. R. Crim. P. The Court of Criminal Appeals correctly concluded that the circuit court could not exercise jurisdiction over Simmons's appeal. By reversing the judgment of the Court of Criminal Appeals, the majority opinion has in effect decided that a defendant may be prosecuted in Alabama without an accusation as required by law. The majority opinion completely neglects the requirements of the Alabama Rules of Criminal Procedure and the constitutional guarantees in Art. I, §§ 6 and 8, Ala. Const. 1901. 13 1130541 A. The Alabama Rules of Criminal Procedure Rule 2.1, Ala. R. Crim. P., states that "[a]ll criminal proceedings shall be commenced either by indictment or by complaint." A complaint "serves the ... purpose of being the accusatory instrument in most misdemeanor cases." Committee Comments to Rule 2.3, Ala. R. Crim. P. The Committee Comments to Rule 2.1 explain that, "[u]nder the Alabama Constitution of 1901, criminal actions may not be 'commenced' by an information, but under the very limited procedure provided in Rule 2.2(e), infra, once an action is commenced by complaint, the defendant may be proceeded against by information." Committee Comments to Rule 2.1, Ala. R. Crim. P. (emphasis added). Rule 2.2(e), Ala. R. Crim. P., states: "At arraignment on an information following receipt of a defendant's written notice of his or her desire to plead guilty as charged or as a youthful offender upon the granting of youthful-offender status, the court shall proceed as provided in Rule 14.4[, Ala. R. Crim. P., acceptance of guilty plea]. If the court does not accept the defendant's guilty plea or denies the defendant's application for youthful-offender status, the court shall proceed as provided by law." Because Simmons did not give notice of a desire to plead guilty as charged, Rule 2.2(e) does not apply. Accordingly, Simmons cannot be prosecuted on an information. 14 1130541 Rule 30.5(a), Ala. R. Crim. P., states that, "[w]hen appeal is taken to the circuit court for a trial de novo, the trial shall be prosecuted as provided in Rule 2.2(d)," which provides that an appeal from the district court to the circuit court for trial de novo "shall be prosecuted in the circuit court on the original charging instrument." The word "shall" in both rules is mandatory. The majority opinion completely 1 ignores the mandatory requirements of Rules 2.2(d) and 30.5(a), which serve to protect the constitutional rights of every Alabamian. B. Alabama's Declaration of Rights "The use of an information is severely restricted in Alabama." Committee Comments to Rule 13.1, Ala. R. Crim. P. This originates in Art. I, §§ 6 and 8, Ala. Const. 1901. Section 8 provides: "No person shall for any indictable offense be proceeded against criminally by information ... otherwise than is provided in the Constitution. In cases of misdemeanor, the Legislature may by law dispense with a grand jury and authorize "'[T]he term "shall" is a word of command, and one which 1 has always or which must be given a compulsory meaning; as denoting obligation.'" Ex parte Prudential Ins. Co. of Am., 721 So. 2d 1135, 1138 (Ala. 1998) (quoting Black's Law Dictionary 1375 (6th ed. 1990)). 15 1130541 prosecutions and proceedings before any inferior courts as may be by law established." (Emphasis added.) "The effect of [§ 8] and §§ 15-15-20 through -26, [Ala. Code 1975,] is to limit the use of an information in Alabama to the situation where a defendant, before indictment, pleads guilty to a noncapital felony offense." Committee Comments to Rule 13.1, Ala. R. Crim. P. Simmons was not accused of a felony, and he cannot be prosecuted by information in Alabama. Rule 2.2(d) helps to protect the constitutional rights of the accused "in all criminal prosecutions" and gives Simmons "a right to ... demand the nature and cause of the accusation; and to have a copy thereof." Art. I, § 6, Ala. Const. 1901 (emphasis added). The Alabama Rules of Criminal Procedure must be construed so as "to secure ... fairness in administration ... and to protect the rights of the individual while preserving the public welfare." Rule 1.2, Ala. R. Crim. P. Rule 1.2 "carries with it the constitutional guarantee found in Article I, § 6, Alabama Constitution of 1901, that no person shall 'be deprived of life, liberty, or property, except by due process of law.'" Committee Comments to Rule 1.2, Ala. R. Crim. P. The Court of Criminal Appeals correctly 16 1130541 observed in this case that "an information is not a substitute for a complaint or indictment." ___ So. 3d at ___. The district attorney's information is not "a copy" of the original complaint against Simmons and does not satisfy the due-process guarantees in Art. I, § 6, Ala. Const. 1901. In Ex parte Seymour, 946 So. 2d 536 (Ala. 2006), this Court correctly defined jurisdiction as "'[a] court's power to decide a case or issue a decree,'" and as "a court's power to decide certain types of cases," which "power is derived from the Alabama Constitution and the Alabama Code." 946 So. 2d at 538 (quoting Black's Law Dictionary 867 (8th ed. 2004) (emphasis added)). A court's constitutional power must be exercised in conformity with the Constitution. Section 36 of Art. I, Declaration of Rights, provides that "to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate." Art. I, § 36, Ala. Const. 1901. "'Section 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it.'" 1568 Montgomery Highway, Inc. v. City of Hoover, 45 So. 3d 17 1130541 319, 342 (Ala. 2010) (quoting Ex parte Cranman, 792 So. 2d 392, 401 (Ala. 2000) (emphasis added)). Section 36 forbids the courts of Alabama from exercising judicial powers, i.e., jurisdiction, so as to violate or encroach upon the fundamental rights retained by the people of Alabama in the Declaration of Rights. Under the majority opinion's view of Seymour, the circuit court's jurisdiction overrides the Alabama Rules of Criminal Procedure and §§ 6 and 8 of the Declaration of Rights. The majority opinion, in trying to uphold the circuit court's jurisdiction in this case, denies Simmons his constitutional and statutory right to demand a copy of the accusation and so deprives Simmons of his liberty without due process of law. C. Problems with the Majority Opinion 1. Ex parte Seymour Is Inapposite The majority quotes Seymour for the proposition that, in deciding whether a claim properly challenges the trial court's subject-matter jurisdiction, we ask only "'whether the trial court [has] the constitutional and statutory authority to try the offense' with which a defendant has been charged" and states that, "[i]n accordance with § 12-11-30(3), Ala. Code 1975, and Ex parte Seymour, the circuit court had subject- 18 1130541 matter jurisdiction over Simmons's case." ___ So. 3d at ___ (quoting Seymour, 946 So. 2d at 538). The majority's holding does not rely on Seymour's principles of subject-matter jurisdiction but on the majority's conclusion that the circuit court's jurisdiction attached "[w]hen Simmons filed his notice of appeal for a trial de novo in the circuit court." ___ So. 3d at ___. The fact that Simmons perfected his appeal is irrelevant. This case is about whether the circuit court could exercise its acknowledged jurisdiction in the absence of the original charging instrument. Seymour offers no guidance on this issue. The Court of Criminal Appeals correctly recognized that its decision did not conflict with Seymour, which is distinguishable on its facts and procedural history. ___ So. 3d at ___. In Seymour, this Court held that "a circuit court 2 has subject-matter jurisdiction over a felony prosecution, even if that prosecution is based on a defective indictment." Seymour, 946 So. 2d at 539. Seymour, however, did not hold Judge Welch of the Court of Criminal Appeals has 2 recognized that Seymour has been applied too broadly. See generally Patton v. State, 964 So. 2d 1247, 1251-54 (Ala. Crim. App. 2007) (Welch, J., concurring in the result); and Turner v. State, 51 So. 3d 394, 394-401 (Ala. Crim. App. 2010) (unpublished memorandum) (Welch, J., dissenting). 19 1130541 that a trial court could pronounce judgment against a defendant in the absence of the original charging instrument that is mandatory under Rule 2.2(d), Ala. R. Crim. P., and Art. I, § 6, Ala. Const. 1901. Also, this Court held that Seymour's claim was procedurally barred pursuant to Rule 32.2, Ala. R. Crim. P., because Seymour did not raise his claim at trial or on appeal. 946 So. 2d at 539. In contrast, Simmons argued both at trial and on appeal that he could not be convicted because the original charging instrument was not filed in the circuit court. Seymour is inapposite to this case and offers no support for the holding in the majority opinion. 2. Thomas Does Not Support the Majority Opinion The majority opinion recognizes that the facts and procedural posture of State v. Thomas, 550 So. 2d 1067 (Ala. 1989), cited by the Court of Criminal Appeals to support its holding, differ from the facts and procedural posture of this case. The rationale of Thomas actually supports the Court of Criminal Appeals' decision, and the procedural differences between Thomas and this case are not dispositive. In Thomas, this Court stated that, "even if a court has jurisdiction of the person and of the crime, an accusation made in the manner prescribed by law is a prerequisite to the court's power to 20 1130541 exercise its jurisdiction." 550 So. 2d at 1070 (citing City of Dothan v. Holloway, 501 So. 2d 1136, 1146 (Ala. 1986) (Beatty, J., dissenting) (emphasis added)). In City of Dothan, Justice Beatty explained that "'[a] person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court.'" City of Dothan, 501 So. 2d at 1146 (Beatty, J., dissenting) (quoting Albrecht v. United States, 273 U.S. 1, 8 (1927)). Here, the circuit court had personal jurisdiction over Simmons because Simmons voluntarily filed a notice of appeal, but it pronounced judgment upon Simmons without "an accusation made in the manner prescribed by law" and as required by the rationale in Thomas. 3. Stegall and Young Do Not Support the Majority Opinion The majority maintains that the Court of Criminal Appeals' decision conflicts with Stegall v. State, 628 So. 2d 1006, 1008 (Ala. Crim. App. 1993), in which the Court of Criminal Appeals stated that "[t]he filing of a solicitor's complaint is not a jurisdictional prerequisite to an appeal to the circuit court for a trial de novo." The majority opinion also cites Ex parte Young, 611 So. 2d 414 (Ala. 1992), in which this Court stated: 21 1130541 "[A] prosecuting attorney's complaint is not the mechanism that confers upon the circuit court jurisdiction to proceed with a de novo appeal. The complaint is a statutory right of the accused that can be waived. ... Certainly, if the right to a complaint can be waived, then it is not the mechanism that confers subject matter jurisdiction on the circuit court in a de novo appeal." 611 So. 2d at 415 (paraphrasing Young v. City of Hokes Bluff, 611 So. 2d 401, 405 (Ala. Crim. App. 1992) (Bowen, J., concurring in the result and citing Moss v. State, 42 Ala. 546 (1868)) (emphasis added)). Stegall and Young cited a line of cases that originated in Moss v. State, supra, which stand for the proposition that "'"[t]he 'complaint,' or written accusation, required by the section last above noticed, is not found in the record. There is no waiver of it. It was a right of the accused, in the circuit court, to have such a writing, and a proceeding without it, or a waiver of it, is erroneous."'" Stegall, 628 So. 2d at 1007 (quoting Young, 611 So. 2d at 406 (Bowen, J., concurring in the result), quoting in turn Moss, 42 Ala. at 547, and summarizing Moss line of cases). Stegall and Young recognize that the accused has a right to the complaint. Simmons never waived the right to be prosecuted on the original complaint in the circuit court proceeding. Moreover, Stegall and Young did not involve a prosecutor's substituting an information for the original complaint, as 22 1130541 occurred here. Stegall and Young support the Court of Criminal Appeals' decision, not the majority opinion. II. Conclusion I believe the holding reached in the majority opinion is unwarranted under Alabama's Constitution, statutory law, and precedent. The majority opinion violates Simmons's statutory right to be prosecuted with the original charging instrument and his constitutional right to obtain a copy of the accusation against him. I respectfully dissent from the majority's decision to reverse the judgment of the Court of Criminal Appeals. 23	June 20, 2014
20e0fcc8-be56-4a18-bf64-2c47401d479e	Ex parte Stericycle, Inc. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Stericycle, Inc. v. Sonja Patterson)(Jefferson Circuit Court: CV-11-901265; Civil Appeals : 2111032). Writ Denied. No Opinion.	N/A	1131005	Alabama	Alabama Supreme Court	REL: 08/29/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1131005 _________________________ Ex parte Stericycle, Inc. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Stericycle, Inc. v. Sonja Patterson) (Jefferson Circuit Court, CV-11-901265; Court of Civil Appeals, 2111032) WISE, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., and Parker and Murdock, JJ., dissent. 1131005 MOORE, Chief Justice (dissenting). Sonja Patterson was a truck driver for Stericycle, Inc. On January 19, 2011, Patterson was loading three 50-pound containers onto her truck when she felt a painful "pop" in her lower back. Patterson saw several doctors, none of whom were able to explain her degree of pain or her lack of mobility following the incident. Stericycle paid the bills for her doctor visits but refused to pay Patterson temporary-disability benefits. On April 12, 2011, Patterson filed a complaint seeking benefits for a permanent-total disability. The parties stipulated that the injury "arose out of and in the course of her employment." They further stipulated that "the only issue to be decided by the court ... is the nature and extent of permanent disability benefits, if any, owed to [Patterson]." After a bench trial, the trial court declared that Patterson was entitled to a 57% permanent-partial-disability award. Although the trial court noted the parties' stipulation that the accident "arose out of and in the course of" Patterson's employment, it nonetheless proceeded to make factual findings on the issue of the medical causation for her injury. 2 1131005 Stericycle appealed to the Court of Civil Appeals, which affirmed the trial court's judgment in a plurality opinion authored by Judge Pittman. The plurality held that Patterson 1 did not need to prove medical causation because Stericycle had stipulated that the injury "arose out of and in the course of [Patterson's] employment," which dispensed with the necessity of proving medical causation. The plurality also held that the portion of the trial court's judgment discussing medical causation, therefore, "constituted, at most, a superfluous observation." Stericycle, Inc. v. Patterson, [Ms. 2111032, July 12, 2013] ___ So. 3d ___, ___ (Ala. Civ. App. 2013). Judge Moore dissented, arguing (1) that the provisions of the trial court's judgment, when read in pari materia, indicate that the trial court did not interpret the parties' stipulation to cover the issue of medical causation, and (2) that Patterson failed to carry her burden of proving causation. Stericycle now petitions this Court for a writ of certiorari. The plurality opinion was joined by Judge Thomas; 1 Presiding Judge Thompson and Judge Donaldson concurred in the result without writings. Judge Moore dissented. 3 1131005 In its petition, Stericycle contends that the opinion of the Court of Civil Appeals conflicts with Moore v. Graham, 590 So. 2d 293 (Ala. Civ. App. 1991). In Moore, the Court of Civil Appeals held: "Judgments are to be construed like other written instruments. The rules applicable to the construction and interpretation of judgments are those applicable to the construction and interpretation of contracts. Hanson v. Hearn, 521 So. 2d 953 (Ala. 1988). Separate provisions of judgments, like provisions of contracts, should be construed in pari materia, and the entire judgment-- all provisions considered--should be read as a whole in the light of all the circumstances, as well as of the conduct of the parties. Id." Moore, 590 So. 2d at 295. Stericycle argues, as Judge Moore did in his dissent, that the plurality failed to read the provisions of the trial court's judgment in pari materia, and, according to Stericycle, doing so would prove that the parties did not intend for the stipulation to cover the issue of medical causation. This case, in my opinion, is a good candidate for certiorari review. As Judge Moore observed, the trial court made significant findings on causation, and its having done so raises a reasonable question as to the correctness of the Court of Civil Appeals' determination that the stipulation 4 1131005 established causation per se. The medical examinations indicated no impairment and a lack of a medical cause for Patterson's symptoms. Therefore, I would grant Stericycle's petition for a writ of certiorari to resolve the conflicting analyses in the plurality opinion of the Court of Civil Appeals and Judge Moore's dissent. 5	August 29, 2014
c45eff80-1685-4d58-9039-2cffb1a24266	Ex parte Mary Jacque Bell. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Mary Bell v. State of Alabama)(Baldwin Circuit Court: CC-12-704; Criminal Appeals : CR-12-1969). Writ Denied. No Opinion.	N/A	1130946	Alabama	Alabama Supreme Court	Rel: 09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130946 ____________________ Ex parte Mary Jacque Bell PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Mary Bell v. State of Alabama) (Baldwin Circuit Court, CC-12-704; Court of Criminal Appeals, CR-12-1969) MAIN, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 1130946 MOORE, Chief Justice (dissenting). I respectfully dissent from the Court’s decision to deny Mary Jacque Bell’s petition for a writ of certiorari directed to the Court of Criminal Appeals. I would grant her petition to determine whether the trial court erred by refusing to instruct the jury on an alternative offense to the charged offense of first-degree robbery. The evidence reveals the following facts. Nolan Boyington and Wade Cooper tried to take money from Ryan Stokes outside Bell's residence. During the encounter, Cooper pointed a gun at Stokes. Bell, who was away from the premises at the time, was charged with complicity in first-degree robbery, an offense that encompasses certain conduct occurring "in the course of committing a theft." 13A-8-41(a), Ala. Code 1975, referring to 13A-8-43(a), Ala. Code 1975. Witnesses disputed whether Bell was aware of the presence of the gun. Over the State's objection, the trial court denied the State's request for an instruction on second-degree robbery as a lesser offense included in the offense of first-degree robbery. Bell was convicted of complicity in first-degree robbery and was sentenced to 20 years in prison. The Court of Criminal 2 1130946 Appeals affirmed her conviction, holding that Bell failed to preserve for appeal the trial court's refusal to instruct the jury on second-degree robbery as a lesser-included offense to first-degree robbery. I disagree. Rule 21.3, Ala. R. Crim. P., requires a party to object to the court's failure to give an instruction in order to preserve that issue for appeal and applies to "the party requesting the charge," Bullock v. State, 697 So. 2d 66, 67 (Ala. Crim. App. 1997). Rule 21.3 exists "to ensure that requested charges are timely presented ... and supported by sufficient evidence." Ex parte Hatfield, 37 So. 3d 733, 738 (Ala. 2009). The State, not Bell, requested the instruction on second- degree robbery and objected to the trial court's refusal to give the instruction. In so doing, the State put the trial court on notice that an instruction on the lesser-included offense was appropriate. Additional objection by Bell to the judge's denial of the State's requested instruction would have been futile, and "'[t]he law does not require the doing of a futile act.'" Craft v. State, 90 So. 3d 197, 204 (Ala. Crim. App. 2011)(quoting Ohio v. Roberts, 448 U.S. 56, 74 (1980)). 3 1130946 See also Ex parte LaPointe, 926 So. 2d 1055, 1060 (Ala. 2005)(holding that the preservation requirement does not require "procedural circuity"). The purpose of Rule 21.3 was achieved without an objection from Bell to the trial court's refusal to charge on the lesser-included offense. Bell was entitled to an instruction on second-degree robbery because two participants "actively present" committed the offense of robbery, see § 13A-8-42(a), Ala. Code 1975, and the testimony as to whether Bell knew that a gun would be used in the robbery was disputed. In order for a defendant charged with first-degree robbery to be entitled to an instruction on second-degree robbery, "there must be evidence that the robbery was committed by two or more persons and that [the defendant] did not have ... knowledge that an accomplice was going to [commit the armed robbery]." Ex parte Hannah, 527 So. 2d 675, 677 (Ala. 1988)(holding that the petitioner was not entitled to an instruction on second-degree robbery because he knew that his codefendant had a gun). See also Harris v. State, 398 So. 2d 777, 779 (Ala. Crim. App. 1981)(holding that the appellant was not entitled to an instruction on second- degree robbery because he knew that his accomplice was armed 4 1130946 with a club). The disputed testimony about Bell's knowledge of the presence of a gun during the robbery entitled her to a second-degree-robbery instruction. Finally, although Bell did not so argue, I believe that the trial court would have been correct in instructing the jury on attempted robbery in the first or second degree as a lesser-included offense. An incomplete theft by force could potentially satisfy the elements of either an attempted robbery, see 13A-4-2(a), Ala. Code 1975, or a completed robbery, see Ex parte Verzone, 868 So. 2d 399, 402 (Ala. 2003)(holding that the Code "does not require that a theft be accomplished for the elements of robbery to be established").1 However, neither the robbery statutes (§§ 13A-8-40 through -44, Ala. Code 1975) nor the attempt statute (§ 13A-4-2, Ala. Code 1975) contains language expressly abrogating the offense of attempted robbery, which is one class lower than completed robbery, see § 13A-4-2(d), Ala. Code 1975. This Court has concluded that "our robbery statutes now 1 define robbery as including what formerly would have been an attempt to commit robbery." Ex parte Curry, 471 So. 2d 476, 478 (Ala. 1984)(emphasis added). However, the attempt statute expressly provides, without exception, that attempted offenses are one class lower than their completed counterparts. § 13A- 4-2(d), Ala. Code 1975. I believe that this Court should revisit its conclusion in Curry. 5 1130946 "[W]e must consider the statute as a whole and must construe the statute reasonably so as to harmonize the provisions of the statute." McRae v. Security Pac. Hous. Servs., Inc., 628 So. 2d 429, 432 (Ala. 1993). The attempt statute does not conflict with the robbery statutes because both attempted robbery and robbery can coexist as separate offenses. Therefore, I believe that the trial court could have instructed the jury on attempted robbery in the first or second degree.2 For the foregoing reasons, I respectfully dissent. Bell could be convicted of attempted robbery even if the 2 State failed to indict her for attempted robbery. See 13A-1- 9(a)(2), Ala. Code 1975. 6	September 26, 2014
b7cbafe7-228d-435e-bcd2-87ae2c934f29	Alabama et al. v. Boys And Girls Clubs of South Alabama, Inc.	N/A	1130051	Alabama	Alabama Supreme Court	REL: 07/03/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130051 ____________________ Ex parte The Boys and Girls Clubs of South Alabama, Inc. PETITION FOR WRIT OF MANDAMUS (In re: State of Alabama et al. v. The Boys and Girls Clubs of South Alabama, Inc., and The Community Foundation of South Alabama) (Baldwin Circuit Court, CV-13-900812) MURDOCK, Justice. The Boys and Girls Clubs of South Alabama, Inc. ("BGCSA"), seeks a writ of mandamus ordering the Baldwin 1130051 Circuit Court to dismiss a declaratory-judgment action filed against it and The Community Foundation of South Alabama by the attorney general of Alabama, Fairhope-Point Clear Rotary Youth Programs, Inc. ("Rotary Inc."), and Ruff Wilson Youth Organizations, Inc. ("Wilson Inc.") (hereinafter the latter two parties are referred to collectively as "the Eastern Shore Clubs"). We grant the petition. I. Facts and Procedural History This is the third action that has come before this Court arising out of a dispute between BGCSA and the Eastern Shore Clubs concerning certain funds. Many of the pertinent underlying facts were provided in our opinion in the first action, The Boys & Girls Clubs of South Alabama, Inc. v. Fairhope-Point Clear Rotary Youth Programs, Inc., 114 So. 3d 817 (Ala. 2012). In that case we explained that BGCSA "operates several facilities in Mobile County to promote, as stated in its certificate of incorporation, 'the health, social, educational, vocational, and character development' of youth in Baldwin and Mobile Counties. In 1996, it was also operating facilities in Baldwin County. In particular, it operated a facility in Fairhope sometimes referred to as the 'Fairhope Boys and Girls Club' ('the Fairhope Club'). It operated another such facility in Daphne sometimes referred to as the 'Daphne Boys and Girls Club' ('the Daphne Club')." 2 1130051 114 So. 3d at 818. On November 13, 1996, B.R. Wilson, Jr., one of the incorporators and a principal benefactor of BGCSA, executed a deed transferring to BGCSA approximately 17 acres of real estate ("the property"). Contemporaneously with the execution of the deed, Wilson gave a letter to BGCSA that stated Wilson's intentions and stipulations concerning his gift of the property. The letter stated that BGCSA was "'free to ultimately dispose of this property,'" but that it was Wilson's "'desire and understanding that [BGCSA] will use the proceeds from any such disposition for [BGCSA's] facilities and/or activities in the Fairhope–Point Clear area.'" 114 So. 3d at 818. Wilson died in 1997. "In March 2000, [BGCSA] sold the property and deposited the proceeds into three separate accounts, two of which were separately earmarked for the Daphne Club and for the Fairhope Club. However, on May 31, 2009, the Club discontinued its operations in Daphne and Fairhope, citing 'operating deficits' as a contributing factor. It transferred the remainder of the proceeds from the sale of the property to an account in the Community Foundation of South Alabama ('the bank'). "On June 1, 2009, the facilities in Daphne and Fairhope were reopened by volunteers and former [BGCSA] personnel, who began operating the youth centers under their own independent management structures. Subsequently, some of these individuals 3 1130051 incorporated Rotary Inc. and Wilson Inc., under which they continued to operate the facilities in Fairhope and Daphne, respectively." Id. at 818-19. On April 22, 2010, the Eastern Shore Clubs filed an action in the Baldwin Circuit Court seeking declaratory and injunctive relief against BGCSA. The Eastern Shore Clubs alleged that BGCSA "ha[d] used," or, perhaps, was "anticipat[ing] using," the proceeds from the sale of the property ("the Wilson funds") for its own operations, rather than for the benefit of the Eastern Shore Clubs. A bench trial ensued. On March 15, 2012, the Baldwin Circuit Court entered a judgment in which it concluded that Wilson's intent was that the Wilson funds should be used for the "exclusive benefit of the Fairhope and Daphne Clubs." The Baldwin Circuit Court ordered the disbursal of the remainder of the Wilson funds, namely $1,104,081.78, as follows: $893,377.02 to Rotary Inc. and $210,704.76 to Wilson Inc. BGCSA appealed the Baldwin Circuit Court's judgment to this Court. In Boys & Girls Clubs of South Alabama, this Court vacated the Baldwin Circuit Court's judgment and dismissed the case and the appeal. This Court reasoned that 4 1130051 the Eastern Shore Clubs' suit was an action under the Alabama Nonprofit Corporation Law, Ala. Code 1975, §§ 10A-3-1 through 10A-3-8.02, because they contended that BGCSA lacked the power to spend the Wilson funds in any way other than for the benefit of the Eastern Shore Clubs. In effect, the Eastern Shore Clubs sought a declaration that BGCSA had committed or would commit an ultra vires act by spending the Wilson funds in any manner that did not benefit the Eastern Shore Clubs. Actions alleging ultra vires acts against a nonprofit corporation are governed by § 10A–3–2.44, Ala. Code 1975, which, in relevant part, provides: "No act of a nonprofit corporation and no conveyance or transfer of real or personal property to or by a nonprofit corporation shall be invalid by reason of the fact that the corporation was without capacity or power to do an act or to make or receive a conveyance or transfer, but lack of capacity or power may be asserted: "(1) In a proceeding by a member or a director against the nonprofit corporation to enjoin the doing or continuation of unauthorized acts, or the transfer of real or personal property by or to the nonprofit corporation. ... "(2) In a proceeding by the nonprofit corporation, whether acting directly or through a receiver, trustee, or other legal representative, or through members in a representative suit, against the officers 5 1130051 or directors of the nonprofit corporation for exceeding their authority. "(3) In a proceeding by the Attorney General, as provided in this chapter, to dissolve the nonprofit corporation, or in a proceeding by the Attorney General to enjoin the nonprofit corporation from performing unauthorized acts, or in any other proceeding by the Attorney General." Based on the requirements of § 10A–3–2.44, a plurality of this Court reasoned in Boys & Girls Clubs of South Alabama: "It is undisputed that [BGCSA] is a nonprofit corporation within the purview of the [Alabama Nonprofit Corporation Law], and [the Eastern Shore Clubs] do not claim, or purport, to be members or directors of [BGCSA]. Thus, it is clear that Rotary Inc. and Wilson Inc. are not such persons as are authorized by § 10A-3-2.44 to commence an action against [BGCSA] relating to the transactions challenged in this case. In short, ... Rotary Inc. and Wilson Inc. have failed to demonstrate that they are proper parties to sue [BGCSA] over the disposition of the [Wilson funds]. Consequently, the complaint filed by Rotary Inc. and Wilson Inc. failed to invoke the subject-matter jurisdiction of the trial court." 114 So. 3d at 821 (footnote omitted). On May 16, 2013, BGCSA filed in the Mobile Circuit Court a declaratory-judgment action against the Eastern Shore Clubs seeking entitlement to the Wilson funds and the right to spend the funds as it sought fit ("the Mobile action"). On June 6, 6 1130051 2013, BGCSA provided notice of the action to the attorney general, who waived any further service or right to be heard. On June 13, 2013, the Eastern Shore Clubs filed a motion to dismiss the Mobile action contending that, under the principles stated in Boys & Girls Clubs of South Alabama, BGCSA lacked standing to bring the action. On August 26, 2013, the Mobile Circuit Court denied the Eastern Shore Clubs' motion. The Eastern Shore Clubs petitioned this Court for a writ of mandamus, which sought an order directing the Mobile Circuit Court to dismiss the Mobile action for the same reason they asserted in their motion to dismiss. On December 9, 2013, this Court denied the mandamus petition by order (no. 1121540). On June 13, 2013, the attorney general's office, on behalf of the Eastern Shore Clubs, filed a declaratory- 1 judgment action in the Baldwin Circuit Court against BGCSA and The attorney general does not claim that the State has 1 an interest in the Wilson funds. The respondents' brief states that the attorney general is involved to seek compliance by the Eastern Shore Clubs with the requirements of § 10A-3-2.44, Ala. Code 1975. 7 1130051 the Community Foundation of South Alabama seeking a 2 "determination of the ownership of the [Wilson] funds" ("the present action"). On July 17, 2013, BGCSA filed a motion to dismiss the action, contending that the action was "barred by Alabama's abatement statute, Alabama Code § 6-5-440." The Baldwin Circuit Court denied the motion on September 30, 2013. Subsequently, BGCSA filed a petition for a writ of mandamus asking this Court to direct the Baldwin Circuit Court to vacate its order denying BGCSA's motion to dismiss and to dismiss the present action. II. Standard of Review "'[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or an abuse of discretion.' Ex parte Palm Harbor Homes, Inc., 798 So. 2d 656, 660 (Ala. 2001). Mandamus is the appropriate remedy to correct a trial court's failure to properly apply § 6-5-440. See Ex parte Chapman Nursing Home, Inc., 903 So. 2d 813 (Ala. 2004); Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849, 852 (Ala. 1999)." Ex parte J.E. Estes Wood Co., 42 So. 3d 104, 108 (Ala. 2010). The parties agree that the Community Foundation of South 2 Alabama is simply the holder of the Wilson funds and that it claims no ownership right in those funds. It is not a party to this mandamus proceeding. 8 1130051 III. Analysis The contentions of the parties are straightforward. BGCSA contends that the present action is barred by § 6-5-440, Ala. Code 1975. Section 6-5-440 provides: "No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times." BGCSA notes that the Mobile action and the present action are both declaratory-judgment actions seeking to determine who is entitled to the Wilson funds and that the same principal parties -- BGCSA and the Eastern Shore Clubs -- are involved in both actions. BGCSA further observes that the Mobile action was filed on May 16, 2013, while the present action was filed on June 13, 2013. BGCSA argues that all the requirements of § 6-5-440 are fulfilled and that, therefore, the abatement statute requires the dismissal of the later filed present action. The attorney general and the Eastern Shore Clubs do not dispute that the two actions concern the same cause. Indeed, in their brief the attorney general and the Eastern Shore 9 1130051 Clubs state that "[t]he underlying controversy in the present Baldwin County case is the same as in the Mobile case ...." They assert, however, that "[t]he only significant difference between these two actions, which is the basis of the Mobile Litigation's impropriety, is that Attorney General Luther J. Strange, III, [is a plaintiff in] the Baldwin Litigation while the Attorney General is not a party to the pending Mobile Litigation." The attorney general and the Eastern Shore Clubs contend that their action is not barred because, they argue, the Mobile Circuit Court lacked subject-matter jurisdiction over the Mobile action in that BGCSA lacked "standing" to file the Mobile action under the principles enunciated in Boys & Girls Clubs of South Alabama. The attorney general and the Eastern Shore Clubs in essence argue that BGCSA brought an action against the Eastern Shore Clubs under § 10A-3-2.44 but that BGCSA does not fit into any of the three categories of parties who may bring such a claim: BGCSA is not a member or a director of the Eastern Shore Clubs as contemplated by § 10A- 3-2.44(1), BGCSA's suit is not suit against its own officers and directors as contemplated by § 10A-3-2.44(2), and the 10 1130051 attorney general did not file the Mobile action as contemplated by § 10A-3-2.44(3). Therefore, the attorney general and the Eastern Shore Clubs contend, BGCSA lacked "standing" to bring the Mobile action. They reason that because BGCSA lacked standing, the Mobile Circuit Court lacked subject-matter jurisdiction over that action. Based on this contention, the attorney general and the Eastern Shore Clubs take the position that the present action should be considered as the only action now pending on the matter of the disposition of the Wilson funds and that, accordingly, § 6-5- 440 is not implicated. We begin our analysis by reiterating that the opinion in Boys & Girls Clubs of South Alabama, upon which the Eastern Shore Clubs seek to rely, was a plurality opinion. As such, that opinion does not represent binding precedent. Furthermore, although that plurality opinion was premised on a purported lack of "standing" by the Eastern Shore Clubs, precedent from this Court makes it clear that a deficiency in the plaintiffs' claim of the nature at issue in that action was a failure to state a claim upon which relief could be granted, not a lack of standing. We have noted that "our 11 1130051 courts too often have fallen into the trap of treating as an issue of 'standing' that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy the injury element of a cause of action." Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So. 3d 1216, 1219 (Ala. 2010). In delineating the distinction between the concepts of standing and failure to state a claim, the Wyeth Court quoted the authors of Federal Practice and Procedure: "'Standing goes to the existence of sufficient adversariness to satisfy both Article III case-or-controversy requirements and prudential concerns. In determining standing, the nature of the injury asserted is relevant to determine the existence of the required personal stake and concrete adverseness. ... The focus of the cause-of-action inquiry must not be confused with standing —- it does not go to the quality or extent of the plaintiff's injury, but to the nature of the right asserted.'" 42 So. 3d at 1220 (quoting 13A Charles Alan Wright, Arthur K. Miller, and Edward H. Cooper, Federal Practice & Procedure § 3531.6 (2008)) (emphasis omitted; emphasis added). 12 1130051 Assuming the allegations in the complaint in Boys & Girls Clubs of South Alabama were true, there is no question that 3 the Eastern Shore Clubs therein alleged an injury, i.e., the deprivation of funds to which they claimed to be entitled, that gave rise to the adverseness necessary for standing. The issue before the Court was whether the Eastern Shore Clubs met the elements of the claim they had asserted under § 10A-3-2.44. The Court concluded that on the face of their complaint the Eastern Shore Clubs failed to meet the statutory requirements for an action under § 10A-3-2.44. In other words, the deficiency in their action was that the "legal theories asserted by the [Eastern Shore Clubs] are [not] recognized by Alabama law; they are not questions of the [Eastern Shore Clubs'] 'standing' to assert and attempt to prove those legal theories in our courts." Ex parte MERSCORP, "In analyzing whether [the plaintiff] has standing at the 3 dismissal stage, we must assume that [the plaintiff] states a valid legal claim ... and 'must accept the factual allegations in the complaint as true.'" Information Handling Servs., Inc. v. Defense Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003) (quoting Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 871 (D.C. Cir. 2002)). See also Wyeth, Inc., 42 So. 3d at 1220 (noting that "we assume th[e] legal theory [advanced by the plaintiff] to be viable for purposes of our standing inquiry"). 13 1130051 Inc., [Ms. 1111370, Sept. 20, 2013] ___ So. 3d ___, ___ (Ala. 2013). The fact that the deficiency in Boys & Girls Clubs of South Alabama was not one of standing but rather of a failure to satisfy the elements of § 10-3-2.44 undermines the argument of the attorney general and the Eastern Shore Clubs in the present case. They contend that BGCSA lacked standing in the Mobile action because, they say, BGCSA's action was brought under § 10A-3-2.44 and BGCSA was not a proper party to bring the action under the requirements of that statute. The attorney general and the Eastern Shore Clubs conclude that because BGCSA lacked standing, the Mobile Circuit Court lacked subject-matter jurisdiction over the Mobile action. As the above discussion concerning Boys & Girls Clubs of South Alabama indicates, however, the alleged deficiency in the Mobile action raised by the attorney general and the Eastern Shore Clubs involves an alleged failure to state a claim, not a failure of standing. A failure to state a claim does not implicate a court's subject-matter jurisdiction. Thus, the Mobile Circuit Court had jurisdiction to entertain BGCSA's action, and that action was pending at the time the attorney 14 1130051 general and the Eastern Shore Clubs filed the present action in the Baldwin Circuit Court. In short, the attorney general and the Eastern Shore Clubs are incorrect in contending that § 6-5-440 is inapplicable on the ground that the present action in the Baldwin Circuit Court should be considered as the only pending action that concerns the disposition of the Wilson funds.4 The argument of the attorney general and the Eastern Shore Clubs is also problematic because it incorrectly characterizes the nature of the Mobile action. As noted above, the attorney general and the Eastern Shore Clubs assume that § 10A-3-2.44 applies to the Mobile action, but that section concerns "act[s] of a nonprofit corporation" or "conveyance[s] or transfer[s] of real or personal property to or by a nonprofit corporation" that a challenger alleges "the corporation was without capacity or power to do." In the Even if questions existed as to the jurisdiction of the 4 Mobile Circuit Court over the Mobile action, those questions would be within the province of the Mobile Circuit Court, itself. An argument (that we need not further address in this case) exists that it is not for a court in one circuit to treat an action initiated in another circuit as if it were not pending and that, unless and until the court in which that action is filed dismisses it, the action remains pending for purposes of § 6-5-440. 15 1130051 Mobile action, BGCSA obviously does not contend that it lacks the power to spend the Wilson funds in any manner it deems appropriate. Likewise, BGCSA is not challenging in the Mobile action an act of the Eastern Shore Clubs as ultra vires (nor does it have to, because BGCSA has always controlled the Wilson funds). In short, the Mobile action, unlike the 2010 action filed by the Eastern Shore Clubs, does not challenge an alleged ultra vires act of a nonprofit corporation, and it therefore is not governed by § 10A-3-2.44.5 Instead, BGCSA seeks a judgment clarifying its right to the Wilson funds as a result of the doubt created by the March 15, 2012, judgment of the Baldwin Circuit Court that this Court vacated in Boys & Girls Clubs of South Alabama. The Mobile Circuit Court observed in its order denying the Eastern Shore Clubs' motion to dismiss the Mobile action that § 10A-1-2.11, Ala. Code 1975, expressly states that nonprofit corporations possess "the power to ... sue, be sued, complain, and defend suit in its entity name," and that such an entity In Boys & Girls Clubs of South Alabama, this Court stated 5 that "it is clear that [the Eastern Shore Clubs] are not such persons as are authorized by § 10A-3-2.44 to commence an action against [BGCSA] relating to the transactions challenged in this case." 114 So. 3d at 821 (emphasis added). 16 1130051 "has the same powers as an individual to take action necessary or convenient to carry out its business and affairs." The Mobile Circuit Court also noted that § 6-6-220, Ala. Code 1975, provides that a nonprofit corporation is a "person" within the meaning of the Declaratory Judgment Act. Thus, BGCSA is empowered to seek a declaratory judgment that will help it carry out its business and affairs, which is precisely what BGCSA has done by filing the Mobile action. Because the Mobile action is not governed by § 10A-3-2.44, the action did not need to be brought by a member or director of BGCSA or by the attorney general. For these reasons as well, the Mobile action was and is properly before the Mobile Circuit Court. In reaching this conclusion, we merely express by opinion that which was implied by the December 9, 2013, order of this Court denying the Eastern Shore Clubs' petition for a writ of mandamus in the Mobile action. Having confirmed the fact that the Mobile action is properly before the Mobile Circuit Court, we address the only remaining question: Whether § 6-5-440 does, in fact, require the dismissal of the present action. This Court has stated 17 1130051 that § 6-5-440 "means that 'where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgments or decrees.'" Regions Bank v. Reed, 60 So. 3d 868, 884 (Ala. 2010) (quoting Ex parte Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938)). There is no question that the Mobile action was filed before the present action. As we noted earlier in this analysis, the Eastern Shore Clubs concede that the Mobile action and the present action involve the same cause. The only difference between the two actions noted by the Eastern Shore Clubs -- the presence of the attorney general as a party in the present action but not in the Mobile action -- has no bearing on a determination of whether the present action is subject to abatement because the attorney general does not claim any independent interest in the subject of the cause of the two actions. This Court has observed that "[t]he application of § 6-5- 440 'is guided by "whether a judgment in one suit would be res judicata of the other."'" Ex parte Compass Bank, 77 So. 3d 18 1130051 578, 581 (Ala. 2011) (quoting Chiepalich v. Coale, 36 So. 3d 1, 3 (Ala. 2009), quoting in turn Sessions v. Jack Cole Co., 276 Ala. 10, 12, 158 So. 2d 652, 654-55 (1963)). "'"[T]he party identity criterion of res judicata does not require complete identity, but only that the party against whom res judicata is asserted was either a party or in privity with a party to the prior action[.]"'" Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d 914, 921 (Ala. 2007) (quoting Dairyland Ins. Co. v. Jackson, 566 So. 2d 723, 725 (Ala. 1990), quoting in turn Whisman v. Alabama Power Co., 512 So. 2d 78, 82 (Ala. 1987)). This Court has explained: "Our caselaw requires that 'there is a substantial identity of parties in the two actions.' Ex parte Ford Motor Credit Co., 772 So. 2d 437, 440 (Ala. 2000). Substantial identity requires that the '"'parties be identical, sometimes referred to as the mutuality of estoppel requirement.'"' Stewart v. Brinley, 902 So. 2d 1, 10 (Ala. 2004) (quoting McMillian v. Johnson, 878 F. Supp. 1473, 1520 (M.D. Ala. 1995)). '"An exception is made to this requirement for parties in privity with a party to the prior action."' Stewart, 902 So. 2d at 10 (quoting McMillian, 878 F. Supp. at 1520) (emphasis omitted). A party is deemed to be in privity with a party to a prior action when there is '"'an identity of interest in the subject matter of litigation.'"' Stewart, 902 So. 2d at 11 (quoting Hughes v. Martin, 533 So. 2d 188, 191 (Ala. 1988), 19 1130051 quoting in turn Issue Preclusion in Alabama, 32 Ala. L. Rev. 500, 521 (1981)). ".... "This Court has stated: '"'"A person may be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative."'"' Gonzalez, LLC v. DiVincenti, 844 So. 2d 1196, 1203 (Ala. 2002) (quoting Green v. Wedowee Hosp., 584 So. 2d 1309, 1315 (1991), quoting other cases)." Greene v. Jefferson Cnty. Comm'n, 13 So. 3d 901, 912 (Ala. 2008) (emphasis added). Assuming, without deciding, that the attorney general has "standing" to bring the claims he asserts in the present action and that he has asserted cognizable claims in the action, those claims indisputably are asserted for the benefit of, or in derivation of the purported rights of, the Eastern Shore Clubs. Applying the foregoing principles of "privity" and "virtual representation," it is clear that there is a "substantial identity" of parties as between the Mobile action and the present action. Further, we note that the fact that the Eastern Shore Clubs are plaintiffs in the present action but are defendants 20 1130051 in the Mobile action is inconsequential to the application of the abatement statute in this instance. "This Court has held that the obligation imposed on a defendant under Rule 13(a), Ala. R. Civ. P., to assert compulsory counterclaims, when read in conjunction with § 6-5-440, Ala. Code 1975, which prohibits a party from prosecuting two actions for the same cause and against the same party, is tantamount to making the defendant with a compulsory counterclaim in the first action a 'plaintiff' in that action (for purposes of § 6-5-440) as of the time of its commencement. See, e.g., Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So. 2d 414 (Ala. 1995); Penick v. Cado Systems of Cent. Alabama, Inc., 628 So. 2d 598 (Ala. 1993); Ex parte Canal Ins. Co., 534 So. 2d 582 (Ala. 1988). Thus, the defendant subject to the counterclaim rule who commences another action has violated the prohibition in § 6-5-440 against maintaining two actions for the same cause." Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849, 851 (Ala. 1999). Given that the claims asserted by the Eastern Shore Clubs in the present action constitute compulsory counterclaims in relation to the claims asserted by BGCSA in the Mobile action, the present action is subject to abatement under § 6-5-440. The existence of the Mobile action requires the dismissal of the present action. See Ex parte J.E. Estes Wood Co., 42 So. 3d at 109 (observing that "where § 6-5-440 applies, it 'compels dismissal'" (quoting Ex parte Canal Ins. Co., 534 So. 21 1130051 2d 582, 585 (Ala. 1988) (emphasis omitted)). Accordingly, the Baldwin Circuit Court erred in denying BGCSA's motion to dismiss the present action on the basis of § 6-5-440. IV. Conclusion Section 6-5-440 compels the dismissal of the present action because another action involving the same cause and the same parties –- the Mobile action –- was filed first. Therefore, we grant the petition for a writ of mandamus and direct the Baldwin Circuit Court to vacate its September 30, 2013, order and to enter an order dismissing the present action. PETITION GRANTED; WRIT ISSUED. Stuart, Shaw, and Wise, JJ., concur. Bolin, Parker, Main, and Bryan, JJ., concur in the result. Moore, C.J., dissents. 22	July 3, 2014
044b3bf5-3e3a-4b4a-9b10-6157cb4f0d79	Gillis v. Frazier	N/A	1120292	Alabama	Alabama Supreme Court	Rel: 08/01/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1120292 _________________________ Frank Gillis, M.D. v. Joey Frazier, as executor of the Estate of Florine Bryant, deceased ____________________ 1121205 ____________________ Frank Gillis, M.D. v. Joey Frazier, as executor of the Estate of Florine Bryant, deceased Appeals from Colbert Circuit Court (CV-07-900030) MAIN, Justice. 1120292 and 1121205 Frazier and Davis entered into a pro tanto settlement in 1 September 2009. Frazier added Dr. Evans as a defendant in February 2009. 2 Dr. Evans filed a motion for a summary judgment, asserting that the claims against him were barred by the statute of limitations for medical malpractice. The trial court granted Dr. Evans's summary-judgment motion. 2 Frank Gillis, M.D., appeals from a $5,000,000 judgment entered on a jury verdict against him in favor of Joey Frazier, as executor of the estate of his mother, Florine Bryant, in this wrongful-death/medical-malpractice case. We affirm the judgment in case no. 1121205; we reverse and remand in case no. 1120292. I. Facts and Procedural History Bryant died on November 17, 2005. On April 19, 2007, Frazier, on behalf of his mother's estate, sued Dr. Gillis, a family practitioner, and Carol Davis, a certified nurse practitioner, alleging wrongful death/medical malpractice 1 stemming from care rendered to his mother while she was taking the drug Coumadin. Dr. George A. Evans, who had treated Bryant while she was hospitalized in the days before her death because Dr. Gillis was out of town, was subsequently named as a defendant.2 1120292 and 1121205 3 The case against Dr. Gillis was first tried in October 2010. At the close of Frazier's case, Dr. Gillis moved for a judgment as a matter of law ("JML"), arguing that his alleged negligence was not the proximate cause of Bryant's death. In particular, Dr. Gillis argued that the deficient medical treatment Bryant received at the hands of other health-care providers was the proximate cause of Bryant's death and that, but for that intervening cause, Bryant would have survived. The trial court entered a JML in Dr. Gillis's favor. Frazier appealed to this Court, and we transferred the appeal to the Court of Civil Appeals pursuant to § 12–2–7(6), Ala. Code 1975. The Court of Civil Appeals reversed the trial court's judgment and remanded the case for a new trial, holding that the trial court had erred in entering a JML for Dr. Gillis because, the court reasoned, although the treatment provided Bryant by other health-care providers was an "intervening cause," it did not absolve Dr. Gillis of liability. Frazier v. Gillis, 85 So. 3d 443, 453 (Ala. Civ. App. 2011). Dr. Gillis filed a petition for a writ of certiorari with this Court, which was denied on December 9, 2011. 1120292 and 1121205 4 The case was retried in June 2012. The evidence showed that on August 29, 2005, Dr. Gillis diagnosed Bryant with atrial fibrillation and prescribed a blood thinner, Coumadin. At trial, Dr. Gillis explained that Coumadin requires that patients be monitored to ensure that their blood does not become too thin. The evidence showed that on August 31, 2005, Bryant's international normalized ratio ("INR") level was 1.9, which was within the normal therapeutic range. On September 7, 2005, Bryant returned to the lab to have her INR level checked. Bryant's blood was drawn that day; however, no INR test was administered. Instead, Bryant's INR was not checked again by Dr. Gillis's office until November 14, 2005. On November 14, 2005, Bryant's blood was drawn, and her INR level was 34.2. Because Dr. Gillis was out of town, his nurse practitioner, Davis, instructed Bryant to discontinue the Coumadin. Davis told Bryant to return on November 18, 2005, to have her INR level checked. Bryant returned to Dr. Gillis's office the next day, November 15, 2005, complaining of nausea, a headache, and bleeding from the site where her blood had been drawn the day 1120292 and 1121205 There was a note attached to the results of the INR test 3 indicating that Bryant's INR level was actually .89 because a "mixing study" had been done. The record does not explain the term "mixing study." 5 before. Davis ordered another INR test. The results indicated that Bryant's INR level was 44.77. Davis took the 3 INR test results to Dr. Evans, who was handling Dr. Gillis's patients while Dr. Gillis was out of town. Dr. Evans instructed Davis to refer Bryant to a hematologist. Davis did so and told Bryant that if she had any problems she was to go to the hospital. Bryant suffered a massive brain hemorrhage and was found unresponsive on the morning of November 16, 2005. Bryant was transported to the hospital, where it was noted that laboratory studies revealed profound abnormalities and a large subdural hematoma. Bryant was removed from life support on November 17, 2005. At the conclusion of the retrial of the case, the jury awarded Frazier $5,000,000 in damages for the wrongful death of his mother. Dr. Gillis filed a motion seeking, alternatively, a JML, a new trial, or a remittitur of the damages award. Dr. Gillis argued that the jury's verdict was unsupported by the evidence and that it was motivated by 1120292 and 1121205 6 sympathy or bias. He contended that, in the absence of a new trial, he was due, under the guideposts set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), and the factors set out in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989), a remittitur of the jury's punitive-damages award based on its alleged excessiveness. Dr. Gillis argued that his age, 76, and his inability to pay $3,000,000 of the judgment –- the amount above his liability-insurance coverage of $2,000,000 -- supported a remittitur of the damages award. Dr. Gillis also filed a renewed motion to revive § 6-5-547, Ala. Code 1975, which this Court has held to be unconstitutional, see Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995), and a motion seeking an order striking any damages awarded in excess of the $1,000,000 cap proscribed in § 6-5-547. The parties engaged in posttrial discovery. Frazier sought information regarding Dr. Gillis's financial condition. Specifically, Frazier requested the production of evidence related to a potential bad-faith claim by Dr. Gillis against his liability-insurance carrier, ProAssurance Indemnity 1120292 and 1121205 7 Company, Inc. ("ProAssurance"). ProAssurance produced certain documents from its claim file for in camera review by the trial court. ProAssurance withheld certain other documents and filed a privilege log of documents not disclosed. The trial court conducted an evidentiary hearing and subsequently denied Dr. Gillis's postjudgment motions. On December 7, 2012, Dr. Gillis appealed. After Dr. Gillis filed his appeal from the trial court's denial of his postjudgment motions (case no. 1120292), Dr. Gillis asked this Court for permission to file a motion with the trial court for relief from the trial court's judgment under Rule 60(b), Ala. R. Civ. P. Frazier opposed Dr. Gillis's motion. On March 5, 2013, this Court entered an order staying the appeal and allowing Dr. Gillis to file a Rule 60(b) motion in the trial court. On June 4, 2013, this Court remanded the case to the trial court for the limited purpose of conducting a Hammond/Green Oil hearing concerning the jury's punitive-damages award. On June 20, 2013, the trial court denied Dr. Gillis's Rule 60(b) motion as time-barred under Rule 60(b)(2) and, under Rule 60(b)(6), as lacking a showing that Dr. Gillis "did 1120292 and 1121205 8 everything within his power" to discover the information supporting his motion before the judgment became final. Specifically, the trial court held: "2. Gillis is not entitled to any relief from the judgment under Rule 60(b)(2) because: (1) Gillis has failed to establish that, through the exercise of due diligence, he could not have discovered the information upon which his motion is based in time to file a Rule 59 motion; and (2) Gillis is time- barred from obtaining relief under this subsection because he failed to request any relief pursuant thereto within four months of the initial entry of judgment. "3. Gillis is not entitled to any relief under Rule 60(b)(6) because he has not established that he did everything reasonably within his power to discover the information upon which his motion is based and obtain relief from the verdict before the judgment entered thereon became final. "4. Gillis's motion also represented an impermissibly remote attack on the jury...[because he] continued to investigate the private lives, and apparently the private medical records, of the jurors and their families for more than nine months following their verdict." On July 11, 2013, Dr. Gillis filed a second notice of appeal to this Court, appealing the trial court's denial of 1120292 and 1121205 We note that the trial court filed a return to remand in 4 case no. 1120292 following the Hammond/Green Oil hearing. This case was assigned to Justice Main on March 25, 2014. 5 9 his Rule 60(b) motion (case no. 1121205). On October 1, 4 2013, this Court consolidated the two appeals.5 II. Analysis A. Case no. 1121205 -- Rule 60(b) Order Dr. Gillis, in case no. 1121205, appeals from the trial court's denial of his motion for relief from judgment under Rule 60(b), Ala. R. Civ. P. Dr. Gillis sought leave from this Court to seek relief under Rule 60(b) from the trial court's judgment. See Rule 60(b), Ala. R. Civ. P. ("Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court."). This Court granted Dr. Gillis's motion. Rule 60(b), Ala. R. Civ. P., provides: "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment 1120292 and 1121205 10 has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken." A Rule 60(b)(2) motion must be brought within four months of the judgment that it seeks to have set aside. "'Newly discovered evidence' means evidence in existence at the time of trial of which the movant was unaware. ... And for a litigant to obtain a new trial on the ground of newly discovered evidence, it must appear that his reasonable diligence before trial would not have revealed this evidence which he failed to discover." Moody v. State ex rel. Payne, 344 So. 2d 160, 163 (Ala. 1977). Under Rule 60(b)(2), "'the burden is on the moving party to show that he has such "newly discovered" evidence and why through due diligence it was not discovered in time to seek a new trial under Rule 59, [Ala. R. Civ. P.].' Gallups v. United States Steel Corporation, 353 So. 2d 1169 at 1172 (Ala. Civ. App. 1978), citing Plisco v. Union R.R., 379 F.2d 15 (3d Cir. 1967). 'Motions to set aside judgments on the basis of newly discovered evidence are not favored.' Garland v. Garland, 406 So. 2d 415 (Ala. Civ. App. 1981); Hudson v. Hudson, 404 So. 2d 82 (Ala. Civ. App. 1981); Pace v. Jordan, 348 So. 2d 1061 (Ala. Civ. App. 1978). The grant or denial of a motion under 1120292 and 1121205 11 Rule 60(b), [Ala. R. Civ. P.], is discretionary with the trial court and we will not disturb its judgment on appeal absent an abuse of that discretion. City of Daphne v. Caffey, 410 So. 2d 8 (Ala. 1981); Pierson v. Pierson, 347 So. 2d 985 (Ala. 1977); Garland v. Garland, supra; Hudson v. Hudson, supra." Beaty v. Head Springs Cemetery Ass'n, Inc., 413 So. 2d 1126, 1128 (Ala. 1982). Under Rule 60(b)(6), a party may seek relief from a judgment for any reason justifying relief other than those reasons enumerated in subsections (1) through (5). In R.E. Grills, Inc. v. Davison, 641 So. 2d 225 (Ala. 1994), this Court stated: "The 'catch all' provision of clause (6) of Rule 60(b) allows a trial court to grant relief from a judgment for 'any other reason justifying relief.' Barnett v. Ivey, 559 So. 2d 1082, 1084 (Ala. 1990). '"Relief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice."' Chambers County Comm'rs v. Walker, 459 So. 2d 861, 866 (Ala. 1984) (quoting Douglass v. Capital City Church of the Nazarene, 443 So. 2d 917, 920 (Ala. 1983)). Clause (6), however, is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5). See, e.g., Insurance Management & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209 (Ala. 1991); Barnett, 559 So. 2d at 1084; Smith v. Clark, 468 So. 2d 138, 140 (Ala. 1985); Chambers County Comm'rs v. Walker, 459 So. 2d 861 (Ala. 1984); Ex parte Hartford Ins. Co., 394 So. 2d 933, 935-36 (Ala. 1981); Rebel Oil Co. v. Pike, 473 So. 1120292 and 1121205 12 2d 529 (Ala. Civ. App. 1985); Charles Townsend Ford, Inc. v. Edwards, 374 So. 2d 900, 902 (Ala. Civ. App. 1979)." 641 So. 2d at 229. "'Rule 60(b)(6) is an extreme remedy and relief under Rule 60(b)(6) will be granted only "in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief." Nowlin v. Druid City Hosp. Bd., 475 So. 2d 469, 471 (Ala. 1985). The purpose of Rule 60(b)(6) is not to relieve a party from a free and deliberate choice the party has previously made. City of Daphne v. Caffey, 410 So. 2d 8, 10 (Ala. 1982).'" Ex parte Phillips, 900 So. 2d 412, 419 (Ala. 2004) (quoting Wood v. Wade, 853 So. 2d 909, 912-13 (Ala. 2002)). A motion under Rule 60(b)(6) must be brought "within a reasonable time" after the entry of the judgment. Rule 60(b). "'"What constitutes a 'reasonable time' depends on the facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to other parties. Adams v. Farlow, 516 So. 2d 528 (Ala. 1987), cert. denied, 485 U.S. 1010, 108 S.Ct. 1477, 99 L.Ed.2d 705 (1988). In addition, the doctrine of laches, which denies equitable relief to one guilty of unconscionable delay in asserting a claim, 1120292 and 1121205 13 applies to Rule 60(b) motions. Waldrop v. Waldrop, 395 So. 2d 62 (Ala. 1981)." "'Ex parte W.J., 622 So. 2d 358, 361 (Ala. 1993).' "[Ex parte] Hicks, 67 So. 3d [877,] 880 [(Ala. 2011)]." Bates v. Stewart, 99 So. 3d 837, 853 (Ala. 2012). In his motion seeking leave from this Court to seek Rule 60(b) relief in the trial court, Dr. Gillis claimed that he was seeking relief alternatively under Rule 60(b)(2) and Rule 60(b)(6). When he filed his motion in the trial court, he requested relief under Rule 60(b); he did not specify the subsection under which he sought consideration. The trial court determined that Dr. Gillis was not entitled to relief under either Rule 60(b)(2) or Rule 60(b)(6). Because Dr. Gillis's motion in the trial court does not specify any Rule 60(b) ground for relief, we must determine the nature of Dr. Gillis's motion. In his motion, Dr. Gillis alleged that he was entitled to relief from the judgment because a juror failed to reveal that her husband had been a former patient of Dr. Gillis's. In particular, Dr. Gillis claimed that the juror did not reveal: (1) that her husband 1120292 and 1121205 14 was a former patient of Dr. Gillis's and (2) that, as a result of that experience, she held a negative opinion of Dr. Gillis, did not like Dr. Gillis, and did not consider him to be a good doctor. Initially, as the trial court concluded, if considered a Rule 60(b)(2) motion based on newly discovered evidence, Dr. Gillis's motion would be untimely because it was not filed within four months of the entry of judgment. Consequently, the motion would have to fall within Rule 60(b)(6) to be timely. Therefore, our inquiry is whether the motion can properly be considered a Rule 60(b)(6) motion asserting as a ground "any other reason justifying relief from the operation of the judgment." We must consider whether Dr. Gillis had access to the information on the juror before the judgment became final so that, if Dr. Gillis had done everything reasonably within his power, he could have discovered the information at that time. "[R]elief [pursuant to Rule 60(b)] should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a 1120292 and 1121205 15 final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments." Osbom v. Roche, 813 So. 2d 811, 818 (Ala. 2001). The record reflects that the trial court considered conflicting affidavits concerning the extent of Dr. Gillis's treatment of the juror's husband and whether the juror had ever spoken disparagingly about Dr. Gillis at any time. "'Without question, a movant must both allege and prove one of the grounds set forth in Rule 60 in order to be granted relief under that rule.'" Ex parte A&B Transp., Inc., 8 So. 3d 924, 932 (Ala. 2007) (quoting Ex parte Baker, 459 So. 2d 873, 876 (Ala. 1984)(emphasis added)). Given the conflicting evidence, we must conclude that Dr. Gillis failed to meet his "'burden of proving extraordinary circumstances and/or extreme hardship or injustice sufficient to entitle him to relief under Rule 60(b)(6).'" Id. Therefore, we affirm the judgment of the trial court in case no. 1121205. B. Case no. 1120292 1. Remittitur Issue Dr. Gillis next challenges, in case no. 1120292, the trial court's order denying his motion for a remittitur because, he says, in calculating Dr. Gillis's assets, the 1120292 and 1121205 16 trial court improperly included among his assets a potential bad-faith claim against his liability-insurance carrier, ProAssurance. Dr. Gillis asks this Court to overrule Boudreaux v. Pettaway, 108 So. 3d 486 (Ala. 2012), to the extent that it held that a potential bad-faith claim and/or negligent-failure-to-settle claim against a liability- insurance carrier may be considered as an asset for purposes of a Hammond/Green Oil review and a remittitur analysis. We accept Dr. Gillis's invitation to overrule Boudreaux to the extent that it held that, in calculating a defendant's assets, the trial court may consider the contents of the claim file compiled by a defendant's liability-insurance carrier and include among the defendant's assets a potential bad-faith and/or negligent-failure-to-settle claim against the defendant's liability-insurance carrier. We conclude that allowing a trial court to consider a defendant's potential third-party claim against its liability-insurance carrier as an asset for purposes of a Hammond/Green Oil review and a remittitur analysis is subjective rather than objective. In a remittitur analysis, the actual assets and liabilities of the defendant are determinative of the defendant's net worth. A cause of action against a defendant's liability-insurance 1120292 and 1121205 17 carrier does not accrue until a final judgment has been entered against the defendant. Because at the time of a Hammond/Green Oil hearing the third-party action has not yet accrued and is speculative in nature, it cannot be considered as part of the defendant's net worth in determining a defendant's assets for purposes of Hammond/Green Oil and the remittitur analysis. Accordingly, we reverse the judgment as to this issue and remand this case for the trial court to conduct a Hammond/Green Oil hearing without taking into consideration Dr. Gillis's potential bad-faith and/or negligent-failure-to-settle claim against his liability-insurance carrier. We further direct that the trial court, in calculating Dr. Gillis's assets under Hammond/Green Oil, should not consider Dr. Gillis's wife's portion of their jointly owned assets. 2. Section 6-5-547, Ala. Code 1975 Dr. Gillis urges this Court to revive § 6–5–547, Ala. Code 1975, which limited a judgment in a medical-malpractice action against a health-care provider to $1,000,000, and to overrule Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995), which held that the cap on damages in § 6–5–547, Ala. Code 1975, was unconstitutional. In support of his argument, Dr. Gillis 1120292 and 1121205 18 cites Ex parte Apicella, 809 So. 2d 865 (Ala. 2001), and Ex parte Melof, 735 So. 2d 1172 (Ala. 1999). This Court revisited the Schulte decision in Mobile Infirmary Ass'n v. Tyler, 981 So. 2d 1077 (Ala. 2007), and declined to revive § 6-5-547. After considering Schulte and its progeny and the cases cited by Dr. Gillis, we are not persuaded to overrule Schulte. III. Conclusion We affirm the judgment of the trial court denying Dr. Gillis relief under Rule 60(b), Ala. R. Civ. P., in case no. 1121205. In case no. 1120292, we reverse the judgment insofar as it considered the potential bad-faith and/or negligent-failure-to-settle claim against Dr. Gillis's liability-insurance carrier and remand the cause. We decline to overrule Schulte and revive the statutory cap on damages in medical-malpractice actions. On remand, the trial court is to conduct a Hammond/Green Oil hearing without consideration of the potential bad-faith claim and without consideration of Dr. Gillis's wife's portion of jointly owned assets. We instruct the trial court to make a return to remand within 90 days. 1120292 and 1121205 19 1121205--AFFIRMED. Moore, C.J., and Stuart, Bolin, Parker, and Wise, JJ., concur. Shaw, J., concurs in the result. Murdock, J., dissents. Bryan, J., recuses himself. 1120292--REVERSED AND REMANDED WITH INSTRUCTIONS. Moore, C.J., and Stuart, Bolin, and Wise, JJ., concur. Murdock, J., concurs specially. Parker and Shaw, JJ., concur in part and dissent in part. Bryan, J., recuses himself. 1120292 and 1121205 20 PARKER, Justice (concurring in part and dissenting in part as to case no. 1120292). In case no. 1120292, I concur in part and dissent in part; I join Justice Shaw's writing insofar as he dissents from Part II.B.1 of the main opinion. I concur fully in Part II.B.2 of the main opinion, refusing to revive § 6-5-547, Ala. Code 1975. 1120292 and 1121205 Although the main opinion ultimately denies relief to Dr. 6 Gillis in relation to his Rule 60(b), Ala. R. Civ. P., motion (a decision with which I disagree as discussed below), the main opinion, correctly in my view, does determine that Dr. Gillis's motion is properly reviewed as a Rule 60(b)(6) motion. In so doing, the main opinion notes that the motion was not filed within the four-month window prescribed for a motion filed under Rule 60(b)(2). Unlike Rule 59, Ala. R. Civ. P., the express office of a Rule 60(b) motion is to relieve a party from a judgment that has become "final" and enforceable (see, e.g., Smith v. Cowart, 68 So. 3d 802, 809 (Ala. 2011) (explaining that a judgment "'"became 'final' within the contemplation of Rule 60(b)"'" only upon the disposition of an intervening postjudgment motion under Rule 59 (quoting Ex parte Haynes, 58 So. 3d 761, 764 (Ala. 2010))); Arnold v. Sullivan, 131 F.R.D. 129, 131 (N.D. Ind. 1990)(noting that "a Rule 60(b) motion can only relieve a party from a 'final judgment'")), a condition that does not come into being until 30 days after the entry of 21 MURDOCK, Justice (dissenting as to case no. 1121205 and concurring specially as to case no. 1120292). I. Case No. 1121205: Dr. Gillis's Rule 60(b), Ala. R. Civ. P., Motion Dr. Gillis filed a motion seeking relief under Rule 60(b)(6), Ala. R. Civ. P., from the liability aspect of the trial court's judgment on the ground that a juror had prior knowledge of, and a bias against, Dr. Gillis not disclosed by her during voir dire. I respectfully disagree with the reasons voiced in Part II.A. of the main opinion for rejecting what I consider to be Dr. Gillis's compelling position on this issue.6 1120292 and 1121205 a judgment (see, e.g., Crisco v. Crisco, 294 Ala. 168, 313 So. 2d 529 (1975) (noting that a judgment remained within the breast of the court for 30 days, during which it could be set aside on the court's own motion)). Further, a timely filed Rule 59(e) motion, which by definition is one filed within that 30-day period, suspends the finality of the judgment for purposes of both the availability of, and the time limitations upon, relief under various provisions of Rule 60(b). E.g., Arnold v. Sullivan, supra. The trial court entered a judgment on June 18, 2012. Within 30 days thereafter, Dr. Gillis filed a postjudgment motion under Rule 59. The trial court ruled on that motion on October 30, 2012. Dr. Gillis's Rule 60(b) motion was filed on March 15, 2013, approximately four and one-half months after October 30. Given the particular procedural history of this case, including the lack of any basis for suspending the finality of the trial court's October 30 judgment, the main opinion is correct to the extent it indicates that Dr. Gillis's motion was not filed within four months of the date of that judgment. Irrespective of the timing of its filing, however, I question whether Dr. Gillis's motion goes to the issue of "newly discovered evidence" within the meaning of Rule 60(b)(2), given that it speaks to the procedural unfairness of the proceeding and not to evidence relating to the merits of the action. See § 12-13-11(a), Ala. Code 1975 (identifying as separate grounds for postjudgment relief "newly discovered evidence," on the one hand, and "irregularity in the proceedings" and "[m]isconduct of the jury," on the other hand); cf. Ex parte Pierce, 851 So. 2d 606 (Ala. 2000) (holding that a claim of juror misconduct raised in a postconviction petition shall not be treated as a claim of newly discovered evidence under Rule 32.1(e), Ala. R. Crim. P.). 22 The main opinion appears to reference two separate reasons for upholding the trial court's denial of Dr. Gillis's Rule 60(b)(6) motion. It begins its analysis with the 1120292 and 1121205 23 following statement describing the issue that must be decided in this appeal: "We must consider whether Dr. Gillis had access to the information on the juror before the judgment became final so that, if Dr. Gillis had done everything reasonably within his power, he could have discovered the information at that time. '[R]elief [pursuant to Rule 60(b)] should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments.' Osbom v. Roche, 814 So. 2d 811, 818 (Ala. 2001)." __ So. 3d at __. After framing the above-stated procedural and timing issue, however, the main opinion proceeds to address, not the timeliness of Dr. Gillis's discovery and presentation of evidence of the juror's bias, but the substantive merits of the bias issue raised by that evidence. In the same paragraph quoted above, the main opinion suggests that this Court must defer to a conclusion by the trial court as to the substantive issue of the juror's bias, stating: "The record reflects that the trial court considered conflicting affidavits concerning the extent of Dr. Gillis's treatment of the juror's husband and whether the juror had ever spoken disparagingly about Dr. 1120292 and 1121205 24 Gillis at any time." ___ So. 3d at ___. Apparently on this basis, the main opinion then concludes that Dr. Gillis has failed to meet his burden of proof. My problem with the rationale upon which the main opinion ultimately rests its affirmance of the trial court's judgment is simply this: The trial court actually did not consider the conflicting affidavits referenced. That is, the trial court did not decide which of those affidavits was more persuasive or, in turn, reach the substantive issue of bias by the juror as to which those affidavits "conflict." Instead, the trial court's reason for rejecting Dr. Gillis's motion for relief under Rule 60(b)(6) was in fact the procedural/timing issue initially noted above. The trial court explained its own reasoning as being that Dr. Gillis had "'not established that he did everything reasonably within his power to discover the information upon which his motion is based and obtain relief from the verdict before the judgment entered thereon became final.'" __ So. 3d at __ (quoting trial court's order). In other words, the trial court did not consider or decide between the dueling versions of the facts relating to whether the juror did in fact have an undisclosed foreknowledge of and 1120292 and 1121205 It is true that a trial judge generally is in a better 7 position to judge the likelihood of prejudice resulting from juror misconduct during voir dire. This is true, however, largely because of the need in most cases for the judge to 25 a bias against Dr. Gillis. Instead, the trial court merely concluded that Dr. Gillis did not seek out and discover the facts alleged in his Rule 60(b)(6) motion in a timely manner and, in turn, did not file that motion in a timely manner (a ground I will address further below). As to the merits of the substantive issue of nondisclosure and bias, the "evidence" is not ore tenus evidence that would prevent its initial consideration by this Court. First, it is plain on the face of the trial transcript -- indeed it is undisputed by the plaintiff -- that the juror made no disclosures during voir dire in response to multiple questions that should have elicited any foreknowledge by her of Dr. Gillis. The question whether those nondisclosures represent any impropriety, then, turns only on whether there was anything to disclose. As to this issue, the only evidence either party chose to present to the trial court was in the form of written affidavits. Because this Court is as capable as the trial court of reading those affidavits, I question why we should not proceed to do so and decide the issue. 7 1120292 and 1121205 assess the ore tenus answers given by jurors in response to questions posed during voir dire: "'The trial court was able to observe the mannerisms, inflections in voice, and other characteristics of the jurors whose answers were at issue -- in other words, things that could reflect upon the jurors' credibility but that are beyond this Court's inherently limited ability to review by appellate transcript ....'" Hood v. McElroy, 127 So. 3d 325, 340 (Ala. 2011) (quoting Colbert Cnty.-Northwest Alabama Healthcare Auth. v. Nix, 678 So. 2d 719, 723 (Ala. 1995)). There are two aspects of this case that make this general rule inapplicable here. First, as noted above, the trial court did not make any findings of probable prejudice; it did not consider the substance of the affidavits or compare the "facts" in them to the answers given by the juror during voir dire. It instead decided the matter on a procedural basis, finding that Dr. Gillis had failed to prove that his motion was timely. Second, and as also noted, the voir dire questions and lack of responses in this case are undisputed, there are no assessments to be made of the juror's answers, and the "probable prejudice" is undeniable if the "facts" in the affidavits submitted by Dr. Gillis are to be taken as true. Because ore tenus testimony would not be involved in assessing those affidavits, I see no reason why the trial court would be better positioned than this Court to discern the credibility of the competing testimony as it now exists in this case. Of course, nothing would prevent us from remanding the case with instructions for the trial court to conduct a hearing for the purpose of receiving and considering live testimony from available witnesses. On the record currently before us, however, and given the particular manner in which the issue is presented in this case, I see no basis for giving 26 1120292 and 1121205 deference to the trial court. 27 In the absence of a hearing and the receipt of live testimony from the witnesses, it appears to me that the detail presented, and the employment risks faced by the affiants who testified on behalf of Dr. Gillis, make for a compelling conclusion in his favor. Dr. Gillis submitted affidavit testimony from two women who were work-place subordinates of the juror's and whose affidavits corroborated one another. One of these affiants testified as follows: "5. I would estimate that on at least twenty occasions between 2007 and June 11, 2012, it [was] necessary for me to leave my work during a work day to go to an appointment at Dr. Gillis' office. On most of these occasions, I would tell [the juror] that I had an appointment at Dr. Gillis' office and that I would need to be off from work to attend those appointments. On other of these occasions, I would tell [the juror] that I needed to be away from work for a short time for personal reasons. "6. I would estimate that on at least fifty percent of the occasions prior to June 11, 2012, when I told [the juror] that I needed to attend an appointment at Dr. Gillis' office, [the juror] has made negative comments about Dr. Gillis. The last such occasion that I remember occurred in 2012, before June 11, 2012. "7. An example of the kind of negative comment [the juror] made about Dr. Gillis was calling him a 'quack.' On one occasion, when I was discussing with 1120292 and 1121205 28 [the juror] my being treated by Dr. Gillis, [the juror] said that the only thing wrong with me was the doctor I was seeing. On at least five other occasions, [the juror] told me that I needed to get a different doctor. "8. In or around 2007,I was having problems with my heart. Dr. Gillis ordered a stress test for me. I mentioned this to [the juror]. [The juror] then explained to me why she did not like Dr. Gillis. Specifically, [the juror] told me that years before, her husband had been to see Dr. Gillis and had complained to Dr. Gillis that he ... was having pain in his stomach or abdominal area. [The juror] told me that Dr. Gillis had sent [her husband] home, and that shortly thereafter, [her husband] had to be seen by another doctor and had to have surgery to remove his gallbladder. [The juror] said Dr. Gillis had failed to timely and properly diagnose [her husband's] condition. "9. I cannot remember the exact dates of the occasions on which [the juror] made all of the comments, but I do recall that [the juror] made these kinds of negative comments about Dr. Gillis so many times that eventually, instead of telling [the juror] that I needed to be away from work to attend an appointment at Dr. Gillis' office, I began telling [the juror] that I needed to be away from work for personal reasons, I do not recall the specific date of the last time that [the juror] made negative comments about Dr. Gillis prior to June 11, 2012, but I do recall that [the juror] did ma[k]e negative comments about Dr. Gillis in 2012 prior to June of 2012." Turning now to the trial court's stated reason for denying Dr. Gillis Rule 60(b)(6) relief, I am not sure what it is that Dr. Gillis should have done differently. Neither the 1120292 and 1121205 The trial court's approach appears to assume incorrectly 8 that the plaintiff bears no burden to support his assertion that Dr. Gillis did not timely move for postjudgment relief. Dr. Gillis made an adequate showing that he acted timely; it does not fall to him to disprove all other possibilities of ways in which he might have been able to acquire the information at issue even sooner than he did, especially since neither the plaintiff nor the trial court is able to articulate or to make any showing as to what more Dr. Gillis should have done. 29 trial court nor the main opinion tell us specifically what more would have been needed for Dr. Gillis to "'establish[] that he did everything reasonably within his power to discover the information upon which his motion is based and obtain relief from the verdict before the judgment entered thereon became final.'" __ So. 3d at __. 8 First and foremost, it is undisputed that the attorneys for both parties engaged in ample voir dire questioning designed to ferret out any foreknowledge by the juror of Dr. Gillis. Among other questions, the venire was asked: "Do you know Dr. Gillis?"; "Have any of you, or your immediate family members been a patient at any time of Dr. Gillis?"; "Any of you, any member of your immediate family or any of the providers at Lister Healthcare where you felt they did something wrong or caused you or members of your family harm?"; and "Is there anyone that feels as though you have 1120292 and 1121205 30 some information that you need to give knowing what type of case this is that you have not been able to give because [the attorney for the opposing party] and I did not ask the right question?" The juror did not respond affirmatively to any of these questions. This Court has been clear: a litigant must be able to rely upon the information the members of the venire provide in voir dire. "'[T]he parties in a case are entitled to true and honest answers to their questions on voir dire, so that they may exercise their peremptory strikes wisely.'" Ex parte Dixon, 55 So. 3d 1257, 1260 (Ala. 2010) (quoting Ex parte Dobyne, 805 So. 2d 763, 771 (Ala. 2001)). "The fairness of our jury system ... depends on such answers." Dunaway v. State, [Ms. 1090697, April 18, 2014] __ So. 3d __, __ (Ala. 2014). The observations made by this Court in Ex parte Harrison, 61 So. 3d 986, 990-91 (Ala. 2010), a criminal case, are equally applicable here: "The State contends ... that Harrison failed to explain in his Rule 32[, Ala. R. Crim. P.,] petition why he could not have reasonably discovered the alleged juror misconduct in time to assert that claim in his motion for a new trial or on appeal. 1120292 and 1121205 31 "As we indicated in [Ex parte] Burgess, [21 So. 3d 746 (Ala. 2008),] however, the very nature of juror misconduct is such that a defendant typically will not be aware that there is any misconduct to be discovered. Placing a requirement on a defendant to uncover any and all possible juror misconduct without reason to know what type of misconduct the defendant might be looking for or, in fact, whether any misconduct occurred, would require criminal defendants to embark on a broad-ranging fishing expedition at the conclusion of every criminal trial or waive the right to complain of any juror misconduct the defendant might ultimately discover. Moreover, when it comes to voir dire examination of jurors, the defendant has every right to expect that jurors will provide truthful and accurate responses. ... As in Burgess, there is no evidence in the record indicating that Harrison should have been aware before he filed his motion for a new trial or his direct appeal that some jurors had provided untruthful or inaccurate answers during voir dire examination." Of course, the foregoing is not to say that upon being put on notice after trial of the possibility that a juror had not been forthcoming in response to voir dire questioning, a litigant such as Dr. Gillis has no obligation to act reasonably promptly to investigate the issue and to bring it to the court's attention once the investigation reveals a sufficient basis for doing so. Again, however, neither the trial court nor the main opinion explains what Dr. Gillis should have done differently in this regard. Dr. Gillis gave undisputed testimony in his affidavit that he became aware of 1120292 and 1121205 "'What constitutes a "reasonable time" depends on the 9 facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to 32 the juror's foreknowledge of him and her alleged bias toward him only after he had filed his first appeal in case no. 1120292 on December 7, 2012. Dr. Gillis also gave undisputed testimony by affidavit that he had no access to the medical records from his prior practice that would have revealed his treatment of the juror's husband. It is apparent that, after being made aware of the juror's alleged bias, Dr. Gillis's attorneys proceeded to investigate what Dr. Gillis had been told pertaining to the juror. Over the next several weeks, they obtained affidavits from two of the juror's subordinates that, if given credence, would present a compelling case of juror bias. Armed with these affidavits, the attorneys then filed a motion for Rule 60(b)(6) relief on March 15, 2013. That is, the record appears to reflect that Dr. Gillis took reasonable and prompt steps to learn of juror bias and filed his motion reasonably promptly after learning of evidence that the juror was biased against him and had not been forthcoming in her answers to voir dire questions and then conducting a reasonable investigation into the same. 9 1120292 and 1121205 other parties.'" Ex parte Hicks, 67 So. 3d 877, 880 (Ala. 2011) (quoting Ex parte W.J., 622 So. 2d 358, 361 (Ala. 1993)). 33 Given the foregoing, I find no basis for the trial court's conclusion that Dr. Gillis failed to prove that he could not have discovered the information that was the basis for his motion before the judgment became final. At the very least, given the nature of the issue presented and the lack of any evidence indicating that Dr. Gillis had cause to look behind the juror's voir dire answers, Dr. Gillis proved all he needed to prove to make out a prima facie case of timeliness on his part. The plaintiff cannot simply contend that there is some unidentified further, or sooner, action for which Dr. Gillis should be held responsible. In the face of the "case" made by Dr. Gillis, the position taken by the plaintiff (and the trial court) amounts to expecting someone in Dr. Gillis's position to disprove all other possibilities, i.e., to prove a negative. The plaintiff (and the trial court) must at least articulate for us what further action should have been taken by Dr. Gillis and present evidence thereof sufficient to have shifted the ultimate burden of proof as to that issue to Dr. Gillis. They did neither here. 1120292 and 1121205 34 II. Case No. 1120292 A. Preliminary Matters Although I disagree for the reasons stated above with the main opinion's decision to deny Dr. Gillis relief in the form of a new trial as to the issue of liability, I agree with the main opinion in the separate appeal as to the need for the trial court to reassess the award of punitive damages if a new trial on liability is not to be had. I agree with the main opinion that only Dr. Gillis's assets and his portion of the assets he holds jointly with his wife should be considered on remand. I would add that I find problematic as a basis for the award made here the trial court's statement that Dr. Gillis "has a significant net worth." The ambiguous nature of this finding deprives it of any significance as a basis for appellate review of the specific award actually made. One million dollars undoubtedly would be considered by many as a "significant net worth," but it presumably would not provide a basis for a $5 million punitive-damages award. B. Overruling Boudreaux 1120292 and 1121205 35 Consistent with my concurrence in case no. 1120292, I fully agree that Boudreaux v. Pettaway, 108 So. 3d 486 (Ala. 2012), should be overruled. In his special writing, Justice Shaw disagrees with overruling Boudreaux, stating that he finds the reasons given in the main opinion for doing so insufficient. I write to further explain my reasons for concurring in this portion of the main opinion. Deciding on an amount of punitive damages to be awarded based on what a defendant might or might not be able to collect some day from a third party as a result of some future, yet unfiled and unlitigated lawsuit –- a lawsuit that may never be filed or survive to a judgment or settlement –- requires improper speculation by the court. As noted below, especially problematic is the fact that following such an approach necessarily injects a circularity of reasoning that logically would support an award of any amount a judge might select. The decision in Boudreaux was based on this Court's 1993 decision in Mutual Assurance, Inc. v. Madden, 627 So. 2d 865 (Ala. 1993), a case that did indeed reference the possibility 1120292 and 1121205 36 of assessing a physician's wealth (for purposes of setting a punitive-damages award) on a possible future recovery by the physician against his liability insurer on a bad-faith claim. The statement in Madden referencing such an approach, however, was expressly recognized therein as dictum. Other than this Court in Boudreaux, no court -- federal or state -- has allowed such an approach in the 21 years since Madden was decided. In their amicus curiae brief filed in this Court, the Medical Association of the State of Alabama offers the following common-sense arguments against the approach referenced in Madden: "[The physician's insurer] ProAssurance was not a party to this matter and the issue of whether it acted negligently and/or in bad faith in failing to settle this case has not been properly presented to any court. Nonetheless, based on the trial court's ruling, Dr. Gillis' hypothetical claims against ProAssurance have essentially been reviewed and predetermined without ever having been filed or litigated. ProAssurance has not had any opportunity to present evidence in defense of such claims, nor has there been any enforceable ruling on this issue -- just the speculative and preliminary finding of the trial court." After noting that the foregoing approach raises due-process concerns, the amicus brief continues: 1120292 and 1121205 37 "Second, the trial court's preemptive determination on this issue will now essentially force Dr. Gillis to file a lawsuit against his insurer, regardless of whether he wants to or not. ... ".... "Another flaw in the reasoning of the trial court is that it failed to consider litigation expenses that the physician must bear in a bad faith action. As an example, Dr. Gillis likely would recover $3,000,000 in his hypothetical bad faith action against his insurer if he prevails. Assuming he retains counsel on a contingency basis [and pays necessary expenses] ... the physician [ultimately] could be short as much as $1,000,000 to $1,300,000. "Even more troubling, Dr. Gillis would have to take [a] position ... contrary to the position taken heretofore by Dr. Gillis, who maintained throughout the litigation (with ample evidentiary support and expert testimony) that he did not breach the standard of care as alleged by the Plaintiff. ... "Indeed, Dr. Gillis[] ... would be acting at the behest of the Plaintiff[, who] has essentially forced his hand to pursue additional litigation in hopes that the trial court's post-judgment determination was correct and that the factfinder who ultimately reviews his future bad faith lawsuit agrees so that he can one day satisfy the judgment against him. "[Finally], the Medical Association believes that the trial court's ruling should be reversed because it will continue to stand (along with the $5,000,000 judgment) even if Dr. Gillis does not prevail in his hypothetical bad faith lawsuit, leaving him no recourse or way to 'correct' the 1120292 and 1121205 38 trial court's erroneous presumption that he would prevail and that he would 'never personally feel any adverse financial effects of the verdict rendered against him.'" In Boudreaux, I dissented and wrote specially to elaborate upon concerns of the nature identified above: "Despite [a] holding [on other grounds], and simply because 'the parties request[ed] that we also address' the issue, 627 So. 2d at 866, the Court [in Madden] went further and addressed whether, in a remittitur proceeding, it was proper for a trial court to consider a physician's potential for recovering from his liability insurer the amount of the judgment against him that exceeds the amount of his insurance coverage. Id. Thus, the conclusion from Madden relied upon by the main opinion is dictum and, therefore, it is not binding upon this Court in the present case.... "In asking this Court to overrule the dictum in Madden, the defendants do not ask us to dispense with a persuasive holding of this Court. Indeed, in the only other case in which this Court has addressed this issue -- Tillis Trucking Co. v. Moses, 748 So. 2d 874 (Ala. 1999) –- the Court distinguished Madden on the ground that the potential bad-faith claim in Tillis Trucking Co. was 'too speculative' to affect remittitur. 748 So. 2d at 887. I have been unable to locate a court in any other jurisdiction -- state or federal -- that has decided as the Madden Court did on this issue since Madden was decided." Boudreaux, 108 So. 3d at 511-12 (Murdock, J., dissenting). I also made note of a strongly critical dissent written by 1120292 and 1121205 39 Justice Maddox in Madden and offered some additional observations: "'[T]he trial court cannot determine the value of a potential bad faith claim for purposes of the Hammond–Green Oil Co. hearing without engaging in rank speculation as to the value of such an asset and thereby depriving Dr. Evans of his constitutional right to a post-verdict assessment of the jury's award of punitive damages.' "627 So. 2d at 867 (Maddox, J., concurring in part and dissenting in part) (emphasis added). "... Without conducting a separate trial on the physician's third-party claim, there is simply no way to know how much worth, if any, should be placed on a potential bad-faith claim by the defendants against their liability-insurance carrier. As any plaintiff's lawyer can attest, the road from the accrual of a potential cause of action to the entry of a judgment and, eventually, collection of that judgment, can be a long one full of pitfalls and potential 'exits.' A great many obstacles –- at least some of which would not become apparent until litigation actually commences –- could prevent any recovery on such a claim, or at least prevent the amount of the recovery speculated to be 'in the offing' by a trial court in some prior, collateral proceeding. Including a potential claim as part of a defendant's assets requires a trial court to transform itself from a fact-finder into something more akin to a fortune teller. "Aside from the speculative nature of such a claim in itself, there is a problem of timing. A punitive-damages award, like the award in any final 1120292 and 1121205 40 judgment, is due as soon as the judgment becomes final. If the defendant cannot or does not voluntarily pay the award from its liquid assets, the plaintiff may seek immediately to execute upon the defendant's assets, both liquid and illiquid. On the other hand, any judgment to be obtained by the defendant upon a potential claim against its liability-insurance carrier would come a long time -- perhaps years -– after the current judgment is enforceable. Thus is raised the very real specter that a judgment intended by the law to 'sting' a physician or other defendant will instead have the effect of financially destroying that physician or defendant. See Ex parte Vulcan Materials Co., 992 So. 2d 1252, 1260 (Ala. 2008) (noting that '[s]ociety's goal [in permitting punitive damages] is to deter –- not to destroy –- the wrongdoer' and that '[t]o effectuate that purpose, a punitive-damages award "'ought to sting in order to deter.'"' (quoting Green Oil Co. v. Hornsby, 539 So. 2d 218, 222 (Ala. 1989), quoting in turn Ridout's–Brown Serv., Inc. v. Holloway, 397 So. 2d 125, 127 (Ala. 1981) (Jones, J., concurring specially))). "On an even more fundamental plane, I offer two additional observations. First, any potential bad-faith claim the defendants may have against their liability insurer did not even exist until the judgment in this case was made. See Evans v. Mutual Assurance, Inc., 727 So. 2d 66, 67 (Ala. 1999) (stating that 'a cause of action arising out of a failure to settle a third-party claim made against the insured does not accrue unless and until the claimant obtains a final judgment in excess of the policy limits'). As a corollary, the consideration of such a potential recovery creates a circularity of reasoning in which the court can, for all practical purposes, consider the availability of a third party to pay damages in whatever amount might 1120292 and 1121205 Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), 10 and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989). BMW of North American v. Gore, 517 U.S. 559 (1996). 11 41 be set. As one court has put it, because the potential claim 'was not in existence before the jury entered its verdict, it could not be considered as part of [the defendants'] net worth in determining the amount of the award. Otherwise, the size of the punitive award could be unlimited....' Wransky v. Dalfo, 801 So. 2d 239, 242 (Fla. Dist. Ct. App. 2001) (emphasis omitted). As another court has explained, a potential claim against an insurer should not be considered in establishing a punitive-damages award because such an asset would make the insurer 'responsible to pay damages in an amount that would never have been considered by the parties were the insurance company not the responsible entity.' Battista v. Western World Ins. Co., 227 N.J.Super. 135, 151, 545 A.2d 841, 849 (N.J.Super.Law Div. 1988), rev'd in part on other grounds sub nom., Battista v. Olson, 250 N.J.Super. 330, 594 A.2d 260 (N.J. Super. App. Div. 1991)." Id. at 512-13 (final emphasis added). It is for the reasons stated above that I concur today in overruling Boudreaux. C. The Inapplicability of Normal Punitive-Damages Remittitur Factors to the "Punitive Damages" Awarded in Wrongful-Death Cases In addition to the foregoing, my vote today is consistent with concerns on my part as to whether we can apply traditional Hammond/Green Oil and BMW/Gore factors, or at 10 11 1120292 and 1121205 42 least many of them, to review that brand of "punitive damages" awarded in Alabama wrongful-death cases, given (1) that such damages can be, and often are, awarded for mere negligence, (2) that there is no separate, underlying compensatory-damages award against which to make any comparative review of those damages, see, e.g., Mobile Infirmary Ass'n v. Tyler, 981 So. 2d 1077, 1107 (Ala. 2007) (Lyons, J., dissenting and rethinking the propriety of attempting to apply the second BMW/Gore factor (comparison of punitive-damages award to the compensatory-damages award) to Alabama wrongful-death awards) and (3) that such damages often serve as a practical matter as a substitute for de jure compensatory damages. Alabama stands alone among all the states in the union in telling its juries in wrongful-death actions that they may award only what are referred to as "punitive damages." Our precedents indicate that this approach is grounded in the notion, to which I offer no objection, that it is impossible to place a dollar value on a human life. The result, however, is largely a legal fiction in which, as a practical matter, juries do in fact award damages not based solely on the traditional punitive-damage factors but that, in many cases, 1120292 and 1121205 43 de facto serve as compensatory damages (sometimes in combination with an element of punishment). Thus it is that "punitive damages" can be awarded against defendants whose mere negligence causes a death. See, e.g., Cherokee Elec. Coop. v. Cochran, 706 So. 2d 1188, 1194 (Ala. 1997) (holding that death is a great harm and that Alabama can "'attempt to preserve life by making homicide expensive'" (quoting Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 116 (1927))). See also, e.g., McKowan v. Bentley, 773 So. 2d 990 (Ala. 1999) (affirming a verdict of $2,000,000 in a wrongful-death medical-malpractice case, even though the trial court stated that it disagreed with the jury's verdict of negligence). For that matter, we long have held that mere vicarious liability, involving no actual culpability on the part of the defendant, will support an award of punitive damages for a wrongful death. See Louis Pizitz Dry Goods Co., 274 U.S. at 116; Ala. Code 1975, § 6-11-27 & -29 (the rule that a principal is not ordinarily liable for punitive damages based merely on the conduct of an agent or employee does not apply in wrongful- death cases). 1120292 and 1121205 44 Alabama has chosen to treat wrongful-death actions differently -- i.e., to allow the award of what we refer to in these cases as "punitive damages," despite the absence of some of or all the normal factors required for doing so -- as a way to recognize the enormity and finality of the loss of a life and the public interest in deterring conduct that causes this loss, while simultaneously continuing to give an understandable "nod" to the principle that we cannot place a compensatory dollar value on this loss. See Campbell v. Williams, 638 So. 2d 804, 810-11 (Ala. 1994); McKowan, 773 So. 2d at 992, 998. Thus it is that, in Tillis Trucking Co. v. Moses, 748 So. 2d 874, 889 (Ala. 1999), this Court reaffirmed the principle that "punitive damages" are appropriate in wrongful-death cases without respect to the level of culpability on the part of the defendant that normally plays such an important role in the assessment of such damages: "'Participation in actions causing the death of a human being, even if slight, can result in liability without regard to the degree of culpability, and this result, the legislature believes, will lead to greater diligence in avoiding the loss of life.'" 748 So. 2d at 889 (quoting Campbell, 638 So. 2d at 810-11). 1120292 and 1121205 45 Another criterion used to assess the appropriateness of a traditional punitive-damages award is the relationship of the punitive-damages award to the harm caused, as measured by the underlying compensatory-damages award. Obviously, however, because Alabama does not allow the recovery of compensatory damages per se in a wrongful-death action, this factor cannot not be utilized in wrongful-death actions; there is no mathematical ratio for us to consider. Tillis Trucking Co., 748 So. 2d at 890. Yet another discordant note in our attempt to apply normal punitive-damages/remittitur factors to awards in wrongful-death actions, at least in medical-malpractice cases, is this: Green Oil contemplates consideration of "the existence and frequency of similar past conduct" by the defendant, Green Oil, 539 So. 2d at 223; however, § 6-5-551 of the Alabama Medical Liability Act of 1987 expressly prohibits the discovery, or introduction at trial, of any evidence concerning other acts or omissions of a defendant health-care provider in a medical-malpractice action. See Ex parte Anderson, 780 So. 2d 190 (Ala. 2000). D. Concerns Regarding De Novo Review 1120292 and 1121205 46 Not only does the unique nature of the "punitive damages" available in Alabama wrongful-death jurisprudence raise serious questions as to whether the traditional remittitur factors "work" in that context, it concomitantly calls into question the use of a de novo standard of review. It is true that the United States Supreme Court has adopted a de novo standard for assessing the BMW/Gore factors. See Robbins v. Sanders, 927 So. 2d 777, 789 (Ala. 2005). The BMW/Gore factors, however, apply only to federal court consideration of whether an award passes constitutional muster. For some time, I have questioned whether that fact requires us to abandon the deferential review that historically has been given by appellate courts, including Alabama appellate courts, especially to non-constitutional challenges to punitive- damages awards (i.e., our Hammond/Green Oil factors). Such abandonment would seem to be especially problematic, given that the trial court's decision in such matters involves assessment by it of ore tenus evidence. I reiterate here what I said in Boudreaux, 108 So. 3d at 513 n.20 (Murdock, J., dissenting): "The main opinion applies a de novo standard of review to the challenge to the punitive-damages 1120292 and 1121205 47 award made under state law, see Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), Green Oil, supra, as well to the challenge made based upon the United States Supreme Court's decision in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). 108 So. 3d at 504. I struggle somewhat with the notion that some deference is not owed a trial judge who has sat through the trial along with the jury and is being asked to use his or her best judgment in determining the level of punitive damages appropriate in the case before him or her. Before Acceptance Insurance Co. v. Brown, 832 So. 2d 1 (Ala. 2001), and Horton Homes, Inc. v. Brooks, 832 So. 2d 44, 57 (Ala. 2001), our cases clearly recognized that deference was owed to a trial court's decision as to remittitur and that the appellate standard of review was an abuse-of-discretion standard. See, e.g., General Motors Corp. v. Edwards, 482 So. 2d 1176, 1198 (Ala. 1985) (overruled on other grounds by Schwartz v. Volvo North America Corp., 554 So. 2d 927 (Ala. 1989) (stating that 'this Court has generally followed the principle that a trial court is accorded a large measure of discretion in determining whether to grant a remittitur' and that '[w]e have also generally held that when a trial court exercises its discretion to order a remittitur, its decision is presumed correct and will not be reversed on appeal absent evidence of an abuse of discretion' (citing Todd v. United Steelworkers of America, 441 So. 2d 889, 892 (Ala. 1983)))); Henderson v. Alabama Power Co., 627 So. 2d 878, 910 (Ala. 1993), abrogated by Ex parte Apicella, 809 So. 2d 865 (Ala. 2001) (Houston, J., dissenting) (observing that even before the ratification of the Alabama Constitution of 1901, 'in cases involving egregious conduct, discretionary awards of punitive damages by juries were subject to post-judgment review by the courts under an abuse of discretion standard'). See also Jenelle Mims Marsh, Alabama Law of Damages § 7:6 (6th ed.) (noting the application of a de novo standard to challenges to 1120292 and 1121205 48 the federal constitutionality of a punitive-damages award under the three guideposts set by Gore, but the application of an abuse-of-discretion standard to challenges to the appropriateness of a punitive-damages award under state law). We are not asked in this case, however, to revisit this Court's decisions in Brown and Horton Homes ...." By continuing to embrace complete de novo review of punitive-damages awards in wrongful-death actions, we essentially place ourselves in the position of the jury and the trial court, substituting our own judgment to set the only damages awardable in this type of case. To put it colloquially: "Something is wrong with this picture." 1120292 and 1121205 Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), 12 and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989). 49 SHAW, Justice (concurring in the result as to case no. 1121205 and concurring in part and dissenting in part as to case no. 1120292). As to case no. 1121205, Part II.A of the main opinion, I concur in the result. As to case no. 1120292, I concur in part and dissent in part. Specifically, as to Part II.B.2, I concur, and as to Part II.B.1, as discussed below, I dissent. In Part II.B.1, the main opinion overrules this Court's recent decision in Boudreaux v. Pettaway, 108 So. 3d 486 (Ala. 2012), "to the extent that it [holds] that a potential bad- faith claim and/or negligent-failure-to-settle claim against a liability-insurance carrier may be considered as an asset for purposes of a Hammond/Green Oil review and a remittitur [12] analysis." ___ So. 3d at ___. I respectfully dissent. Stare decisis "'is the only thing that gives form, and consistency, and stability to the body of the law. Its structural foundations, at least, ought not to be changed except for the weightiest reasons.'" Exxon Corp. v. Department of Conservation & Natural Res., 859 So. 2d 1096, 1102 (Ala. 2002) (quoting Bolden v. Sloss–Sheffield Steel & Iron Co., 215 1120292 and 1121205 50 Ala. 334, 340, 110 So. 574, 580 (1925) (Somerville, J., dissenting)). This Court has turned away from such stability of the law when it "'has had to recognize on occasion that it is necessary and prudent to admit prior mistakes and to take the steps necessary to ensure that we foster a system of justice that is manageable and that is fair to all concerned.'" Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 88 (Ala. 2012) (quoting Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997)). I see no "prior mistake" of this Court explained in the main opinion that would require that we back away from Boudreaux or Mutual Assurance, Inc. v. Madden, 627 So. 2d 865 (Ala. 1993), upon which Boudreaux relied. Both Boudreaux and Madden recognize limits to the application of this principle. In Madden, the "trial court had before it considerable evidence" to support its determination, 627 So. 2d at 866, and in Boudreaux, "[t]he trial court made detailed findings explaining its evaluation of the merits of the potential claim and the evidence it had considered in reaching that 1120292 and 1121205 In Boudreaux, there was actually no argument on appeal 13 "that the trial court lacked sufficient information to adequately assess the defendants' potential claim against their insurer." 108 So. 3d at 509. 51 determination." 108 So. 3d at 510. However, the 13 consideration of a potential bad-faith claim and judgment as an asset has been rejected by this Court when it is "too speculative" and is not supported by "considerable evidence." Tillis Trucking Co. v. Moses, 748 So. 2d 874, 887-88 (Ala. 1999). I see no reason to abandon our precedent in Boudreaux and Madden. To me, discounting a potential bad-faith claim as an asset of a defendant may result in a windfall for the defendant if an award against the defendant is later paid for in a judgment entered in an action by the defendant against the defendant's insurer with punitive damages to boot. See also Ex parte Vulcan Materials Co., 992 So. 2d 1252, 1261 (Ala. 2008) ("[A] defendant cannot argue as a basis for reducing the punitive-damages award that the award 'stings' too much, in the absence of evidence of the defendant's financial status."). 1120292 and 1121205 Part II.B.1 also directs "that the trial court, in 14 calculating Dr. Gillis's assets under Hammond/Green Oil, should not consider Dr. Gillis's wife's portion of their jointly owned assets." ___ So. 3d at ___. I see no argument on appeal by Dr. Gillis as to this issue; thus, I would not address it. 52 Instead of a wholesale overruling of Boudreaux (and, sub silentio, Madden), I would review, as we have previously done in Boudreaux and Madden, whether the trial court erred in assigning any value to Dr. Gillis's potential claim.14 Parker, J., concurs in discussion of Part II.B.1 of the main opinion.	August 1, 2014
62196d15-5df3-4611-8135-5fb01d0ac0a6	Tiffin Motorhomes, Inc. v. Thompson I.G., LLC et al.	N/A	1121291	Alabama	Alabama Supreme Court	REL: 07/25/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1121291 _________________________ Ex parte Edgetech I.G., Inc., n/k/a Quanex I.G. Systems, Inc. PETITION FOR WRIT OF MANDAMUS (In re: Tiffin Motorhomes, Inc. v. Thompson I.G., LLC, et al.) (Franklin Circuit Court, CV-13-900034) WISE, Justice. 1121291 Tiffin Motorhomes, Inc. ("Tiffin"), sued Edgetech I.G., 1 Inc., n/k/a Quanex I.G. Systems, Inc. ("Edgetech"); Quanex Building Products Corporation ("Quanex Building Products"); Thompson I.G., LLC, and RDM Consulting, LLC (hereinafter collectively referred to as "Thompson"); and Wynne 2 Enterprises, Inc., in the Franklin Circuit Court. Edgetech filed a motion to dismiss the claims against it for lack of personal jurisdiction; the trial court denied the motion. Edgetech then filed this petition for a writ of mandamus requesting that this Court direct the trial court to vacate its order denying the motion to dismiss and to enter an order granting the motion and dismissing the case against it. We grant the petition and issue the writ. Factual Background and Procedural History Edgetech manufactures a foam spacer product, "Super Spacer," which is "sold in bulk and used by third-parties in the manufacture of insulated glass window units." Thompson, The materials before this Court refer to this entity as 1 "Tiffin Motorhomes, Inc." However, we note that, in other cases, this entity has been referred to as "Tiffin Motor Homes, Inc." The amended complaint alleges that RDM was the successor 2 company to Thompson. 2 1121291 a Michigan company, manufactures insulated-glass units for use in residential-home construction, in motor homes, and in recreational vehicles. Between 2005 and 2010, Thompson purchased Super Spacer "E-class" or ethylene propylene diene monomer ("EPDM") product from Edgetech and started using the Super Spacer product in its insulated-glass units. Thompson then sold insulated-glass units that contained the Super Spacer product to Wynne Enterprises, an Alabama company that manufactures windows. Wynne Enterprises then sold completed window units that contained the Super Spacer product to Tiffin, which manufactures motor homes in Red Bay. Tiffin installed the window units containing the Super Spacer product in its motor homes. On February 15, 2013, Tiffin filed a complaint in the Franklin Circuit Court, naming as defendants Thompson I.G., LLC, Edgetech I.G., Inc., and Wynne Enterprises. The 3 complaint alleged that, after fabrication and installation, windows that had been manufactured using the Super Saver product had clouded, fogged, and failed; that there were Tiffin subsequently filed amended complaints adding RDM 3 Consulting, LLC, Quanex I.G. Systems, Inc., and Quanex Building Products as defendants. 3 1121291 issues with the adhesive used by Edgetech not adhering to the Super Spacer products; that the defendants had failed to remedy or to address the failure of the Super Spacer products; that the failure of the Super Spacer products had resulted in warranty claims against Tiffin; that the latent defect with the Super Spacer products required full replacement and installation of windows in motor homes using the Super Spacer products; and that Super Spacer products continued to fail in the field, causing Tiffin to continue to incur new warranty claims and associated costs. Tiffin alleged claims of breach of contract, breach of implied warranty, and breach of express warranty against all the defendants. It also alleged claims of fraud, suppression, and deceit against Edgetech, Thompson, and Quanex Building Products. On April 17, 2013, pursuant to Rule 12(b)(2), Ala. R. Civ. P., Edgetech filed a motion to dismiss the claims against it for lack of personal jurisdiction. It subsequently filed a renewed motion to dismiss after Tiffin filed its first amended complaint. In its motion to dismiss, Edgetech argued that it did not have sufficient contacts with Alabama to 4 1121291 establish that Alabama courts had either general or specific personal jurisdiction over it. On June 26, 2013, Tiffin filed its opposition to the motion to dismiss and the renewed motion to dismiss. Tiffin argued: "General jurisdiction is proper as [Edgetech] has systematic and continuous contacts with Alabama due to its production facility in Decatur, Alabama; "This Court has jurisdiction over Edgetech because it knew its products were being shipped to customers in Alabama; "Edgetech purposely availed itself of the privilege of doing business in Alabama because it markets goods through a distributor who has agreed to serve as its sales agent in Alabama." Alternatively, Tiffin requested an order allowing discovery directed to the issue of jurisdiction. On July 10, 2013, the trial court entered an order denying Edgetech's motion to dismiss. Edgetech then filed its petition for a writ of mandamus with this Court. Standard of Review "As we stated in Ex parte Duck Boo [International, Co., 985 So. 2d 900 (Ala. 2007)], this Court recently addressed the standard of review in a proceeding challenging the trial court's ruling on a motion to dismiss for lack of personal jurisdiction: 5 1121291 "'"'The writ of mandamus is a drastic and extraordinary writ, to be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993); see also Ex parte Ziglar, 669 So. 2d 133, 134 (Ala. 1995).' Ex parte Carter, [807 So. 2d 534,] 536 [(Ala. 2001)]." "'Ex parte McWilliams, 812 So. 2d 318, 321 (Ala. 2001). "An appellate court considers de novo a trial court's judgment on a party's motion to dismiss for lack of personal jurisdiction." Elliott v. Van Kleef, 830 So. 2d 726, 729 (Ala. 2002). "'"'"In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiff's c o m p l a i n t n o t controverted by the defendant's affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and C a b l e / H o m e Communication Corp. v. 6 1121291 Network Productions, Inc., 902 F.2d 829 (11th Cir. 1990), and 'where the plaintiff's complaint and the defendant's affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.' Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990))."' "'"Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So. 2d 888, 894 (Ala. 2002) (quoting Ex parte McInnis, 820 So. 2d 795, 798 (Ala. 2001)). However, if the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, 'the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.' Mercantile Capital, LP v. Federal Transtel, Inc., 193 F. Supp. 2d 1243, 1247 (N.D. Ala. 2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D. Del. 1995) ('When a defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 7 1121291 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.') (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984))." "'Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226, 229-30 (Ala. 2004).' "Ex parte Bufkin, 936 So. 2d 1042, 1044-45 (Ala. 2006)." Ex parte DBI, Inc., 23 So. 3d 635, 642-43 (Ala. 2009). Discussion Edgetech argues that the trial court erroneously denied its motion to dismiss because, it says, Tiffin did not satisfy its burden of proving that the trial court had in personam jurisdiction over Edgetech. "'The extent of an Alabama court's personal jurisdiction over a person or corporation is governed by Rule 4.2, Ala. R. Civ. P., Alabama's "long-arm rule," bounded by the limits of due process under the federal and state constitutions. Sieber v. Campbell, 810 So. 2d 641 (Ala. 2001). Rule 4.2(b), as amended in 2004, states: " ' " ( b ) Ba s i s f o r Out-of-State Service. An appropriate basis exists for 8 1121291 service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not i n c o n s i s t e n t w i t h t h e constitution of this state or the Constitution of the United States ...." "'In accordance with the plain language of Rule 4.2, both before and after the 2004 amendment, Alabama's long-arm rule consistently has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. Duke v. Young, 496 So. 2d 37 (Ala. 1986); DeSotacho, Inc. v. Valnit Indus., Inc., 350 So. 2d 447 (Ala. 1977). As this Court reiterated in Ex parte McInnis, 820 So. 2d 795, 802 (Ala. 2001) (quoting Sudduth v. Howard, 646 So. 2d 664, 667 (Ala. 1994)), and even more recently in Hiller Investments Inc. v. Insultech Group, Inc., 957 So. 2d 1111, 1115 (Ala. 2006): "Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of the Alabama courts to the limit of due process under the federal and state constitutions." (Emphasis added.) "'This Court discussed the extent of the personal jurisdiction of Alabama courts in Elliott v. Van Kleef, 830 So. 2d 726, 730 (Ala. 2002): "'"This Court has interpreted the due process guaranteed under the Alabama 9 1121291 Constitution to be coextensive with the due process guaranteed under the United States Constitution. See Alabama Waterproofing Co. v. Hanby, 431 So. 2d 141, 145 (Ala. 1983), and DeSotacho, Inc. v. Valnit Indus., Inc., 350 So. 2d 447, 449 (Ala. 1977). See also Rule 4.2, Ala. R. Civ. P., Committee Comments on 1977 Complete Revision following Rule 4.4, under the heading 'ARCP 4.2.' ('Subparagraph (I) was included by the Committee to insure that a basis of jurisdiction was included in Alabama procedure that was coextensive with the scope of the f e d e r a l d u e p r o c e s s clause....'[ ]). 4 "'"The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient 'minimum contacts' with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945). The critical question with regard to the nonresident defendant's contacts is whether the contacts are such that the nonresident Rule 4.2 was amended effective August 1, 2004, to delete 4 the so-called "laundry list" of conduct that would subject an out-of-state defendant to personal jurisdiction in Alabama. See Committee Comments to Amendment to Rule 4.2 Effective August 1, 2004. 10 1121291 defendant '"should reasonably anticipate being haled into court"' in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)."' "Ex parte DBI, Inc., 23 So. 3d 635, 643-44 (Ala. 2009)(footnote omitted). "'Furthermore, this Court has explained: "'"... The sufficiency of a party's contacts are assessed as follows: "'"'Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist o f the defendant's contacts with the forum state that are unrelated to the cause of action and t h a t a r e b o t h " c o n t i n u o u s a n d s y s t e m a t i c . " Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S. Ct. 1868, 80 L. Ed. 2d 404 11 1121291 (1984); [citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant's contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.' "'"Ex parte Phase III Constr., Inc., 723 So. 2d 1263, 1266 (Ala. 1998) (Lyons, J., concurring in the result). ... "'"In the case of either general in personam jurisdiction or specific in personam jurisdiction, '[t]he "substantial connection" between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.' Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987)." 12 1121291 "'Elliott [v. Van Kleef], 830 So. 2d [726,] 730-31 [(Ala. 2002)] (emphasis added).' "Sverdrup Tech., Inc. v. Robinson, 36 So. 3d 34, 42- 43 (Ala. 2009)." Ex parte Excelsior Fin., Inc., 42 So. 3d 96, 100-02 (Ala. 2010). Tiffin's second amended complaint alleged that Edgetech "is an Ohio corporation doing business in the State of Alabama" and that Quanex I.G. Systems, Inc., is an Ohio corporation "which, upon information and belief is doing business in the State of Alabama and [is] the successor company of Edgetech I.G., Inc." It further alleged: "Defendant Quanex Building Products Corporation is a Delaware corporation, which, upon information and belief is doing business in the State of Alabama through its office located at 2001 Highway 20 West, Decatur, Alabama 35601 and which acquired Edgetech I.G., Inc., on or about April 1, 2011 and is the successor corporation." The second amended complaint further alleged: "The Defendants transact and engage in business in the State of Alabama, regularly do business in this State, solicit business in this State, engage in a persistent course of conduct in this State and further derive substantial revenue from goods used or consumed or services rendered in this State. Defendants Thompson and Edgetech have purposefully acted to obtain benefits and privileges in the State of Alabama and have further purposely availed 13 1121291 themselves of the privileges of conducting business within the State of Alabama. That Defendants sell, distribute and market their products through a network of dealers throughout Alabama, the United States, Canada and Europe. The Defendants further provide promotional materials for purposes of marketing and selling their products in the State of Alabama." However, in support of its motion to dismiss, Edgetech submitted an affidavit from Larry Johnson, the vice president of Sales, Insulating Glass Systems, for Quanex Building Products, and the former executive president of Edgetech. In his affidavit, Johnson stated, in pertinent part: "4. As it relates to this case, Edgetech sold a bulk amount of Super Spacer 'E-class' or 'EPDM,' to Thompson I.G., LLC ('Thompson'), a Michigan limited liability company that manufactures insulated glass units for use in residential home construction as well as in motorhomes and recreational vehicles. "5. Once Edgetech delivers Super Spacer product to Thompson, Edgetech's involvement in the manufacture of insulated glass windows is complete. Edgetech does not control and has no means of controlling Thompson's manufacturing processes, including its use of Super Spacer. Nor does Edgetech control or have any means of controlling the system of distribution which carried Thompson's completed insulated glass units, which contain the Super Spacer product as a component part, to Alabama. In particular, Edgetech was not involved in the selection of Alabama and/or Wynne Enterprises, Inc. ('Wynne'), as the target market for Thompson's insulated glass units or in any of Thompson's decisions which led to the sale of Thompson's units to Wynne. Rather, Thompson alone 14 1121291 determined to sell its finished products, of which the Super Spacer is only a small piece, into Alabama. "6. Specifically, Edgetech has no relationship with Wynne, the window manufacturer to whom Thompson sold its completed insulated glass window units. Edgetech and Wynne do not directly communicate with each other on a regular basis. Any communication between Edgetech and Wynne was initiated by Wynne or was made by Wynne at Thompson's request. Further, Edgetech has never sold any Super Spacer directly to Wynne. "7. Nor does Edgetech have a relationship with or directly communicate with the Plaintiff in this case, Tiffin. Edgetech and Tiffin never communicated with each other until just prior to the initiation of this lawsuit, when Tiffin initiated contact and demanded payment for allegedly faulty window units. Further, Edgetech has never sold any Super Spacer to Tiffin. ".... "9. Edgetech does not sell or ship its E-class (or EPDM) Super Spacer to any customer in Alabama. "10. Edgetech has only two current customers in Alabama, and neither receive E-class (or EPDM) Super Spacer product. Sales to Edgetech's two Alabama customers account for less than one one-hundredth of a percent of Edgetech's overall sales. "11. Edgetech's limited number of sales to these two customers in Alabama was not initiated by Edgetech, but was the work of an independent sales agent based out of Georgia. This independent sales agent is not employed by Edgetech, but is an independent contractor who also sells products other than Edgetech's Super Spacer on commission. 15 1121291 "12. Edgetech does not extend warranties on its E-Class (or EPDM) Super Spacer product to residents of Alabama, as Edgetech's standard warranty extends only to the original purchaser of its products. "13. Edgetech does not directly target Alabama with any advertisements or otherwise directly solicit business in Alabama. While Edgetech employs internet and electronic-mail advertising, Edgetech does not target any Alabama entity with internet or electronic-mail advertising. Further, Edgetech advertises in industry or trade magazines, but it does not specifically target Alabama-based magazines. "14. Beyond this sporadic and limited involvement with two customers in Alabama, Edgetech has no physical presence in Alabama, does not target Alabama for sales or advertising, and has never purposefully availed itself of Alabama law or the benefits of doing business in Alabama." Johnson went on to state that Edgetech was organized under the laws of the State of Ohio and had its principal place of business in Ohio. He further stated that Edgetech did not regularly conduct business in Alabama; did not maintain a place of business in Alabama; was not licensed to do business in Alabama; was not registered as a business entity with the Alabama Secretary of State; did not have a registered agent for service of process in Alabama; did not have any office or storefront locations in Alabama; did not employ any Alabama residents; did not have its employees come to Alabama to 16 1121291 solicit sales of Super Spacer or to market Edgetech's products; did not employ any persons who otherwise work in Alabama; did not own, rent, or lease any real estate in Alabama; did not keep or store equipment or inventory in Alabama; did not have a telephone, fax, or other contact number in Alabama; did not have an Alabama mailing address; did not have any checking, savings, or other financial accounts based in Alabama; had never paid taxes to the Alabama Department of Revenue; had never had an Alabama employer- identification number; and had never sued or been sued in Alabama before this lawsuit. Johnson then asserted: "15. Based on the foregoing and as explained below, Tiffin's allegations in the Complaint pertaining to Edgetech's contacts with Alabama are inaccurate. "16. Edgetech does not regularly 'transact and engage in business in the State of Alabama, ... solicit business in [Alabama,] engage in a persistent course of conduct in [Alabama, or] further derive substantial revenue from goods used or consumed or services rendered in [Alabama].' "17. Edgetech has not purposefully acted to obtain the benefits, or purposefully availed itself of the privileges, of doing business in Alabama. "18. Edgetech does not have a network of dealers throughout Alabama, the United States of America, Canada, and Europe, but instead sells its Super 17 1121291 Spacer product directly to third-party insulated glass manufacturers such as Thompson. "19. While Edgetech does allow its customers to use promotional materials carrying the Edgetech brand, Edgetech has no control over its customer's use of such materials and has never been involved in the decision to use those materials to market Super Spacer or otherwise solicit sales of Super Spacer in Alabama." A. Edgetech argues that Tiffin did not establish that the trial court had general jurisdiction over it. Edgetech alleges that it conducts its business in Ohio; that it manufactures its Super Spacer products in Ohio; that it sold the Super Spacer product at issue in this case to a third party in Michigan; that it delivered the product in question to Michigan; and that the party in Michigan was the third- party company that sold the glass units containing the Super Spacer product to an Alabama company. It also submitted evidence indicating that it does not maintain offices in Alabama; that it does not own or lease any property in Alabama; that it does not and has not ever had any employees in Alabama; and that it does not have any officers, employees, or directors living in Alabama. However, as Edgetech concedes, "'[a] physical presence in Alabama is not a 18 1121291 prerequisite to personal jurisdiction over a nonresident.' Sieber v. Campbell, 810 So. 2d 641, 644 (Ala. 2001)." Ex parte Reindel, 963 So. 2d 614, 617 (Ala. 2007). See also Ex parte DBI, supra. Therefore, we must determine whether Edgetech had such contacts with Alabama that it should have reasonably anticipated being haled into court here. See Reindel, supra. The United States Supreme Court addressed the requirements for general jurisdiction in Goodyear Dunlop Tires Operations, S.A. v. Brown, ___ U.S. ___, 131 S. Ct. 2846 (2011), as follows: "A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State. See International Shoe [Co. v. Washington], 326 U.S. [310,] 317 [(1945)]. ".... "International Shoe distinguished from cases that fit within the 'specific jurisdiction' categories, 'instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.' 326 U.S., at 318. Adjudicatory authority so grounded is today called 'general jurisdiction.' Helicopteros 19 1121291 [Nacionales de Colombia, S.A. v. Hall], 466 U.S. [408], 414, n. 9 [(1984)]. For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home. See Brilmayer[ et al., A General Look at General Jurisdiction 6 Texas L. Rev. 721,] 728 [(1988)] (identifying domicile, place of incorporation, and principal place of business as 'paradig[m]' bases for the exercise of general jurisdiction). ".... "In only two decisions postdating International Shoe, discussed infra, at ___, has this Court considered whether an out-of-state corporate defendant's in-state contacts were sufficiently 'continuous and systematic' to justify the exercise of general jurisdiction over claims unrelated to those contacts: Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952) (general jurisdiction appropriately exercised over Philippine corporation sued in Ohio, where the company's affairs were overseen during World War II); and Helicopteros, 466 U.S. 408 (helicopter owned by Colombian corporation crashed in Peru; survivors of U.S. citizens who died in the crash, the Court held, could not maintain wrongful-death actions against the Colombian corporation in Texas, for the corporation's helicopter purchases and purchase-linked activity in Texas were insufficient to subject it to Texas court's general jurisdiction). ".... "A corporation's 'continuous activity of some sorts within a state,' International Shoe instructed, 'is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.' 326 U.S., at 318. Our 1952 decision in Perkins v. Benguet Consol. Mining Co. 20 1121291 remains '[t]he textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum.' Donahue v. Far Eastern Air Transport Corp., 652 F.2d 1032, 1037 (C.A.D.C. 1981). "Sued in Ohio, the defendant in Perkins was a Philippine mining corporation that had ceased activities in the Philippines during World War II. To the extent that the company was conducting any business during and immediately after the Japanese occupation of the Philippines, it was doing so in Ohio: the corporation's president maintained his office there, kept the company files in that office, and supervised from the Ohio office 'the necessarily limited wartime activities of the company.' Perkins, 342 U.S., at 447–448. Although the claim-in-suit did not arise in Ohio, this Court ruled that it would not violate due process for Ohio to adjudicate the controversy. Ibid.; see Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779–780, n. 11 (1984) (Ohio's exercise of general jurisdiction was permissible in Perkins because 'Ohio was the corporation's principal, if temporary, place of business'). "We next addressed the exercise of general jurisdiction over an out-of-state corporation over three decades later, in Helicopteros. In that case, survivors of United States citizens who died in a helicopter crash in Peru instituted wrongful-death actions in a Texas state court against the owner and operator of the helicopter, a Colombian corporation. The Colombian corporation had no place of business in Texas and was not licensed to do business there. 'Basically, [the company's] contacts with Texas consisted of sending its chief executive officer to Houston for a contract-negotiation session; accepting into its New York bank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training services from [a Texas enterprise] for substantial sums; and sending 21 1121291 personnel to [Texas] for training.' 466 U.S., at 416. These links to Texas, we determined, did not 'constitute the kind of continuous and systematic general business contacts ... found to exist in Perkins,' and were insufficient to support the exercise of jurisdiction over a claim that neither 'ar[o]se out of ... no[r] related to' the defendant's activities in Texas. Id., at 415–416 (internal quotation marks omitted). "Helicopteros concluded that 'mere purchases [made in the forum State], even if occurring at regular intervals, are not enough to warrant a State's assertion of [general] jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.' Id., at 418." ___ U.S. at ___, 131 S. Ct. at 2851-57. In its answer and brief, Tiffin does not specifically argue that Edgetech had continuous and systematic contacts that would subject it to the general jurisdiction of the trial court. Rather, Tiffin appears to focus solely on its argument that the trial court had specific jurisdiction over Edgetech. However, in its answer and brief, Tiffin does rely on this Court's decision in Ex parte Lagrone, 839 So. 2d 620 (Ala. 2002). In Lagrone, this Court relied upon the fact that the defendant in that case had placed products in the stream of commerce with the knowledge that some of those products had been sold to customers in Alabama as a basis for finding 22 1121291 general jurisdiction. However, in Goodyear, decided after Lagrone, the United States Supreme Court specifically stated that, although the stream-of-commerce test is relevant to determining whether a defendant had sufficient contacts with a State to justify the exercise of specific jurisdiction, "ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant. See, e.g., Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 203, n.5 (C.A.D.C. 1981) (defendants' marketing arrangements, although 'adequate to permit litigation of claims relating to [their] introduction of ... wine into the United States stream of commerce, ... would not be adequate to support general, "all purpose" adjudicatory authority')." ___ U.S. at ___, 131 S. Ct. at 2855-56. Therefore, Tiffin's reliance on Lagrone is misplaced. At most, the evidence before the trial court established that Edgetech had two current customers in Alabama; that its sales to those two Alabama customers account for less than one one-hundredth of a percent of Edgetech's overall sales; that those sales were not initiated by Edgetech, but were the work of an independent sales agent based out of Georgia; that the independent sales agent is not employed by Edgetech; and that the sales agent is an independent contractor who also sells 23 1121291 products other than Edgetech's. These limited contacts are not sufficient to establish the type of continuous and systematic contacts that would support a finding of general jurisdiction. But cf. International Shoe Co. v. Washington, 5 326 U.S. 310 (1945)(holding that the defendant's contacts with the State of Washington were continuous and systematic where they resulted in a large volume of interstate business from which the defendant received the benefit and protection of the laws of the State of Washington). B. Edgetech next argues that it likewise did not have sufficient contacts with Alabama to subject it to the specific jurisdiction of the trial court. 1. In its answer and brief, Tiffin asserts that Edgetech 5 "targeted and served the Alabama market through its own employees and sales agents." To support this assertion, Tiffin relies upon printouts from the Quanex Building Products Web site attached to its brief as Appendix C. However, we will not consider Appendix C because it was not presented to the trial court. See Ex parte East Alabama Med. Ctr., 109 So. 3d 1114, 1117 (Ala. 2012) (quoting Ex parte Cincinnati Ins. Co., 51 So. 3d 298, 310 (Ala. 2010), for the proposition that, "'in a mandamus proceeding, this Court will not consider evidence not presented to the trial court'"). 24 1121291 Initially, Edgetech argues that this Court should overrule the test for specific personal jurisdiction set forth in Ex parte DBI, supra, based on the United States Supreme Court's decision in J. McIntyre Machinery, Ltd. v. Nicastro, ___ U.S. ___, 131 S. Ct. 2780 (2011). In Ex parte DBI, this Court stated: "DBI repeatedly invokes the mantra of 'fifty years of precedent,' asserting the necessity for this Court to adhere to its previous decisions addressing the issue of personal jurisdiction over nonresident defendants. Our precedent, however, is only the result of an attempt to apply the precedent of the United States Supreme Court to the facts before us. In so doing, we search for a definition of the amorphous term 'due process' the Framers applied as a limit on federal power in the Fifth Amendment and the citizens extended to the States upon ratification of the Fourteenth Amendment. We have no recent guidance from the United States Supreme Court. As previously noted, in the murky aftermath of the plurality opinions in Asahi[ Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102 (1987)], the task has not been made any easier. Until more definite direction is given, we revert to the last expressions from the United States Supreme Court in World–Wide Volkswagen[ Corp. v. Woodson, 444 U.S. 286 (1980),] and Burger King [Corp. v. Rudzewicz, 471 U.S. 462 (1985),] that are not hampered by the lack of a majority." Ex parte DBI, 23 So. 3d at 649. This Court then went on to address the issue of personal jurisdiction "[u]nder the stream-of-commerce test, as articulated in World-Wide 25 1121291 Volkswagen and Burger King." 23 So. 3d at 655. Edgetech argues that the United States Supreme Court's decision in McIntyre provides more definite direction regarding specific personal jurisdiction and that, in McIntyre, the United States Supreme Court expressly rejected the stream-of-commerce test for personal jurisdiction. The plurality opinion in McIntyre was authored by Justice Kennedy and was joined by Chief Justice Roberts and Justices Scalia and Thomas. Justice Breyer wrote an opinion concurring in the judgment, which Justice Alito joined. Finally, Justice Ginsburg wrote a dissenting opinion, which Justices Sotomayor and Kagan joined. The United States Court of Appeals for the Federal Circuit addressed the effect of McIntyre as follows: "The Supreme Court recently revisited the stream-of-commerce theory in McIntyre Machinery, Ltd. v. Nicastro, ___ U.S. ___, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011). The Court, however, declined to resolve its long-standing split on that theory. "In McIntyre, the Court was asked to revisit questions left open in Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987). In Asahi, the Court's members disagreed whether a defendant could be subject to personal jurisdiction in a forum merely because the defendant had placed a product in the stream of commerce. Justice 26 1121291 Brennan, writing for four Justices, evaluated personal jurisdiction under the stream-of-commerce theory by relying on considerations of foreseeability. Justice Brennan wrote that 'jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause,' for '[a]s long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.' Asahi, 480 U.S. at 117, 107 S. Ct. 1026 (opinion concurring in part and concurring in the judgment). "Justice O'Connor and three other Justices rejected Justice Brennan's approach. In their view, mere foreseeability or awareness that 'the stream of commerce may or will sweep the product into the forum State' is insufficient. Id. at 112, 107 S. Ct. 1026. Justice O'Connor wrote: "'The substantial connection between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.' "Id. (citing Burger King, 471 U.S. at 476, 105 S. Ct. 2174; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984)) (internal quotation marks omitted). "Because neither Justice Brennan's nor Justice O'Connor's test garnered a majority of the votes in Asahi, neither test prevailed as the applicable precedent. "The Court declined to resolve the Asahi split in McIntyre. In a plurality opinion, Justice 27 1121291 Kennedy acknowledged the imprecision of the metaphor 'stream of commerce,' stating that '[i]t refers to the movement of goods from manufacturers through distributors to consumers, yet beyond that descriptive purpose its meaning is far from exact.' McIntyre, 131 S. Ct. at 2788. The plurality sided with Justice O'Connor's approach in Asahi, concluding that the 'principal inquiry' is 'whether the defendant's activities manifest an intention to submit to the power of a sovereign. In other words, the defendant must "purposefully avai[l] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."' Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958)). Justice Kennedy noted that '[t]he defendant's transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.' Id. He further reasoned that Justice Brennan's approach was inconsistent with precedent, holding that 'it is the defendant's actions, not his expectations, that empower a State's courts to subject him to judgment.' Id. at 2789. A court's jurisdiction, in other words, is 'a question of authority rather than fairness.' Id. "Justice Breyer, joined by Justice Alito, declined to join Justice Kennedy's plurality opinion. Justice Breyer further declined to endorse revising the jurisdictional standard at all. He acknowledged that developments in commerce and communication, such as globalization, have occurred since the Court last considered the stream-of-commerce theory. Id. at 2791. Such 'modern-day consequences' were not at issue in McIntyre, however, and Justice Breyer deemed it unwise to revise the jurisdictional standard in a case that did not present those consequences. Id. He wrote: 28 1121291 "'[O]n the record presented here, resolving this case requires no more than adhering to our precedents.... I would not go further. Because the incident at issue in this case does not implicate modern concerns, and because the factual record leaves open many questions, this is an unsuitable vehicle for making broad pronouncements that refashion basic jurisdictional rules.' "Id. at 2792–93. Thus, the crux of Justice Breyer's concurrence was that the Supreme Court's framework applying the stream-of-commerce theory -- including the conflicting articulations of that theory in Asahi -- had not changed, and that the defendant's activities in McIntyre failed to establish personal jurisdiction under any articulation of that theory. Id. "Because McIntyre did not produce a majority opinion, we must follow the narrowest holding among the plurality opinions in that case. Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). The narrowest holding is that which can be distilled from Justice Breyer's concurrence -- that the law remains the same after McIntyre." AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1362-63 (Fed. Cir. 2012). See also Simmons v. Big No. 1 Motor Sports, Inc., 908 F. Supp. 2d 1224, 1228-29 (N.D. Ala. 2012); Ainsworth v. Cargotec USA, Inc., (No. CV 2:10-CV-236-KS-MTP, September 23, 2011) (S.D. Miss. 2011) (not reported in F. Supp. 2d). But see, e.g., Smith v. Teledyne Continental Motors, Inc., 840 F. Supp. 2d 927, 931 (D.S.C. 2012) (stating 29 1121291 that, in McIntyre, "six Justices agree that, at a minimum, the limitations of Justice O'Connor's test should be applied" and that the "'stream-of-commerce plus' test now commands a majority of the Court"); Windsor v. Spinner Indus. Co., 825 F. Supp. 2d 632, 638 (D. Md. 2011) (construing McIntyre "as rejecting the foreseeability standard of personal jurisdiction, but otherwise leaving the legal landscape untouched"). Contrary to Edgetech's argument, the United States Supreme Court's decision in McIntyre does not squarely indicate that that Court has rejected the stream-of-commerce test articulated in World-Wide Volkswagen Corp. v. Wilson, 444 U.S. 286 (1980), and Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), or the test for personal jurisdiction adopted by this Court in Ex parte DBI. Rather, courts in other jurisdictions are divided as to the effect of McIntyre. Additionally, Justice Breyer's concurring opinion makes it clear that he was not enunciating a new rule of jurisdiction; rather, he was strictly adhering to that Court's precedents. In Ex parte DBI, based on the fractured opinion in Asahi, this Court "revert[ed] to the last expression from the United 30 1121291 States Supreme Court in World-Wide Volkswagen and Burger King." 23 So. 3d at 649. Thus, we decline Edgetech's request to overrule Ex parte DBI based on the United States Supreme Court's decision in McIntyre. 2. Next, we must determine whether, under the test set forth in Ex parte DBI, Edgetech had sufficient contacts to establish specific jurisdiction in Alabama. In Ex parte DBI, Tonya Leytham, as administratrix and personal representative of Tiffany Stabler's estate and as Stabler's mother and next friend, sued DBI, a manufacturer of seat belts; Kia Motors America, Inc., and Kia Motors Corporation (hereinafter collectively referred to as "Kia Motors"); and several other defendants. The lawsuit arose from an automobile accident that resulted in Stabler's death. At the time of the accident, Stabler was driving an automobile that had been manufactured by Kia Motors and that was equipped with a seat belt that had been manufactured by DBI. Leytham alleged that Stabler was wearing her seat belt at the time of the accident and that the seat belt had malfunctioned and allowed Stabler to be ejected from the vehicle. 31 1121291 DBI was located in the Republic of Korea ("South Korea"), and it alleged that it did not do any direct business with or in the United States. However, DBI manufactured seat belts for Kia Motors. Additionally, "Leytham points out that DBI contracted with a New Jersey company to test its seat belts to obtain a label stating that the seat belts complied with the FMVSS,[ ] which rendered the seat belts marketable in 6 the United States. Furthermore, Leytham says, DBI entered into a claims-indemnification contract with Kia Motors; it maintains insurance coverage against risks or losses occurring in the United States; and it retains defense counsel here. Leytham argues that because DBI designed its seat belts to comply with the FMVSS and because it knew that Kia Motors would incorporate its seat belts into automobiles that would be sold nationally in the United States, DBI should have known that some of those automobiles would be sold in Alabama. Should any of those seat belts prove defective, Leytham says, DBI should have anticipated that it could be sued in Alabama." 23 So. 3d at 654. DBI filed a motion to dismiss, arguing that the trial court did not have personal jurisdiction over it. Ultimately, the trial court denied DBI's motion to dismiss, and DBI filed a petition for a writ of mandamus in this Court. "FMVSS" is an acronym for Federal Motor Vehicle Safety 6 Standards. 32 1121291 This Court addressed the existing precedent of the United States Supreme Court in light of the facts presented in that case, as follows: "In World-Wide Volkswagen, the plaintiffs, New York residents, purchased an Audi automobile from a New York dealership. The Audi was manufactured in Germany and imported into the United States by Volkswagen of America, Inc. World-Wide Volkswagen Corporation, the regional distributor of the Audi, served the states of New York, New Jersey, and Connecticut. In the course of traveling from New York to Arizona, the plaintiffs were involved in an automobile accident in Oklahoma. They later brought a products-liability action in Oklahoma, naming as defendants the manufacturer, importer, regional distributor, and dealership of the Audi. Both World-Wide Volkswagen and the New York dealership sought a writ prohibiting the trial judge from exercising in personam jurisdiction over them. When the Supreme Court of Oklahoma denied relief, they sought certiorari review in the United States Supreme Court. The Supreme Court reversed the judgment of the Supreme Court of Oklahoma, holding that the New York distributor and dealership did not have sufficient minimum contacts with Oklahoma to subject them to suit there. The Court stated: "'As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contacts" between the defendant and the forum State. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their 33 1121291 courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. "'The protection against inconvenient litigation is typically described in terms of "reasonableness" or "fairness." We have said that the defendant's contacts with the forum State must be such that maintenance of the suit "does not offend 'traditional notions of fair play and substantial justice.'" The relationship between the defendant and the forum must be such that it is "reasonable ... to require the corporation to defend the particular suit which is brought there." Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State's interest in adjudicating the dispute; the plaintiff's interest in obtaining convenient and effective relief, at least when that interest is not adequately protected by the plaintiff's power to choose the forum; the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies. "'The limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, have been substantially relaxed over the years. As we noted in McGee v. International Life Ins. Co., supra, 355 U.S. [220], at 222-223, 78 S. Ct. [199], at 201 [(1957)], this trend is largely attributable to a 34 1121291 fundamental transformation in the American economy: "'"Today many commercial transactions touch two or more States and may involve parties separated by the full continent. W i t h t h i s i n c r e a s i n g nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." "'The historical developments noted in McGee, of course, have only accelerated in the generation since that case was decided.' "444 U.S. at 291-93, 100 S. Ct. 559 (citations omitted). "It is clear from World-Wide Volkswagen that foreseeability alone is not the determining factor. "'.... "'This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. The Due Process Clause, by 35 1121291 ensuring the "orderly administration of the laws," gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. "'When a corporation "purposefully avails itself of the privilege of conducting activities within the forum State," it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.' "444 U.S. at 295-98, 100 S. Ct. 559 (footnote omitted) (citations omitted). "The United States Supreme Court expanded on the subject of personal jurisdiction in Burger King. ... The Court stated: 36 1121291 "'We have noted several reasons why a forum legitimately may exercise personal jurisdiction over a nonresident who "purposefully directs" his activities toward forum residents. A State generally has a "manifest interest" in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. Moreover, where individuals "purposefully derive benefit" from their interstate activities, it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed. And because "modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity," it usually will not be unfair to subject him to the burdens of litigating in another forum for disputes relating to such activity. " ' N o t w i t h s t a n d i n g t h e s e considerations, the constitutional touchstone remains whether the defendant purposefully established "minimum contacts" in the forum State. Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, the Court has consistently held that this kind of foreseeability is not a "sufficient benchmark" for exercising personal jurisdiction. Instead, "the foreseeability that is critical to due process analysis ... is that the defendant's conduct and 37 1121291 connection with the forum State are such that he should reasonably anticipate being haled into court there." In defining when it is that a potential defendant should "reasonably anticipate" out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U.S. 235, 253 (1958): "'"The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." "'This "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts, or of the "unilateral activity of another party or a third person." Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a "substantial connection" with the forum State. Thus where the defendant "deliberately" has engaged in significant activities within a State, or has created "continuing obligations" between himself and residents of the forum, he manifestly has availed 38 1121291 himself of the privilege of conducting business there, and because his activities are shielded by "the benefits and protections" of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. "'Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State. Although territorial presence frequently will enhance a potential defendant's affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor's efforts are "purposefully directed" toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.' "471 U.S. at 473-76, 105 S. Ct. 2174 (footnotes omitted) (citations omitted). Significantly, the Supreme Court in Burger King quoted from World-Wide Volkswagen as follows: "'Thus "[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State" and those products subsequently injure forum consumers.' 39 1121291 "471 U.S. at 473, 105 S. Ct. 2174 (quoting World- Wide Volkswagen, 444 U.S. at 297-98, 100 S. Ct. 559)." 23 So. 3d at 649-54. Ultimately, this Court held that DBI had purposefully availed itself of the privilege of doing business in Alabama and that it would not offend the requirements of due process for Alabama courts to exercise jurisdiction over DBI. Specifically, this Court stated: "Although DBI has never had a physical presence in Alabama, being physically present in a state is not required in order for a state court to have personal jurisdiction over a defendant. Burger King, 471 U.S. at 476, 105 S. Ct. 2174. DBI knew that its seat belts were incorporated into automobiles sold by Kia Motors in the United States. It is not subject to reasonable dispute that it is generally known that a product such as a mass- produced automobile is marketed on a broad spectrum and is not a boutique product fit for only a narrow class of consumers. Likewise, an automobile manufacturer is involved in the sales of its products on a national as opposed to a regional basis. Perhaps the supplier of a part to a snow- plow manufacturer could reasonably say it did not anticipate that its product would be sold in Alabama, but, clearly, moderately priced, fuel- efficient automobiles, such as those manufactured by Kia Motors, are destined for sale in all 50 states in this country. Kia Motors has nine dealerships in Alabama. DBI, by choosing to enter into a contractual relationship with Kia Motors pursuant to which DBI would turn a profit by supplying an essential component part vital to the safety of passengers for such automobiles under the circumstances here described, cannot reasonably 40 1121291 assert ignorance of these realities of the marketplace. "The facts presented here stand in stark contrast to the facts in World-Wide Volkswagen in which the Court found the absence of 'purposeful availment' in the context of the confluence of a random and unilateral event in the forum state. See Burger King, 471 U.S. at 474, 105 S. Ct. 2174, quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958) ('"The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State."') and 471 U.S. at 475, 105 S. Ct. 2174 ('This "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts, or of the "unilateral activity of another party or a third person."' (citations omitted)); World-Wide Volkswagen, 444 U.S. at 299, 100 S. Ct. 559. "Under the stream-of-commerce test, as articulated in World-Wide Volkswagen and Burger King, we conclude that the trial court correctly held that an Alabama court can exercise personal jurisdiction over DBI. As previously noted, the United States Supreme Court stated in both World- Wide Volkswagen and Burger King that '"[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State" and those products subsequently injure forum consumers.' 471 U.S. at 473, 444 U.S. at 297-98. "The automobile containing the seat belt that Leytham alleges malfunctioned and contributed to Stabler's death did not find its way to Alabama randomly and fortuitously. To the contrary, a dealer acting for a manufacturer with which DBI had significant ties sold the vehicle in Alabama to an 41 1121291 Alabama resident who was driving on an Alabama highway when she died as a result of the accident that is the subject of this lawsuit. In this respect, the circumstances here are totally different from those in World-Wide Volkswagen, where an automobile purchased in New York from a New York dealer by New York residents happened to be involved in an accident in Oklahoma. "As the Supreme Court stated in World-Wide Volkswagen, the foreseeability crucial to a due- process analysis is not the 'mere likelihood' that a product will find its way into the forum state but that a defendant's conduct and its connection with the forum state 'are such that he should reasonably anticipate being haled into court there.' 444 U.S. at 297, 100 S. Ct. 559. In selling seat belts compliant with the FMVSS to Kia Motors, DBI should have foreseen that a certain percentage of the automobiles manufactured by Kia Motors would be distributed to the Kia dealerships in Alabama and sold in Alabama. Therefore, we hold that it would have been reasonable for DBI to anticipate being haled into court in Alabama. Indeed, DBI purchased insurance to protect itself in such event." 23 So. 3d at 654-56 (emphasis added). The facts in this case are distinguishable from those presented in DBI. In DBI, there was evidence indicating that DBI had had its seat belts tested and had obtained a label stating that the seat belts complied with the Federal Motor Vehicle Safety Standards, which compliance rendered the seat belts marketable in the United States. In the "Declaration of Larry E. Johnson" Tiffin submitted in support of its opposition to Edgetech's motion to dismiss, Johnson stated 42 1121291 that "EPDM Super Spacer has passed industry standard testing involving weather cycling, high humidity, dew point, volatile fog, compression and durability (P1 Chamber)." However, Tiffin did not present any evidence indicating that meeting such requirements was necessary for Edgetech to market its Super Spacer product in the United States or in Alabama. Additionally, in DBI, DBI knew that its seat belts were being incorporated into automobiles that were being sold by Kia Motors in the United States and that Kia Motors owned nine dealerships in Alabama. This Court noted that a dealer acting for Kia Motors, with whom DBI had significant ties, had sold the vehicle at issue in that case in Alabama to an Alabama resident. In this case, Edgetech manufactured its Super Spacer products in Ohio, and it sold those products to Thompson, a Michigan company. However, Tiffin did not present evidence indicating that Edgetech knew that its Super Spacer products were going to be incorporated into insulated-glass units Thompson would sell in Alabama. Additionally, Tiffin did not present any evidence indicating that Thompson had distributors in Alabama or that a Thompson distributor in Alabama sold the insulated-glass units to an Alabama company. Further, as Johnson noted in his April 16, 2013, 43 1121291 affidavit, once Edgetech delivered its Super Spacer product to Thompson, its involvement in the manufacturing process was complete. Also, Johnson asserted that Edgetech did not have any control over Thompson's distribution of the completed insulated-glass units containing the Super Spacer product and was not involved in Thompson's decision to sell the insulated- glass units to Wynne Enterprises. Further, Johnson asserted that Edgetech did not have any relationship with Wynne Enterprises and that it did not sell any Super Spacer product directly to Wynne Enterprises. Johnson went on to state that Edgetech and Wynne Enterprises did not communicate directly "on a regular basis" and asserted that any communication between the two "was initiated by Wynne [Enterprises] or was made by Wynne [Enterprises] at Thompson's request." Finally, the evidence before this Court indicates that Edgetech did not have any relationship with Tiffin. Therefore, there is no evidence before this Court indicating that Edgetech's actions created substantial contacts between Edgetech and Alabama. Rather, it appears that Tiffin seeks to hale Edgetech into an Alabama court based on Thompson's unilateral activity of selling to Wynne Enterprises insulated-glass units that include the Super Spacer product. However, Tiffin has not 44 1121291 established that, in selling its Super Spacer product to Thompson, Edgetech should have foreseen that a certain percentage of its Super Spacer products would be used in insulated-glass units that would be distributed and sold in Alabama. Unlike the plaintiff in Ex parte DBI, Tiffin has not presented evidence to establish that Edgetech purposefully availed itself of the privilege of doing business in Alabama. Although there was evidence indicating that Edgetech placed the Super Spacer products into the stream of commerce, Tiffin did not present any evidence indicating that Edgetech had done so "'with the expectation'" that those products would be purchased by consumers in Alabama. Ex parte DBI, 23 So. 3d at 655 (quoting World-Wide Volkswagen, 471 U.S. at 473, and Burger King, 444 U.S. at 297-98). Accordingly, Edgetech's conduct and its connection with Alabama were not "'such that [it] should reasonably anticipate being haled into court'" here. Id. Thus, under the tests set forth in World-Wide Volkswagen, Burger King, and Ex parte DBI, we conclude that the trial court erred when it held that an Alabama court can exercise personal jurisdiction over Edgetech. 45 1121291 Conclusion For the above-stated reasons, we grant Edgetech's petition and direct the Franklin Circuit Court to vacate its order denying Edgetech's motion to dismiss and to enter an order granting the motion on the ground of lack of personal jurisdiction and dismissing the case against Edgetech. PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Murdock, and Bryan, JJ., concur. Shaw and Main, JJ., concur in the result. Moore, C.J., and Parker, J., dissent. 46	July 25, 2014
606175ae-c676-4e19-ba96-3b029c05662a	Chamberlain v. AutoSource Motors, LLC	N/A	1130255	Alabama	Alabama Supreme Court	REL: 06/13/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 _________________________ 1130255 _________________________ Ex parte AutoSource Motors, LLC PETITION FOR WRIT OF MANDAMUS (In re: Stephanie Michelle Chamberlain v. AutoSource Motors, LLC) (Montgomery Circuit Court, CV-11-901147) STUART, Justice. 1130255 AutoSource Motors, LLC ("AutoSource"), petitions this 1 Court for a writ of mandamus directing the Montgomery Circuit Court ("the trial court") (1) to vacate its order denying AutoSource's motion to dismiss the action filed against it by Stephanie Michelle Chamberlain for lack of personal jurisdiction and (2) to enter an order granting AutoSource's motion to dismiss for lack of personal jurisdiction. We grant the petition and issue the writ. I. Facts and Procedural History On September 2, 2011, Chamberlain filed in the trial court a complaint against AutoSource. Chamberlain's complaint set forth the following statement of facts: "5. Ms. Chamberlain saw an advertisement for an alleged 2008 Ford Mustang Coupe [automobile] on the Internet. "6. Auto Source Motors offered the vehicle as a rebuilt vehicle at a competitive price, which interested Ms. Chamberlain. "7. Ms. Chamberlain contacted Auto Source Motors by telephone and was told by employees, representatives, and/or contractors of [AutoSource] In various documents submitted to this Court, this entity 1 is referred to variously as AutoSource Motors, LLC, Autosource Motors, LLC, and Auto Source Motors, LLC. We have chosen to use AutoSource Motors, LLC, in this opinion but have made no effort to change the name in documents quoted in this opinion. 2 1130255 that the vehicle she was interested in was a rebuilt vehicle. "8. Specifically, Auto Source Motors, through its employees, contractors, and representatives, told Ms. Chamberlain that there existed a salvage title for the car that was able to be retitled in the state of Alabama, and that as specialists in the rebuilding and resale of vehicles, they promised her that the vehicle was able to be retitled in Alabama. "9. Based on these representations, Ms. Chamberlain traveled to Utah to the dealership. "10. Once there, Ms. Chamberlain again inquired as to the details of their phone conversation described in paragraph 8. "11. Again, [AutoSource] restated what was stated above in paragraph 8. "12. Based on the representations made in paragraph 8 both on the telephone and at the dealership Ms. Chamberlain purchased the vehicle. "13. When Ms. Chamberlain attempted to title the vehicle she discovered that in reality (a) the title was a junk title, not a salvage title; (b) junk titles can never be turned into salvage titles; (c) junk titles can never be titled; (d) the vehicle was not in reality a 2008 model, but was instead a hodgepodge of components from all manner of different years of vehicles." Based on the facts set forth above, Chamberlain asserted counts of breach of contract, misrepresentation, and suppression against AutoSource. Chamberlain's only allegation in her complaint regarding jurisdiction was as follows: 3 1130255 "4. Jurisdiction is proper in that Auto Source Motors took actions aimed at Alabama citizens in the course of its business and in particular sought to avail itself of use of the laws of the state of Alabama by claiming its cars could be titled in the state of Alabama as an incentive to Ms. Chamberlain, a citizen of Alabama, to buy one of their vehicles." On December 13, 2012, Chamberlain filed an affidavit with the trial court in which she stated:2 "1. My name is Stephanie Michelle Chamberlain. I am over the age of 19 and currently reside in Harris County Texas. I moved from Montgomery County Alabama several months after I filed this case. "2. Auto Source Motors is located in Woods Cross, Utah. Auto Source Motors markets its cars over the Internet. It holds itself out as a specialist in rebuilt cars, with a particular knowledge necessary to be able to rebuild cars and have them titled in other states. "3. I saw an advertisement for an alleged 2008 Ford Mustang Coupe on the Internet. "4. Auto Source Motors claimed the vehicle was rebuilt and offered it at a competitive price, which interested me. "5. I contacted Auto Source Motors by telephone and was told that the vehicle was a rebuilt vehicle. "6. Specifically, Auto Source Motors workers told me that there was in existence a salvage title for the car that was able to be re-titled in the State of Alabama and that as specialists in the Although unclear, it appears that Chamberlain filed her 2 affidavit in support of a motion for a default judgment, which she filed on the same day she filed her affidavit. 4 1130255 rebuilding and resale of vehicles, they promised me that the vehicle was able to be re-titled in Alabama. "7. Based on these statements to me, I went on the long trip to Utah to the dealership. "8. Once there, I asked the same questions again and was again told the same thing as in paragraph 5 and 6. "9. Based on the statements made to me over the telephone and in-person at the car dealership in Utah, I purchased the vehicle. "10. When I got the vehicle back to Alabama, I tried to get the title for it, like Auto Source Motors said I could. "11. I then discovered that in reality the title was a junk title, not a salvage title, and that junk titles can never be turned into salvage titles. I also discovered that junk titles can never be titled at all. "12. I also discovered that the vehicle was not really a 2008 model, but was actually a mixed up combination of components from all manner of different years of vehicles. "13. As a result of being tricked, I obtained a loan for the vehicle, for which I'm still responsible; incurred the cost of the trip to and from Utah; had to pay for the insurance, repairs and upkeep; and I have lost hours and hours of my personal and work time dealing with the finance company and the State of Alabama trying to get the car titled in trying to work out an arrangement to pay for or sell the vehicle once I discovered the title problem and that the car was a combination of components from all manner of different years of vehicles. 5 1130255 "14. The documents showing my loan costs, cost of the trip to and from Utah to get the car and bring it back, the cost of insurance, repairs, and upkeep are attached as exhibit A. "15. I am stuck on the loan on this car, because I cannot get it titled. Without the title I cannot resell it, and I cannot even legally drive it because I cannot get registration for the vehicle or insurance for it. I'm stuck with a car that I cannot legally put on the road yet I have to continue to pay for it fully." On October 18, 2013, AutoSource, pursuant to Rule 12(b)(2), Ala. R. Civ. P., filed a motion to dismiss Chamberlain's action for lack of personal jurisdiction. Specifically, AutoSource argued that it did not have sufficient minimum contacts with the State of Alabama to subject it to suit in the Montgomery Circuit Court. AutoSource set forth the following facts in its motion to dismiss in support of its lack-of-personal-jurisdiction argument: "1. [Chamberlain] alleges various causes of actions that arose out of the purchase of a 2008 Ford Mustang Coupe advertised on the internet by Autosource. (Complaint; [Chamberlain's] affidavit). "2. Autosource is a Limited Liability Company duly registered in the State of Utah, located in Utah with its principal place of business located in West Woods Cross, Utah. (Affidavit of W. Scott Kjar, [Ex. A]). 6 1130255 "3. Autosource owns no property in the State of Alabama and conducts no business activities in the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]). "4. Autosource is not registered, qualified or licensed to do business in the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]). "5. Autosource is not required to, nor does it pay taxes in the State of Alabama, Autosource does not own any property or assets in the State of Alabama, it does not maintain offices in the State of Alabama, it does not have any employees in the State of Alabama, and it does not have a telephone listing in the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]). "6. Autosource did not knowingly or intentionally markets [sic], solicits [sic] or advertises [sic] products or services in the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]). "7. Autosource has not had any prior business dealings with [Chamberlain] prior to the transaction made the basis of this lawsuit. (Affidavit of W. Scott Kjar, [Ex. A]). "8. Prior to the transaction with [Chamberlain] made the basis of this lawsuit, Autosource had not ever knowingly or intentionally sold any goods or services to any entity or individual from the State of Alabama. (Affidavit of W. Scott Kjar, [Ex. A]). "9. [AutoSource] advertised the subject vehicle on its website, which is a national/international internet website dedicated to assisting individuals and businesses in the buying of automobiles. (Affidavit of W. Scott Kjar, [Ex. A]). "10. [Chamberlain] initiated contact with [Auto- Source] concerning the purchase of the subject 7 1130255 vehicle from [AutoSource], who was, at all times material hereto, located in Utah. (Complaint, [Chamberlain's] affidavit, affidavit of W. Scott Kjar, [Ex. A]). "11. [Chamberlain] went to Autosource in Utah to purchase the vehicle. (Complaint, [Chamberlain's] affidavit, affidavit of W. Scott Kjar, [Ex. A]). "12. [Chamberlain] negotiated the purchase in Utah, and left the dealership with the vehicle. (Affidavit of W. Scott Kjar, [Ex. A])." AutoSource attached to its motion to dismiss the affidavit of its then president, W. Scott Kjar, which stated: "My name is W. Scott Kjar. I am over 19 years of age. I have personal knowledge of the matters set forth herein, and I am competent to give testimony in this cause. At the time of the subject transaction, I was the President of Autosource Motors, LLC. "I am a bona-fide resident citizen of the State of Utah. I have never lived in the State of Alabama. I do not and never have owned property or assets in the State of Alabama. I do not and never have conducted business activities in the State of Alabama. I have never had any personal contacts with the State of Alabama unrelated to the present lawsuit. "Autosource Motors, LLC, hereinafter 'Autosource,' is a limited liability company duly registered in Utah and having its principal ... place of business in West Woods Cross, Utah. Autosource is not registered, qualified or licensed to do business in the State of Alabama. Autosource is not required to, nor does it pay taxes in or to the State of Alabama. Autosource does not own property or assets in the State of Alabama, does not 8 1130255 maintain offices in the State of Alabama, does not have employees in the State of Alabama and does not have a telephone listing in the State of Alabama. Autosource does not knowingly or intentionally market, solicit or advertise products or services in the State of Alabama. I am unaware of any business dealings with any resident of the State of Alabama, prior to the transaction with Stephanie Michelle Chamberlain made the basis of this lawsuit, and Autosource has ever [sic] knowingly or intentionally sold any goods or services to any entity in or from the State of Alabama. "Autosource advertised the subject 2008 Ford Mustang Coupe on its website, which is a national/international internet website dedicated to selling of automobiles. Vehicles in Autosource's inventory are listed on its website in order to receive offers and/or bids from individuals or other businesses who are interested in purchasing the vehicles. The impetus is on the individual who is interested in the automobile to then contact Autosource regarding the vehicle posted on its website. "Prior to the transaction made the basis of this lawsuit, I am unaware of any prior business dealings that Autosource had with Ms. Chamberlain. Autosource was contacted by Ms. Chamberlain after she saw the advertisement that had been placed on our website. Ms. Chamberlain traveled to the Autosource dealership located at 2023 S 625 W. Woods Cross, Utah. After negotiating the purchase price for the Mustang, Ms. Chamberlain executed a purchase contract at the store's location in Utah. Ms. Chamberlain paid for the vehicle in Utah. Ms. Chamberlain drove the vehicle off Autosource's lot in Utah, and presumably returned to Alabama." Chamberlain filed no response to AutoSource's motion to dismiss. 9 1130255 On October 22, 2013, the trial court entered an order stating, in toto: "MOTION TO DISMISS PURSUANT TO RULE 12(B) filed by AUTO SOURCE MOTORS is hereby DENIED." Petition, Appendix E (capitalization in original). AutoSource timely petitioned this Court for a writ of mandamus. II. Standard of Review "A petition for a writ of mandamus is the proper vehicle by which to challenge the denial of a motion to dismiss for lack of personal jurisdiction. Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So. 2d 519, 525 (Ala. 2003). 'An appellate court considers de novo a trial court's judgment on a party's motion to dismiss for lack of personal jurisdiction.' Elliott v. Van Kleef, 830 So. 2d 726, 729 (Ala. 2002). However, 'an appellate court must give deferential consideration to any findings of fact made by a trial court based on evidence received ore tenus in connection with a determination as to the nature and extent of a foreign defendant's contacts with the forum state.' Ex parte American Timber & Steel Co., 102 So. 3d 347, 353 n. 7 (Ala. 2011). "'A writ of mandamus is an extraordinary remedy, and it will be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993).' 10 1130255 "Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998)." Ex parte Merches, [Ms. 1120965, March 14, 2014] ___ So. 3d ____, ____ (Ala. 2014). III. Analysis "The extent of an Alabama court's personal jurisdiction over an out-of-state defendant is governed by Rule 4.2(b), Ala. R. Civ. P. Rule 4.2(b), as amended in 2004, provides: "'(b) Basis for Out–of–State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States....' "In Hiller Investments, Inc. v. Insultech Group, Inc., 957 So. 2d 1111, 1115 (Ala. 2006), this Court explained: "'[Rule 4.2(b)] extends the personal jurisdiction of Alabama courts to the limit of due process under the United States and Alabama Constitutions. When applying Rule 4.2(b), this Court has interpreted the due process guaranteed under the Alabama Constitution as coextensive with that guaranteed under the United States Constitution.' "'The plaintiff has the burden of proving that the trial court has personal jurisdiction over the 11 1130255 defendant.' J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So. 2d 194, 196 (Ala. 2008). "'"'"In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiff's c o m p l a i n t n o t controverted by the defendant's affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and C a b l e / H o m e Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir. 1990), and 'where the plaintiff's complaint and the defendant's affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.' Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990))."' "'"Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So. 2d 888, 894 (Ala. 2002) (quoting Ex parte McInnis, 820 So. 2d 795, 798 (Ala. 2001)). However, if the defendant makes a prima facie evidentiary showing that the 12 1130255 Court has no personal jurisdiction, 'the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.' Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D. Ala. 2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474–75 (D. Del. 1995) ('When a defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.') (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984))." "'Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226, 229–30 (Ala. 2004).' "Ex parte Bufkin, 936 So. 2d 1042, 1045 (Ala. 2006). "'"Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist of the defendant's contacts with the forum state 13 1130255 that are unrelated to the cause of action and that are both 'continuous and systematic.' Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); [citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant's contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472–75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id." "'Ex parte Phase III Constr., Inc., 723 So. 2d 1263, 1266 (Ala. 1998) (Lyons, J., concurring in the result). Furthermore, this Court has held that, for specific in personam jurisdiction, there must exist "a clear, firm nexus between the acts of the defendant and the consequences complained of." Duke v. Young, 496 So. 2d 37, 39 (Ala. 1986). See also Ex parte Kamilewicz, 700 So. 2d 340, 345 n. 2 (Ala. 1997).' "Elliott[ v. Van Kleef], 830 So. 2d [726,] 730 [(Ala. 2002)]. "... Regarding specific jurisdiction, the United States Supreme Court has explained: "'[T]he constitutional touchstone remains whether the defendant purposefully 14 1130255 established "minimum contacts" in the forum State. Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, the Court has consistently held that this kind of foreseeability is not a "sufficient benchmark" for exercising personal jurisdiction. Instead, "the foreseeability that is critical to due process analysis ... is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." In defining when it is that a potential defendant should "reasonably anticipate" out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U.S. 235, 253 (1958): "'"The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." "'This "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or 15 1130255 "attenuated" contacts, or of the "unilateral activity of another party or a third person." Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a "substantial connection" with the forum State. Thus where the defendant "deliberately" has engaged in significant activities within a State, or has created "continuing obligations" between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by "the benefits and protections" of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. "'.... "'Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with "fair play and substantial justice." Thus courts in "appropriate case[s]" may evaluate "the burden on the defendant," "the forum State's interest in adjudicating the dispute," "the plaintiff's interest in obtaining convenient and effective relief," "the interstate judicial system's interest in obtaining the most efficient resolution of controversies," and the "shared interest of the several States in furthering fundamental substantive social policies."' 16 1130255 "Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473–77, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations and footnotes omitted). "This Court has summarized the test for minimum contacts explained in Burger King as follows: "'(1) The nonresident defendant's contacts must be related to the plaintiff's cause of action or have given rise to it. (2) By its contacts the nonresident defendant must have purposefully availed itself of the privilege of conducting business in the forum state. (3) The nonresident defendant's contacts with the forum must be "such that the nonresident defendant '"should reasonably anticipate being haled into court"' in the forum state."' "Ex parte Alamo Title Co., 128 So. 3d 700, 711 (Ala. 2013) (quoting Ex parte Excelsior Fin., Inc., 42 So. 3d 96, 101 (Ala. 2010), quoting in turn Burger King, 471 U.S. at 473, 105 S.Ct. 2174) (citations and footnote omitted). 'The issue of personal jurisdiction "'stands or falls on the unique facts of [each] case.'"' Ex parte Citizens Prop. Ins. Corp., 15 So. 3d 511, 515 (Ala. 2009) (quoting Ex parte I.M.C., Inc., 485 So. 2d 724, 725 (Ala. 1986))." Ex parte Merches, ___ So. 3d at ___-___. Being mindful that "[t]he plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant," J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So. 2d 194, 196 (Ala. 2008), we now consider whether the trial court was correct in denying AutoSource's motion to dismiss. 17 1130255 A. General Jurisdiction "'"General contacts, which give rise to general personal jurisdiction, consist of the defendant's contacts with the forum state that are unrelated to the cause of action and that are both 'continuous and systematic.'"'" Ex parte Merches, ___ So. 3d at ____ (quoting Elliott v. Van Kleef, 830 So. 2d 726, 730 (Ala. 2002), quoting in turn Ex parte Phase III Constr., Inc., 723 So. 2d 1263, 1266 (Ala. 1998) (Lyons, J., concurring in the result)). Here, neither Chamberlain's complaint nor her affidavit expressly alleges or impliedly suggests that AutoSource has "continuous and systematic" contacts with the State of Alabama. Simply put, we have no basis on which to hold that the trial court can properly exercise general personal jurisdiction over AutoSource in this case. B. Specific Jurisdiction As noted above, Chamberlain made only one allegation regarding personal jurisdiction in the three filings she submitted to the trial court (her complaint, her affidavit, and her motion for a default judgment). Specifically, Chamberlain alleged in her complaint: 18 1130255 "Jurisdiction is proper in that Auto Source Motors took actions aimed at Alabama citizens in the course of its business and in particular sought to avail itself of use of the laws of the state of Alabama by claiming its cars could be titled in the state of Alabama as an incentive to Ms. Chamberlain, a citizen of Alabama, to buy one of their vehicles." The above-quoted allegation that, during the course of the isolated sale of the 2008 Ford Mustang Coupe automobile to Chamberlain, AutoSource told Chamberlain that she could title the automobile in Alabama does not establish the minimum contacts necessary to provide the trial court with specific personal jurisdiction over AutoSource. Assuming, without deciding, that AutoSource's statement during the isolated sale to Chamberlain of the 2008 Ford Mustang Coupe that Chamberlain could title the automobile in Alabama actually constitutes a contact with the State of Alabama, that sole, isolated contact is insufficient to support a finding of specific personal jurisdiction. See, e.g., Network Prof'ls, Inc. v. Network Int'l, Ltd., 146 F.R.D. 179, 181 n. 1 (D. Minn. 1993)("The due process analysis focuses on a defendant's contacts with the forum, not its contacts with the plaintiff; thus, an isolated sale will not support jurisdiction, even if the cause of action arises from the sale."); Chung v. NANA Dev. Corp., 783 19 1130255 F.2d 1124, 1126 (4th Cir. 1986)(noting that a sale consisting of no more than an "'isolated' or 'attenuated' single transaction ... has always been deemed inadequate to satisfy due process"); Charia v. Cigarette Racing Team, Inc., 583 F.2d 184, 189 (5th Cir. 1978)(holding that "four sporadic and isolated sales" did not support personal jurisdiction). 3 AutoSource's affidavit, by and through its then president, W. Scott Kjar, established that AutoSource's advertisement of the 2008 Ford Mustang Coupe automobile on its Web site did not constitute a purposeful contact with Alabama because, like an advertisement placed in a nationally delivered newspaper or journal, it was not directed at Alabama specifically and the advertisement was passive in nature. Additionally, AutoSource's affidavit established that the sale of the 2008 Ford Mustang Coupe to Chamberlain was a single, isolated contact with an Alabama resident, which was initiated by the Alabama resident rather than AutoSource. AutoSource's Network Professionals, Inc., supra, Chung, supra, and 3 Charia, supra, were cited with approval in Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So. 2d 459, 464 (Ala. 2003), a case in which this Court granted the petition for a writ of mandamus and directed the trial court to vacate its order denying the petitioner's motion to dismiss and to enter an order dismissing the complaint for lack of personal jurisdiction. 20 1130255 affidavit also established that its only contact with Alabama was a telephone call initiated by Chamberlain. Furthermore, AutoSource's affidavit established that it is not registered to do business in Alabama; that it is not required to pay taxes in Alabama; that it owns no property or has no assets in Alabama; that it does not maintain an office in Alabama; that it does not have any employees in Alabama; that it does not have a telephone listing in Alabama; and that, before the sale to Chamberlain of the 2008 Ford Mustang Coupe, it had never knowingly sold, marketed, advertised, or solicited the sale of any goods or services to any person or entity in or from Alabama. Accordingly, based on the principles of law set forth in Ex parte Merches, supra, we conclude that in Kjar's affidavit AutoSource made a prima facie showing that it had not purposefully availed itself of the privilege of conducting activities within Alabama and, thus, that AutoSource did not have the minimum contacts necessary to subject it to personal jurisdiction in Alabama. See id. The prima facie showing made by Kjar's affidavit shifted to Chamberlain the burden of proving by affidavits or other competent evidence that AutoSource had purposefully availed 21 1130255 itself of the privilege of conducting activities within Alabama. See Ex parte Merches, supra. However, as noted above, Chamberlain's affidavit did not rebut the prima facie showing made by AutoSource in that her affidavit failed to establish that AutoSource is subject to suit in Alabama pursuant to either general personal jurisdiction or specific personal jurisdiction; consequently, we hold that the trial court erred in denying AutoSource's motion to dismiss Chamberlain's complaint for lack of personal jurisdiction. AutoSource's petition for a writ of mandamus is, therefore, due to be granted. IV. Conclusion AutoSource has demonstrated a clear legal right to the relief it seeks. Therefore, we grant the petition for a writ of mandamus and direct the Montgomery Circuit Court (1) to vacate its order denying AutoSource's motion to dismiss for lack of personal jurisdiction and (2) to enter an order granting AutoSource's motion to dismiss for lack of personal jurisdiction. PETITION GRANTED; WRIT ISSUED. Moore, C.J., and Parker, Shaw, and Wise, JJ., concur. 22	June 13, 2014
3e10cb08-a2b1-474e-8830-5c092bb2ef14	Ex parte Robert Swan Siercks. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Robert Swan Siercks v. State of Alabama) (Madison Circuit Court: CC-12-3131; Criminal Appeals : CR-12-0874). Writ Denied. No Opinion.	N/A	1130847	Alabama	Alabama Supreme Court	Rel: 06/20/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130847 ____________________ Ex parte Robert Swan Siercks PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Robert Swan Siercks v. State of Alabama) (Madison Circuit Court, CC-12-3131; Court of Criminal Appeals, CR-12-0874) MAIN, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 1130847 MOORE, Chief Justice (dissenting). Robert Swan Siercks was stopped by police for a seatbelt violation. When Siercks was unable to produce any form of identification when requested to do so, an officer ordered him out of the vehicle. According to the Court of Criminal Appeals: "When Siercks opened the driver's side door and started to get out of the vehicle, Officer [Steven] Graham saw 'in plain view between the door and the driver's seat ... a small white rock of cocaine.'" Siercks v. State, [Ms. CR-12- 0874, Nov. 8, 2013] ___ So. 3d ___, ___ (Ala. 2013). After field-testing the substance, Officer Graham arrested Siercks for unlawful possession of cocaine. When the jury returned a verdict of guilty, the trial court sentenced Siercks as a habitual felony offender to 15 years' imprisonment. The Court of Criminal Appeals affirmed Siercks's conviction and remanded the case for the trial court to impose fines it had waived on original sentencing. On return to remand, the Court of Criminal Appeals affirmed Siercks's sentence by an unpublished memorandum. Siercks then filed this petition for certiorari review. 2 1130847 Although contraband located "between the door and the driver's seat" may be in "plain view" of a police officer once the driver's door of a vehicle is opened, the driver may or may not have a line of sight into the crevice between the closed door and the left edge of the driver's seat while operating the vehicle. If the seat wedges tightly against the closed door, an object "in plain view" when the driver's door is open may be completely invisible and inaccessible to the driver when the door is closed. On the other hand, a gap of two inches or more between the left edge of the seat and the closed door would permit the driver easily to touch the object with his hand. "When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances." Robinette v. State, 531 So. 2d 682, 686 (Ala. Crim. App. 1987). Such knowledge "may be inferred from the accused's exclusive possession, ownership, and control of the premises" where the illegal substance is found. Id. In this case Siercks was driving a vehicle registered to another person who lived at the same address as Siercks. Thus, Siercks did not have "exclusive possession, ownership, and 3 1130847 control" of the vehicle. In the absence of exclusive possession of the premises, "knowledge [of the presence of the controlled substances] may not be inferred unless there are other circumstances tending to buttress this inference." Robinette, 531 So. 2d at 686. Although Siercks had potential physical control over the cocaine, the Court of Criminal Appeals did not identify any other behavior to connect him with the substance. He had no drugs on him; he did not act guilty; and he did not flee or admit possession. I am not persuaded that the jury had before it sufficient evidence from which to conclude beyond a reasonable doubt that Siercks had knowledge of the presence of the small rock of cocaine that, though in proximity to his person, may not have been visible to him. Because I would grant Siercks's petition for a writ of certiorari to examine the record as to the sufficiency of the evidence on the issue of constructive possession, I respectfully dissent. 1 "Constructive possession is a legal fiction used by 1 courts to find possession in situations where it does not in fact exist, but where they nevertheless want an individual to acquire the legal status of a possessor." Charles H. Whitebread & Ronald Stevens, Constructive Possession in Narcotics Cases: To Have and Have Not, 58 Va. L. Rev. 751, 761-62 (1972). 4	June 20, 2014
f50d9fc5-8c0e-4977-9548-da37f3c56ab5	Ex Parte Noble Trucking Co.	675 So. 2d 356	1940759	Alabama	Alabama Supreme Court	675 So. 2d 356 (1996) Ex parte NOBLE TRUCKING COMPANY, INC., and Robert Rayfield. (Re STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Jane Nichols v. Robert C. RAYFIELD and Mike Fouts d/b/a Noble Trucking Company. Craig LUSK, By and Through his next friend and father, Paul LUSK, Sr. v. NOBLE TRUCKING COMPANY. Jeremy W. NICHOLS, a minor, By and Through his father and next friend Randy NICHOLS v. Robert C. RAYFIELD, an individual, and Noble Trucking Company, Inc., a domestic corporation). 1940759. Supreme Court of Alabama. January 12, 1996. Richard E. Smith and Deborah Alley Smith of Rives & Peterson, Birmingham, and John K. Proter III of Livingston, Porter & Paulk, P.C., Scottsboro, for petitioners. M. Clay Alspaugh and Pamela D. Beard of Hogan, Smith & Alspaugh, P.C., Birmingham, for Jeremy W. Nichols and Randy Nichols. Gary W. Lackey, Scottsboro, for Craig Lusk. Denise A. Ferguson and Tammy L. Frazier of Bell Richardson, P.A., Huntsville, for State Farm Mutual Automobile Insurance Company and Jane Nichols. 357 COOK, Justice. The petitioners, Robert C. Rayfield and Noble Trucking Company, Inc., defendants in three personal injury actions pending in the Jackson County Circuit Court, petition for a writ of mandamus directing the circuit court to stay proceedings pending the dissolution of an injunction entered by an Indiana court in "rehabilitation" proceedings against Noble's liability carrier, American Interfidelity Exchange ("American"). We deny the petition. The evidence presented in the record before us suggests that in November 1991, an automobile belonging to Jane Nichols and being driven by Jeremy Nichols collided with a truck owned by Noble Trucking Company and being driven by Rayfield. Craig Lusk was a passenger in Nichols's vehicle. The Nicholses and Lusk commenced separate actions in 1992 against the truck's driver and its owners (hereafter identified collectively as "Noble"). In March 1994, American, as Noble's liability insurance carrier, was providing Noble's defense in the personal injury actions. However, "American was placed in rehabilitation by the Indiana Department of Insurance effective March 23, 1994." Petition for Writ of Mandamus, at 1. Two days later, and pursuant to Ind. Code Ann. § 27-9-1-4 (Burns 1994),[1] Indiana's version of the Uniform Insurers Liquidation Act, the Circuit Court of Marion County, Indiana, entered the following order: On April 17, 1994, Noble filed a motion to stay the personal injury actions pending the resolution of American's rehabilitation proceeding in Indiana. On May 3, 1994, the circuit court stayed the personal injury actions 358 for 90 days. At the end of the 90 days, the trial court granted the plaintiffs' motion to reset the cases for trial. On January 12, 1995, however, Noble filed an "Objection To Trial Setting And Renewed Motion To Stay."[2] On January 23, 1995, the trial court denied the defendants' motion, but removed the cases from the January 20, 1995, docket and reset the trial for March 13, 1995. Noble filed a motion for "reconsideration" of this order. On February 27, 1995, the trial court denied Noble's motion, but reset the trial for April 17, 1995, "to allow reasonable time for any clarification that either party may wish to make by mandamus [petition] to the Supreme Court of Alabama." On March 8, 1995, Noble petitioned this Court for a writ of mandamus directing the trial court to "stay the proceedings in this action until the... injunction entered in the Indiana rehabilitation proceedings against American has been lifted." Reply Brief of Petitioners, at 8. Noble contends that this case is controlled by Ex parte United Equitable Life Ins. Co., 595 So. 2d 1373 (Ala.1992), in which we discussed those provisions of Alabama's version of the Uniform Insurers Liquidation Act ("AUILA") appearing at Ala.Code 1975, §§ 27-32-1(2) to (13); 27-32-4; 27-32-5; and 27-32-15 through -22. In that case, Jerry and Marsha Bruce had purchased an accident and health insurance policy from United Equitable Life Insurance Company ("United"). They submitted a claim for medical expenses incurred; United refused to pay because an Illinois court had issued an order of rehabilitation freezing the properties and assets of United and preventing United from paying claims made against its insurance contract obligations. The Bruces sued United in Marshall County, Alabama, to recover the benefits to which they were entitled. United moved to stay the Alabama action pending resolution of the Illinois rehabilitation proceedings; the trial court denied United's motion. United then sought a writ of mandamus from this Court directing the trial judge to vacate his order denying the motion to stay the litigation. In issuing the writ, we explained: 595 So. 2d at 1374-75 (emphasis added). The respondents in this case contend that United is distinguishable and, therefore, does not control the resolution of this dispute. This distinction, they argue, involves the fact that in United the insureds brought a direct action against their own insurer for its failure to pay, whereas this case involves personal injury actions by the respondents 359 against alleged tortfeasors insured under a liability policy issued by Americana nonparty as to the personal injury actions. We agree with the respondents that this distinction is significant enough to render United inapposite. Moreover, Noble has failed to cite any provisions of Alabama's statutory scheme directly applicable to this dispute. Instead, it contends: "In order to effectuate the policy and purpose behind the UILA, this State must recognize the right of the Indiana domiciliary receiver to take possession of American's assets and to stay all pending actions in order to protect the policyholders." Petition for Writ of Mandamus, at 6 (emphasis added). This argument, as we understand it, essentially advances the view that the trial court should have stayed the action out of a sense of "comity." It is well settled, however, that "the rule of comity is `a matter of courtesy, complaisance, [and] respect,'" State ex rel. Dykhouse v. Edwards, 908 S.W.2d 686, 689 (Mo. 1995) (emphasis added),[3] and that comity is extended not as a matter "`of right,'" but as a matter "`of deference and good will.'" Id. It involves "a voluntary decision of one state to defer to the policy of another in an effort to promote uniformity of laws, harmony in their application, and other related principles." Id. at 689-90. (emphasis added). See also Meenach v. General Motors Corp., 891 S.W.2d 398 (Ky.1995); James v. Grand Trunk Western R.R., 14 Ill. 2d 356, 152 N.E.2d 858 (1958), cert. denied, 358 U.S. 915, 79 S. Ct. 288, 3 L. Ed. 2d 239 (1958); 42 Am. Jur.2d Injunctions, § 227 (1969). Moreover, "[w]here a sister-state enjoins a litigant from proceeding with a previously instituted action, the court in the forum state will usually refuse to recognize the injunction as a bar to disposition of the pending action." Abney v. Abney, 176 Ind.App. 22, 26-27, 374 N.E.2d 264, 267-68 (1978) (emphasis in original), cert. denied, 439 U.S. 1069, 99 S. Ct. 836, 59 L. Ed. 2d 34 (1979). "The importance of priority of jurisdiction is based on the policy that after suits are commenced in one state, it is inconsistent with inter-state harmony if their prosecution be controlled by the courts of another state." Lowe v. Norfolk & Western Ry., 96 Ill.App.3d 637, 644, 52 Ill.Dec. 108, 114, 421 N.E.2d 971, 977 (1981). Indeed, "prosecution of a prior instituted action may be restrained only if it will result in `fraud, gross wrong or oppression.'" Id. (emphasis added) (quoting Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383, 387, 115 N.E. 554, 556 (1917).[4] For these reasons, whether to stay an action in deference to the court of a foreign state is discretionary with the trial court of the forum state. Brown v. Brown, 493 So. 2d 961 (Miss. 1986). Additional considerations before the Jackson County Circuit Court included the fact that American is, in this action, only an indirect participant, the action itself being against American's insureds. The court could also consider the breadthunlimited chronologically or geographicallyof the Indiana injunction, and, consequently, the injunction's potential conflict with the plaintiffs' rights to remedies under Ala. Const.1901, § 13.[5] Indeed, an injunction as broad as this 360 one carries a clear potential for oppression, injustice, and prejudice to both parties in pending actions, resulting from the lapse of time and its consequent effect on the memories of witnesses and the availability of witnesses and evidence. This concern was specifically articulated by the trial court in its February 27, 1995, order: "It is the opinion of this court that, in drafting the Alabama Uniform Insurers Liquidation Act, it was not the intent of the legislature for a plaintiff under the facts in this case to be denied his day in court indefinitely." (Emphasis added.) Moreover, in the February 27 order, the trial court postponed the scheduled trial datehaving previously granted a 90-day stay. We consider this action significant in light of Ind.Code Ann. § 27-9-3-4(a), argued by Noble in support of its stay motion; that statute expressly provides for a "stay [of] the action or proceeding for ninety (90) days." See note 2. The discretion exercised by the trial court in this case must be viewed in the context of this provision, considering the initial 90-day stay that was granted, as well as the subsequent postponement. Also significant is the fact that the 90-day period set forth in § 27-9-3-(4) is expressly referable to actions pending in Indiana courts. Additionally, the statute expressly designates the "rehabilitator" as the party responsible for seeking stays in foreign courts. Of course, this mandamus petition does not relate to an Indiana action and it is not the rehabilitator seeking a writ ordering a stay. It is well established that in cases requiring a trial court to exercise discretion, a writ of mandamus will issue only to correct an abuse of discretion. Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala.1990). Our consideration of the factors discussed above compels us to conclude that the trial court did not abuse its discretion in denying a stay of proceedings until the Indiana injunction has been lifted. Consequently, the petition for a writ of mandamus is denied. WRIT DENIED. HOOPER, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY, INGRAM, and BUTTS, JJ., concur. [1] Section 27-9-1-4 provides in pertinent part: "A receiver appointed in a proceeding under IC 27-9 may at any time apply for, and any court with general jurisdiction may grant, restraining orders, preliminary and permanent injunctions, and other orders as considered necessary and proper to prevent any of the following: "(1) The transaction of further business. ". . . . "(3) Interference with the receiver or with a proceeding under IC 27-9. ". . . . "(6) The institution or further prosecution of any actions or ... [proceedings]. "(7) The obtaining of preferences, judgments, attachments, garnishments, or liens against the insurer, its assets or its policyholders. ". . . . "(11) Any other threatened or contemplated action that might lessen the value of the insurer's assets or prejudice the rights of policyholders, creditors, or shareholders, or the administration of any proceeding under IC 27-9." [2] In support of this motion, Noble quoted Ind. Code Ann. § 27-9-3-4(a), which provides: "Any court in Indiana before which any action or proceeding in which the insurer is a party or is obligated to defend a party is pending when a rehabilitation order against the insurer is entered shall stay the action or proceeding for ninety (90) days and for any additional time as is necessary for the rehabilitator to obtain proper representation and prepare for further proceedings. The rehabilitator shall take action respecting the pending litigation as he considers necessary in the interests of justice and for the protection of creditors, policyholders, and the public. The rehabilitator shall immediately consider all litigation pending outside Indiana and shall petition the courts having jurisdiction over that litigation for stays whenever necessary to protect the estate of the insurer." [3] In Edwards, the Supreme Court of Missouri refused to enforce an order issued by a Michigan court enjoining indefinitely all "litigation involving Confederation [Life Insurance Company (`Confederation')]." 908 S.W.2d at 690. The injunction was issued upon the complaint of the Michigan commissioner of insurance, who was administering the assets of Confederation in rehabilitation proceedings. Id. at 686-87. The Missouri litigation to which the injunction was directed involved five pending actions against Confederation. Id. Addressing the Missouri Insurers Supervision, Rehabilitation and Liquidation Act ("MISRLA"), Mo.Ann.Stat. §§ 375.1150-.1246, 908 S.W.2d at 687, the Missouri Supreme Court concluded, among other things, that (1) the scope of the injunction was too broad and was unwarranted under MISRLA, 908 S.W.2d at 688, and that (2) neither the Full Faith and Credit Clause of the United States Constitution nor the doctrine of comity required enforcement of the injunction. 908 S.W.2d at 690. [4] It has also been stated that "comity extends to substantive rights only and does not generally apply to remedies." State ex rel. Dykhouse v. Edwards, 908 S.W.2d 686, 690 (Mo.1995). [5] Section 13, the "open courts provision" of the constitution, provides: "[A]ll courts shall be open; and ... every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay."	January 12, 1996
c8465b94-bf98-4ac6-a7bb-b1e421e5484d	Willingham v. Matthews	N/A	1130890	Alabama	Alabama Supreme Court	REL: 09/19/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130890 _________________________ Debora Willingham, as the administrator of the Estate of Brandy Matthews, deceased v. Rodney Matthews, as the administrator of the Estate of Joshua Taylor Matthews, deceased Appeal from DeKalb Circuit Court (CV-13-900066) WISE, Justice. Debora Willingham, as the administrator of the estate of Brandy Matthews, deceased ("Willingham"), appeals from a summary judgment entered by the DeKalb Circuit Court ("the 1130890 trial court") on her complaint for a judgment declaring the rights, duties, and liabilities of the parties under § 43-8- 253, Ala. Code 1975, which is known as "the Slayer's Statute." Facts and Procedural History Brandy Matthews and Joshua Taylor Matthews were married in September 2004. On March 20 or March 21, 2011, Brandy died as a result of gunshot wounds inflicted by Joshua. Brandy's death was determined to be a homicide. On the same date, Joshua died as a result of a self-inflicted gunshot wound. Brandy and Joshua both died intestate. Willingham, Brandy's mother, was appointed by the DeKalb Probate Court as the administrator of Brandy's estate. Rodney Matthews ("Matthews"), Joshua's brother, was appointed by the DeKalb Probate Court as the administrator of Joshua's estate. On March 20, 2013, Willingham filed a complaint for a declaratory judgment in the trial court, stating that there was a justiciable controversy between Brandy's estate and Joshua's estate as to their respective rights, duties, and liabilities based on Willingham's interpretation of § 43-8-253. She contended that, upon application of § 43-8-253, "Joshua Taylor Matthews would have been unable to inherit from Brandy Matthews. Furthermore, based 2 1130890 upon the actions of Joshua Taylor Matthews, his property is to pass as if he had predeceased [Brandy Matthews]. In other words, the estate of Joshua Taylor Matthews would pass to his spouse, Brandy Matthews. In this instance, the estate of Joshua Taylor Matthews should pass directly to the estate of Brandy Matthews." On November 19, 2013, Willingham filed a motion for a summary judgment. Based on her interpretation of § 43-8-253, she argued that Joshua's estate should pass directly to Brandy's estate. On January 14, 2014, Matthews filed a response to the motion for a summary judgment. He argued that § 43-8-253 addresses only how Brandy's estate would pass but not how Joshua's estate would pass and that it therefore would have no bearing on the administration of Joshua's estate. On January 30, 2014, the trial court conducted a hearing on the summary-judgment motion, and on February 4, 2014, it entered a summary judgment declaring that § 43-8-253 applied to the passing of Brandy's estate but not to the passing of Joshua's estate. Willingham appealed that judgment to this Court. Standard of Review "An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So. 2d 807, 811 3 1130890 (Ala. 2004). In addition, '[t]his court reviews de novo a trial court's interpretation of a statute, because only a question of law is presented.' Scott Bridge Co. v. Wright, 883 So. 2d 1221, 1223 (Ala. 2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So. 2d 812, 815 (Ala. 1995). Here, in reviewing the [entry] of a summary judgment when the facts are undisputed, we review de novo the trial court's interpretation of statutory language and our previous caselaw on a controlling question of law." Continental Nat'l Indem. Co. v. Fields, 926 So. 2d 1033, 1034- 35 (Ala. 2005). Discussion Willingham argues that, because Brandy's death was the result of an intentional and felonious action on Joshua's part, the trial court erred in finding that, for purposes of administering Joshua's estate, Brandy should be considered to have predeceased Joshua. In its order on the summary- judgment motion, the trial court found: "On either March 20 or March 21, 2011, Joshua Matthews killed his wife, Brandy Matthews. He then killed himself. Both Joshua and Brandy died intestate. A personal representative has been appointed for each of their estates and the administration of each estate has been removed to Circuit Court. In this action, the Administratrix of Brandy's estate has filed a declaratory judgment action against the Administrator of Joshua's estate 4 1130890 seeking a determination of the effect of Ala. Code § 43-8-253 on this case. "Law "'(a) A surviving spouse, heir or devisee who feloniously and intentionally kills the decedent is not entitled to any benefits under the will or under articles 3 through 10 of this chapter, and the estate of decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.' "Ala. Code [1975,] § 43-8-253. "Discussion "A restatement of § 43-8-253 in which the decedents' names are inserted is instructive of this matter. "'(a) [Joshua Matthews,] [a] surviving spouse ... who feloniously and intentionally kill[ed Brandy Matthews] is not entitled to any benefits under ... articles 3 through 10 of this chapter, and the estate of [Brandy Matthews] passes as if [Joshua Matthews] had predeceased [Brandy Matthews]. ...' "It is clear by reading the statute in this manner that Brandy Matthews's estate shall pass as though Joshua Matthews predeceased her. Summary judgment on this issue is appropriate. "It is also clear that this statute refers only to what happens to the estate of the person who was the victim of the homicide. That is, this statute only refers to what happens to the estate of Brandy 5 1130890 Matthews. The reference in the statute that 'the estate of the decedent passes as if the killer had predeceased the decedent' does not refer to what happens to the killer's estate. "Therefore, it is clear that Joshua Matthews's estate shall be administered in accordance with the general statutes governing the situation in which Brandy Matthews predeceased him. Summary judgment on this issue is appropriate. "Conclusion "Consistent with the findings of the Court as stated above, it is hereby ORDERED as follows: "1. The estate of Brandy Matthews shall be administered as though Joshua Matthews predeceased her. Summary judgment is hereby granted on this issue. "2. The estate of Joshua Matthews shall be administered in accordance with the general statutes governing the situation in which Brandy Matthews predeceased him. Summary judgment is hereby granted on this issue." Willingham argues that the trial court should have applied § 43-8-253 to find that Joshua's estate would be administered as if he had predeceased Brandy. Section 43-8- 253 provides, in pertinent part: "(a) A surviving spouse, heir or devisee who feloniously and intentionally kills the decedent is not entitled to any benefits under the will or under articles 3 through 10 of this chapter, and the estate of decedent passes as if the killer had predeceased the decedent. Property appointed by the 6 1130890 will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent. ".... "(c) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent. "(d) Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section." (Emphasis added.) Based on the plain language of § 43-8- 253(a), the statute applies only to the estate of the murdered decedent, not the estate of the party who feloniously and intentionally killed the decedent. See Alfa Life Ins. Corp. v. Bonner, 933 So. 2d 362, 365-66 (Ala. Civ. App. 2005) (stating that "subsection (a) of the Slayer's Statute prevents the party who intentionally kills a decedent from receiving 'any benefits under the will or under articles 3 through 10 of' the Probate Code, that is, from 'the estate of the decedent'"). Further, Willingham has not cited any authority to support her proposition that, under § 43-8-253, Joshua's estate should pass as if he had predeceased Brandy. None of 7 1130890 the cases cited by Willingham address the issue of how a probate court should treat the estate of a person who has murdered his or her spouse and then committed suicide. In fact, during the hearing on the motion for a summary judgment, counsel for Willingham conceded that she had not "found a case exactly like this on point." Willingham also asserts: "The commentary [to § 43-8-253] also mentions that '[i]n many of the cases arising under this section there may be no criminal prosecution because the murderer has committed suicide.' This shows that the legislature knew that a situation like the instant one could occur." However, that language comes from the portion of the Commentary to § 43-8-253 that explains why, although the matter addressed by the statute appears to be criminal in nature, it is actually a proper matter for the probate courts. The Commentary does not include any discussion as to how a murdering spouse's estate will pass in situations involving a murder-suicide. Therefore, the language in the Commentary that Willingham relies upon does not support her assertions. Conclusion For the above-stated reasons, Willingham has not established that the trial court erred in finding that § 43-8- 8 1130890 253 is not applicable to the administration of Joshua's estate. Accordingly, we affirm the trial court's judgment. AFFIRMED. Moore, C.J., and Stuart, Parker, and Shaw, JJ., concur. 9	September 19, 2014
a54c3ec0-9f1b-4547-92ac-15bd84e0c3ea	Ex parte B.H. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: B.H. v. Tuscaloosa County Department of Human Resources) (Tuscaloosa Juvenile Court: JU-12-549.01; JU-12-550.01; JU-12-566.01; Civil Appeals : 2120805; 2120806; 2120807). Writ Denied. No Opinion.	N/A	1130813	Alabama	Alabama Supreme Court	REL:09/12/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130813 _________________________ Ex parte B.H. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: B.H. v. Tuscaloosa County Department of Human Resources) (Tuscaloosa Juvenile Court, JU-12-549.01; JU-12-550.01; and JU-12-566.01; Court of Civil Appeals, 2120805) SHAW, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Murdock, Main, Wise, and Bryan, JJ., concur. 1130813 Shaw, J., concurs specially. Moore, C.J., and Parker, J., dissent. 2 1130813 SHAW, Justice (concurring specially). B.H. ("the mother") petitions this Court for certiorari review of the decision of the Court of Civil Appeals affirming the judgments of the Tuscaloosa Juvenile Court directing the mother to pay child support in connection with dependency actions as to her three children. B.H. v. Tuscaloosa Cnty. Dep't of Human Res., [Ms. 2120805, January 31, 2014] ___ So. 3d ___ (Ala. Civ. App. 2014). I concur to deny the petition. In 2008, the mother and the father were divorced by the Tuscaloosa Circuit Court. The divorce judgment placed sole custody of the couple's children with the father. The divorce judgment did not order either party to pay the other child support.1 In November 2012 the Tuscaloosa County Department of Human Resources ("DHR") filed petitions in the Tuscaloosa Juvenile Court seeking a declaration that the mother and The mother indicates that the divorce judgment stated 1 that "neither party shall pay any child support." Nothing before us indicates that this statement held anything more than that the actual parties to the divorce case--the mother and the father--were not required to pay child support to each other. Additionally, as explained further, that order could not impact a later dependency action, over which the circuit court would have no jurisdiction. 3 1130813 father's children were dependant. After further proceedings, the children were declared dependent. Under Ala. Code 1975, § 12-15-314, part of the Alabama Juvenile Justice Act, § 12- 15-101 et seq., Ala. Code 1975, which became effective in 2009, when a child is found to be dependent, "the juvenile court" is empowered by the legislature, among other things, to "[t]ransfer legal custody" of the child to the Department of Human Resources or, among others, certain "local public" agencies. § 12-15-314(a)(3)a and b. The juvenile court in these cases placed the children in the custody of DHR. "When a child is placed in the legal custody" of the Department of Human Resources or certain other departments, agencies, organizations, entities, or persons, § 12-15-314(e) requires that, "when the parent ... has resources for child support, the juvenile court shall order child support." This child support "shall be paid" to the Department of Human Resources or to the "department, agency, any other organization, entity, or person in whose legal custody the child is placed." Id. In compliance with the mandatory directives of this Code section, the juvenile court in the 4 1130813 instant cases ordered the mother and the father to pay child support to DHR. According to the Court of Civil Appeals, the mother argued that the juvenile court's orders requiring the payment of child support to DHR "constituted invalid modifications of the circuit court's 2008 divorce judgment in which the circuit court had waived the requirement that the mother pay child support to the father." ___ So. 3d at ___ (emphasis added). I see no modification to the 2008 divorce judgment by the juvenile court's action: The juvenile court did not order child support to be paid by the mother to the other party to the divorce judgment, i.e., the father. Instead, the juvenile court ordered child support to be paid to DHR, which was not a party to the divorce proceeding. Although the prior divorce judgment of the circuit court established the child support the mother and the father would be required to pay each other as part of their divorce, it did not, and could not, "establish" child-support obligations a parent might be required to pay as part of a later filed dependency action. The juvenile court, not the circuit court in a divorce action, has "exclusive original jurisdiction" to determine dependency 5 1130813 actions, Ala. Code 1975, § 12-15-114, and this includes issues of both custody and support. See § 12-15-314. The cases currently pending in the juvenile court are not the prior divorce action; they are wholly different actions, styled as between DHR, on the one hand, and the mother, on the other, and they invoke a wholly different court and jurisdiction, namely, the "exclusive original jurisdiction" of the juvenile court. As the Court of Civil Appeals held, § 12-15-314 specifically empowers the juvenile court to order the mother and the father to pay child support to DHR. The fact that a juvenile court is a "lower court" to a circuit court is not material when it proceeds under the powers explicitly provided by the legislature; that circuit courts are placed over juvenile courts in the judicial hierarchy does not invalidate § 12-15-314. See Ala. Const. 1901, Art. VI, § 142(b) ("The circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law." (emphasis added)). If the circuit court's decision as to child support in the divorce judgment forecloses the juvenile court from ordering the payment of child support in these dependency 6 1130813 cases, then the juvenile court had no power to transfer custody of the dependent children, because that issue has also "been litigated, and the circuit court retains jurisdiction over that issue." ___ So. 3d at ___ (Moore, C.J., dissenting). I see no support for holding that the Alabama Juvenile Justice Act essentially has no applicability when the parents of a purportedly dependent child were previously divorced by a proceeding in the circuit court. Finally, as Judge Moore stated in his writing concurring in the result in the Court of Civil Appeals' opinion, the caselaw cited on appeal in support of the mother's position, Ex parte M.D.C., 39 So. 3d 1117 (Ala. 2009), and A.S. v. W.T.J., 984 So. 2d 1196 (Ala. Civ. App. 2007), did not involve dependency actions or § 12-15-314. ___ So. 3d at ___. I see no probability of merit in the argument in the mother's certiorari petition that the Court of Civil Appeals erred. Rule 39(f), Ala. R. App. P. Therefore, I concur to deny the petition. 7 1130813 MOORE, Chief Justice (dissenting). B.H. ("the mother) and M.H. ("the father") adopted J.M.H., I.H., and A.H. ("the children") in 2001. The mother and the father divorced in 2008. The divorce judgment entered by the Tuscaloosa Circuit Court ("the circuit court") awarded the father sole custody of the children and ordered the mother not to pay child support because she and the father intended that the mother's parental rights to the children would be terminated. 2 The Tuscaloosa County Department of Human Resources ("DHR") filed the present actions in the Tuscaloosa Juvenile Court ("the juvenile court"), seeking to declare the children dependent and to obtain custody over them. In March 2013, by stipulation of the mother and the father, a referee for the juvenile court found the children to be dependent and awarded DHR custody over them. The referee then scheduled a hearing to determine the mother's and the father's child-support obligations under § 12-15-314(e), Ala. Code 1975, which provides: The mother's parental rights had not been terminated when 2 the present actions were initiated. 8 1130813 "When a child is placed in the legal custody of the Department of Human Resources ... and when the parent, legal guardian, or legal custodian of the child has resources for child support, the juvenile court shall order child support in conformity with the child support guidelines as set out in Rule 32, Alabama Rules of Judicial Administration." 3 The juvenile court then ratified the referee's decisions according to Rule 2.1(G), Ala. R. Juv. P., and § 12-15- 4 106(g), Ala. Code 1975. The juvenile-court referee then 5 ordered the mother and the father to pay child support for the children; the juvenile court ratified the child-support awards. The mother appealed the juvenile court's judgments to the Court of Civil Appeals, alleging that the juvenile court lacked the jurisdiction to modify the child-support judgment of the circuit court, which had retained jurisdiction over its The provisions of Rule 32, Ala. R. Jud. Admin. 3 (referenced in § 12-15-314(e)), are too lengthy to quote here. They set out the guidelines for child support in actions seeking to establish or modify child support. Effective July 1, 2014, Rule 2.1 has been rescinded 4 because the substance of that rule has been codified in § 12- 15-106, Ala. Code 1975. Rule 2.1(G), Ala. R. Juv. P., stated, and § 12-15-106(g), 5 Ala. Code 1975, states: "The findings and recommendations of the referee shall become the order of the court when ratified by the original signature of a judge with authority over juvenile matters." 9 1130813 child-support order. The Court of Civil Appeals affirmed the judgments of the juvenile court on the ground that, when a circuit court considers custody and child-support obligations in a divorce action, the circuit court does not retain exclusive jurisdiction over separate lawsuits such as dependency actions that are unrelated to the divorce judgment. B.H. v. Tuscaloosa Cnty. Dep't of Human Res., [Ms. 2120805, January 31, 2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2014). The Court of Civil Appeals held that DHR's filings with the juvenile court regarding dependency and custody triggered the exclusive jurisdiction of the juvenile court pursuant to § 12- 15-114(a), Ala. Code 1975, which states that a "juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged ... to be dependent." I agree that the juvenile court obtained exclusive original jurisdiction over the dependency matters when DHR filed the present actions in the juvenile court; however, I do not believe that the juvenile court's jurisdiction over the dependency matters allowed the juvenile court to modify the mother's child-support obligations ordered in the divorce 10 1130813 judgment entered by the circuit court. The juvenile court would have no jurisdiction over this matter but for the dependency of the children, and that dependency cannot be attributed to the mother because, pursuant to a circuit court's order, she was no longer responsible for the children's financial well being. The juvenile court entered its child-support orders pursuant to § 12-15-314(e), which requires juvenile courts to consult the child-support guidelines in Rule 32, Ala. R. Jud. Admin., before ordering child support. The guidelines for Rule 32 are "for use in any action to establish or modify child support, whether temporary or permanent." Because the circuit court had already established the child-support obligations of the mother and the father, the juvenile court could only modify those obligations. However, the juvenile court lacked the authority to modify those obligations, over which the circuit court retained jurisdiction. See A.S. v. W.T.J., 984 So. 2d 1196, 1202-03 (Ala. Civ. App. 2007)(voiding the juvenile court's child-support order for lack of subject-matter jurisdiction and holding that the circuit court not only "acquired subject- matter jurisdiction over the issue of custody" and "matters 11 1130813 pertaining to custody," but "it also acquired subject-matter jurisdiction over matters pertaining to visitation and child support" when it adjudicated those issues "within its divorce judgment" (emphasis added)). A juvenile court's jurisdiction is limited, whereas a circuit court's jurisdiction is general. See § 12-15-117(a) (describing the limited nature of the juvenile court's jurisdiction); Art. VI, § 139(a), Ala. Const. 1901 (providing that Alabama's "unified judicial system ... shall consist of ... a trial court of general jurisdiction known as the circuit court"). A juvenile court is a lower court to a circuit court and, as such, even with exclusive original jurisdiction over dependency actions, has no authority to order a parent to pay child support the circuit court has ordered the parent not to pay. From the moment the circuit court awarded custody to the father and discharged the mother from her child-support obligations, the father bore the responsibility to support and care for the children. The issue whether the mother was obligated to pay child support has been litigated, and the circuit court retains jurisdiction over that issue. See Ex parte Lipscomb, 660 So. 2d 986, 989 (Ala. 1994)(holding that 12 1130813 "matters of child custody are never res judicata, and the circuit court retains jurisdiction over the matter for modification"). Because the juvenile court improperly modified the circuit court's judgment by ordering the mother to pay child support in contravention of the circuit court's order, I respectfully dissent. 13	September 12, 2014
955f8475-6528-4116-95c2-4ac8df2629b9	Fleetwood Trucking Company, Inc. v. Cahaba Resources, LLC and Crawford Enterprises, LLC (Appeal from Tuscaloosa Circuit Court: CV-13-900811). Affirmed. No Opinion.	N/A	1130053	Alabama	Alabama Supreme Court	Rel: 07/03/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130053 ____________________ Fleetwood Trucking Company, Inc. v. Cahaba Resources, LLC, and Crawford Enterprises, LLC ____________________ 1130074 ____________________ Cahaba Resources, LLC v. Fleetwood Trucking Company, Inc. Appeals from Tuscaloosa Circuit Court (CV-13-900811) MAIN, Justice. 1130053, 1130074 1130053 –- AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P. Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., concurs specially. 1130074 –- AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P. Moore, C.J., and Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur. 2 1130053, 1130074 MOORE, Chief Justice (concurring specially in case no. 1130053). Fleetwood Trucking Company, Inc. ("Fleetwood"), sued Cahaba Resources, LLC ("Cahaba"), and Crawford Enterprises, LLC ("Crawford"), in the Tuscaloosa Circuit Court, seeking indemnity for black-lung benefits the United States Department of Labor ordered Fleetwood to pay a former employee under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. The Department of Labor's ruling is currently on appeal to the United States Court of Appeals for the Eleventh Circuit. The Tuscaloosa Circuit Court dismissed Fleetwood's action against Cahaba and Crawford, subsequent employers of the employee, on the ground that it lacked subject-matter jurisdiction over the indemnity claim. Fleetwood now appeals to this Court. I concur in affirming the judgment of the Tuscaloosa Circuit Court. I write separately because I do not believe the Tuscaloosa Circuit Court lacked subject-matter jurisdiction over a common-law indemnity claim. Rather, the proper ground for the judgment for Cahaba and Crawford and against Fleetwood was Fleetwood's failure to state a claim upon which relief could be granted because its claims, given the procedural 3 1130053, 1130074 posture of this case, are premature. See Rule 12(b)(6), Ala. R. Civ. P. Alabama courts retain subject-matter jurisdiction over indemnity claims. Precision Gear Co. v. Continental Motors, Inc., 135 So. 3d 953, 960 (Ala. 2013)("Under Alabama law, an indemnity claim is a tort claim ...."); Amerada Hess Corp. v. Owens-Corning Fiberglass Corp., 627 So. 2d 367, 370 (Ala. 1993)(noting that "'indemnity should be granted in any factual situation in which, as between the parties themselves, it is just and fair that the indemnitor should bear the total responsibility, rather than leave it on the indemnitee'" (quoting Restatement (Second) of Torts § 886B (1977), cmt. c)). This Court has explained that subject-matter jurisdiction "concerns a court's power to decide certain types of cases." Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006). Subject- matter jurisdiction refers to "[j]urisdiction over the nature of the case and the type of relief sought." Black's Law Dictionary 983 (10th ed. 2014)(emphasis added). "Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong. The principle of subject matter jurisdiction relates to a court's inherent authority to deal with the case 4 1130053, 1130074 or matter before it. The term means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs." 21 C.J.S. Courts § 11 (2006). The Tuscaloosa Circuit Court had subject-matter jurisdiction over Fleetwood's claims asserting common-law indemnification even if it did not regard those claims as meritorious. Ex parte Safeway Ins. Co. of Alabama, [Ms. 1120439, October 4, 2013] ___ So. 3d ___, ___ (Ala. 2013)("There are ... no problems with subject-matter jurisdiction merely because a party files an action that ostensibly lacks a probability of merit."). Therefore, my concurrence should not be taken as upholding the Tuscaloosa Circuit Court's determination that it lacked subject-matter jurisdiction over Fleetwood's indemnity claims. I believe Fleetwood's action is premature because Fleetwood has appealed to the United States Court of Appeals for the Eleventh Circuit for relief from the Department of Labor's ruling that, if granted, would render the present indemnification action moot. Should the Court of Appeals rule against Fleetwood, Fleetwood's action for common-law indemnity would be viable. 5 1130053, 1130074 In light of the foregoing, I concur to affirm the judgment of the Tuscaloosa Circuit Court. 6	July 3, 2014
e50d6d23-fc1b-45d0-ba16-638ae6870bd8	Ex parte Larry J. Clements. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Alabama State Personnel Board v. Larry J. Clements)	N/A	1130571	Alabama	Alabama Supreme Court	08/29/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM 2014 _________________________ 1130571 _________________________ Ex parte Larry J. Clements PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Alabama State Personnel Board v. Larry J. Clements) (Montgomery Circuit Court, CV-12-901165; Court of Civil Appeals, 2120726) SHAW, Justice. The petition for the writ of certiorari is denied. In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the 1130571 language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT DENIED. Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 2	August 29, 2014
f5717ae8-01f1-48ce-b7b1-af2f04d9d0a2	Bolt v. Electric Insurance Company	N/A	1130820	Alabama	Alabama Supreme Court	Rel: 9/26/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130820 ____________________ Ex parte Electric Insurance Company PETITION FOR WRIT OF MANDAMUS (In re: Paul Nelson Bolt v. Electric Insurance Company and John Christopher Wilson) (Marshall Circuit Court, CV-12-000072) BRYAN, Justice. Electric Insurance Company ("Electric") petitions this Court for a writ of mandamus directing the Marshall Circuit 1130820 Court to allow Electric, an uninsured-motorist insurer, to "opt out" of the trial of the underlying case. The issue presented by this petition is whether Electric asserted its right to opt out within a reasonable time. We conclude that it did; thus, we grant the petition and issue the writ. The facts giving rise to this action are as follows. An automobile being driven by Paul Nelson Bolt was involved in an accident with an automobile being driven by John Christopher Wilson, an uninsured motorist. On April 4, 2012, Bolt sued Wilson and Electric, Bolt's uninsured-motorist insurer, alleging that he had sustained various injuries in the accident and that the accident was caused by Wilson's negligence and wantonness. On May 17, 2012, Electric answered the complaint and served Bolt with interrogatories and a request for production. On July 6, 2012, Bolt responded to the discovery requests. Electric deposed Bolt on September 26, 2012. In the latter part of 2013 and early 2014, Bolt deposed four physicians who had treated him following the accident. Those depositions were taken on October 7, 2013, October 17, 2013, November 7, 2013, and January 17, 2014. 2 1130820 On December 3, 2013, the trial court ordered the parties to submit a proposed scheduling order, which they did. On February 4, 2014, the trial court adopted the scheduling order submitted by the parties. The scheduling order provided that the last day for Electric to amend its answer would be March 15, 2014, that discovery would be completed no later than March 28, 2014, and that the trial would be held on May 12, 2014. On March 14, 2014 –– one day before the last day Electric could have freely amended its answer –– Electric filed a motion seeking to opt out of the trial under Lowe v. Nationwide Insurance Co., 521 So. 2d 1309 (Ala. 1988). Bolt objected to Electric's attempt to opt out. Following a hearing, the trial court denied Electric's motion, without stating a reason. Electric then petitioned this Court for a writ of mandamus directing the trial court to allow Electric to opt out of the trial. We stayed the proceedings below pending the resolution of the mandamus petition. "A writ of mandamus is an extraordinary remedy, and it will be 'issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly 3 1130820 invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993)." Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998). "A petition for a writ of mandamus is the appropriate means for challenging a trial court's refusal to grant a[n uninsured-motorist] insurer the right to opt out of litigation pursuant to Lowe. Ex parte Aetna Cas. & Surety Co., 708 So. 2d 156 (Ala. 1998)." Ex parte Geico Cas. Co., 58 So. 3d 741, 743 (Ala. 2010). In Lowe, this Court discussed the rights of an underinsured-motorist insurer when its insured is involved in litigation. Although Lowe involved an underinsured motorist, we noted in that case that the term "underinsured motorist" is statutorily included within the term "uninsured motorist." 521 So. 2d at 1309 n. 1 (citing § 32-7-23(b), Ala. Code 1975). Our analysis in Lowe and its progeny applies equally to underinsured and uninsured motorists. See, e.g., Ex parte Geico. In Lowe, this Court stated: "A plaintiff is allowed either to join as a party defendant his own liability insurer in a suit against the underinsured motorist or merely to give it notice of the filing of the action against the motorist and of the possibility of a claim under the underinsured motorist coverage at the conclusion of 4 1130820 the trial. If the insurer is named as a party, it would have the right, within a reasonable time after service of process, to elect either to participate in the trial (in which case its identity and the reason for its being involved are proper information for the jury), or not to participate in the trial (in which case no mention of it or its potential involvement is permitted by the trial court)." Lowe, 521 So. 2d at 1310 (some emphasis omitted; some emphasis added). "We stated in Lowe that the insurer has the option to withdraw from the case, provided that it exercises that option within a reasonable time after service of process. It was also stated that whether the insurer's motion to withdraw is timely made is left to the discretion of the trial court, to be judged according to the posture of the case. Logically, the insurer would not want to withdraw from the case too early, before it could determine, through the discovery process, whether it would be in its best interest to do so. On the other hand, the insurer cannot delay, unnecessarily, in making its decision whether to withdraw. We believe that it would not be unreasonable for the insurer to participate in the case for a length of time sufficient to enable it to make a meaningful determination as to whether it would be in its best interest to withdraw." Ex parte Edgar, 543 So. 2d 682, 685 (Ala. 1989). Although Lowe was decided more than 25 years ago, there have been very few opinions addressing whether an insurer timely asserted its right to opt out. See Ronald G. Davenport, Alabama Automobile Insurance Law § 33:4 (4th ed. 2013); see also Ex parte Geico, 5 1130820 supra (concluding that the motion to opt out was timely when it was filed five days after the insurer deposed its insured). We must determine whether Electric asserted its right to opt out of the trial within a reasonable time. In Ex parte Edgar, we emphasized that such a determination must be made in light of "the posture of the case." Given the posture of this case, we conclude that Electric asserted its right to opt out within a reasonable time. Significantly, Electric attempted to opt out of the trial before the final day on which the scheduling order allowed Electric to amend its answer. By amending its answer, Electric could have complicated the case by adding parties, defenses, or counterclaims, and those changes may have delayed the trial. Conversely, Electric's opting out of the trial would simplify and streamline the case and would not delay the trial. It is inconsistent, on the one hand, to allow Electric freely to amend its answer and, on the other hand, to forbid Electric from exercising its right under Lowe to opt out of the trial. We have noted that "the insurer would not want to withdraw from the case too early, before it could determine, through the discovery process, whether it would be in its best 6 1130820 interest to do so." Ex parte Edgar, 543 So. 2d at 685. Electric sought to withdraw only after Bolt had deposed four physicians who had treated him following the accident. Those physicians testified regarding the extent of Bolt's various alleged injuries and whether the accident may have caused those injuries. Electric reasonably waited until after the physicians had been deposed to fully assess the strength of Bolt's personal-injury case and whether opting out would be in its best interest. We recognize that Electric asserted its right to opt out 56 days after the taking of the final physician's deposition. Considering that Electric sought to withdraw within the period in which it could have amended its answer and only 38 days after the trial court adopted the scheduling order submitted by the parties, such a delay was reasonable. Electric asserted its right to opt out of the trial within a reasonable time. Accordingly, we grant the petition for a writ of mandamus and direct the trial to grant Electric's motion seeking to opt out of the trial. PETITION GRANTED; WRIT ISSUED. 7 1130820 Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. Moore, C.J., dissents. 8	September 26, 2014
ab13946d-6e0e-4738-8b8d-8f631ca630b5	Martin K. Berks; Environmental Attorneys Group, LLC, and Environmental Attorneys Group,P.C. v. Gregory A. Cade et al. (Appeal from Jefferson Circuit Court: CV-08-903634). Application Overruled. No Opinion.	N/A	1110423	Alabama	Alabama Supreme Court	REL:06/27/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 _________________________ 1110423 _________________________ Martin K. Berks; Environmental Attorneys Group, LLC, and Environmental Attorneys Group, P.C. v. Gregory A. Cade et al. Appeal from Jefferson Circuit Court (CV-08-903634) On Application for Rehearing PER CURIAM. APPLICATION OVERRULED. NO OPINION. Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. Shaw, J., concurs specially. Moore, C.J., dissents. 1110423 2 SHAW, Justice (concurring specially). I concur in overruling the application for rehearing. The present appeal arises from the most recent case in a series of actions stemming from the dissolution of Environmental Attorneys Group, LLC, a law firm ("EAG, LLC"), and the competing claims of the various parties, who are former partners in and/or employees of EAG, LLC, to certain fees. The defendants/counterclaim plaintiffs below -- Martin K. Berks, EAG, LLC, and Environmental Attorneys Group, P.C. ("EAG, P.C.") -- appeal from the trial court's order dismissing, with prejudice, their counterclaim and third-party complaint. On original submission, this Court affirmed the trial court's judgment, without an opinion. Berks v. Cade, [No. 1110423, October 18, 2013] ___ So. 3d ___ (Ala. 2013). On rehearing, the appellants object to both this Court's affirmance and its decision not to issue an opinion. I write specially to explain why I concur with both decisions. Facts and Procedural History In 1989, J. William Lewis formed Environmental Litigation Group, P.C. ("ELG, P.C."), a law firm specializing in toxic- 1110423 ELG, P.C., at the time of its formation, was 1 incorporated under the name "J. William Lewis Professional Corporation." Thereafter, it underwent several name changes, including "Asbestos Litigation Group, P.C." in 1990 and finally ELG, P.C., in 1991. Although the action was purportedly initiated on behalf 2 of EAG, LLC, Rowe's affidavit testimony reflects that Berks solely undertook that litigation and that "[Rowe] did not approve or grant authority for Berks to file a complaint on behalf of [EAG, LLC,] or to enter into a mediation agreement between [EAG, LLC,] and Cade. 3 tort representation. Berks and Mark Rowe were both 1 subsequently employed by ELG, P.C., as attorneys, and Cade was employed, beginning in 1993, as a paralegal/investigator. In 2001, Berks and Rowe formed EAG, LLC. Pursuant to the articles of incorporation, Berks and Rowe were the sole members of EAG, LLC, and each retained a 50% ownership interest. At some point thereafter, Cade was hired by EAG, LLC, as a paralegal. Cade subsequently obtained his juris doctorate and passed the Alabama bar examination and was employed by EAG, LLC, as an associate attorney. In 2004, Cade planned to separate from EAG, LLC, and EAG, LLC, sued Cade in the Jefferson Circuit Court (CV-04-0752) 2 seeking injunctive relief against Cade, who, it alleged, was attempting to "steal cases from EAG, [LLC,] ... by signing [engagement] contracts in his own name instead of the EAG[, 1110423 4 LLC,] name." Following court-ordered mediation, the parties ultimately resolved their dispute. The terms of the negotiated settlement agreement provided, in pertinent part: "[Cade] shall be entitled to 50% of the fees from the creosote related personal injuries and property damage claims in the cases from Hattiesburg, MS, and Florala, AL. [EAG, LLC,] shall be entitled to 50% of such fees as well as fees from all other claims from such cases, with each principal of [EAG, LLC,] entitled to half. Wilbur Colom's law firm shall be associated in the Florala creosote cases on the same basis as the Hattiesburg cases. [Cade] shall request Colom's firm to disburse any monies due to be disbursed or paid to [EAG, LLC,] or [Cade] in accordance with this agreement. "[Cade] shall take and be responsible for handling to a conclusion the Hattiesburg and Florala cases and the following cases (to the exclusion of all other cases or matters coming out of [EAG, LLC's] data bases): "1. Michael Walker "2. Wells vs. Georgia Pacific "3. Kelly vs. Georgia Pacific "4. Abraham Gandy "5. Bubbet[t] "6. Garrison "7. Orbie Cantrell "8. Earl Ridley 1110423 5 "[Cade] shall reimburse [EAG, LLC,] for all out of pocket expenses incurred in the above named cases one through eight within 30 days. [Cade] shall be entitled to all fees from cases one through eight except cases 4 and 5. [Cade] shall pay an amount equal to one-third of the net fees collected from cases 4 and 5 to [EAG, LLC,] when, as and if collected. [EAG, LLC,] shall continue to handle all cases and matters for clients identified in [EAG, LLC's] records or data bases except the Florala, and Hattiesburg cases and cases one through eight above. "[EAG, LLC,] agrees to cause the above styled lawsuit to be dismissed with prejudice and to have the court either strike the pleadings and other papers filed from the record or to have the case sealed. "[Cade] shall be given possession of the files for the Hattiesburg and Florala cases as well as cases one through eight above. [Cade] shall cause a copy of the contracts for the Hattiesburg cases to be delivered to [EAG, LLC,] within 30 days. [EAG, LLC,] and [Cade] shall provide each to the other a copy of any contract in the Hattiesburg and Florala cases received on or after the date of this agreement within a week after receipt. [Cade] shall provide [EAG, LLC,] with an updated client list for the Hattiesburg and Florala cases once each month." The case was thereafter dismissed with prejudice and the record sealed. Also in 2004, Berks communicated to the existing clients of EAG, LLC, his intention to leave EAG, LLC, and to form EAG, P.C., a new law firm formed solely by Berks. In conjunction with that plan, Berks requested that clients of EAG, LLC, sign 1110423 Although Berks had communicated to Cade and to Rowe in 3 February 2004 his intention to dissolve EAG, LLC, at that time, the record reflects that he later decided not to dissolve the LLC because "[he] figured it would be less complicated ... once they collected money on Florala and Hattiesburg...." Cade's deposition testimony reflects that he is now the 4 sole remaining principal of ELG, P.C. Cade also indicated that, at the time of his deposition in the underlying matter, the Cade Law Firm continues to exist as an undissolved limited-liability company. 6 new engagement contracts with EAG, P.C. Ultimately, Rowe separately formed The Rowe Law Firm, LLC, on April 2, 2004; Cade formed The Cade Law Firm, LLC, on that same date; and Berks formed EAG, P.C., on April 5, 2004. EAG, LLC, effectively ceased operation in February 2004, but the firm was not then dissolved.3 On March 1, 2005, Cade replaced Lewis as a shareholder, director, officer, and employee of ELG, P.C. When Cade 4 joined ELG, P.C., it and Cade jointly continued to represent Cade's existing clients, including those referenced in the 2004 settlement agreement. In February 2006, Rowe sued Berks and Berks's law firm, EAG, P.C., in the Jefferson Circuit Court (CV-06-749). Rowe's claims were resolved via mediation in July 2006, and that action was subsequently dismissed. As part of their mediated 1110423 With regard to dissolution, the EAG, LLC, operating 5 agreement provides, in full, as follows: "Article 10 -- DISSOLUTION AND LIQUIDATION OF THE COMPANY "10.1 Dissolution. The Company shall be dissolved upon the earliest to occur of the following: "(a) The written consent of Members holding one or more Voting Interests which taken together equal or exceed two-thirds (2/3) of all Voting Interests to dissolve the Company. "(b) When there is no remaining Member, unless either of the following applies: "(i) the holders of all the Economic Rights in the Company agree in writing, within ninety (90) days after cessation of membership of the last Member, to continue the legal existence and business of the Company and to appoint one or more new members; or "(ii) the legal existence and business of the Company is continued and one or more new members are appointed in the manner stated in the Articles of Organization or this Agreement. 7 settlement, Rowe and Berks agreed "to the dissolution of EAG, LLC pursuant to the applicable provisions of the Operating Agreement." 5 1110423 "(c) The merger of the Company with one or more other entities and the Company is not the successor limited liability company in such merger, or the consolidation of the Company with one or more other entities. "(d) The entry of a decree of judicial dissolution by the circuit court of the county in which the Articles of Organization were filed. "10.2 Winding Up Upon Dissolution. After the dissolution of the Company, the Members (or such other Persons as the Act [the Alabama Limited Liability Company Act, Ala. Code 1975, § 10-12-1 et seq., repealed by Act No. 2009-513, Ala. Acts 2009, effective January 1, 2011] may require or permit) shall wind up the affairs of the Company and shall file Articles of Dissolution with the office of the Judge of Probate of the county where the Articles of Organization were filed, and take such other actions as may be necessary or appropriate to terminate the Company. The Members or other Persons winding up the Company's business may: (a) preserve the Company's business or property as a going concern for a reasonable time; (b) prosecute and defend actions and proceedings, whether civil, criminal or administrative; (c) settle and close the Company's business; (d) dispose of and transfer property; (e) discharge the Company's liabilities; (f) distribute the assets of the Company; and (g) perform other necessary and appropriate acts. "10.3 Distribution and Dissolution. Upon the winding up of the Company, the Company's assets shall be distributed in the following order of priority: "(a) To creditors, including Equity Owners who are creditors to the extent 8 1110423 permitted by law, in order of priority; "(b) To present and former Equity Owners for interim distributions; and "(c) To Equity Owners in accordance with the positive Capital Account balances of the Equity Owners, as determined after taking into account all Capital Account adjustments for the Company's taxable year during which the liquidation occurs. "The Company may offset damages for breach of this Agreement by an Equity Owner whose interest is liquidated (either upon the withdrawal of the Member or the liquidation of the Company) against the amount otherwise distributable to such Equity Owner." 9 Although Berks and EAG, P.C., subsequently sought to have the 2006 negotiated settlement set aside, the trial court denied that request and Berks's subsequent appeal was apparently dismissed without opinion. In August 2007, Rowe accepted employment with ELG, P.C. –- where Cade worked –- as an associate attorney. In October 2008, one of the matters referenced in the 2004 settlement agreement, M.C. v Pactiv et al. (identified as the "Florala cases" in the 2004 settlement agreement set out above), settled. Upon learning of the settlement, counsel, purportedly acting on behalf of Berks and EAG, LLC, notified 1110423 The letter fails to include a designation indicating 6 whether the purported representation included EAG, LLC, or EAG, P.C. I presume, however, given the subsequent procedural history, that the letter was meant to refer to the claim of EAG, LLC. 10 counsel of record in the Florala cases by letter that, purportedly pursuant to the settlement agreement, Berks and EAG, LLC,6 "assert[ed] a lien against any and all fees and expenses to be paid from the settlement proceeds to Gregory Cade, Robert Palmer, Fred DeLeon, Mark Rowe, Lee Gresham, Hoyt Harp and [ELG, P.C.,], its agents and/or representatives, attorneys, and members." At or around that same time, EAG, LLC, filed a "Motion to Enforce Settlement Agreement" in case no. CV-04-0752, which motion was originally granted but later vacated. Cade received the settlement proceeds from the Florala cases on or around November 14, 2008. In November 2008, Cade and his employer, ELG, P.C. (hereinafter sometimes collectively referred to as "the plaintiffs"), sued Berks; EAG, LLC; and Berks's firm, EAG, P.C. (hereinafter sometimes collectively referred to as "the defendants"); and various fictitiously named defendants in the Jefferson Circuit Court. Specifically, the verified complaint included the following counts: 1110423 In particular, the plaintiffs sought a judgment from the 7 trial court declaring that, as a result of the alleged wrongful conduct of Berks and EAG, LLC, Cade and ELG, P.C., were not obligated to remit the fees otherwise due under the 2004 settlement agreement. 11 Count I Injunctive Relief Count II Breach of Contract Count III Tortious Interference Count IV Conspiracy to Tortiously Interfere with Contracts Count V Fraudulent Inducement Regarding Settlement Agreement Count VI Conversion of Attorney Fees (Gandy and Bubbett cases) Count VII Declaratory Judgment7 Count VIII Accounting The defendants subsequently answered and counterclaimed, alleging that they had complied in all respects with the terms of the 2004 settlement agreement but that Cade had repeatedly 1110423 More specifically, the counterclaim alleged that Cade's 8 conduct in breach of the 2004 settlement agreement was as follows "(a) he has not reimbursed Defendants for all out of pocket expenses incurred in the cases he was being allowed to handle; (b) he has not paid to [EAG,] LLC an amount 'equal to one-third of the net fees collected' in the Gandy case; (c) he has not reimbursed any of the expenses in the Bubbett case nor did he take over primary responsibility for the Bubbett case (No. 5) or do any work on behalf of Mr. Bubbett subsequent to the Settlement Agreement; (d) he has not provided copies of any contracts in the Hattiesburg or Florala cases received on or after the date of the Settlement Agreement; (e) he has never provided an updated client list for the Hattiesburg or Florala cases, much less provided one each month; (f) he has concealed settlements in the Hattiesburg group of cases from Defendants; (g) he has not paid "50% of such fees as well as fees from all other claims" from the Hattiesburg cases to [EAG,] LLC (either directly or through the Colom firm) (h) he has not paid "50% of such fees as well as fees from all other claims" from the Florala cases to [EAG,] LLC (either directly or through the Colom firm) (i) he failed to direct Colom's firm to disburse any monies due to be disbursed or paid to [EAG,] LLC in accordance with the Settlement Agreement." 12 breached that agreement. Their counterclaim included the 8 following counts: Count I Breach of Contract Count II Tortious Interference with Contract Count III Unjust Enrichment 1110423 Count V was added later by amendment. 9 Rowe's intervention motion appears inconsistent in that 10 it purports to express his individual property interest in any attorney-fee claim made by EAG, LLC, but requests that Rowe be allowed to intervene "on behalf of [EAG, LLC]." 13 Count IV Accounting Count V Fraudulent Suppression 9 Rowe subsequently moved, pursuant to Rule 24(a), Ala. R. Civ. P., to intervene in the underlying case. In support of his request, Rowe alleged both "[t]hat the entity known as [EAG, LLC], is still an active limited liability corporation and has not been closed" and that Rowe "ha[d] a property interest in any claims made for attorney fees on behalf of [EAG, LLC]." Upon an emergency motion by the defendants, the 10 trial court ordered that the plaintiffs pay the clerk of the trial court the $2,399,125 fee received by them in conjunction with the resolution of the Florala cases. That same order granted, per the parties' stipulation in open court, Rowe's motion to intervene and his alignment as a plaintiff. The trial court, however, subsequently granted the plaintiffs' "Motion to Reconsider" and rescinded the portion of the order requiring the plaintiffs to pay the designated amount to the clerk. 1110423 14 In March 2009, Rowe demanded, pursuant to the terms of the 2006 mediated settlement agreement, that Berks take steps to formally dissolve EAG, LLC. Also in 2009, Berks and EAG, LLC, filed a third-party complaint against Lewis, the founder of ELG, P.C. –- the firm Cade worked for -- and against Robert L. Palmer, then a member and the president of ELG, P.C. That pleading alleged that Palmer and Lewis had "intentionally and maliciously interfered with Cade's performance of the terms of the [2004] Settlement Agreement...." Lewis and Palmer later moved to dismiss the third-party complaint on, among others, the following grounds: "11. EAG, LLC, is the only possible proper party to the third party complaint. However, EAG, LLC, ceased to operate or to have any employees in February 2004, leaving as its only activity that of winding down. Part of winding down was EAG, LLC's performance of the terms of the [2004] Settlement Agreement by which it was to turn over possession of the files and client contracts for specified cases to Cade so he could handle the cases to their conclusion. According to Rowe, Cade and Amy [Pyle] Berks, EAG, LLC, did not deliver possession of the files and client contracts to Cade. ... Berks testified at deposition that he had no evidence that EAG, LLC, delivered possession of the files to Cade. ... "12. EAG, LLC, could have been a proper party to bring the third party complaint but it was not authorized to do so. Berks had no authority as a less-than-majority owner of EAG, LLC, to cause EAG, 1110423 15 LLC, to file the third party complaint. EAG, LLC's Operating Agreement states that all 'decisions concerning the business and affairs of the Company shall be made, unless otherwise provided by Section 6.2, by members holding a majority interest.' ... The Operating Agreement defines a majority interest as 'one or more Voting Interests which taken together exceed fifty percent (50%) of the aggregate of all Voting Interests.' ... Consequently, Rowe and Berks, neither having a majority interest, would have had to both vote to file the third party complaint as an act of EAG, LLC, for the decision to be valid. "13. Rowe did not authorize EAG, LLC, to file the third party complaint. Berks admits that Rowe is [a] member of EAG, LLC, and the members did not vote to file the counterclaim. ..." (Footnotes omitted.) Lewis and Palmer supported the foregoing claims with numerous evidentiary submissions. ELG, P.C., moved for a summary judgment in its favor declaring that the 2004 settlement agreement was unenforceable as a result of the alleged breach of that agreement by EAG, LLC, specifically Berks, in failing to surrender files identified in the agreement and in keeping all fees received in the Gandy and Bubbett cases also identified in the agreement. In that same motion, ELG, P.C., argued that any counterclaim asserted by Berks, individually, was due to be dismissed based on his alleged lack of standing to pursue any such claim. More specifically, ELG, P.C., alleged that Berks 1110423 16 "is a member of EAG, LLC, and is not seeking to enforce his rights as a member or manager against or liability to EAG, LLC," and that Berks was not a party to the 2004 settlement agreement, on which the claims were based; thus, ELG, P.C., argued that "EAG, LLC, is the only possible proper party to the counterclaim." It further argued: "EAG, LLC, would have been a proper party to bring the counterclaim but it was not authorized to do so. EAG, LLC's Operating Agreement states that all 'decisions concerning the business and affairs of the Company shall be made, unless otherwise provided by Section 6.2, by members holding a majority interest.' The Operating Agreement defines a majority interest as 'one or more Voting Interests which taken together exceed fifty percent (50%) of the aggregate of all Voting Interests.' Consequently, Rowe and Berks, neither having a majority interest, would have had to both vote to have EAG, LLC, file the counterclaim for the filing to be valid, Berks alone had no authority to cause EAG, LLC, to file the counterclaims. "Berks admitted that Rowe is [a] member of EAG, LLC, and the members did not vote to file the counterclaim. The counterclaim is due to be dismissed because EAG, LLC's members did not properly authorize the filing on the limited liability company's behalf." (Emphasis original.) Rowe also subsequently moved to dismiss any claims purportedly made on behalf of EAG, LLC, and by Berks, individually, on virtually identical grounds. In addition to 1110423 17 Berks's purported lack of authority to act on behalf of EAG, LLC, and Berks's purported lack of any individual interest making him a "proper party," Rowe further alleged that, as the other 50% interest holder in EAG, LLC, Rowe had not agreed to hiring counsel or filing litigation on behalf of EAG, LLC. Rowe's motion was supported by, among other exhibits, his sworn statement to the foregoing effect and by a copy of the sealed 2006 settlement agreement reached in case no. CV-06- 749, which purportedly reflected that at no time had Rowe ever surrendered his equity interest in EAG, LLC. On February 24, 2010, Rowe filed formal articles of dissolution for EAG, LLC, with the Jefferson Probate Court. That document reflected that the dissolution had been authorized by the vote and written consent of all members on July 19, 2006. Immediately thereafter, Rowe filed a motion seeking, in the underlying action, to disqualify counsel of record for EAG, LLC, on the ground that their hiring violated the terms of the EAG, LLC, operating agreement in that the members of EAG, LLC, had not voted to pursue any action on its behalf and that, in the absence of such approval, Berks was not authorized to bind EAG, LLC. Rowe's motion included 1110423 18 numerous supporting exhibits. ELG, P.C., Palmer, and Lewis subsequently filed a motion joining Rowe's motion seeking to disqualify counsel for EAG, LLC. Cade, too, later joined Rowe's motion. The plaintiffs subsequently filed their own motion seeking, in part, to dismiss the counterclaim and third-party complaint based on the trial court's alleged lack of subject- matter jurisdiction. Specifically, relying primarily on the assertions set out above, they contended that "[EAG, P.C.], and ... Berks ... do not have the capacity or authority to assert the claims they have made and that [the trial court], therefore, [did] not have subject matter jurisdiction over the claims." In response to Rowe's motion to disqualify counsel, Berks alleged that Rowe's own "unclean hands," resulting from Rowe's alleged breach of fiduciary duty owed to EAG, LLC, prevented Rowe from participating in the underlying litigation and/or obtaining relief from the court. Berks also requested that the trial court vacate the order permitting Rowe's intervention and expunge the formal dissolution Rowe filed in the Jefferson Probate Court, which requests Rowe opposed. 1110423 19 Thereafter, the plaintiffs renewed their request to dismiss the counterclaim and third-party complaint based on the trial court's alleged lack of subject-matter jurisdiction based on Berks's lack of standing to file those pleadings. In response, the defendants renewed their prior request -- allegedly based upon fears stemming from the anticipated dissolution of ELG, P.C. -- that the trial court require the plaintiffs to escrow the $1,199,562.50 in disputed fees from the Florala cases. The plaintiffs opposed that motion, noting that the funds at issue had been disbursed in the ordinary course of the business of ELG, P.C., and that, as the trial court had previously determined, the claim at issue was not a claim to specific funds but a potential claim for damages. They further disputed the possibility that ELG, P.C., would be dissolved before the underlying claims were resolved. The trial court subsequently denied the motion to escrow the funds. It also entered, after a hearing, an order finding that neither Rowe nor Berks had voted for or authorized the hiring of counsel and holding that "[t]he Operating Agreement does not allow members to cease their membership by a voluntary act and specifies that membership terminates only 1110423 20 upon the occurrence of an event described in the Alabama Limited Liability Company Act." As a result, the trial court made the following "Conclusions of Law": "EAG, LLC's Operating Agreement states that the company is dissolved upon [t]he written consent of Members holding one or more Voting Interests which, taken together equal or exceed two-thirds (2/3) of all Voting Interests. ... Berks and Rowe, the sole members of EAG, LLC, who together held one hundred percent (100%) of the Voting Interests, gave their written consent to dissolution on July 19, 2006, when they signed the Settlement Agreement. The Alabama Limited Liability Company Act provides that a limited liability company is dissolved upon the occurrence of the first event specified in the company's articles of organization, its operating agreement or the Act to result in dissolution. See Ala. Code [1975, §] 10-12-37.... "At the moment the written consent specified by the Operating Agreement was given by all of its members, EAG, LLC, was dissolved pursuant to Alabama Code [1975, §] 10-12-37, which states that '[a] limited liability company is dissolved ... upon the occurrence of the first of the following events: (1) Events specified in the articles of organization or the operating agreement....' Once the dissolution occurs, the limited liability company is to immediately begin to wind up its business and may not carry on any business except that necessary and appropriate to wind up and liquidate its business and affairs. ... Ala. Code [1975, §] 10-12-40.... While winding up the business and affairs of a limited liability company may be a process, dissolution is not. "After the dissolution occurs pursuant to Alabama Code [1975, §] 10-12-37, it is mandatory that the company file articles of dissolution with 1110423 21 the judge of probate for the county in which the company's articles of organization were filed. See Ala. Code [1975, §] 10-12-42.... The language of the statute makes it clear, however, that filing the articles of dissolution has nothing to do with causing or completing the dissolution. The dissolution has already occurred by the time the articles of dissolution are filed and the articles are filed to give third parties notice that dissolution has occurred. The commentary to Alabama Code [1975, §] 10-12-42, explains the purpose of filing the articles of dissolution as follows: "'It provides for filing of the articles of dissolution upon the commencement of winding up. The filing is intended to serve as notice to third parties that the limited liability company is being wound up and as a means of limiting the liability of members for subsequent actions of the limited liability company other than actions necessary for the winding up.' "Ala. Code [1975, §] 10-12-42 ... (Commentary) (emphasis added). The date of the limited liability company's dissolution also triggers a limitation on its ability to commence an action or proceeding against third parties and provides protection from claims against the company. The period of time within which a dissolved limited liability company is to wind up its business and affairs is two years from the date of dissolution. See Nix v. W.R. Grace & Co. CONN., 830 F. Supp. 601, 602 (S.D. Ala. 1993); Hutson v. Fulgham Industries, Inc., 869 F.2d 1457, 1460 (11th Cir. 1989); Ala. Code [1975, §§] 10-12-45, 10-4-381, 10-2B-14.06, 10-2B-14.07 (and the Commentary thereto), 10-12-39, 10-12-40, 10-12-43, and 10-12-44. "The limitation on the amount of time a dissolved limited liability company has to wind up is based on a legislative policy that there must be 1110423 22 a definite point in time when claims by and against dissolved business entities must cease. Nix v. W.R. Grace & Co. CONN, 830 F. Supp. [601] at 604 [(S.D. Ala. 1993)]. Absent a survival statute, common law would cause a dissolved entity's ability to bring and defend claims to end immediately upon the dissolution date. Id. A claim not brought within the time period is extinguished. Id. Claims of the limited liability company assigned to a member by a general assignment are also extinguished if not brought within the wind-up period. Id. at 605. Members of a dissolved limited liability company do not succeed to any unassigned assets after the wind-up period except fixed corporate assets and real property... Hutson v. Fulgham [Indus., Inc.], 869 F.2d [1457] at 1464 [(11th Cir. 1989)]. "The decisions in Hutson and Nix were based on Alabama Code [1975, §] 10-2A-203, which provided that: "'The dissolution of a corporation ... shall not take away or impair any remedy available to or against such corporation, its directors, officers or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of dissolution.' "Id. Although Alabama Code [1975, §] 10-2A-203, has been repealed, it was replaced by Alabama Code [1975, §§] 10-28-14.06 and 10-2B-14.07. The Commentary to Alabama Code [1975, §] 10-2B-14.07, states that ...[t]he provision of the former Alabama Act most nearly corresponding to section 10-2B-14.07 is section 10-2A-203, providing for the survival of remedies against a dissolved corporation for a period of two years. Section 10-2B-14.07 of this Act continues the two year time limitation of prior 1110423 23 law. ... Ala. Code [1975, §] 10-2B-14.07 ... (Commentary). "Alabama Code [1975, §] 10-12-45(f), states that a limited liability company formed to provide professional services is subject to the provisions of the Revised Alabama Professional Corporation Act which subjects professional corporations to the provisions of the Alabama Business Corporation Act of which Alabama Code [1975, §§] 10-2B-14-06 and 10-12-14.07, are a part. Further, Alabama Code [1975, §§] 10-12-43 and 10-12-44, are virtually the same, word-for-word, as Alabama Code [1975, §§] 10-2B-14.06 and 12-2B-14.07, which apply to limited liability companies. "The Court also has considered Alabama Code [1975, §] 10-12-40, of the Limited Liability Company Act, entitled Survival of Remedy After Dissolution, which provides that a dissolved limited liability company continues its existence but cannot engage in any business other than that necessary to wind up its business. Specifically, dissolution does not terminate or suspend a proceeding pending by or against the limited liability company on the effective date of dissolution. Ala. Code [1975, §] 10-12-40(b)(2).... The implication is that dissolution does terminate the dissolved limited liability company's ability to initiate new, non-pending proceedings. The law clearly contemplates that a limited liability company must complete the winding up of its business within, at most, two years from the date on which the event resulting in its dissolution occurred. "There is no dispute that more than two-thirds of the holders of Voting Interests in EAG, LLC, entered into a written consent to dissolve on July 19, 2006. According to the company's operating agreement and Alabama Code [1975, §] 10-12-37, such a written consent resulted in the immediate dissolution of EAG, LLC, and the beginning of the 1110423 24 winding-up period. Consequently, EAG, LLC, was barred from conducting any new business or asserting claims against others after July 19, 2008, two years following its dissolution date. The hiring of a lawyer and asserting claims against the plaintiffs and third-party defendants herein in the name of EAG, LLC, after July 19, 2008, was barred by the Alabama survival of remedy statutes and caselaw. The attorneys purporting to represent EAG, LLC, are due to be disqualified. "The defendants have argued that Rowe ceased to practice law with EAG, LLC, in February or March 2004, that he breached his fiduciary duties by competing against EAG, LLC, with Cade, and that he, as a consequence, ceased to be a member of EAG, LLC, before he signed the Settlement Agreement on July 19, 2006, consenting to the dissolution of EAG, LLC. The evidence is otherwise. "Any member of EAG, LLC, was permitted under the Operating Agreement to compete with EAG, LLC. Berks clearly engaged in competition with the company when he sent letters to EAG, LLC's clients soliciting them to sign up with [EAG, P.C.], in February 2004. The Operating Agreement also provides that a member cannot cease membership in EAG, LLC, by a voluntary act but only through the occurrence of events specified in the Alabama Limited Liability Company Act. Alabama Code [1975, §] 10-12-36, lists the events which will result in the cessation of a member's membership in a limited liability company. There is no evidence that any of the events which would cause Rowe to lose membership in EAG, LLC, occurred. "... [I]ndeed, Berks made the same allegations against Rowe in ... CV-2006-0749, in a verified motion to set aside the July 19, 2006, Settlement Agreement with Rowe and the motion was denied. Berks's appeal of the court's decision to deny the motion was unsuccessful. 1110423 25 "Even were the defendants' argument correct that Rowe ceased to be a member prior to the execution of the Settlement Agreement, Berks would have been the sole owner of EAG, LLC, and would have been the holder of 100 percent of the Voting Interests when he signed the consent to dissolve EAG, LLC, on July 19, 2006. "The effect would be the same: the immediate dissolution of EAG, LLC, on July 19, 2006, by the written consent to dissolution of those holding two-thirds or more of the Voting Interests. The bar of the survival of remedy statutes and caselaw would likewise be the same and EAG, LLC, would have no authority to hire a lawyer or to initiate claims after July 19, 2008. "The defendants maintain that, even if EAG, LLC, has been dissolved, Berks takes EAG, LLC's assets either by assignment or as the sole owner upon dissolution, including any contract and tort claims the company had against Cade. The defendants' resulting position is that Berks is not barred from asserting the counterclaims and the claims in the third party complaint because he became the owner of the claims when EAG, LLC, dissolved. The law is otherwise. A general assignment of all corporate claims does not preserve them past the wind-up period and Berks does not succeed to such claims by virtue of having been a member of EAG, LLC, by operation of law or otherwise. Nix, 830 F. Supp. at 605. Even if the law provided for the assignment of such claims to former company members, there is no evidence of an assignment by EAG, LLC, of any of its property to anyone. In fact, Berks testified at deposition that he has no interest in the claims other than as [a] member of EAG, LLC. "Berks and [EAG], P.C., are certainly entitled to employ legal counsel of their choosing to defend claims made against them and to pursue claims belonging to them. Neither Berks nor [EAG], P.C., 1110423 26 has standing, however, to assert claims that belonged to EAG, LLC. The Court notes that the 2004 settlement agreement (at mediation) was between Cade and EAG, LLC. Berks and [EAG], P.C., were not parties to that agreement which is the basis for the claims asserted against the plaintiffs and the third party defendants in this action. It does not appear that Berks has any claims of his own to assert in this case. "The defendants argued that Rowe and the plaintiffs admitted that EAG, LLC, ha[d] not been dissolved when the plaintiffs named EAG, LLC, as a party in the complaint and Rowe intervened based on assertions that he is entitled to half of any monies awarded to EAG, LLC, in this case. The Court notes that on the dates that the complaint and the motion to intervene were filed, there was no public record reflecting EAG, LLC's dissolution because the company's articles of dissolution were not filed until February 4, 2010, well after the complaint and motion were filed. Regardless of any individual's belief that EAG, LLC, ha[d] not been dissolved, an event required to dissolve it has occurred and it is dissolved as a matter of law. As a matter of law, EAG, LLC, was dissolved on July 19, 2006, when all of its members gave their written consent to the dissolution. "Had EAG, LLC, not been dissolved, the outcome of the motion to disqualify would be the same. EAG, LLC's Operating Agreement provides that the business of the company is to be conducted in accordance with a vote by the holders of fifty-one percent (51%) of the Voting Interests in EAG, LLC. The evidence is that Rowe, a fifty percent (50%) Voting Interest holder, has not and will not vote in favor of having EAG, LLC, hire an attorney or to pursue the counterclaims and third party claims filed in this case. Based on its Operating Agreement and the evidence, EAG, LLC, has not been authorized to employ legal counsel or to proceed with its claims 1110423 27 in this case. The attorneys appearing of record for EAG, LLC, are due to be disqualified. "The Defendants' Motion to Vacate and Expunge is due to be granted as to vacating the order allowing Rowe's intervention. Rowe's purpose for his appearance was to assert an interest in the possible proceeds of claims asserted by EAG, LLC, and to prevent the company from incurring liability by attempting to collect on claims Rowe believes do not exist. This Court having found that EAG, LLC's winding-up period has expired, any claims it had having been extinguished and its having no legal existence, Rowe has no further interest in the outcome of the case. To the extent the defendants' motion seeks to expunge the public record of the articles of dissolution of EAG, LLC, filed by Rowe, it is due to be denied. EAG, LLC, was, in fact, dissolved and the filing of the articles of dissolution is mandatory." (Footnotes omitted.) The trial court's order contained adjudications in keeping with the foregoing findings. In response, the defendants filed a "Motion to Alter, Amend or Stay" the trial court's order, in which they requested, in light of plans to appeal, that the trial court either stay or delete the portion of the foregoing order directing counsel to withdraw within 10 days. The trial court granted that request. Following the trial court's entry of the above order, the plaintiffs, Palmer, and Lewis renewed their summary-judgment request by means of a joint motion. Specifically, they relied 1110423 The cited former Code sections, however, deal with 11 claims against a dissolved limited-liability company, both known to the limited-liability company, see former § 10-12-43, and unknown, see former § 10-12-44. 28 on the trial court's legal conclusions, as set out above, as further support for the defendants' alleged lack of standing and the trial court's resulting lack of subject-matter jurisdiction. Thereafter, the defendants filed a "Motion to Reconsider and Vacate" alleging that the above holdings of the trial court were contrary to Alabama's Limited Liability Company Act in that § 10A-5-7.03(b), Ala. Code 1975, purportedly "does not require a vote of the members to take any action once the LLC begins winding up." They further alleged that, as the member tasked with winding up affairs of the EAG, LLC, Berks was entitled both to defend the underlying claims and to prosecute the related counterclaims and that the claims were not barred by former § 10-12-43, Ala. Code 1975, as a result of the exception created in former § 10-12-44, Ala. Code 1975, relating to claims unknown to a limited-liability company at the time of dissolution. The defendants also filed their own 11 motion seeking a partial summary judgment as to counts III, IV, and VI of the complaint filed by Cade and ELG, P.C. –- 1110423 29 which, they contended, were the only remaining viable claims -- and alleging that the only damages claimed by Cade and ELG, P.C., and established by the record were nonrecoverable attorney fees. In response, Rowe again sought to intervene, individually, and to strike all pleadings filed by defendants' counsel after the entry of the trial court's disqualification order. The plaintiffs similarly filed a response in opposition and a request to strike the defendants' partial- summary-judgment motion. The trial court denied the defendants' "Motion to Reconsider and Vacate" in light of the findings from its prior order, as set out above. By separate order, the trial court granted the renewed motion of the plaintiffs and of Lewis and Palmer for a summary judgment, also based on its prior findings and conclusions of law, namely that the defendants "have no standing to assert claims owned by [EAG, LLC], because [EAG, LLC,] never authorized them to assert the claims in accordance with [EAG, LLC's] operating agreement." The trial court, therefore, concluded that it lacked subject- matter jurisdiction over the counterclaim and third-party 1110423 30 claims, and, as a result, it dismissed those claims and the claims asserted by the plaintiffs against EAG, LLC, with prejudice. Thereafter, the plaintiffs requested that the trial court dismiss with prejudice counts III, IV, and VI of their complaint, which, they conceded, represented the only remaining counts, and enter a final judgment disposing of the underlying matter in its entirety. The trial court granted that motion; the defendants timely appealed. Standard of Review "'On an appeal from a dismissal based on a lack of standing ..., we must view the allegations of the complaint in the light most favorable to the plaintiff, resolve all doubts in the plaintiff's favor, and uphold the ruling of the trial court only if we determine that the plaintiff cannot establish a right to judicial review under any set of facts provable under the allegations of the complaint. Richards v. Department of Revenue & Finance, 454 N.W.2d 573, 574 (Iowa 1990). No presumption of correctness exists as to the trial court's application of the law to the facts. Jayroe v. Hall, 624 So. 2d 522 (Ala. 1993). The issue of standing presents a pure question of law, and the trial court's ruling on that issue is entitled to no deference on appeal. Richards v. Cullen, 152 Wis. 2d 710, 712, 449 N.W.2d 318, 319 (Wis. App. 1989).'" Packaging Acquisition Corp. v. Hicks, 893 So. 2d 299, 301-02 (Ala. 2004) (quoting Medical Ass'n of Alabama v. Shoemake, 656 So. 2d 863, 865 (Ala. Civ. App. 1995)). Accordingly, this 1110423 31 Court would review de novo the issue whether the trial court erred in granting the motion to dismiss based on its finding as to its lack of subject-matter jurisdiction. See Ex parte Morgan Asset Mgmt., Inc., 86 So. 3d 309, 313-14 (Ala. 2011). Discussion The defendants identify numerous alleged errors on the part of the trial court. The actual argument portion of their brief, however, appears limited to the following: (1) a challenge to the trial court's findings as to the effective date of the dissolution and winding up of EAG, LLC; (2) a challenge to the trial court's determination that Berks possessed no individual standing to assert claims to the fees due EAG, LLC, under the 2004 settlement agreement; and (3) a challenge to the trial court's ruling allowing Rowe to intervene, including a challenge to the trial court's decision, as urged by Rowe, that EAG, LLC, could neither hire 1110423 To the extent any of the 14 issues identified by the 12 defendants in the "Statement of the Issues" portion of their brief are not actually covered by the argument portion of their brief, those claims would be deemed waived. See, e.g., Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So. 2d 317, 319 (Ala. 2003) (stating that issues not raised and argued in brief are waived). 32 counsel to defend itself nor assert counterclaims.12 Defendants' brief, at pp. 39-40. 1. Dissolution of EAG, LLC Initially, the defendants challenge the trial court's determination that EAG, LLC, was dissolved on July 19, 2006, pursuant to the terms of the settlement agreement reached by Berks and Rowe in case no. CV-06-749. Contrary to that finding, the defendants maintain that, purportedly in accordance with statutory provisions governing the dissolution of a limited-liability company, dissolution does not occur until all members agree, the limited-liability company's affairs are wound up, and articles of dissolution have been filed in the appropriate county. Thus, according to the defendants, the July 2006 agreement between Berks and Rowe to dissolve EAG, LLC, was, as provided for in § 10A-5-7.01(2), Ala. Code 1975, merely the initial step in dissolving EAG, LLC, and the actual dissolution was not effected until the 1110423 33 subsequent steps of winding up, governed by § 10A-5-7.03, Ala. Code 1975, and the filing of formal articles of dissolution, see § 10A-5-7.06, Ala. Code 1975, were completed. In support of this claim, the defendants note both that § 10A-5-7.04, Ala. Code 1975, provides that "[a] dissolved limited liability company continues its existence but may not carry on any business except that necessary or appropriate to wind up and liquidate its business and affairs," and that, pursuant to § 10A-5-7.03, the person charged with winding up the limited-liability company may "[p]reserve the company business or property as a going concern for a reasonable time; prosecute and defend actions and proceedings, whether civil, criminal, or administrative; [and] settle and close the limited liability company's business." In light of the plain language of § 10A-5-7.04, as set out above, the defendants also argue that Berks had "a reasonable time" in which to wind up the affairs of EAG, LLC, including collecting the disputed fees, and was not, as the trial court concluded, subject to the fixed two-year winding-up period imposed on corporations by former § 10-2A-203, Ala. Code 1975. The defendants further point to the fact that, here, the subject cases did not settle 1110423 34 and the disputed fees were not received and, thus, Cade's alleged breach of the 2004 settlement agreement did not occur until more than two years had elapsed from the July 2006 settlement agreement between Berks and Rowe. A. Dissolution Despite their purported reliance on the "plain text" of the applicable statutes governing the dissolution of limited- liability companies, the defendants appear, in my opinion, to wholly ignore the effects of those statutes. Initially, as do the plaintiffs, I note that § 10A-5-7.01, Ala. Code 1975, provides, in pertinent part: "A limited liability company is dissolved and its affairs shall be wound up upon occurrence of the first of the following events: "(1) Events specified in the governing documents. "(2) Written consent of all members to dissolve. "...." (Emphasis added.) Here, the governing document, namely the operating agreement of EAG, LLC, specifically provides that "[EAG, LLC,] shall be dissolved upon ... [t]he written consent of Members 1110423 35 holding one or more Voting Interests which taken together equal or exceed two-thirds (2/3) of all Voting Interests to dissolve the Company." See note 5, supra. It is undisputed that, pursuant to the terms of the July 2006 settlement concluding case no. CV-06-749, Berks and Rowe agreed "to the dissolution of EAG, LLC." Therefore, as the trial court concluded, dissolution clearly occurred when, as provided for in the operating agreement and as specified in 10A-5-7.01, Berks and Rowe agreed in writing to dissolve EAG, LLC. In fact, that written agreement satisfies both of the foregoing prerequisites in § 10A-5-7.01. I see nothing to suggest, as the defendants allege on appeal, that the trial court concluded that, pursuant to its dissolution in July 2006, EAG, LLC, "automatically ceased to exist." Defendants' brief, at p. 40. Instead, the trial court's order, as set out above, plainly indicates, as also described in § 10A-5-7.01, that, following the occurrence of the specified "[e]vents of dissolution[,] a limited liability company is dissolved and its affairs shall be wound up." The defendants appear to argue that, because the filing of articles of dissolution pursuant to § 10-5-7.06, Ala. Code 1110423 In at least two separate places in their brief to this 13 Court, the defendants appear to contend briefly that the articles of dissolution filed by Rowe failed to meet the statutory requirements of § 10A-5-7.06. Defendants' brief, at pp. 44 n.15, 46. More specifically, the defendants indicate that "[t]here was no evidence of compliance offered by Rowe" and that the articles were, therefore, due to be expunged. Defendants' brief, at p. 44 n.15. To the extent that the defendants intended this to be a separate claim, I note that they have included no real explanation or any supporting authority demonstrating how the articles of dissolution were deficient. Accordingly, because they failed to comply with the requirements of Rule 28(a)(10), Ala. R. App. P., they have waived this potential claim for purposes of appellate review. See City of Birmingham v. Business Realty Inv. Co., 722 So. 2d 747, 752 (Ala. 1998) ("When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court's duty nor its function to perform an appellant's legal research."). 36 1975, is mandatory, dissolution is not effected until that filing occurs. The plain language of § 10A-5-7.06, however, specifically provides that the articles of dissolution are to be filed with the appropriate probate court "[a]fter the dissolution of the limited liability company pursuant to § 10A-5-7.01 ...." (Emphasis added.) Therefore, the statute itself makes clear that the formal filing is not a part of the actual dissolution process but, rather, a mere follow-up formality to place the public on notice that the dissolution has occurred. The defendants cite no authority suggesting 13 1110423 37 otherwise. The trial court, therefore, did not err in concluding that the dissolution of EAG, LLC, occurred in July 2006 -- when Rowe and Berks agreed to dissolution pursuant to the terms of the mediated settlement agreement reached in case no. CV-06-749. B. Winding up The defendants next contend that during the process of winding up a limited-liability company, the limited-liability company, as specified in § 10A-5-7.03, Ala. Code 1975, continues its existence "for a reasonable time," during which it may not engage in any new business, but the person charged with winding up the limited-liability company may, among other acts, "prosecute and defend actions and proceedings." See also § 10A-5-7.04(a), Ala. Code 1975 ("A dissolved limited liability company continues its existence but may not carry on any business except that necessary or appropriate to wind up and liquidate its business and affairs."). Thus, in light of the plain language of § 10A-5-7.03, the defendants contend that the trial court erred in fixing the winding-up period at the automatic, two-year cut-off period applied to corporations under former § 10-2A-203, Ala. Code 1975. In further support 1110423 The plaintiffs contend on appeal, as the trial court 14 also apparently concluded, "that a limited liability company formed to provide professional services is subject to the Revised Alabama Professional Corporation Act and is, 38 of this allegation of error, the defendants note that the disputed fees were not paid and thus not subject to collection until over two years after the 2006 dissolution date. The plaintiffs appear to concede that EAG, LLC, continued "to exist ... for the limited purpose of carrying out only that business necessary to wind up and liquidate." Plaintiffs' brief, at p. 18. They counter, however, that that process was to be undertaken by the members who, at all times, remained bound by the terms of the operating agreement. See Harbison v. Strickland, 900 So. 2d 385, 391 (Ala. 2004). More specifically, they argue that no vote occurred during the winding-up period authorizing either member or EAG, LLC, to prosecute the subject claims. Although I agree that the trial court's application of a two-year winding-up period appears to conflict with the "reasonable time" language found in § 10A-5-7.03, the defendants, nonetheless, have failed to convince me that the trial court's decision in this regard constitutes reversible error. First, I note that, other than a citation to the 14 1110423 therefore, subject to the Alabama Business Corporation Act" and the two-year limitations period on winding up corporate affairs upon dissolution. Plaintiffs' brief, at p. 31. As discussed in more detail below, however, an analysis of this particular argument would not be necessary, because the trial court's findings are due to be affirmed on other grounds. 39 general statutory authority set out above, the defendants fail to identify any supporting authorities applying those sections to factual scenarios similar to the one before us or establishing what is a "reasonable time" for winding up as contemplated by the Code. Notably, the defendants similarly fail either to discuss or to attempt to distinguish the authorities cited in the trial court's order as support for the challenged finding. I, therefore, question whether the defendants' argument in this regard comports with the requirements of Rule 28, Ala. R. App. P. This Court has repeatedly cautioned that "'Rule 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." Further, "it is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments." State Farm Mut. Auto. Ins. Co. v. Motley, 909 So. 2d 806, 822 (Ala. 2005) (citing Ex parte Showers, 812 So. 2d 277, 281 (Ala. 2001)). This is so, because "'it is not the function of this 1110423 40 Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.'" Butler v. Town of Argo, 871 So. 2d 1, 20 (Ala. 2003)(quoting Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala. 1994)).'" Prattville Mem'l Chapel v. Parker, 10 So. 3d 546, 560 (Ala. 2008) (quoting Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1, 9 (Ala. 2007)). Here, as noted above, the defendants have failed to include any citation to authority in support of the argument presented. "It is the appellant's burden to refer this Court to legal authority that supports its argument." Madaloni v. City of Mobile, 37 So. 3d 739, 749 (Ala. 2009). In the absence of such, the defendants have waived this claim on appeal. In addition, I am unconvinced that it was unreasonable on the part of the trial court to infer that the statutory winding-up period for one type of corporate entity may serve as a presumptively reasonable winding-up period for another. Certainly, as noted above, the defendants have failed to identify any authority stating that it may not. Finally, I see nothing to indicate, as Berks argues, that he was, in fact, charged by Rowe with sole responsibility for 1110423 In fact, it was Berks's failure to carry out this 15 responsibility that led to the subsequent filing of articles of dissolution by Rowe. 41 winding up the business of EAG, LLC. Instead, the terms of the 2006 settlement agreement appear to indicate that Berks was charged only with taking steps to formally dissolve EAG, LLC, i.e., filing articles of dissolution. I further note 15 that, also pursuant to the terms of that agreement, Berks and Rowe agreed to proceed with dissolution pursuant to the applicable terms of the operating agreement. As to dissolution, the operating agreement plainly states that "[t]he Members" are the appropriate party to pursue litigation on behalf of ELG, LLC. See note 5, supra. Thus, even if, as Berks argues, the underlying counterclaim was the direct result of his purported efforts at "winding up," there is nothing suggesting that, in that role, he was excused from the requirement of obtaining a majority vote in favor of his actions before proceeding on behalf of EAG, LLC. In light of the foregoing, I see no error in this regard. 2. Berks's Individual Standing A. Devolvement of Assets of EAG, LLC, to Members upon Dissolution 1110423 42 The defendants next contend that, assuming that the trial court correctly ruled that EAG, LLC, was dissolved, the interest in the contested cases held by EAG, LLC, as set out in the 2004 settlement agreement, devolved to Berks pursuant to the distribution of the assets of EAG, LLC, as provided for in § 10A-5-7.05. Thus, Berks maintains, he possessed a sufficient interest to impart the requisite standing to assert the claims accruing to EAG, LLC, under the 2004 settlement agreement. I disagree. The cited Code section merely provides the following "order of priority" for distributing the assets of a dissolving limited-liability company during the winding-up period: "(1) To creditors, including members who are creditors to the extent allowed by Section 10A-5-3.01 or otherwise permitted by law, in order of priority as provided by law, except those liabilities to members of the limited liability company for interim distributions or on account of their contributions. (2) Except as otherwise provided in the governing documents, to members of the limited liability company and former members for interim distributions and in respect of their contributions. (3) Except as otherwise provided in the governing documents, to members first for the return of their contributions and second with respect to 1110423 43 their interests in the limited liability company, in the proportions in which the members share in distributions." In support of his apparent contention that the foregoing supports his claim of individual standing to assert claims belonging to the former limited-liability company, Berks cites a single appellate decision from Washington state for the general proposition that title to limited-liability-company- owned assets and property devolve to the owners of the limited-liability company upon dissolution of the limited- liability company. See Sherron Assocs. Loan Fund V (Mars Hotel) LLC v. Saucier, 157 Wash. App. 357, 237 P.3d 338 (2010). Notably, however, the Saucier court's decision concerned the devolution of a perfected judgment held by a defunct limited-liability company and its finding that "[a] judgment is an intangible asset." 157 Wash. App. at 363, 237 P.3d at 363. Berks, however, offers only his own unsupported argument –- failing to cite to this Court any binding authority –- indicating that the claim at issue, an inchoate contract right, is an "asset" of EAG, LLC, that would have devolved to 1110423 Any contention by Berks that, as a result of Rowe's 16 departure, Berks was the sole remaining member of EAG, LLC, and thus the only one entitled to assert claims purportedly accruing to EAG, LLC, appears meritless. See Richard A. Thigpen, Alabama Corporation Law § 1:18 (4th ed. 2012) ("Under [the Code], the departure of one or more members does not work an automatic dissolution of a company even where the company is left with no remaining members." (footnote omitted)). 44 the members of EAG, LLC, upon its dissolution. In fact, 16 Berks acknowledges that he was unable to find any Alabama law to support his claim. I note, however, that both Hutson v. Fulgham Industries, Inc., 869 F.2d 1457 (11th Cir. 1989), and Nix v. W.R. Grace & Co.-Conn., 830 F. Supp. 601 (S.D. Ala. 1993), which were cited in the order of the trial court from which Berks appeals, appear to stand for the contrary proposition. Specifically, in Nix, the federal district court discussed and applied the holding of the United States Court of Appeals for the Eleventh Circuit in Hutson as follows: "In a small number of cases, courts have held corporate survival statutes inapplicable to suits filed by shareholders of a dissolved corporation even though those actions were based on injuries to the corporation. In each of those instances, however, the court's reasoning was based on the equitable principle that a corporation's assets devolve to its shareholders, and the shareholder in each case could identify 'a tangible property asset' which had devolved by operation of law or which had 1110423 45 been assigned to the shareholder. Davis v. St. Paul Fire & Marine Ins. Co., 727 F. Supp. 549, 551 (D.S.D. 1989). This exception is consistent with the purpose of the corporate survival statutes because 'the other party is not prejudiced by allowing a cause of action relating to collection of a tangible asset since the assignee of that property has a fixed and identifiable right separate from the corporations' original right.' Id. at 551–52. "For example, in Jenot v. White Mountain Acceptance Corp., 124 N.H. 701, 474 A.2d 1382 (1984) and Shute v. Chambers, 142 Ill. App. 3d 948, 97 Ill. Dec. 92, 492 N.E.2d 528 (Ill. App. Ct.1986), former shareholders sued corporate debtors whose debts were evidenced by a note or mortgage and were of a fixed or ascertainable amount. In contrast, the amount, or even the existence, of any debt between the defendants in the instant case and Bel Air Corporation is disputed. In Carmichael v. Halstead Nursing Center, Ltd., 237 Kan. 495, 701 P.2d 934 (1985) and Levy v. Liebling, 238 F.2d 505 (7th Cir. 1956), cert. denied, 353 U.S. 936, 77 S.Ct. 812, 1 L. Ed. 2d 759 (1957), the corporation's claims against the defendant had been reduced to judgment before dissolution and were therefore considered to be corporate assets. In this case, there is obviously no judgment since plaintiff's claims against these defendants have never been litigated. "It is this limited exception that was the focus of the Hutson opinion. Like Nix, the plaintiff in Hutson claimed that the breach of contract and tort claims he asserted were assets of the dissolved corporation and became his either by operation of law or by assignment. The issue in Hutson was 'whether Foresco [the dissolved corporation] possessed any corporate assets to which Hutson, as a former Foresco shareholder, became legally entitled upon Foresco's dissolution.' Hutson, 869 F.2d at 1461. The appellate court addressed 1110423 46 Hutson's fraud and breach of contract claims separately. "In discussing the contract claim, the court, citing Jenot, recognized that the corporate survival statutes 'were not intended "to supplant the equitable rule that former shareholders succeed to the assets of a dissolved corporation,"['] but held that it was 'unwilling, however, to extend the equitable rule so far as to recognize a "property interest" in an unasserted corporate contract claim which involves evidentiary problems and factual disputes.' Id. at 1462–63. The Court then went on to state that such contract claims 'must be asserted within the wind-up period (or be properly assigned) to survive dissolution.' "Based on the latter statement, Nix asserts that a mere general assignment of all corporate claims will defeat the survival statute. Moreover, Nix argues that since defendants have not challenged the validity of the general assignment, the assignment must have been proper. Plaintiff ignores the appellate court's holding that an unasserted breach of contract claim is not a property interest or asset. See also Canadian Ace Brewing Co. v. Joseph Schlitz Brewing Co., 629 F.2d 1183 (7th Cir. 1980) (distinguishing between an unasserted claim and a claim reduced [to] judgment prior to dissolution, the latter being extinguished after the wind-up period ends). A corporation cannot assign a property interest that does not exist. Consequently, the validity of the Bel Air Corporation's general assignment is inconsequential." 830 F. Supp. at 604-05. The defendants thus fail to convince me that the claims of EAG, LLC, which were based upon the plaintiffs' disputed breach of the 2004 settlement agreement, were, in fact, the 1110423 17 "'This Court may affirm a trial court's judgment on "any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court."' General Motors Corp. v. Stokes Chevrolet, Inc., 885 So. 2d 119, 124 (Ala. 2003) (quoting Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003)); Vesta Fire Ins. Corp. v. Milam & Co. Constr., 901 So. 2d 84, 104 (Ala. 2004) ('Subject to limited exceptions, an appellate court will affirm a summary judgment on the basis of a law or legal principle not invoked by the moving party or the trial court, even though an appellate court will not reverse a summary judgment on the basis of a law or legal principle not first argued to the trial court by the nonmoving party.' (footnote omitted)). However, this Court has stated: 'This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of 47 type of asset contemplated by § 10A-5-7.05. See Hutson, 869 F.2d at 1463 n.15 (explaining the Court's holding as "declin[ing] to include unasserted corporate contract claims within the equitable [devolution] rule's operation"). In the absence of Berks's actual ownership of the claim of EAG, LLC, which Berks purported to assert below, I cannot fault the trial court for finding that Berks lacked the ability to pursue the claim.17 1110423 the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment, or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant's evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element.' [Liberty Nat'l Life Ins. Co. v.] University of Alabama Health Servs. [Found., P.C.], 881 So. 2d [1013] at 1020 [(Ala. 2003)] (citations omitted)." Warren v. Hooper, 984 So. 2d 1118, 1121 (Ala. 2007). 48 B. Berks's Individual Standing Pursuant to the 2004 Settlement Agreement Alternatively, the defendants maintain that, even assuming, as the trial court concluded, that the rights of EAG, LLC, under the 2004 settlement agreement did not devolve to Berks upon its dissolution, Berks nonetheless possessed standing to assert claims under that agreement as an intended third-party beneficiary of the 2004 settlement agreement. Specifically, they point to the language of the 2004 settlement agreement providing that payment of the disputed fees was to be made to EAG, LLC, with "each principal of [EAG, LLC,] entitled to half." Thus, the defendants contend, Berks is an identified third-party beneficiary of that agreement, 1110423 49 who is entitled to assert a claim that the 2004 settlement agreement has been breached. Pursuant to the authorities cited by the defendants: "To recover under a third-party-beneficiary theory, [Berks] must show: (1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon a third party; (2) that the claimant was the intended beneficiary of the contract; and (3) that the contract was breached." Ex parte Steadman, 812 So. 2d 290, 295 n.3 (Ala. 2001). Further, "[a] third person has no rights under a contract between others," and no standing to sue based on a breach of that contract, "unless the contracting parties intend that the third person receive a direct benefit enforceable in court." Russell v. Birmingham Oxygen Serv., Inc., 408 So. 2d 90, 93 (Ala. 1981) (citations omitted). In Russell, where a nonparty to a noncompete agreement attempted to enforce that agreement based upon his ownership of the contracting company, this Court noted: "Appellees argue that it makes no difference whether Birmingham Oxygen or Southeastern Medical enforces the non-competition agreement, since Barney C. Eller wholly owns both corporations and it was him with whom Edwards and Russell dealt. This contention is without merit. A corporation is an entity created by compliance with statutory requirements. A corporation has the right to sue 1110423 Presumably, however, if EAG, LLC, had, in fact, received 18 the funds and had failed to distribute them equally to both Rowe and Berks, Berks would have had a derivative claim against EAG, LLC. 50 and be sued just like a natural person. Alabama Constitution, Article XII, § 240; Code 1975, § 10-2A-20(2). A corporation, just like an individual, must enforce its own rights and privileges." 408 So. 2d at 93. Here, it is clear, based upon the language of the 2004 settlement agreement, that the right to payment that was created under that agreement accrued to EAG, LLC, to whom the payment was explicitly due. After -- and only after -- payment had been made to EAG, LLC, did the agreement explain how it was to be divided among the members thereof. Thus the agreement evinces an intent only to directly benefit EAG, LLC, which is also the only party entitled to sue if the promised payment was not made. Russell, supra. Consequently, only 18 an indirect benefit was bestowed on Berks and Rowe pursuant to the agreement, solely in their capacity as principals of EAG, LLC. Therefore, the trial court also did not err in concluding that Berks lacked the ability to enforce the 2004 settlement agreement as a third-party beneficiary thereof. 3. Rowe's Intervention 1110423 The plaintiffs explain that this initial position was 19 taken by all parties based on the continued existence of EAG, LLC, in public records. 51 Finally, the defendants contend that the trial court erred in granting Rowe's request to intervene on behalf of EAG, LLC, pursuant to Rule 24, Ala. R. Civ. P. More specifically, they assert that the grounds cited by Rowe in his intervention motion were insufficient to sustain the trial court's ruling in that Rowe's interests were purportedly adequately represented by the defendants' opposition to the plaintiffs' complaint and further that Rowe's postintervention position constituted a breach of the members' duties imposed on Rowe by § 10A-5-3.03, Ala. Code 1975. In sum, the defendants argue that by permitting Rowe's intervention on allegations including that EAG, LLC, constituted an ongoing entity, but permitting Rowe to successfully represent, in 19 subsequent pleadings, that EAG, LLC, had been dissolved in July 2006, the trial court "erroneous[ly] refus[ed] to apply § 10A-5-3.03(f)(1-3), and the law on judicial estoppel." Defendants' brief, at p. 56. See, e.g., Ex parte First Alabama Bank, 883 So. 2d 1236, 1241 (Ala. 2003) ("'The doctrine of judicial estoppel "applies to preclude a party 1110423 52 from assuming a position in a legal proceeding inconsistent with one previously asserted."'" (quoting Jinright v. Paulk, 758 So. 2d 553, 555 (Ala. 2000), quoting in turn Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So. 2d 844, 846 (Ala. 1992))). This appears to be a nonissue. As set out in the facts above, Rowe's intervention was the result of a "stipulation and agreement reached in open court," by all parties to the underlying proceeding, who apparently conceded that "Rowe ... [should be] made a party ... and ... aligned as a Plaintiff...." It thus appears that the defendants' own claim that the intervention was improper would be precluded by the very judicial-estoppel principles they raise on appeal. First Alabama Bank, supra. Alternatively, the defendants, by their conduct below, invited the error of which they now complain. See Ex parte King, 643 So. 2d 1364, 1366 (Ala. 1993) ("[The doctrine of invited error] provides that a party may not complain of error into which he has led the court." (citing Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 157, 130 So. 2d 178, 182 (1961))). 1110423 53 In addition, to the extent that the defendants' claim represents a challenge to the trial court's failure to immediately grant the defendants' motion seeking to vacate the trial court's intervention order, I also fail to see any error in that regard. Not only was Rowe aligned as a plaintiff from the outset, as the plaintiffs note, but also, as both sets of parties represent in their respective briefs, the trial court did, in fact, subsequently vacate the order permitting Rowe's intervention. Thus, any potential relief from the trial court's order permitting the alleged erroneous intervention of Rowe has already been obtained, and the resulting challenge to the intervention order is moot. See Woods v. SunTrust Bank, 81 So. 3d 357, 363 (Ala. Civ. App. 2011). Conclusion Based on the foregoing, I conclude that the trial court's judgment was entered without error and is, in all aspects, due to be affirmed. Because I see little, if any, precedential value in a published opinion, I concurred in the Court's decision to affirm the trial court's judgment without an opinion and I now concur in overruling the application for rehearing. 1110423 54 MOORE, Chief Justice (dissenting). Martin Berks, Environmental Attorneys Group, LLC ("EAG"), and Environmental Attorneys Group, P.C., apply for rehearing of this Court's no-opinion affirmance of the trial court's summary judgment. Because I believe that the trial court improvidently entered a summary judgment, I would grant the application for rehearing and reverse this Court's decision on original submission. Therefore, I respectfully dissent. I. Facts and Procedural History In 2001, attorneys Martin Berks and Mark Rowe formed EAG to pursue toxic-tort litigation. Berks and Rowe were the sole members of the limited-liability company, and each retained a 50% membership and voting interest. Gregory Cade was an associate attorney with EAG with no membership interest. In 2004 Cade left EAG, which then sued him for allegedly attempting to steal its clients and pending toxic-tort cases. Cade and EAG settled that dispute in mediation, agreeing that Cade could take with him certain toxic-tort cases and establishing a formula to divide any fees that might be derived from those cases. Also in 2004, Berks and Rowe went 1110423 55 their separate ways, forming new individual firms and doing no new business through EAG. In 2006, Rowe sued Berks for Rowe's share of the assets of EAG. As part of a mediated settlement, Berks and Rowe agreed to dissolve EAG. Rowe also accepted a cash payment in lieu of his claim to fees from EAG's pending toxic-tort cases. In 2007 Rowe joined the law firm where Cade was working -- Environmental Litigation Group, P.C. ("ELG"). In November 2008 one of the cases covered by the 2004 settlement agreement between EAG and Cade settled, generating a $2.4 million fee. After Cade received the settlement proceeds, he and ELG sued Berks and EAG seeking to avoid paying EAG any portion of the fee. Cade and ELG argued that Berks had breached the 2004 settlement agreement, thus relieving Cade of the duty to perform his portion of that contract. Berks and EAG counterclaimed, seeking a 50% share of the fee pursuant to the 2004 settlement agreement. Rowe moved to intervene on behalf of EAG, arguing that as a 50% member he had an interest in the $2.4 million fee. However, Rowe later switched his position, arguing that as a member of EAG he had not authorized EAG to hire counsel to 1110423 56 defend Cade and ELG's action and to counterclaim for the $1.2 million fee. Rowe further moved to disqualify counsel for EAG on the ground that he had not voted to permit EAG to sue for the withheld fee. Thus, Rowe effectively became an adversary of EAG, though still nominally a member. The trial court granted the motion to disqualify counsel, thus disabling EAG from defending the suit and asserting its counterclaims. The court also denied Berks's personal claim to the assets of EAG as a successor in interest, thus preventing him from seeking a portion of the $2.4 million fee as a third- party beneficiary. The trial court subsequently entered a summary judgment for the plaintiffs based on the reasoning in its order disqualifying counsel. With EAG unable to counterclaim for a portion of the fees, Cade and ELG then dismissed their own remaining claims, concluding the case. II. Standard of Review "We review a trial court's summary judgment de novo, giving the judgment no presumption of correctness." Baldwin v. Branch, 888 So. 2d 482, 484 (Ala. 2004). A summary judgment is proper when there is "no genuine issue as to any material fact 1110423 Sections 10A-1-9.21 and -9.22, Ala. Code 1975 (formerly 20 §§ 10-2B-14.06 and -14.07), provide only a two-year survival of claims against a dissolved domestic entity. They do not similarly bar claims asserted by the entity. By contrast, predecessor § 10-2A-203, Ala. Code 1975, cited by the trial court in its order, eliminated any "remedy to or against such corporation." (Emphasis added.) The court equated § 10-2A-203, superseded in 1994 and thus not applicable to this case, with §§ 10-2B-14.06 and -14.07 in its limiting effect on claims brought by the dissolved entity. Section 10A-5-8.01(g) (former § 10-12-45), Ala. Code 1975, generally applies "restrictions imposed on professional corporations by the Alabama Professional Corporation Law" to limited-liability companies that render professional services. 57 and ... the moving party is entitled to a judgment as a matter of law." Rule 56, Ala. R. Civ. P. III. Analysis The trial court, relying on a portion of the Business and Nonprofit Entities Chapter of the Alabama Code, ruled that 20 EAG ceased to exist in 2008, two years after Rowe and Berks agreed to dissolve it. But the part of the Code applicable to limited-liability companies ("the LLC Code") specifically provides that a limited-liability company ("LLC") has a "reasonable time" in which to wind up its affairs. § 10A-5-7.03, Ala. Code 1975. A specific statute in the LLC Code would ordinarily prevail over a parallel rule in the Business Corporations Code, even if construed to apply also to LLCs. "Where statutes in pari materia are general and specific, the 1110423 58 more specific statute controls the more general statute." Crawford v. Springle, 631 So. 2d 880, 882 (Ala. 1993). Surely it was reasonable to keep the entity in existence beyond two years to "wind up" the receipt of fees from cases pending at the time dissolution was undertaken. Additionally, Rowe's effort to prevent EAG from asserting entitlement to fees arising from the 2004 settlement agreement is a forbidden act of disloyalty to EAG. A member in a member- managed LLC owes a fiduciary duty of loyalty to the LLC. "A member's duty of loyalty to a member-managed limited liability company and its members is limited to each of the following: ".... "(2) To refrain from dealing with the limited liability company in the conduct or winding up of the limited liability company's business as or on behalf of a party having an interest adverse to the limited liability company." § 10A-5-3.03(f), Ala. Code 1975 (emphasis added). An LLC member also has an "obligation of good faith and fair dealing" in activities in relation to the LLC. § 10A-5-3.03(h), Ala. Code 1975. Further, the governing documents of an LLC may not eliminate the duty of loyalty or the obligation of good faith 1110423 59 and fair dealing. §§ 10A-5-3.03(l)(2) and -3.03(l)(4), Ala. Code 1975. Rowe successfully argued to the trial court that, as a member of EAG with a 50% voting interest, he could prevent the entity from taking legal action to collect funds owed to it. He also successfully argued that by withholding his vote he could prevent EAG from defending itself in the action brought by Cade and ELG. But Rowe's duty of loyalty to EAG precluded his taking action either for himself or for another "adverse to the limited liability company." ELG, the law firm for which both Cade and Rowe worked, obviously had an interest adverse to EAG in not sharing the settlement funds Cade had received from cases that were the subject of the 2004 settlement agreement. By using his vote as a member of EAG to prevent EAG from claiming funds that derived from the 2004 settlement agreement between EAG and Cade, Rowe violated his duty of loyalty to EAG. Because "limited liability companies are creatures of statute," Harbison v. Strickland, 900 So. 2d 385, 389 (Ala. 2004), "operating agreements of limited liability companies ... incorporate the provisions of the statutes that allow for 1110423 60 the creation of such agreements." 900 So. 2d at 391. "Thus, the plain language of § 10-12-21(l), Ala. Code 1975 [the predecessor statute to § 10A-5-3.03(l)], does not allow an operating agreement for a limited liability company ... to eliminate a manager's duty of loyalty ...." 900 So. 2d at 390. See also Polk v. Polk, 70 So. 3d 363, 371 (Ala. Civ. App. 2010) (citing Harbison). Rowe was not at liberty to employ his voting power to prevent EAG from litigating its right to fees derived from the 2004 settlement agreement. His nonwaivable fiduciary duty of loyalty precludes his effort to act contrary to the interests of EAG. By failing to read the duty of loyalty into the operating agreement for EAG, the trial court entered a summary judgment on a ground forbidden by the LLC Code. IV. Conclusion By applying a general two-year winding-up provision from the Business Corporations Code rather than the specific "reasonable time" provision from the LLC Code, the trial court wrongly held that EAG ceased to exist as a legal entity prior to Cade and ELG's filing their action against it. By failing to read the operating agreement in light of the statutory duty 1110423 61 of loyalty, the trial court mistakenly permitted Rowe to stymie EAG's capacity to defend itself. Because both rulings were legally incorrect, I would grant the application for rehearing, reverse the trial court's summary judgment, and remand the case for EAG to litigate its counterclaims.	June 27, 2014
e8849767-edaa-41c1-93d1-d5225544bfe8	Williams v. City of Midfield	N/A	1121211	Alabama	Alabama Supreme Court	Rel: 6/13/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121211 ____________________ Ex parte City of Midfield et al. PETITION FOR WRIT OF MANDAMUS (In re: Patrick Williams and Elizabeth W. McElroy, as successor administratrix of the Estate of Willie Lee Williams v. City of Midfield et al.) (Jefferson Circuit Court, Bessemer Division, CV-10-900265) PER CURIAM. The City of Midfield ("Midfield"), Officer Jason Davis, and Sgt. Otis Brown (collectively referred to as "the Midfield 1121211 defendants"), petitioned this Court for a writ of mandamus, directing the Jefferson Circuit Court to enter a summary judgment in their favor, based on State-agent immunity, on claims filed against them by Patrick Williams ("Patrick") and Elizabeth W. McElroy, as successor administratrix of the estate of Willie Lee Williams ("the estate"). We grant the petition and issue the writ. Facts and Procedural History On March 4, 2009, Officer Davis, an officer with the Midfield Police Department ("the department"), stopped Marvin Brown ("Marvin") as he was driving an all-terrain vehicle ("ATV") in Midfield. During the traffic stop, Officer Davis asked Marvin for identification, including, among other things, his Social Security number. Officer Davis gave Marvin's Social Security number to the department's dispatcher, who discovered that Marvin had an outstanding felony warrant issued against him in Tennessee. The dispatcher did not state over the radio that there was a warrant for Marvin, but she did ask whether Officer Davis was "secure." Sgt. Brown testified that the question "are you secure" is "code language meaning that there are warrants 2 1121211 outstanding for the suspect's arrest." Sgt. Brown, who was the shift supervisor for the department that day, overheard on his radio Officer Davis's exchange with the dispatcher. Upon hearing the question "are you secure?," Sgt. Brown began driving to Officer Davis's location to provide him with backup. In the meantime, while Officer Davis was talking to the dispatcher, Marvin restarted the ATV and started to drive away. Marvin testified that Officer Davis had told him that he was going to take Marvin to Midfield jail and had threatened to use his Taser gun on him. Officer Davis pursued Marvin. During the pursuit, the ATV collided with Officer Davis's patrol car. Marvin then abandoned the ATV and fled on foot. Officer Davis continued to pursue, and, eventually, Marvin got into a Honda Accord automobile that was parked in a driveway on Nail Street and drove away. Sgt. Brown, who had been listening to Officer Davis on the police radio, arrived at Nail Street in time to see Officer Davis standing on the side of the road, pointing to a dark-colored vehicle that was driving away and talking into 3 1121211 the police radio, saying that the suspect was in that vehicle. Sgt. Brown testified by affidavit as follows: "At this point in time I knew that the suspect had one or more warrants out for his arrest, [had] fled from Officer Davis, [had] hit Officer Davis'[s] car, [had] abandoned the ATV, [had] obtained an automobile and [had] continued to flee at a high rate of speed. Based upon what I heard and observed, I suspected that the suspect had stolen the automobile from one of the homes on Nail Street.[ ] I did not know if there were any other 1 individuals inside of the car with him. With all of this in mind, I made the judgment call to turn my lights and sirens on and follow the suspect." Sgt. Brown pursued Marvin onto the Bessemer Superhighway, where, Sgt. Brown testified, he noted that Marvin was driving recklessly and was exceeding the speed limit. Sgt. Brown continued to pursue Marvin from the Bessemer Superhighway into Roosevelt City, back onto the Bessemer Superhighway, and, eventually, into the City of Brighton. Sgt. Brown testified that he exercised his discretion throughout the chase, determining at various points whether to continue or to abandon his pursuit. He testified that, during his pursuit, he exceeded the speed limit but that, "[a]t all times during According to Patrick and the estate, the Honda Accord was 1 parked at Marvin's address on Nail Street. It was later discovered that the car had earlier been reported stolen in Georgia. 4 1121211 the pursuit, [he] operated [his] emergency vehicle with due care and with due regard for the safety of others." He also testified that, "[a]t all times, [he] was acting in full compliance with Alabama law and the Midfield Police Department policy." Marvin continued to flee through the City of Brighton, until, at the intersection of 48th Street and Huntsville Avenue, the Honda Accord collided with a truck driven by Patrick, in which Patrick's grandmother, Willie Lee Williams, was a passenger. The collision caused the truck to flip over several times. Willie Lee died at the scene, and Patrick suffered severe injuries. The testimony is disputed as to the events immediately preceding the collision. Marvin testified in his deposition that he stopped at the stop sign at the intersection of 48th Street and Huntsville Avenue but that he saw Sgt. Brown's patrol car coming up behind him too quickly to stop. Marvin testified that he knew a collision was imminent, that he closed his eyes, and that he was hit from behind and propelled into the intersection. Marvin also testified that there was damage to the back of the Honda Accord after the collision 5 1121211 that had not been there before the collision. However, when asked directly whether Sgt. Brown's patrol car hit the Honda Accord, Marvin testified that he did not recall. Sgt. Brown and some of the eyewitnesses testified that Marvin did not stop at the stop sign at the intersection, but continued into the intersection at a high rate of speed, colliding with Patrick's truck. Sgt. Brown also testified that there had not been any contact between his patrol car and the Honda Accord. Cliff Prosser, a consulting technician who was asked by the Jefferson County Sheriff's Department to investigate the accident, testified by affidavit: "[Marvin] failed to stop at the stop sign on the east side of 48th Street's intersection with Huntsville Avenue, drove into the intersection, and struck the F150 truck. The Honda Accord was traveling substantially in excess of the posted speed limit of 25 miles per hour as it entered the intersection. The speed of the Honda [Accord] was between approximately 49 and 59 miles per hour. Based upon my investigation, the most likely speed of the Honda Accord at the moment of impact is between 51 to 55 miles per hour. "In my opinion, it is impossible for this collision to have been caused by a collision between the Honda Accord and the police car. In my opinion, it is impossible for the police car to have hit the Honda Accord at a dead stop at the stop sign on 48th Street and caused it to accelerate to speeds in excess of 50 miles per hour before it hit the truck. I saw no evidence indicating a collision between the 6 1121211 police car and the Honda Accord occurred at the intersection of Huntsville Avenue and 48th Street. The damage on the rear of the Honda Accord is not consistent with such a theory. However, the damage on the rear of the Honda Accord is consistent with rotation of the vehicle following its impact with the F150." Marvin pleaded guilty in criminal proceedings to charges of manslaughter and first-degree assault and was sentenced to serve time in prison. In May 2010, Patrick and the estate sued Marvin in the Jefferson Circuit Court, alleging claims of wrongful death, negligence, and wantonness. Patrick and the estate also sued the Midfield defendants, alleging various negligence claims. The Midfield defendants moved the circuit court to dismiss the claims against them, alleging, among other things, that Officer Davis and Sgt. Brown were entitled to police-officer immunity under to § 6-5-338(a), Ala. Code 1975, and that, because the officers were immune from suit, the claims against Midfield also failed. The circuit court denied the motion, and the Midfield defendants petitioned this Court for mandamus relief, which was denied in May 2012. While the Midfield defendants' first mandamus petition was pending, Patrick and the estate amended their complaint. They alleged claims of negligence per se against Midfield for 7 1121211 the negligence of Sgt. Brown, claims of negligent supervision and training against Midfield, and claims of general negligence against Officer Davis and Sgt. Brown and, derivatively, against Midfield. In May 2013, the Midfield defendants filed a motion for a summary judgment, again arguing, among other things, that Officer Davis and Sgt. Brown were immune from suit pursuant to § 6-5-338 and that the claims against Midfield were barred by the combined effect of § 6-5-338 and § 11-47-190, Ala. Code 1975. The circuit court denied the motion, finding that "there [were] material issues of fact in dispute and that the [Midfield] Defendants [were] not entitled to judgment as a matter of law." The Midfield defendants now seek mandamus relief from the denial of their motion for a summary judgment. Analysis This Court's recent decision in Ex parte City of Montgomery, 99 So. 3d 282 (Ala. 2012), sets forth the legal standard applicable in this case. In Ex parte City of Montgomery, the City of Montgomery and several police officers petitioned this Court for a writ of mandamus, arguing that 8 1121211 certain claims against them were barred by the doctrine of State-agent immunity. This Court stated: "'"While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. ... "'"Summary judgment is appropriate only when 'there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.' Rule 56(c)(3), Ala. R. Civ. P. ... A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party ...; will accord the nonmoving party all reasonable favorable inferences from the evidence ...; and will resolve all reasonable doubts against the moving party .... "'"An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. ... Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion."' "Ex parte Turner, 840 So. 2d 132, 135 (Ala. 2002) (quoting Ex parte Rizk, 791 So. 2d 911, 912–13 (Ala. 2000)). A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: '"(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the 9 1121211 properly invoked jurisdiction of the court."' Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001)). ".... "Section 6–5–338(a)[, Ala. Code 1975,] provides: "'Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, ... and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.' "The restatement of State-agent immunity as set out by this Court in Ex parte Cranman, [792 So. 2d 392 (Ala. 2000)], governs the determination of whether a peace officer is entitled to immunity under § 6–5–338(a). Ex parte City of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005). This Court, in Cranman, stated the test for State-agent immunity as follows: "'A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of 10 1121211 the claim against the agent is based upon the agent's "'.... "'(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; ... "'.... "'Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity "'(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or "'(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.' "Cranman, 792 So. 2d at 405. Because the scope of immunity for law-enforcement officers set forth in § 6–5–338(a) was broader than category (4) of the restatement adopted in Cranman, this Court, in Hollis v. City of Brighton, 950 So. 2d 300, 309 11 1121211 (Ala. 2006), expanded and modified category (4) of the Cranman test to read as follows: "'"A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's "'".... "'"(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6–5–338(a), Ala. Code 1975."' "Hollis, 950 So. 2d at 309. Additionally: "'"This Court has established a 'burden-shifting' process when a party raises the defense of State-agent immunity." Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006). A State agent asserting State-agent immunity "bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity." 946 So. 2d at 452. Should the State agent make such a showing, the burden then shifts to the plaintiff to show that one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable. The exception being argued here is that "the State agent acted willfully, maliciously, fraudulently, in 12 1121211 bad faith, or beyond his or her authority." 946 So. 2d at 452. One of the ways in which a plaintiff can show that a State agent acted beyond his or her authority is by proffering evidence that the State agent failed "'to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.'" Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003) (quoting Ex parte Butts, 775 So. 2d at 178).'" Ex parte City of Montgomery, 99 So. 3d at 291-94 (quoting Ex parte Kennedy, 992 So. 2d 1276, 1282–83 (Ala. 2008)).2 It is undisputed that Officer Davis and Sgt. Brown are "peace officers" for the purposes of § 6-5-338(a) and that their alleged misconduct occurred while "in performance of [a] discretionary function within the line and scope of [their] law enforcement duties." § 6-5-338(a). Thus, under Ex parte The Midfield defendants argue in their petition, 2 apparently for the first time, that "State-agent immunity and [Ala.] Code [1975,] § 6-5-338[,] are different rules of law," Midfield defendants' petition, at 13, and that applying the restatement of State-agent immunity in Cranman to peace- officer immunity under § 6-5-338 "'has had the effect of making the legislative enactment ineffective in so far as changing the law' governing liability of police officers." Midfield defendants' petition, at 14-15. However, although the Midfield defendants disagree with this Court's precedent applying Cranman to peace-officer immunity under § 6-5-338, they have not asked this Court to revisit or to overrule any of its prior decisions and argue, instead, that, even under Cranman, they are entitled to immunity. Therefore, we need not address this argument at this time. 13 1121211 Cranman, as modified by Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006), Officer Davis and Sgt. Brown are entitled to State-agent immunity, and the burden shifts to Patrick and the estate to demonstrate that "'one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable.'" Ex parte City of Montgomery, 99 So. 3d at 293 (quoting Ex parte Kennedy, 992 So. 2d at 1282). In their response to the Midfield defendants' motion for a summary judgment, Patrick and the estate argued that the second exception in Ex parte Cranman applies here. Specifically, they argued that, in pursuing Marvin, Officer Davis and Sgt. Brown were acting "beyond their authority" by violating various provisions of the department's vehicle- pursuit and emergency-response policy ("the policy") and § 32- 5A-7, Ala. Code 1975. As noted previously, "'a plaintiff can show that a State agent acted beyond his or her authority by proffering evidence that the State agent failed "'to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.'"'" Ex parte City of Montgomery, 99 So. 3d at 293- 94 (quoting Kennedy, 992 So. 2d at 1282-83, quoting in turn 14 1121211 Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003)). The Midfield defendants argue that the "policy contains no 'hard and fast rule' or 'detailed checklist' governing when and when not to initiate and sustain a pursuit -- i.e., it gives discretion to the police officer." Midfield defendants' petition, at 12. They also argue that Patrick and the estate have offered no evidence indicating that Officer Davis and Sgt. Brown acted beyond their authority under the policy. Patrick and the estate cite various provisions of the policy with which, they argue, Officer Davis and Sgt. Brown failed to comply. First, they argue that, "[a]ccording to Midfield's written policy governing vehicle pursuits, BEFORE initiating pursuit, the officer should consider several factors, including the seriousness of the violation, the risks involved in initiating the pursuit, and the route of the pursuit." Patrick and the estate's brief, at 7 (capitalization and emphasis in original). Patrick and the estate argue that Officer Davis had no information regarding the type of outstanding warrant against Marvin when he initiated pursuit. Id., at 21-22. 15 1121211 The factors to be considered before commencing pursuit are not presented in the policy as a checklist but, instead, as factors for officers to consider in exercising the discretionary duty under the policy to balance the danger to the public of pursuing a fleeing suspect against "the danger[] to the public of a suspect remaining unapprehended." This exercise of discretion is protected under the doctrine of State-agent immunity. See Ex parte Estate of Reynolds, 946 So. 2d 450, 457 (Ala. 2006) (holding that Ex parte Cranman applied to protect State officers in the exercise of discretion where a policy set forth "criteria by which decisions were made and set out duties the defendants were required to perform," but noting that "'in the final analysis a significant degree of discretion is left to the defendants in their exercise of this particular function'" (quoting Grant v. Davis, 537 So. 2d 7, 9 (Ala. 1988))). Patrick and the estate also argue that before initiating pursuit Officer Davis had to "give a specific reason for pursuit, including known violations," and that Officer Davis did not give any such reason. They cite in support of this 16 1121211 argument the deposition testimony of Dr. Michael Lyman, a police-training expert, who testified that "the pursuit should not have been initiated when the offense was minor and non-violent, especially in light of the fact that it was rush hour and there were civilians in harm's way. In his expert opinion, the 'risk of the continuance of the pursuit outweighed the importance of the apprehension of the subject.' It is Dr. Lyman's expert opinion that the 'pursuit was inconsistent with their policy in Midfield. I take the position that he did not have ... enough information to determine that the pursuit would be justified and consistent with the Midfield policy for pursuit.'" Patrick and the estate's brief, at 22-23. However, this testimony, which was actually directed at Sgt. Brown's decision to pursue Marvin, is not evidence of Officer Davis's alleged failure to "give a specific reason for pursuit." Moreover, the radio transcript indicates that Officer Davis pursued Marvin because "[h]e [was] running" from Officer Davis following a routine traffic stop. Patrick and the estate cite no evidence or authority indicating that running from a police officer during a traffic stop is not "a specific reason for pursuit" under the policy. Even assuming that Dr. Lyman's testimony alleges a violation of the policy by Sgt. Brown, the violation would relate to Sgt. Brown's exercise of discretion in determining whether pursuit was justified, not a 17 1121211 "'fail[ure] "'to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.'"'" Ex parte City of Montgomery, 99 So. 3d at 294 (quoting Kennedy, 992 So. 2d at 1282-83, quoting in turn Giambrone, 874 So. 2d at 1052). Thus, Patrick and the estate have not demonstrated that either Officer Davis or Sgt. Brown acted beyond his authority in this regard. Patrick and the estate also argue that Sgt. Brown violated the following provision of the policy: "Officers should never pursue just because another officer is doing so." Patrick and the estate argue: "[Sgt.] Brown had no information that the suspect had committed a felony involving violence. '[A]bsent that information, the pursuit of a minor offender is unreasonable because the existence of pursuit itself poses a greater threat to the public than the capture of the violator justifies.'" Patrick and the estate's brief, at 23-24 (quoting Dr. Lyman's deposition testimony). Patrick and the estate also offer testimony from Johnnie Johnson, Jr., retired chief of police for the cities of Birmingham, Bessemer, and Brighton that Sgt. Brown's actions in pursuing Marvin were "unreasonable." However, the "reasonableness" of Sgt. Brown's 18 1121211 decision to pursue Marvin is a different question than whether he continued pursuit "only because another officer [was] doing so," in violation of the policy. Sgt. Brown testified in his affidavit: "I knew that [Marvin] had one or more warrants out for his arrest, [had] fled from Officer Davis, [had] hit Officer Davis'[s] car, [had] abandoned the ATV, [had] obtained an automobile and [had] continued to flee at a high rate of speed. Based upon what I heard and observed, I suspected that [Marvin] had stolen the automobile from one of the homes on Nail Street. I did not know if there were other individuals inside the car with him. With all of this in mind, I made the judgment call to turn my lights and sirens on and follow [Marvin]." Patrick and the estate have cited no evidence contradicting Sgt. Brown's affidavit testimony. Thus, they have not demonstrated that Sgt. Brown violated a detailed rule or regulation in this regard. Patrick and the estate also argue that "[Sgt.] Brown should have terminated the pursuit when it became clear that continuing would jeopardize the safety of others." Patrick and the estate's brief, at 24. Patrick and the estate have not identified a specific provision of the policy that Sgt. Brown allegedly violated in this regard. Instead, they cite Sgt. Brown's testimony that "Marvin was not stopping for 19 1121211 traffic signs or lights, he was weaving in and out of traffic and almost lost control of his vehicle," Patrick and the estate's brief, at 24, and Chief Johnson's testimony that "[Sgt. Brown] failed to step into the supervising role to inquire as to information about this chase, whether or not the chase was justified based on information that the officer had at his control at that moment and whether or not the chase should even initiate or continue." Even assuming that Patrick and the estate are alleging a violation of the provisions of the policy relating to the role of a shift supervisor, the alleged violation goes, again, to Sgt. Brown's exercise of his discretion under the policy to determine whether pursuit was justified under the circumstances, not to "detailed rules or regulations, such as those stated on a checklist." Thus, Patrick and the estate have not demonstrated that Sgt. Brown acted "beyond his authority" in this regard. Patrick and the estate also argue that Sgt. Brown acted beyond his authority by violating § 32-5A-7(c), Ala. Code 1975, by turning off his lights and siren during his pursuit of Marvin. Section 32-5A-7 provides, in pertinent part: 20 1121211 "(a) The driver of an authorized emergency vehicle, when ... in the pursuit of an actual or suspected violator of the law ..., may exercise the privileges set forth in this section, but subject to the conditions herein stated. "(b) The driver of an authorized emergency vehicle may: ".... "(3) Exceed the maximum speed limits so long as he does not endanger life or property; ".... "(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal ... and visual requirements of any laws of this state requiring visual signals on emergency vehicles." In support of their argument, Patrick and the estate cite Williams v. Crook, 741 So. 2d 1074 (Ala. 1999), in which this Court found that an officer had violated § 32-5A-7 by failing to turn on his lights or sirens while en route to respond to a report of a domestic disturbance. Here, however, although Sgt. Brown stated in his report regarding the accident that, "after going down several streets and turns, I lost sight of the vehicle and I radioed to my dispatcher that I had lost the vehicle. ... I turned my lights and siren off because I had lost the vehicle," Patrick and the estate have presented no 21 1121211 evidence indicating that Sgt. Brown was exceeding the speed limit or acting under one of the other exemptions in § 32-5A- 7(b) while his lights and sirens were off. Thus, Patrick and the estate have not demonstrated that Sgt. Brown violated § 32-5A-7 or that he acted beyond his authority in this regard. Patrick and the estate also cite Blackwood v. City of Hanceville, 936 So. 2d 495 (Ala. 2006), for the proposition that, "where there are genuine issues of fact that exist [as to whether a police officer acted in violation of § 32-5A-7], neither the officer nor the city are entitled to judgment as a matter of law." Patrick and the estate's brief, at 29. However, as noted previously, Patrick and the estate have not demonstrated that there is a genuine issue of material fact as to whether Sgt. Brown violated § 32-5A-7. Therefore, Blackwood is inapposite. Patrick and the estate also cite Seals v. City of Columbia, 641 So. 2d 1247 (Ala. 1994), for the proposition that, "where there is evidence of a procedure that made continued pursuit of a suspect unnecessary, there was a genuine issue of material fact regarding immunity." Patrick and the estate's brief, at 29. In Seals, this Court 22 1121211 determined that the evidence established that when a roadblock was in place "the proper procedure" for a pursuing officer for the City of Columbia was to back off pursuit of a fleeing offender. 641 So. 2d at 1248. This Court held: "In opposition to the motion for summary judgment, Seals offered evidence tending to show that [Officer] Cook did not discontinue his pursuit of [the suspect] once the roadblock was in place. ... Seals's expert testified that [Officer] Cook acted negligently and that no pursuit was necessary because a roadblock was in place. Thus, [Seals's] evidence created a genuine issue of material fact. The summary judgment was inappropriate and must be reversed." 641 So. 2d at 1250 (emphasis omitted). Here, Patrick and the estate argue that "there was strong evidence that the high-speed pursuit through residential neighborhoods was unnecessary. Marvin was not an unknown suspect. [Officer] Davis knew Marvin from the neighborhood and had several prior encounters with him. The Midfield dispatcher quickly verified Marvin Brown's identity and easily discerned that he was living at the same address where the chase was initiated. Clearly, Marvin Brown could have been arrested, if an arrest was called for, when he returned home to the Nail Street address." Patrick and the estate's brief, at 29-30. Although Patrick and the estate opine that Officer Davis and Sgt. Brown had an alternative to pursuing Marvin, they have not demonstrated that, like the officer in Seals, Officer 23 1121211 Davis or Sgt. Brown violated an established "procedure" in choosing to pursue Marvin. Therefore, Seals is also inapposite. Patrick and the estate did not present substantial evidence creating a genuine issue of material fact as to whether Officer Davis and Sgt. Brown "'failed "'to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist,'"'" Ex parte City of Montgomery, 99 So. 3d at 294 (quoting other cases), or acted beyond their authority in pursuing Marvin. Thus, they have not demonstrated that one of the exceptions to State-agent immunity under Ex parte Cranman applies here, and Officer Davis and Sgt. Brown are entitled to State-agent immunity. In City of Crossville v. Haynes, 925 So. 2d 944, 955 (Ala. 2005), this Court stated: "'It is well established that, if a municipal peace officer is immune pursuant to § 6–5–338(a), then, pursuant to § 6–5–338(b), the city by which he is employed is also immune. Section 6–5–338(b) provides: "This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers." (Emphasis added.) On the other hand, if the statute does not shield the officer, it does not shield the city.'" 24 1121211 (Quoting Howard v. City of Atmore, 887 So. 2d 201, 211 (Ala. 2003) (citations omitted).) Thus, because Officer Davis and Sgt. Brown are entitled to State-agent immunity from the negligence and negligence per se claims brought against them, Midfield is also immune from suit on those claims. The Midfield defendants are entitled to a summary judgment on the ground of immunity on those claims. Patrick and the estate have also asserted a claim against Midfield alleging negligent training and supervision based on the alleged "negligence, carelessness and unskillfulness" of various fictitiously named defendants. The Midfield defendants have alleged no separate immunity ground related to this claim. Instead, they appear to assume that, if Officer Davis and Sgt. Brown are immune on the negligence and negligence per se claims against them, Midfield is immune on all the claims against it, including the negligent-training- and-supervision claim. In Ex parte City of Montgomery, this Court addressed a similar issue. The plaintiffs in that case had asserted claims against the City of Montgomery alleging negligent hiring, training, and supervision, as well as claims of 25 1121211 assault and battery, wantonness, and general negligence against both the City and various police officers. Citing Haynes, the City of Montgomery argued that, if the officers were immune from suit on the claims against them, the City of Montgomery was immune from suit on the claims against it, including the claims of negligent hiring, training, and supervision. This Court disagreed, stating: "We note that the City [of Montgomery] has failed to identify the individual or individuals specifically charged with the hiring, training, and supervision of the police officers, much less whether the individual or individuals are police officers entitled to State-agent immunity. Therefore, the City [of Montgomery] has failed to carry its burden under Cranman and was not entitled to a summary judgment as to the negligent hiring, training, or supervision claims asserted against it." 99 So. 3d at 299 (footnote omitted). Like the City of Montgomery, the Midfield defendants have not identified the "individual or individuals specifically charged with the ... training[] and supervision of the police officers, much less whether the individual or individuals are police officers entitled to State-agent immunity." 99 So. 3d at 299. Thus, Midfield has not demonstrated that it is immune from suit on the negligent-training-and-supervision claim and, therefore, entitled to a summary judgment as to that claim. 26 1121211 Conclusion For the foregoing reasons, we grant the Midfield defendants' petition in part and direct the circuit court to dismiss the negligence and negligence per se claims against them. We deny the petition as it relates to the negligent- training-and-supervision claim against Midfield. PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED. Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs specially. Shaw, J., concurs in part and concurs in the result. Moore, C.J., concurs in part and dissents in part. 27 1121211 MURDOCK, Justice (concurring specially). I concur. Aside from the reasoning expressed in the main opinion, my vote is consistent with the more general concern I have expressed regarding this Court's jurisprudence as to the "beyond-authority" exception to State-agent immunity, including our cases involving alleged failures to comply with a checklist. See, e.g., Ex parte Coleman, [Ms. 1120873, Oct. 25, 2013] ___ So. 3d ___, ___ (Ala. 2013) (Murdock, J., concurring in the result); Ex parte Monroe Cnty. Bd. of Educ., 48 So. 3d 621, 630 (Ala. 2010) (Murdock, J., concurring in part and dissenting in part and quoting Ex parte Watson, 37 So. 3d 752, 765-66 (Ala. 2009) (Murdock, J., concurring in part and dissenting in part)). 28 1121211 SHAW, Justice (concurring in part and concurring in the result). I concur fully in the main opinion, except as to the portion discussing the claim against the City of Midfield seeking damages for the alleged "negligence, carelessness and unskillfulness" of various fictitiously named defendants. As to that issue, I concur in the result. In their motion for a summary judgment, the Midfield defendants did not argue that immunity barred this claim. Instead, they alleged (1) that Alabama law did not recognize an action against a municipality for negligent hiring, supervising, or training; (2) that liability under Ala. Code 1975, § 11-47-190, could be based only on a theory of respondeat superior; and (3) that the plaintiffs could not present evidence in support of their claim. Because the motion for a summary judgment as to this claim was not grounded on a claim of immunity, its denial is not reviewable by a petition for a writ of mandamus. See Ex parte City of Montgomery, 99 So. 3d 282, 296-97 (Ala. 2012) (refusing, on petition for a writ of mandamus, to review the denial of a portion of a summary-judgment motion that was not grounded on 29 1121211 a claim of immunity). Thus, the issue whether this claim is barred by State-agent immunity or Ala. Code 1975, § 6-5-338, must await another day. 30 1121211 MOORE, Chief Justice (concurring in part and dissenting in part). I concur with denying the writ of mandamus on the negligent-training-and-supervision claim. I dissent, however, from issuing the writ of mandamus on the remaining claims. 31	June 13, 2014
c02112b1-a323-45a9-b519-7104d0181ed5	In re: C.C. v. L.J.	N/A	1121462	Alabama	Alabama Supreme Court	REL:09/30/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1121462 ____________________ Ex parte L.J. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: C.C. v. L.J.) (Limestone Juvenile Court, JU-12-154.01; Court of Civil Appeals, 2120534) PER CURIAM. 1121462 This Court granted certiorari review to address the issue whether a juvenile court may exercise jurisdiction under § 12- 15-114, Ala. Code 1975, a provision of the Alabama Juvenile Justice Act of 2008, § 12-15-101 et seq., Ala. Code 1975 ("the 2008 AJJA"), over a termination-of-parental-rights claim when the grounds for the termination do not involve a child alleged "to have committed a delinquent act, to be dependent, or to be in need of supervision." Facts and Procedural History In July 2012, L.J. ("the mother") filed a petition in the Limestone Juvenile Court to establish paternity of the child at issue in this case. In that same petition, the mother also sought to terminate the parental rights of C.C. ("the father"). In the petition, the mother stated that the father had previously filed an action in the circuit court and that that court had ordered a DNA test that established the father's paternity but that the father had withdrawn the petition before the court had issued an order establishing paternity. In her petition, the mother alleged that the father had abandoned the child. 2 1121462 The father, initially acting pro se, filed an answer generally denying the allegations in the mother's petition, except for the paternity of the child. Because the issue was not in dispute, the juvenile court entered an order determining that the father was the biological father of the child. The father, acting through counsel, filed an amended answer and a counterclaim seeking joint legal custody of the child, with physical custody awarded to the mother; visitation rights; and establishing child support pursuant to Rule 32, Ala. R. Jud. Admin. Following ore tenus proceedings, at which the mother, the father, and the mother's mother testified, the juvenile court entered an order finding that the father had "abandoned" the child as that term is defined in § 12-15-301, Ala. Code 1975, and by § 12-15-319, Ala. Code 1975. The juvenile court terminated the father's parental rights, implicitly denying the father's counterclaim. The father timely appealed to the Court of Civil Appeals. The juvenile court certified the record as adequate for an appeal pursuant to Rule 28(A)(1)(a), Ala. R. Juv. P. 3 1121462 A majority of the Court of Civil Appeals held that, under § 12-15-114, the juvenile court lacked jurisdiction over a termination-of-parental-rights claim except insofar as that claim arises out of a proceeding involving an allegation that the child as to whom parental rights are being terminated is dependent, delinquent, or in need of supervision. C.C. v. L.J., [Ms. 2120534, September 6, 2013] So. 3d (Ala. Civ. App. 2013). Because the mother's petition for the termination of the father's parental rights did not arise out of a dependency, delinquency, or child-in-need-of-supervision proceeding, the Court of Civil Appeals held that the juvenile court lacked subject-matter jurisdiction and that its judgment was void. Specifically, the Court of Civil Appeals held that when the legislature repealed what was § 12-15-30(b), Ala. Code 1975, removing language giving juvenile courts exclusive jurisdiction over all termination-of-parental-rights proceedings and replacing it with more limited jurisdiction over only certain types of termination-of-parental-rights proceedings (i.e., those arising out of dependency, delinquency, or child-in-need-of-supervision proceedings), the legislature intended to narrow the juvenile court's 4 1121462 jurisdiction in termination-of-parental-rights cases. Because the mother, who was the legal custodian of the child, had not alleged that the child was dependent, i.e., without a parent willing to provide for the care, support, or education of the child, the Court of Civil Appeals concluded that the juvenile court lacked jurisdiction over her petition. The Court of Civil Appeals dismissed the appeal as being from a void judgment. Two members of the Court of Civil Appeals dissented, opining that the enactment of the 2008 AJJA did not alter the formerly prevailing law under which a parent could seek to terminate the parental rights of the other parent in the juvenile court. C.C. v. L.J., So. 3d at (Pittman, J., dissenting, with Thompson, P.J., joining). The dissent notes that former § 26-18-5, Ala. Code 1975, a provision of the Child Protection Act ("the CPA"), which was amended and carried forward in the 2008 AJJA as § 12-15-317, Ala. Code 1975, now provides that "'any ... parent... may file a petition to terminate the parental rights of a parent or parents of a child,'" ___ So. 3d at ___, and that, although the proper forum is not set out in § 12-15-317, the remaining 5 1121462 sections of the 2008 AJJA evidence an intent by the legislature to provide the juvenile court with jurisdiction over termination-of-parental-rights proceedings filed by a parent seeking to terminate the rights of the other parent. The dissent states: "Did the enactment of the [2008] AJJA alter the formerly prevailing law under which parents could seek termination of parental rights in the juvenile court? Former § 26-18-5 has been carried forward into the [2008] AJJA and codified at Ala. Code 1975, § 12-15-317, which states that 'any ... parent ... may file a petition to terminate the parental rights of a parent or parents of a child.' Although the proper forum for filing such a petition is not therein stated, the Code sections that follow leave no doubt that the legislature intended that juvenile courts maintain their former exclusive jurisdiction to hear such matters. Taken together, the succeeding sections of the [2008] AJJA provide (a) for service of process by publication to be ordered in particular circumstances by the juvenile court (§ 12–15–318), (b) that termination of parental rights may be ordered by the juvenile court upon a proper showing of grounds therefor (§ 12–15–319), and (c) that additional actions are authorized to be undertaken by the juvenile court upon a determination that parents are unwilling or unable to act as parents (§ 12–15–320). I glean from the [2008] AJJA's repetitious references to the juvenile court in connection with disposition of cases in which termination of parental rights is sought, including cases in which a parent seeks such termination, that the legislature had no intent to deprive the juvenile court of its former exclusive jurisdiction to adjudicate a termination-of- parental-rights claim such as that advanced by the mother in this case." 6 1121462 So. 3d at (Pittman, J., dissenting). The mother petitioned this Court for a writ of certiorari. We reverse and remand. Discussion The 2008 AJJA, which became effective January 1, 2009, revised and reorganized the CPA, § 26-18-1 et seq., Ala. Code 1975. The CPA governed cases involving the termination of parental rights. The 2008 AJJA also revised and renumbered an earlier version of the Juvenile Justice Act. Former § 12- 15-30(b)(2), for example, has been revised and is currently set out in § 12-15-115(a)(1) and (a)(2), Ala. Code 1975. Essentially, the 2008 AJJA merged the CPA and the former Juvenile Justice Act. Under the former Juvenile Justice Act, § 12-15-30(a) provided that the juvenile court had exclusive original jurisdiction over proceedings in which a child was alleged to be dependent, delinquent, or in need of supervision. Former § 12-15-30(b)(6) further provided that the juvenile court also had exclusive original jurisdiction over proceedings for the "termination of parental rights." 7 1121462 The CPA was enacted "to provided meaningful guidelines to be used by the juvenile court in cases involving the termination of parental rights." § 26-18-2 (repealed). Under the CPA, § 26-18-5 set out who could file a petition to terminate parental rights: "A petition may be filed by any public or private licensed child-placing agency or parent, with permission of the court, or any interested party." § 26- 18-5 (repealed). The CPA was the first time the legislature had allowed a parent to initiate such an action. In Ex parte Johnson, 474 So. 2d 715 (Ala. 1985), this Court held that former § 26-18-5 evidenced a legislative intent to allow a parent to initiate a termination petition: "[T]here is no logical reason to allow only the state to file a petition to have parental rights terminated. Why should a parent, who has direct knowledge and familiarity with a situation, be required to go to the state to obtain such a result, when it would be more direct for the parent to file the petition?" 474 So. 2d at 717. Under the CPA, a finding of dependency was not required when one parent sought to terminate the parental rights of another parent. In Ex parte Beasley, 564 So. 2d 950, 954 (Ala. 1990), we stated: 8 1121462 "[W]hen one parent seeks to terminate the other parent's parental rights, a 'finding of dependency' is not required. As stated above, if a 'finding of dependency' were a requisite element of proof, the following illogical result could arise: The petitioning parent, who is adequately caring for the child, would have to prove that he or she is not providing adequate care for the child and, therefore, could then be estopped from bringing such an action. We hold, therefore, that, when one parent seeks to terminate the other parent's parental rights, a 'finding of dependency' is not required, and the trial court should determine whether the petitioner has met the statutory burden of proof and whether that termination is in the child's best interest, in light of the surrounding circumstances. "The two-prong test that a court must apply in a parental rights termination case brought by a custodial parent consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26–18-7 [now repealed]. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered." In 2008, when the legislature merged the former Juvenile Justice Act with the CPA and revised and renumbered both in the 2008 AJJA, the legislature set out the juvenile court's jurisdiction in §§ 12-15-114, 12-15-115, and 12-15-116, Ala. Code 1975. 9 1121462 Section 12-15-115(a) provides that the juvenile court shall have original jurisdiction in certain civil cases, such as cases involving (1) the removal of disabilities of nonage, (2) judicial consent to marry, (3) commitments, (4) transfers from the probate court in adoption cases, (5) waivers of parental consent in abortion cases, (6) paternity, (7) modification of support, custody, or visitation in previously filed parentage cases, (8) enforcement of spousal support, (9) proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act, and (10) grandparent visitation, when it is part of a juvenile case. Section 12-15-115(b) provides that the juvenile court will have original jurisdiction when emergency medical treatment is necessary and when the child has been suspended or expelled from a public school. Section 12-15-115 is a revision and renumbering of former §§ 12-15- 30(b)(1), (b)(2), (b)(5), and 12-15-30(c). Section 12-15-116 is a revision and renumbering of former § 12-15-31 and addresses the juvenile court's original jurisdiction in criminal cases involving juveniles. Section 12-15-114 is the provision of the 2008 AJJA that is before us in the present case; it is a revision and 10 1121462 renumbering of former § 12-15-30(b)(6). Section 12-15-114 provides: "(a) A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision. A dependency action shall not include a custody dispute between parents. Juvenile cases before the juvenile court shall be initiated through the juvenile court intake office pursuant to this chapter. "(b) A juvenile court shall not have jurisdiction over any delinquent act committed by an individual before his or her 18th birthday for which a petition has not been filed before the individual reaches 21 years of age, except when the delinquent act is an offense having no statute of limitation as provided in Section 15-3-5[, Ala. Code 1975]. "(c) A juvenile court shall also exercise exclusive original jurisdiction of proceedings arising out of the above juvenile court proceedings, including, but not limited to, each of the following: "(1) Proceedings pursuant to the Interstate Compact on Juveniles and the Interstate Compact on Placement of Children pursuant to Chapter 2 of Title 44. "(2) Proceedings for termination of parental rights, as this term is defined in subdivision (10) of Section 12-15-301[, Ala. Code 1975]."1 As the result of an amendment effective October 1, 2010, 1 § 12-15-301(10) now defines the term "reasonable efforts," which refers to efforts to preserve a family unit. It does not 11 1121462 We now turn to whether a juvenile court may exercise jurisdiction under § 12-15-114 over a termination-of-parental- rights petition when the ground for seeking the termination dose not involve a child alleged "to have committed a delinquent act, to be dependent, or to be in need of supervision." Section 12-15-114(a) grants the juvenile court exclusive original jurisdiction over juvenile proceedings where the child is alleged to be dependent, delinquent, or in need of supervision. Section 12-15-114(a) states that "a dependency action shall not include a custody dispute between parents." Section 12-15-114(c) goes on to provide that the juvenile court shall also have exclusive original jurisdiction over proceedings "arising out of the above juvenile court proceedings," i.e., dependency, delinquency, and child-in- need-of-supervision proceedings, as set out in subsection (a). Former § 12-15-30(b)(6) gave the juvenile court jurisdiction over all termination-of-parental-rights proceedings. refer to termination proceedings, which is now defined in § 12-15-301(14). Section 12-15-301(14) defines termination of parental rights as "[a] severance of all rights of a parent to a child." 12 1121462 Construing the language in § 12-15-114, the Court of Civil Appeals concluded that the legislature had limited the juvenile court's jurisdiction in termination-of-parental- rights proceedings to those cases "arising out of" dependency, delinquency, and child-in-need-of-supervision cases. Because the mother did not allege that the child was dependent, i.e., without a fit parent to provide care, the Court of Civil Appeals held that she, as a custodial parent, could not seek termination of the other parent's parental rights in the juvenile court. "We note that '[t]he intent of the Legislature is the polestar of statutory construction.' Siegelman v. Alabama Ass'n of School Bds., 819 So. 2d 568, 579 (Ala. 2001). See also Richardson v. PSB Armor, Inc., 682 So. 2d 438, 440 (Ala. 1996); Jones v. Conradi, 673 So. 2d 389, 394 (Ala. 1995); Ex parte Jordan, 592 So. 2d 579, 581 (Ala. 1992). '[T]he starting point for all statutory interpretation is the language of the statute itself,' and '[i]f the statutory language is clear, no further inquiry is appropriate.' Federal Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1239 (11th Cir. 2000). 'If the statutory language is ambiguous, however, courts may examine extrinsic materials, including legislative history, to determine [legislative] intent.' Id. It is also true that '[i]n attempting to ascertain the legislative intent of a particular statute or provision therein, it is permissible to look to the law as it existed prior to such statute's enactment.' Reeder v. State ex rel. Myers, 294 Ala. 260, 265, 314 So. 2d 853, 857 (1975). In that connection, 'courts [also] consider contemporaneous events surrounding enactment of the 13 1121462 statute.' Baylor v. New Jersey Dep't of Human Servs., Div. of Pub. Welfare, 235 N.J. Super. 22, 41, 561 A.2d 618, 628 (1989), aff'd, 127 N.J. 286, 604 A.2d 110 (1990)." Pinigis v. Regions Bank, 977 So. 2d 446, 450-51 (Ala. 2007). In Archer Daniels Midland Co. v. Seven Up Bottling Co. of Jasper, Inc., 746 So. 2d 966, 969 (Ala. 1999), this Court stated: "[W]hen circumstances surrounding the enactment of a statute cast doubt on the otherwise clear language of the statute, we must look to other factors in determining legislative intent." This Court further stated in Archer Daniels: "As the plaintiff correctly points out, § 6–5–60[, Ala. Code 1975,] is not, on its face, limited to transactions involving intrastate commerce. We hasten to add, however, that there is no language in § 6–5–60 that conclusively indicates an intent on the Legislature's part to regulate transactions involving the shipment of goods through interstate commerce. Because the language of § 6–5–60, standing alone, is not conclusive on the question of legislative intent, and because other factors, including the legislative history of Alabama's antitrust statutes, as well as the state of the law at the time of their enactment, cast doubt on the original intent of the Legislature, we find it necessary to look beyond the language of the statute." 746 So. 2d at 973. The foregoing rationale applies to this Court's determination of legislative intent with respect to § 12-15- 14 1121462 114. As our earlier discussion of the history of the 2008 AJJA indicates, it was well settled prior to the enactment of the 2008 AJJA that juvenile courts had exclusive original jurisdiction over all termination-of-parental-rights petitions. This included a petition filed by a parent seeking to terminate the parental rights of the other parent of the child, based on our decision in Ex parte Beasley in which we held that a finding of dependency was not required in such a case. We stated in Beasley that it would be illogical for a parent, who is adequately caring for the child, to have to prove that he or she is not providing adequate care (i.e., that the child is dependent) in order to bring such an action, because the petitioning parent would then be estopped from bringing the action. In light of the history of the 2008 AJJA, if the legislature had intended for the circuit court, as a court of general jurisdiction, to now have jurisdiction over termination petitions filed by one parent against the other parent, it would not have done so by legislative silence. Additionally, it is unlikely that the legislature would place jurisdiction over termination petitions in two different courts. 15 1121462 It is also unlikely that the legislature, in providing that the juvenile court has jurisdiction of termination petitions arising out of dependency, delinquency, or child-in- need-of-supervision proceedings intended to prohibit one parent from filing a petition seeking to terminate the parental rights of the other parent. As Judge Pittman noted in his dissent in C.C. v. L.J., the legislature, in adopting the entirety of the 2008 AJJA, provided that a parent may bring a petition to terminate the parental rights of the other parent of the child. § 12-15-317. If the legislature intended to foreclose a parent from bringing a termination petition by first requiring an allegation of dependency, it would not have also provided for the right to bring such a termination petition in the 2008 AJJA. It is also unlikely that the legislature intended to foreclose a parent from filing a termination petition against another parent, but then to allow a parent to file a termination petition against the other parent when a stepparent wants to adopt the child. In S.N.W. v. M.D.F.H., 127 So. 3d 1225 (Ala. Civ. App. 2013), the stepfather of the child filed a petition in the probate court seeking to adopt 16 1121462 the child. After the case was transferred to the juvenile court, the mother filed a petition to terminate the biological father's parental rights in order for the stepfather to adopt the child. The father argued that the juvenile court lacked subject-matter jurisdiction under § 12-15-114 to terminate his parental rights because the underlying action did not begin as a dependency, delinquency, or child-in-need-of-supervision proceeding. Without referring to § 12-15-115(a)(4), which provides the juvenile court with original jurisdiction over proceedings transferred from the probate court, the Court of Civil Appeals held that § 26-10A-3, Ala. Code 1975, a provision of the Alabama Adoption Code, provides that the probate court has jurisdiction over adoption proceedings and that it has jurisdiction to transfer a case to the juvenile court for the limited purpose of terminating parental rights. The Court of Civil Appeals held that because § 26-10A-3 does not mandate that the termination-of-parental-rights proceeding be predicated on a dependency proceeding or a finding of dependency, the juvenile court had jurisdiction to entertain the mother's petition to terminate the father's parental rights so as to allow the stepfather to adopt the child. We 17 1121462 see no reason for the legislature to have provided that a parent be allowed to terminate the parental rights of the other parent simply because a stepparent adoption is involved, but not allow a parent to bring a termination proceeding when there is no pending stepparent adoption. It is unlikely that the legislature intended for a noncustodial parent to able to bring a termination petition against the custodial parent while not allowing a custodial parent to bring such a petition. In T.K. v. M.G., 82 So. 3d 1 (Ala. Civ. App. 2011), a majority of the Court of Civil Appeals held that a father, who was not the custodial parent, could bring a dependency petition against the custodial mother invoking the jurisdiction of the juvenile court under § 12-15- 114. The Court of Civil Appeals concluded that for the purpose of jurisdiction of the juvenile court, having a fit noncustodial parent who is willing and able to care for the child does not preclude a juvenile court from finding that the child is dependent. It does not follow that the legislature would prohibit a custodial parent from filing a termination petition while allowing a noncustodial parent to do so. The 2008 AJJA defines a "dependent child" to include a child who 18 1121462 "is in need of care or supervision" and "[w]ho is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child." § 12–15–102(8)a.2., Ala. Code 1975. So long as the parent is fit, it should make no difference whether that parent currently has custody. We note that, in the present case, the mother filed a petition in the juvenile court seeking to determine paternity of the child. Section 12-15-115(a)(6) provides that the juvenile court has original jurisdiction over petitions to establish parentage pursuant to the Alabama Uniform Parentage Act, § 26-17-1 et seq., Ala. Code 1975. Section 12-15-317 of the 2008 AJJA allows a parent to file a petition to terminate parental rights, and § 12-15-319 sets out the grounds for termination, which include abandonment, which the mother alleges here. If the juvenile court had jurisdiction over the paternity petition under § 12-15-115 and § 12-15-317 allows a parent to file a petition to terminate the parental rights of the other parent, then the juvenile court should have jurisdiction to address the mother's termination petition 19 1121462 without a finding of dependency. See S.N.W. v. M.D.F.H., supra. While this appeal was pending, the legislature adopted Act No. 2014-350, Ala. Acts 2014, which amended § 12-15-114 to read as follows: "(c) A juvenile court shall also exercise exclusive jurisdiction over each of the following: ".... "(2) Proceedings for termination of parental rights." In enacting Act No. 2014-350, the legislature stated: "Section 2. The Legislature finds that its original intent in the adoption of Act 2008–277, the Alabama Juvenile Justice Act, was for a juvenile court to exercise exclusive original jurisdiction in all termination of parental rights proceedings. The amendatory language to Section 12–15–114, Code of Alabama 1975, provided in Section 1, is intended to be curative and shall apply retroactively for the purpose of ratifying and confirming the exercise of original jurisdiction of the juvenile court to hear and adjudicate termination of parental rights cases filed in juvenile court on and after January 1, 2009, and prior to the effective date of this act [April 8, 2014]. Any order of a juvenile court issued while exercising jurisdiction pursuant to this section during that time shall be deemed valid in absence of an adjudication on appeal to the contrary. "Section 3. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains. 20 1121462 "Section 4. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law." The 2014 amendments to § 12-15-114 bear out the legislature's intent to not change the juvenile court's jurisdiction over all termination-of-parental-rights cases. "'When statutes are amended or replaced by succeeding legislation, the Legislature often seeks to clarify previously ambiguous provisions. These subsequent acts by the Legislature must be considered in trying to determine the intent of the legislation. 73 Am.Jur.2d, Statutes, § 178.' McWhorter v. State Bd. of Registration for Prof'l Eng'rs & Land Surveyors, 359 So. 2d 769, 773 (Ala. 1978)." T-Mobile South, LLC v. Bonet, 85 So. 3d 963, 979 (Ala. 2011). Based on the foregoing, we conclude that a juvenile court may exercise jurisdiction under § 12-15-114 over a termination-of-parental-rights claim when the subject of the termination was not a child alleged "to have committed a delinquent act, to be dependent, or to be in need of supervision." As Judge Pittman noted in his dissent, the 2008 AJJA did not alter the formerly prevailing law under which a parent could seek termination of parental rights in the juvenile court. Moreover, the legislature clearly expressed its intent in its 2014 amendments that under the 2008 AJJA the 21 1121462 juvenile court have exclusive original jurisdiction over all termination-of-parental-rights proceedings. Accordingly, we reverse the judgment of the Court of Civil Appeals and remand the cause for that court to consider any arguments that may have been pretermitted by the Court of Civil Appeals' analysis. REVERSED AND REMANDED. Moore, C.J., and Parker, Main, Wise, and Bryan, JJ., concur. Stuart and Murdock, JJ., concur specially. Bolin and Shaw, JJ., concur in the result. 22 1121462 MURDOCK, Justice (concurring specially). I concur in the main opinion. I write separately to offer three observations. First, the language of § 12-15-114, Ala. Code 1975, adopted by the legislature in the 2008 amendments to the Alabama Juvenile Justice Act affirmatively recognizes jurisdiction in the juvenile courts in dependency cases and two other categories of cases; it does not expressly limit the jurisdiction of juvenile courts to those categories. Normally, the latter fact would be of little or no significance, given that the juvenile court is a court of limited jurisdiction and is dependent for its authority upon legislative enactment. In this unique case, however, the latter fact is noteworthy in light of (1) the fact that the language in the succeeding provisions of the Alabama Juvenile Justice Act contemplates, as discussed in the main opinion and in Judge Pittman's dissenting opinion in the Court of Civil Appeals, that all termination petitions, including those filed by one parent against the other, will be prosecuted in the juvenile courts, (2) the fact that it was well settled at the time of the enactment of the 2008 amendments to the Alabama 23 1121462 Juvenile Justice Act that juvenile courts had exclusive original jurisdiction over all termination-of-parental-rights cases, (3) the fact that a showing of dependency is unnecessary and "illogical" in termination-of-parental-rights cases brought by one parent against the other, Ex parte Beasley, 564 So. 2d 950 (Ala. 1994), and (4) the fact that "'"[t]he Legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute."'" See Wright v. Childree, 972 So. 2d 771, 778 (Ala. 2006) (quoting Ex parte Louisville & Nashville R.R., 398 So. 2d 291, 296 (Ala. 1981)). Given these circumstances, if the legislature had in fact intended in 2008 to move jurisdiction over some, but not all, types of termination-of-parental-rights cases from the juvenile courts to the circuit courts, one would expect it to have been more explicit in saying so rather than purposing to achieve such a significant result by silence and default, relying merely on the fact that § 142(b) of the Alabama Constitution of 1901 makes the circuit court the court of general jurisdiction. Second, I read the discussion in the main opinion of T.K. v. M.G., 82 So. 3d 1 (Ala. Civ. App. 2011), as one intended 24 1121462 merely to point out the inconsistency between the result achieved by the Court of Civil Appeals in that case and the result achieved by the Court of Civil Appeals in the present case; I do not read the main opinion as embracing the rationale of the Court of Civil Appeals in T.K. Indeed, the main opinion concludes its discussion of T.K. by noting that, by statutory definition, a "'dependent child'" is one "who 'is in need of care or supervision' and '[w]ho is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.'" ___ So. 3d at ___ (quoting § 12-15-102(8)a.2., Ala. Code 1975) (emphasis added). The main opinion then adds: "So long as the parent is fit, it should make no difference `whether that parent currently has custody." ___ So. 3d at ___. That is, it should make no difference if the petitioning parent is the custodial parent or the noncustodial parent. If the petitioner, in light of all the relevant facts and circumstances, is a fit, willing, and able parent in relation to the child in question, then the child by definition is not a "dependent" child.2 In T.K., however, the Court of Civil Appeals found the 2 child to be "dependent," notwithstanding the fact that there 25 1121462 It was this notion -- that a child cannot be considered to be "dependent" on the State for care so long as the child has at least one "fit, willing, and able" parent —- that was the basis for this Court's holding in Beasley that requiring a showing of dependency in a termination-of-parental-rights case brought by one parent against the other, at least where the petitioning parent is alleged to be a fit, willing, and able parent, would be "illogical": "Where the State seeks to terminate parental rights, the 'finding of dependency' necessarily applies to the State to protect against an unwarranted intrusion into parental rights and to comply with the requirements of due process. ... "In viewing the 'dependency' issue in the context of the State's attempt to terminate parental rights, the State would have standing only where both parents are found to be unfit or otherwise unable to discharge the responsibilities of parenthood. ... "Conversely, when one parent seeks to terminate the other parent's parental rights, a 'finding of dependency' is not required. As stated above, if a 'finding of dependency' were a requisite element of proof, the following illogical result could arise: was a parent (the petitioning, noncustodial parent) who alleged to be, and was found to be, a fit, willing, and able parent for the child. Based on its purported finding that the child was dependent, the Court of Civil Appeals held that the case was a dependency case within the jurisdiction of the juvenile court, rather than a mere custody dispute, which would have fallen within the jurisdiction of the circuit court. T.K., 82 So. 3d at 4. 26 1121462 The petitioning parent, who is adequately caring for the child, would have to prove that he or she is not providing adequate care for the child and, therefore, could then be estopped from bringing such an action. We hold, therefore, that, when one parent seeks to terminate the other parent's parental rights, a 'finding of dependency' is not required, and the trial court should determine whether the petitioner has met the statutory burden of proof and whether that termination is in the child's best interest, in light of the surrounding circumstances." 564 So. 2d at 954 (emphasis added). See also Ex parte W.E., 64 So. 3d 637, 638 (Ala. 2010)(Murdock, J., concurring specially)("[D]ependency is a status created by law that either is true of a child or is not. That is, either a child is dependent or it is not. A child cannot be dependent vis-à-vis one parent but not dependent as to the other parent. If the child is not dependent 'as to one parent,' then the child is not dependent."); Ex parte L.E.O., 61 So. 3d 1042, 1057 (Ala. 2010) (Murdock, J., dissenting)("The issue whether a child is a 'dependent child' ... begs the question, dependent on whom? The logical and obvious answer -- and the answer that has prevented the statute from being considered in conflict with [substantial] caselaw ... -– is quite simply, the State."). 27 1121462 Finally, I take particular note of the last reason given by the main opinion for the conclusion it reaches and how that final reason serves to buttress the other reasons given for that conclusion. As the main opinion notes, in § 2 of Act No. 2014-350, Ala. Acts 2014, the legislature explained: "The Legislature finds that its original intent in the adoption of Act 2008-277, the Alabama Juvenile Justice Act, was for a juvenile court to exercise exclusive original jurisdiction in all termination of parental rights proceedings. The amendatory language to Section 12-15-114, Code of Alabama 1975, provided in Section 1, is intended to be curative and shall apply retroactively for the purpose of ratifying and confirming the exercise of original jurisdiction of the juvenile court to hear and adjudicate termination of parental rights cases filed in juvenile court on and after January 1, 2009, and prior to the effective date of this act [April 8, 2014]." With this language, the legislature intended to clarify and confirm the meaning of the 2008 amendments to the Alabama Juvenile Justice Act. Clarifying or confirming the intent of some previously adopted statute has been acknowledged and accepted as an appropriate purpose of a legislative enactment. Although a subsequent expression by a legislature of the intended meaning of some prior statute is not binding on this or any court in fulfilling its responsibility to interpret the prior statute, a subsequent expression of this nature 28 1121462 certainly should be considered. See, e.g, Cofer v. Ensor, 473 So. 2d 984, 1006 (Ala. 1985) ("'It is presumed that an amendment is made to effect some purpose, which may be either to alter the operation and effect of earlier provisions or to clarify the meaning thereof ....' 82 C.J.S. Statutes § 384, pp. 897-898 (1953)." (emphasis omitted)); T-Mobile South, LLC v. Bonet, 85 So. 3d 963, 979 (Ala. 2011) (cited in the main opinion for the proposition that an enactment in which the legislature "seeks to clarify" some previous statutory language must "be considered" by the court). Although I would be inclined to find sufficient to the task the other reasons stated by the main opinion for its conclusion, especially when those other reasons are considered cumulatively, I also fully agree with the main opinion that the language of the Act No. 2014-350 amendment means that there can be no appreciable doubt at to that conclusion. Stuart, J., concurs. 29 1121462 BOLIN, Justice (concurring in the result). I agree with the majority that the juvenile courts of this State have jurisdiction over a termination-of-parental rights petition when the grounds for the petition do not involve a child alleged "to have committed a delinquent act, to be dependent, or to be in need of supervision." § 12-15-114(a), Ala. Code 1975, a provision of the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala. Code 1975 ("the AJJA"). However, I believe that Act No. 2014-350, Ala. Acts 2014, which amended the AJJA and which became effective while this appeal was pending ("the 2014 amendments"), establishes that the juvenile courts have jurisdiction over all petitions seeking the termination of parental rights, even as between the parents. The legislature, in expressing its intent that the 2014 amendments apply retroactively, also stated that those amendments are "curative." That is, the 2014 amendments, in my opinion, remedy any jurisdictional conflict created by the Court of Civil Appeals' holding that a fit custodial parent could not bring a termination-of-parental- rights petition against the other parent because the child of 30 1121462 the fit custodial parent could not be considered "dependent," i.e., in need of care and supervision. I recognize that retroactive application of a statute is generally not favored, absent an express statutory provision or clear legislative intent that the enactment apply both retroactively and prospectively. See Ex parte Bonner, 676 So. 2d 925 (Ala. 1995)(statutory amendment providing for the waiver of the cost of a bond upon a showing of substantial hardship applied retroactively); Jones v. Casey, 445 So. 2d 873 (Ala. 1983)(statutory amendment raising the interest rate on judgments did not apply retroactively). "The general rule is that retrospective application of a statute is not favored and legislative intent to make a statute retrospective must be clearly expressed before the statute will be construed to operate retrospectively." Kittrell v. Benjamin, 396 So. 2d 93, 94 (Ala. 1981)(statute allowing a sale of property for division of proceeds applied retroactively). The United States Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994), considered whether an amendment to the Civil Rights Act of 1991, which permitted a party to seek compensatory and punitive damages for certain types of 31 1121462 intentional employment discrimination and to demand a jury trial if such damages are sought, applied to an employment- discrimination case that was pending on appeal when the amendment became effective. The Supreme Court in Landgraf stated: "When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules." 511 U.S. at 280. The Landgraf Court went on to set out the applicable analysis when the statute contains no such expressed intent. See also Lindh v. Murphy, 521 U.S. 320 (1997)(discussing Landgraf and the rules of statutory construction used to ascertain a statute's temporal scope). In the present case, the legislature expressed its clear intent that the 2014 amendments apply retroactively. "[W]hen a lawmaking body thoughtfully considers the burdens and benefits of retroactively applying a law and makes clear its intent that the law have legal consequence in pending cases, courts must follow the law's intent. See Landgraf v. USI Film Prods., 511 U.S. 244, 272, 114 S.Ct. 1483, 128 L.Ed. 2d 229 (1994). This is especially true in cases that merely change the jurisdiction from one forum to another. 32 1121462 "'We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. ... Application of a new jurisdictional rule usually "takes away no substantive right but simply changes the tribunal that is to hear the case."' "Landgraf, 511 U.S. at 274, 114 S.Ct. 1483 (citing Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409 (1916))." Dickinson v. Cosmos Broad. Co., 782 So. 2d 260, 269 (Ala. 2000)(retroactive application of federal agency's declaratory ruling did not violate plaintiffs' due-process rights). The next question is whether retroactive application is constitutionally permissible. Retroactive application is prohibited regardless of legislative intent if so applying the statute would impair vested rights or create new obligations. In Harlan v. State, 31 Ala. App. 478, 18 So. 2d 744 (1944), the Court of Appeals explained that a retrospective law is one that takes away or impairs vested rights acquired under existing laws or creates a new obligation and imposes a new duty or attaches a new disability in light of considerations or transactions already past. In contrast, "'[r]emedial statutes -- those which do not create, enlarge, 33 1121462 diminish, or destroy vested rights -- are favored by the courts, and their retrospective operation is not obnoxious to the spirit and policy of the law.'" Ex parte Burks, 487 So. 2d 905, 907 (Ala. 1985)(quoting Barrington v. Barrington, 200 Ala. 315, 316, 76 So. 81, 82 (1917)). Remedial statutes are exemplified by those that "'impair no contract or vested right, ... but preserve and enforce the right and heal defects in existing laws prescribing remedies.'" Jones v. Casey, 445 So. 2d 873, 875 (Ala. 1983)(quoting Dickson v. Alabama Mach. & Supply Co., 18 Ala. App. 164, 165, 89 So. 843, 844 (1921)). A remedial statute "may be applied on appeal, even if the effective date of that statute occurred while the appeal was pending, and even if the effective date of the statute was after the judgment in the trial court." Kittrell v. Benjamin, 396 So. 2d at 95. The Landgraf Court stated that a statute has retroactive effects if the statute "attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates 'retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. ... [F]amiliar considerations 34 1121462 of fair notice, reasonable reliance, and settled expectations offer sound guidance." Landgraf, 511 U.S. at 270. The Supreme Court in Landgraf also noted jurisdiction- conferring and jurisdiction-ousting statutes as examples of statutes often properly applied to pre-enactment events. "Application of a new jurisdictional rule," the Court instructed, "usually takes away no substantive right but simply changes the tribunal that is to hear the case." 511 U.S. at 274. Additionally, "[p]resent law normally governs in such situations because jurisdictional statutes speak to the power of the court rather than to the rights or obligations of the parties." Id. Three years after Landgraf, the United States Supreme Court in Lindh v. Murphy, 521 U.S. 320 (1997), applied and clarified the Landgraf analysis for determining retroactivity. The Lindh Court further elaborated on the distinction between procedural and substantive changes. The Supreme Court noted that if a statute is "merely procedural in a strict sense (say, setting deadlines for filing and disposition ...), the natural expectation would be that it would apply to pending cases." 521 U.S. at 327 (citing Landgraf, 511 U.S. at 275). 35 1121462 But because the Court found that the statutory changes at issue in Lindh —- the "revisions of prior law to change standards of proof and persuasion in a way favorable to a State" —- went "beyond 'mere' procedure to affect substantive entitlement to relief," it held that the statute did not fall within the Court's "express (albeit qualified) approval of applying such statutes to pending cases." 521 U.S. at 327-28. Instead, the Supreme Court relied on what it held to be a clear expression of congressional intent that the amendments to chapter 153 effected by the Antiterrorism and Effective Death Penalty Act ("the AEDPA") not apply to noncapital cases that were already pending when the AEDPA was enacted. The Court explained, "[t]he statute reveals Congress's intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment." 521 U.S. at 326. In Hughes Aircraft Co. v. United States, 520 U.S. 939 (1997), the Supreme Court confirmed that the general presumption against retroactivity affects jurisdiction- allocating statutes to the same extent it affects other legislation. The issue in Hughes Aircraft was a 1986 amendment to the False Claims Act that expanded the range of 36 1121462 circumstances under which private parties can bring suit "on behalf of the United States against anyone submitting a false claim to the Government." 520 U.S. at 941. Congress did not make its intention regarding retroactivity clear, and, after conducting the analysis outlined in Landgraf, the Supreme Court concluded that the 1986 amendment did not apply where the defendant had submitted the alleged false claims before 1986 and a private person could not have brought suit based on those claims under the pre-amendment version of the False Claims Act. 520 U.S. at 946–51. In rejecting the plaintiff's argument that the 1986 amendment was exempt from the Landgraf presumption against retroactivity because the statute it amended was a jurisdictional statute, the Supreme Court clarified Landgraf, stating: "The fact that courts often apply newly enacted jurisdiction-allocating statutes to pending cases merely evidences certain limited circumstances failing to meet the conditions for our generally applicable presumption against retroactivity, not an exception to the rule itself .... As we stated in Landgraf: "'Application of a new jurisdictional rule usually "takes away no substantive right but simply changes the tribunal that is to hear the case." Present law normally 37 1121462 governs in such situations because jurisdictional statutes "speak to the power of the court rather than to the rights or obligations of the parties."' "Statutes merely addressing which court shall have jurisdiction to entertain a particular cause of action can fairly be said merely to regulate the secondary conduct of litigation and not the underlying primary conduct of the parties. Such statutes affect only where a suit may be brought, not whether it may be brought at all. The 1986 amendment, however, does not merely allocate jurisdiction among forums. Rather, it creates jurisdiction where none previously existed; it thus speaks not just to the power of a particular court but to the substantive rights of the parties as well. Such a statute, even though phrased in 'jurisdictional' terms, is as much subject to our presumption against retroactivity as any other." Hughes Aircraft, 520 U.S. at 951 (citation omitted). In Republic of Austria v. Altmann, 541 U.S. 677 (2004), the Supreme Court addressed whether the Federal Service Immunity Act ("the FSIA") applied to conduct that occurred prior to the enactment of the FSIA in 1976. The plaintiff in Altmann sued the Republic of Austria for expropriating, before and after World War II, paintings owned by her family. Austria asserted sovereign immunity as a defense. In answering the question, the Supreme Court looked to the FSIA and noted that the preamble suggested that it applied to pre- enactment conduct but that it fell short of an express 38 1121462 prescription of the statute's temporal reach. The Supreme Court applied Landgraf and asked whether the FSIA affected substantive rights and would be impermissibly retroactive if applied to pre-enactment conduct or addressed procedural matters and may be applied to all pending cases, regardless of when the underlying conduct occurred. The Court noted that under Landgraf there is a presumption against retroactivity if Congress has not expressly stated that the statute is to have retroactive effect and the statute affects rights, liabilities, or duties with respect to past conduct. 541 U.S. at 693-94 (citing Landgraf, 511 U.S. at 280). On the other hand, the Supreme Court noted that the application of a statute to future as well as to pending cases would be sanctioned if the statute merely confers or ousts jurisdiction. 541 U.S. at 693. The Supreme Court concluded that, although these principles seemed comprehensive, they did not provide a clear answer in the case before it, because the FSIA could not be categorized as exclusively affecting either substantive rights or procedural matters. 541 U.S. at 694. The Supreme Court then noted that the purpose of the anti- retroactivity presumption is "to avoid unnecessary post hoc 39 1121462 changes to legal rules on which parties relied in shaping their primary conduct" and that that had never been the purpose of foreign sovereign immunity. 541 U.S. at 696. Rather, the Supreme Court stated, foreign sovereign immunity aims to protect foreign states "'from the inconvenience of suit as a gesture of comity.'" 541 U.S. at 696 (quoting Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003)). The Supreme Court then looked to the FSIA and the circumstances surrounding its enactment for any suggestion that it should not apply to the 1948 conduct by Austria refusing to return the paintings at issue. 541 U.S. at 697. In holding that the FSIA applies "to all pending cases regardless of when the underlying conduct occurred," the Supreme Court relied on "[t]he FSIA's overall structure" as well as "two of the Act's principal purposes: clarifying the rules that judges should apply in resolving sovereign immunity claims and eliminating political participation in the resolution of such claims." 541 U.S. at 698-99. The Supreme Court also looked to Congress's understanding of the FSIA as noted in its preamble, which provides that "'[c]laims of foreign states to immunity should henceforth be decided by courts of the United States and of 40 1121462 the States in conformity with the principles set forth in'" the FSIA. 541 U.S. at 697 (quoting 28 U.S.C. § 1602). The Supreme Court noted that pursuant to this language in the FSIA "[i]mmunity 'claims' –- not actions protected by immunity, but assertions of immunity to suits arising from those actions -- are the relevant conduct regulated by the [FSIA]." Id. In Hamdan v. Rumsfield, 548 U.S. 557 (2006), the Supreme Court addressed the Detainee Treatment Act of 2005 ("the DTA"), in particular § 1005(e)(1) of the DTA, which provided that no court shall have jurisdiction to hear an application for habeas corpus filed by an alien detained at Guantanamo Bay. No provision of the DTA stated whether subsection (e)(1) applied to pending cases. The government argued that this subsection had the immediate effect, upon enactment, of repealing federal jurisdiction over detainee actions pending in any federal court. The Supreme Court decided that Congress's failure to include language that subsection (e)(1) applied to pending habeas actions was a deliberate choice. The Supreme Court refused to dismiss Hamdan's habeas case for lack of jurisdiction because it was pending when the DTA was enacted. In response to the Hamdan decision, Congress passed 41 1121462 the Military Commissions Act of 2006 ("the MCA"), which amended 28 U.S.C. § 2241(e), stripping jurisdiction of the federal courts over pending habeas corpus petitions and expressing its intent to apply the amendments in all pending cases. In Boumediene v. Bush, 553 U.S. 723, 738 (2008), the Supreme Court stated: "[W]e cannot ignore that the MCA was a direct response to Hamdan's holding that the DTA's jurisdiction-stripping provision had no application to pending cases." Ultimately, the Supreme Court concluded that the amendments stripping the federal courts of jurisdiction to hear habeas corpus petitions filed by enemy combatants were an unconstitutional suspension of the writ of habeas corpus under Article I, § 9, of the United States Constitution. In the present case, former § 12-15-30(a), Ala. Code 1975 (repealed), gave the juvenile courts exclusive original jurisdiction over proceedings for the termination of parental rights. Former § 26-18-5, Ala. Code 1975 (repealed), a provision of the Child Protection Act, permitted a parent to bring a termination-of-parental-rights proceeding, and our caselaw concluded that the finding of dependency when one parent sought to terminate the other parent's parental rights 42 1121462 was not necessary. Ex parte Beasley, 564 So. 2d 950 (Ala. 1990). The 2008 amendments to an earlier version of the Juvenile Justice Act, which resulted in the AJJA, set out the juvenile court's exclusive original jurisdiction over termination-of-parental-rights proceedings in § 12-15-114. Those same 2008 amendments provided a parent with the right to bring a termination-of-parental-rights action. See § 12-15- 317, Ala. Code 1975. However, § 12-15-114 purported to limit the juvenile court's jurisdiction to termination proceedings "arising out of" allegations of delinquency, dependency, or a child in need of supervision. A majority of the Court of Civil Appeals essentially concluded in this case that, because a fit custodial parent could not allege dependency, then the juvenile court lacked jurisdiction over the petition filed by L.J. ("the mother") seeking to terminate the parental rights of C.C. ("the father") under the 2008 amendments. C.C. v. L.J., [Ms. 2120534, Sept. 6, 2013] So. 3d (Ala. Civ. App. 2013). The 2014 amendments amended § 12-15-114 to clarify that the juvenile court had jurisdiction over all termination-of-parental-rights actions and expressed the 43 1121462 legislature's intent that the amendments were to apply retroactively. I discern no constitutional impediment to retroactively applying the 2014 amendments to § 12-15-114. In addressing retroactivity, a court is concerned with "familiar considerations of fair notice, reasonable reliance, and settled expectations." Landgraf, 511 U.S. at 270. The juvenile court continues to have exclusive original jurisdiction over termination-of-parental-rights proceedings as it did before and after the 2014 amendments. The 2014 amendments do not take away or give the right to a parent to bring a termination proceeding because § 12-15-317 already provides for such. I believe that applying the 2014 amendments retroactively gives effect to the clear intent of the legislature, which included in the 2014 amendments express language regarding retroactivity, ensuring that the legislature considered whether the benefits of retroactivity outweighed any potential unfairness. The father argues that "legislation that so boldly robs a father of such a powerful defense [lack of jurisdiction] clearly affects his substantive, vested rights if applied 44 1121462 retroactively." However, "jurisdictional statutes 'speak to the power of the court rather than to the rights or obligations of the parties.'" Landgraf, 511 U.S. at 274 (quoting Republic Nat'l Bank of Miami v. United States, 506 U.S. 80, 100 (Thomas, J., concurring)). Jurisdiction is not a right possessed by the parties, but is instead the power of the court. The Supreme Court has "regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed." Landgraf, 511 U.S. at 274. The Supreme Court has established the principle that in determining retroactivity jurisdictional statutes should be evaluated in the same manner as any other statute. Thus, in order to determine whether a statute applies to a case that was filed prior to the enactment of the statute, courts must determine whether the statute is "procedural" in nature or whether it affects "substantive entitlement to relief." Lindh, 521 U.S. at 327. Does the statute merely "regulate the secondary conduct of litigation" or does it affect "the underlying primary conduct of the parties"? Hughes, 520 U.S. at 951. Does the statute speak "just to the power of a 45 1121462 particular court," or does it speak to "the substantive rights of the parties as well"? Hughes, 520 U.S. at 951. In this case, the 2014 amendments speak to jurisdiction. The father argues that the 2014 amendments violate the separation-of-powers doctrine and cites Barrington v. Barrington, 200 Ala. 315, 76 So. 81 (1917). In Barrington, a new statute meant to protect women from actual or threatened violence granted the wife a divorce when she, without support from the husband, had lived separate and apart from the bed and board of her husband for five years preceding the filing for divorce. Although the wife had lived "separate and apart" from the husband for five years, the new statute authorizing divorce under such circumstances had not been in effect for five years at the time she filed for divorce. The husband demurred, asserting that to permit divorce under the new statute would constitute a constitutionally prohibited retroactive application of a statute that was not, on its face, retroactive. The Court agreed, stating: "We are, upon these considerations, constrained to hold that the statute in question authorizes the divorce here sought only upon the lapse of five years from and after the date of its enactment 46 1121462 –- September 10, 1915." Barrington, 200 Ala. at 318, 76 So. at 84. The statute that was under consideration in Barrington, however, is readily distinguishable from the 2014 amendments, which are not only expressly retroactive, but also do not alter vested rights (i.e., contract or property rights). In contrast, the new statute in Barrington was not expressly retroactive, and it did alter vested property rights: "The legislative act here involved is not remedial in character, but gives legal effect to marital conduct and relations, by converting any complete separation between husband and wife for five years next before the filing of the bill of complaint, into an authorized ground of divorce in favor of the wife, if she has so lived without support from him. It falls fairly within the class of acts whose retrospective operation is so strongly disfavored by the law, and so consistently reprobated by the courts." 200 Ala. at 316, 76 So. at 82. The Court went on to say: "Remedial statutes -- those which do not create, enlarge, diminish, or destroy vested rights –- are favored by the courts, and their retrospective operation is not obnoxious to the spirit and policy of the law. "But a statute which gives a new legal effect to conduct or conditions occurring or existing prior to its enactment, thereby imposing upon any person unanticipated disabilities or alterations of legal status, is retrospective in a sense which is odious to the law, and, as to such operation, is strongly disfavored by the courts, even though it does not offend the Constitution by impairing the obligation 47 1121462 of a contract or by creating a crime or punishment ex post facto. This disfavor has everywhere found expression in a rigorous rule of construction which denies retroactive effect to such a statute unless by its express terms, or by unmistakable implication, the Legislature must have so intended." Barrington, 200 Ala. at 316, 76 So. at 82. In the present case, the 2014 amendments do not give new legal effect to abandonment by a parent. In arguing that the 2014 amendments violate the separation-of-powers doctrine, the father refers this Court to Justice Mayfield's special concurrence in Barrington, in which he stated: "Granting divorces is the exercise of powers and functions either legislative or judicial. If legislative, under our Constitution, then only the Legislature can exercise them, the courts cannot; if judicial, then only the courts or the judicial department of the state can exercise the powers. Assuredly, the power or function to decree divorces does not belong to both these branches of government. I take it that there never would have been a doubt on this subject but for the fact that in England Parliament has for centuries granted divorces; but this does not prove that it is the exercise of legislative powers, because Parliament -- different in this from all American Legislatures, state or federal -- exercises both legislative and judicial powers and functions of the English government. Our Constitution, like most all other written American Constitutions, expressly prohibits the Legislature from exercising judicial powers, and also prohibits the judicial department from exercising legislative powers. So it results that granting divorces, under 48 1121462 the law of this state, is the exercise of powers and functions of the state government, either legislative or judicial, and that it cannot be the exercise of both classes of powers. If it be a judicial power and function, the Legislature cannot usurp it by saying that the courts shall grant divorces without cause, and without any issuable fact being alleged or proven. "The Legislature may prescribe rules under which judicial power shall be exercised, but it cannot authorize courts to proceed to judgment against, or to adjudicate upon, the rights of parties without giving them notice of the proceeding and an opportunity to defend; nor can it deprive the litigant of his rights, by retrospective legislation which makes void that which was theretofore valid, or vice versa. There are some things Legislatures cannot do. What they do must be within legislative competency. They cannot recall the past. ... "The Legislature can say what the law thereafter shall be, but not what it was theretofore; what it shall be to-morrow, but not what it was yesterday; that is not its province or its function. If an act is done to-day, according to law, the Legislature cannot say to-morrow that the act was unlawful. If a contract is made to-day according to law, and is therefore valid, the Legislature will have no power to-morrow to say that it was not made according to law, and is therefore void, and annul it. It can say that a contract made hereafter, as a former one was made, shall be void, but it cannot make void a contract heretofore made and executed, if valid when made, nor make valid a contract executed in the past, if it was void when made. This is not within legislative competency, and therefore needs no express constitutional inhibition. The Legislature can no more recall the past than it can make black white, or white black, or change the laws of physics or other natural laws. A state Legislature can, of course, do anything within legislative competency 49 1121462 which is not inhibited by the state and federal Constitutions; but it needs no inhibition to prevent its doing what, in the very nature of things, according to natural or Divine law, it cannot do. The Constitution itself could not empower the Legislature to recall the past, or to change a law of physics. Why expressly inhibit the doing of a thing which cannot be done by any human power or agency, much less authorized?" 200 Ala. at 324-25, 76 So. at 90. As I stated earlier, the 2014 amendments do not give new legal effect to abandonment by a parent because that conduct is, and has been, subject to the termination of the abandoning parent's rights. I agree with Justice Mayfield that the legislature possesses the power to amend the law, "but it may not do so in a manner that impinges on the judicial power by retroactively changing the laws that were incorporated into the judgment when it became final." Ex parte Jenkins, 723 So. 2d 649, 658 (Ala. 1998). In Plaut v. Spendthrift Farm, 514 U.S. 211 (1995), the Supreme Court acknowledged that Congress possesses the power to amend existing law even if the amendment affects the outcome of pending cases. 514 U.S. at 218. The Supreme Court explained that in such a situation the separation-of- powers doctrine is violated only when Congress tries to apply new law to cases that have already reached a final judgment. 50 1121462 514 U.S. at 226 ("Congress can always revise the judgments of Article III courts in one sense: When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly."). Legislation that would change the law incorporated into a final judgment rendered by the judiciary violates the separation-of-powers doctrine. The Supreme Court recognized that Congress's retroactive extension of a limitations period does not violate the Due Process Clause by depriving defendants of a vested right. Plaut, 514 U.S. at 227–29 (stating that Congress may retroactively extend a limitations period without violating the Due Process Clause (citing Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311 n. 8, 316 (1945)(noting that the retroactive extension of a statutory limitations period did not deprive defendants of a "vested right"))). Nonetheless, the Supreme Court held that Congress violated the separation-of-powers doctrine by commanding the Judiciary to reopen final judgments to accommodate the extended limitations period. Plaut, 514 U.S. at 219. 51 1121462 Plaut involved Congress's reaction to the Supreme Court's earlier decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), in which the Court adopted a uniform national limitations period for civil actions under § 10(b) of the Securities Exchange Act of 1934. After Lampf was decided, a number of § 10(b) actions were dismissed as untimely, and Plaut's case was among them. Plaut did not appeal the dismissal. Some months later, Congress enacted a complicated statute that rejected the Lampf holding for cases filed before Lampf was decided and effectively required a court to reinstate a § 10(b) action on the motion of the plaintiff if the action would have been considered timely under the applicable law as of the day before Lampf was decided. The Supreme Court distilled from prior cases the principle that Article III grants the federal courts "the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy." Plaut, 514 U.S. at 218-19. The Court concluded that "[b]y retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle." 514 U.S. at 219. The Supreme Court was careful 52 1121462 to distinguish the situation in which Congress enacts a law with retroactive effect while a case is still on appeal, recognizing that, in that instance, the appellate court must apply the new law. The Supreme Court stated: "It is true, as petitioners contend, that Congress can always revise the judgments of Article III courts in one sense: When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly. See United States v. Schooner Peggy, 1 Cranch 103 (1801); Landgraf v. USI Film Products, 511 U.S. 244, 273–280 (1994). Since that is so, petitioners argue, federal courts must apply the 'new' law created by § 27A(b) in finally adjudicated cases as well; for the line that separates lower court judgments that are pending on appeal (or may still be appealed), from lower-court judgments that are final, is determined by statute, see, e.g., 28 U.S.C. § 2107(a)(30–day time limit for appeal to federal court of appeals), and so cannot possibly be a constitutional line. But a distinction between judgments from which all appeals have been forgone or completed, and judgments that remain on appeal (or subject to being appealed), is implicit in what Article III creates: not a batch of unconnected courts, but a judicial department composed of 'inferior Courts' and 'one supreme Court.' Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole. It is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress's latest enactment, even when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must 'decide according to existing laws.' Schooner Peggy, supra, 1 Cranch, at 109. Having achieved finality, however, a judicial 53 1121462 decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was. Finality of a legal judgment is determined by statute, just as entitlement to a government benefit is a statutory creation; but that no more deprives the former of its constitutional significance for separation-of-powers analysis than it deprives the latter of its significance for due process purposes. See, e.g., Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985); Meachum v. Fano, 427 U.S. 215 (1976). "To be sure, § 27A(b) reopens (or directs the reopening of) final judgments in a whole class of cases rather than in a particular suit. We do not see how that makes any difference. The separation-of- powers violation here, if there is any, consists of depriving judicial judgments of the conclusive effect that they had when they were announced, not of acting in a manner -- viz., with particular rather than general effect -- that is unusual (though, we must note, not impossible) for a legislature. To be sure, a general statute such as this one may reduce the perception that legislative interference with judicial judgments was prompted by individual favoritism; but it is legislative interference with judicial judgments nonetheless. Not favoritism, nor even corruption, but power is the object of the separation-of-powers prohibition. The prohibition is violated when an individual final judgment is legislatively rescinded for even the very best of reasons, such as the legislature's genuine conviction (supported by all the law professors in the land) that the judgment was wrong; and it is violated 40 times over when 40 final judgments are legislatively dissolved." Plaut, 514 U.S. at 226-28 (some emphasis added). 54 1121462 In Ex parte Jenkins, supra, this Court addressed, among other things, whether the separation-of-powers doctrine was violated by the retroactive application of a statute permitting the reopening of a final judgment of paternity based on scientific evidence that the adjudged father was in fact not the biological father. Relying on Plaut, supra, we held that the Alabama Legislature cannot retroactively amend Rule 60(b), Ala. R. Civ. P., to change the law of finality that was incorporated into final judgments before the legislature's amendment allowing a father to reopen a final judgment of paternity without regard to the "reasonable time" requirement of Rule 60(b)(6), Ala. R. Civ. P. The paternity judgment in that case became final in 1986, approximately eight years before § 26–17A–1, Ala. Code 1975, became law. Thus, this Court held that the trial court and the Court of Civil Appeals erred in applying § 26–17A–1 to change the rules of finality incorporated into the father's 1986 final judgment of paternity in Jenkins. As I stated earlier, the legislature, in expressing its intent that the 2014 amendments apply retroactively, also stated that the amendments are "curative." That is, the 2014 55 1121462 amendments remedy any jurisdictional conflict created by the Court of Civil Appeals' opinion that a fit custodial parent could not bring a termination-of-parental-rights petition against the other parent because the child of a fit custodial parent could not be considered dependent, i.e., in need of care and supervision. In Landgraf, 511 U.S. at 267-68, the Supreme Court stated: "Retroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary. However, a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." Here, by making its intention abundantly clear, the Alabama Legislature demonstrated its determination that the benefits of retroactivity outweighed any potential for disruption or unfairness. In light of the "modest" constitutional impediments to retroactive civil litigation, Landgraf, 511 U.S. at 272, the nature and extent of the change in the law, and the degree of connection between operation of the new law and relevant past conduct, applying the 2014 56 1121462 amendments retroactively comports with the Landgraf Court's considerations of fair notice, reasonable reliance, and settled expectations. Accordingly, there is no need to analyze whether the AJJA, before the enactment of the 2014 amendments, allowed a parent to terminate the parental rights of the other parent. 57 1121462 SHAW, Justice (concurring in the result). I concur in the result. While this case was pending on appeal, Act No. 2014–350, Ala. Acts 2014, became effective and retroactively granted the juvenile court subject-matter jurisdiction in this case. I believe that Act No. 2014-350 is clear and constitutional and that its application complies with numerous authorities approving the retroactivity of statutory law. See, e.g., Dickinson v. Cosmos Broad. Co., 782 So. 2d 260 (Ala. 2000), and Landgraf v. USI Film Prods., 511 U.S. 244 (1994). 58	September 30, 2014
1b2a0dbb-1b2b-4e77-94bd-6f3ee1ad8ab7	Watkins v. Morton	N/A	1130302	Alabama	Alabama Supreme Court	Rel: 08/29/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130302 ____________________ Ex parte Elizabeth A. Morton PETITION FOR WRIT OF MANDAMUS (In re: Annie P. Watkins v. Elizabeth A. Morton) (Greene Circuit Court, CV-13-900042) PARKER, Justice. Elizabeth A. Morton petitions this Court for a writ of mandamus directing the Greene Circuit Court to vacate its 1130302 order denying Morton's motion to transfer this case to Jefferson County on the ground of forum non conveniens and to enter an order granting the motion. We grant the petition and issue the writ. Facts and Procedural History The relevant facts of this case are undisputed. On August 26, 2011, Morton, a resident of Greene County, and Annie P. Watkins, a resident of Jefferson County, were involved in a motor-vehicle collision in Jefferson County. Following the collision, Watkins was treated at a hospital in Jefferson County and subsequently received medical treatment at four health-care facilities located in Jefferson County. On August 26, 2013, Watkins filed a complaint in the Greene Circuit Court against Morton, asserting claims arising out of the August 26, 2011, motor-vehicle collision. On September 26, 2013, Morton filed a motion to transfer this case to the Jefferson Circuit Court pursuant to the doctrine of forum non conveniens, as codified in § 6-3-21.1(a), Ala. Code 1975. On October 1, 2013, Watkins filed a response. On 1 As she now argues in her petition, Morton argued in her 1 motion that the interest-of-justice prong of § 6-3-21.1(a) compelled the Greene Circuit Court to transfer this case to the Jefferson Circuit Court. 2 1130302 October 30, 2013, the Greene Circuit Court entered an order denying Morton's motion, stating: "After review of [Watkins's] response, the Motion to Transfer Venue of defendant, Elizabeth A. Morton, is hereby denied on authority of Ex parte Coley, 942 So. 2d 349 ([Ala.] 2006)." On December 11, 2013, Morton filed this petition for a writ of mandamus. Standard of Review "'The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.' Ex parte Alabama Great Southern R.R., 788 So. 2d 886, 888 (Ala. 2000). 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998). "'The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.' Ex parte Finance America Corp., 507 So. 2d 458, 460 (Ala. 1987). In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party's brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So. 2d 932, 936 (Ala. 1995)." 3 1130302 Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1091 (Ala. 2002). Discussion Morton seeks a writ of mandamus directing the Greene Circuit Court to transfer this case to the Jefferson Circuit Court pursuant to the forum non conveniens statute, § 6-3- 21.1, which states, in pertinent part: "With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein." This Court has stated: "'A party moving for a transfer under § 6–3–21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified "in the interest of justice."' Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 536, 539 (Ala. 2008)." Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 573 (Ala. 2011). Additionally, this Court has stated that, "'[w]hen venue is appropriate in more than one county, the plaintiff's choice of venue is generally given great deference.' Ex parte Perfection Siding, Inc., 882 So. 2d 307, 312 (Ala. 2003) (citing Ex 4 1130302 parte Bloodsaw, 648 So. 2d 553, 555 (Ala. 1994)). See also Ex parte Yocum, 963 So. 2d 600, 602 (Ala. 2007) ('The trial court should give deference to the plaintiff's choice of a proper forum.')." Ex parte J & W Enters., LLC, [Ms. 1121423, March 28, 2014] ___ So. 3d ___, ___ (Ala. 2014). As set forth above, the Greene Circuit Court denied Morton's motion to transfer this case pursuant to § 6-3- 21.1(a) on the authority of Ex parte Coley, 942 So. 2d 349 (Ala. 2006). In Coley, the parents of a deceased passenger, as her personal representatives, filed a wrongful-death action in the Jefferson Circuit Court against the driver of the vehicle following an automobile accident in Perry County. The defendant filed a motion to transfer the case to the Perry Circuit Court, arguing, among other things, that the case should be transferred under the doctrine of forum non conveniens, as codified in § 6-3-21.1(a). The Jefferson Circuit Court denied the defendant's motion, and the defendant filed a petition for a writ of mandamus asking this Court to direct the Jefferson Circuit Court to transfer the case to the Perry Circuit Court. 5 1130302 This Court held that the defendant had not demonstrated a clear legal right to have the case transferred under § 6-3-21.1(a): "It appears that the action 'might have been properly filed' in Perry County, because the accident occurred there. See Ala. Code 1975, § 6–3–2. The parties do not argue this point. Thus, the trial court could properly transfer the case to Perry County 'for the convenience of parties and witnesses, or in the interest of justice.' See Ala. Code 1975, § 6–3–21.1(a). As the [plaintiffs] correctly point out, [the defendant's] burden was to show the trial court that Perry County is a significantly more convenient forum than is Jefferson County. See Ex parte Perfection Siding, Inc., 882 So. 2d [307] at 312 [(Ala. 2003)] ('The defendant must show that his inconvenience and expense in defending the action in the selected forum outweigh the plaintiff's right to choose the forum; that is, the defendant must suggest transfer to a county that is "significantly more convenient" than the county in which the action was filed.'). [The defendant's] burden before this Court on mandamus review is to show that she is clearly entitled to a transfer to Perry County. "In support of her contention that a trial in Perry County would be more convenient for the witnesses, [the defendant] contends that "'the Perry County law enforcement personnel who investigated the accident and will be called to testify at trial likely reside in Perry County. At least two key witnesses expected to be called at the trial of this case ... are thought to reside in Perry County.' "[The defendant's] petition, p. 11. With respect to the convenience of the parties, [the defendant] states: 6 1130302 "'As of June 28, 2005, [the defendant] was living in Perry County. Lastly it is believed that the [plaintiffs] still reside in Florida and have no connection to Jefferson County.' "[The defendant's] petition, p. 11. "[The defendant] has not met her burden. [The defendant] merely points out that the accident occurred in Perry County and contends that some of the witnesses 'likely' or are 'thought to' reside in Perry County. As for the fact that the [plaintiffs] reside in Florida, the [plaintiffs] contend that it is actually more convenient for them to fly into Birmingham for the trial of the case in Jefferson County than to travel by automobile to Perry County. In addition, the [plaintiffs] contend that [the defendant] now lives in the Birmingham area. [The defendant] responds that she testified at her deposition in June 2005 that she considers her home address to be the farm in Uniontown in Perry County but that she is 'living out of a suitcase.' The fact that she is 'living out of a suitcase' does not support [the defendant's] argument that it would be significantly inconvenient for her to defend this case in Jefferson County. Nor do her assertions that certain witnesses 'might' reside in Perry County or the fact that the [plaintiffs] reside in Florida support her argument that Perry County is a significantly more convenient forum than is Jefferson County." 942 So. 2d at 355. Morton argues that Coley addressed only the convenience prong of § 6-3-21.1(a) and, therefore, is inapposite to her argument that the interest-of-justice prong of § 6-3-21.1(a) 7 1130302 compels a transfer of this case to the Jefferson Circuit Court. We agree that Coley is distinguishable on that basis. In reviewing this case under the interest-of-justice prong of § 6-3-21.1(a), we must "determine whether 'the interest of justice' overrides the deference due the plaintiff's choice of forum" in the present case. J & W Enters., ___ So. 3d at ___. We hold that it does. 2 In Ex parte Wachovia, supra, this Court thoroughly discussed the application of the interest-of-justice prong of § 6-3-21.1(a) in several cases involving facts similar to those presented in this case: "In its petition for the writ of mandamus, Wachovia relies solely on the interest-of-justice prong as a ground for transfer. "'"[I]n analyzing the interest-of-justice prong of § 6–3–21.1, this Court focuses on whether the 'nexus' or 'connection' between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action." Ex parte First Tennessee Bank Nat'l Ass'n, 994 So. 2d [906,] 911 [(Ala. 2008)].... Further, in examining whether it is in the interest of justice to transfer a case, we consider "the burden of piling court services and resources upon the people of As this Court noted in J & W Enterprises, "[o]ur inquiry 2 depends on the facts of the case." ___ So. 3d at ___ (citing Ex parte ADT Sec. Servs., Inc., 933 So. 2d 343 (Ala. 2006)). 8 1130302 a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county." Ex parte Smiths Water & Sewer Auth., 982 So. 2d 484, 490 (Ala. 2007).' "Ex parte Indiana Mills [& Mfg., Inc.], 10 So. 3d [536] at 540 [(Ala. 2008)]. Thus, the dispositive question is whether the nexus between this action and Macon County is 'strong enough to warrant burdening' Macon County with this action. For the following reasons, we hold that it is not. "Lee County is the situs of all the alleged acts or omissions giving rise to the plaintiffs' claims. Any allegedly unauthorized withdrawals were made from a Wachovia branch in Lee County. Police investigation of the matter was conducted in Lee County. Lee County is Floyd's place of residence, as well as the location of Unique [Image Pro Car Care, Floyd's business]. Thus, Lee County is the place where all the injury alleged in the complaint occurred. Although it is not a talisman, the fact that the injury occurred in the proposed transferee county is often assigned considerable weight in an interest-of-justice analysis. See Ex parte Autauga Heating & Cooling, LLC, 58 So. 3d 745, 748 (Ala. 2010) ('"[T]his Court has held that 'litigation should be handled in the forum where the injury occurred.'"' (quoting Ex parte Indiana Mills, 10 So. 3d at 540)); Ex parte McKenzie Oil, Inc., 13 So. 3d 346, 349 (Ala. 2008) (same). "In short, nothing material to this case transpired in Macon County. Macon County's sole material contact with this case is that the two individual defendants ... reside there. Recent cases decided under the interest-of-justice prong are dispositive. 9 1130302 "In Ex parte Autauga Heating & Cooling, LLC, for example, this Court issued a writ of mandamus directing the Montgomery Circuit Court –- in the interest of justice –- to transfer the action to Elmore County. 58 So. 3d at 747. That case arose out of an automobile accident involving Lori Lee Wright, a resident of Elmore County, and Richard Alexander Rogers, a resident of Montgomery County. The vehicle being operated by Rogers at the time of the accident was owned by Autauga Heating & Cooling, LLC ('Autauga'), which had its principal place of business in Autauga County. The accident occurred in Elmore County, and Wright received treatment at the scene of the accident from emergency medical personnel who lived in Elmore County. 58 So. 3d at 749. When an action was brought against Rogers in the county of his residence, Rogers sought the removal of the action to Elmore County, the situs of the alleged acts or omissions and the place of the injury. "This Court concluded that a transfer of the case was required. In so doing, we said: "'Although we agree with Wright that the case has a connection with Montgomery County because Rogers is a resident of Montgomery County and [Autauga] may have some business connections there, ... the overall connection between Montgomery County and this case is weak and ... the connection between the case and Elmore County is strong. "'... Besides the fact that Rogers is a resident of Montgomery County, there was no other evidence before the trial court indicating a connection between the case and Montgomery County. "'.... 10 1130302 "'The accident underlying this action occurred in Elmore County, and the emergency personnel who responded to the accident were from Elmore County. The plaintiff herself is a resident of Elmore County. This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defendant does some business there.' "58 So. 3d at 750 (emphasis added). "In so holding, this Court relied on and discussed Ex parte Indiana Mills & Manufacturing, Inc.: "'This Court addressed similar facts in Ex parte Indiana Mills & Manufacturing, Inc., supra. In Indiana Mills, the decedent was driving a garbage truck in Lee County owned by his employer when the raised rear door of the truck struck an overhead railroad trestle, causing the truck to crash. The decedent was killed when he was ejected from the truck. His widow filed a complaint in Macon County against the manufacturers of the garbage truck and the seat belts in the truck and three employees of the decedent's employer. The employer's principal place of business was in Tallapoosa County. The employer conducted business in Macon County, and one of the individual defendants lived in Macon County. The defendants moved the trial court to transfer the case to Lee County based on the doctrine of forum non conveniens. The trial court denied that motion, and the defendants petitioned this Court for mandamus relief. 11 1130302 "'This Court granted the defendants' mandamus petition and ordered the trial court to transfer the case from Macon County to Lee County based on the "interest of justice" prong of § 6–3–21.1. In doing so, this Court noted that the accident occurred in Lee County, that the law-enforcement and emergency personnel who had responded to the accident were based out of Lee County, that the chief deputy coroner who investigated the decedent's death did his work in Lee County, and that the records and documents of the fire department that responded to the accident were located in Lee County. Comparing this to the fact that only one of the individual defendants resided in Macon County and that the employer conducted business there, there being no other relevant facts involving Macon County, this Court held that the nexus between Lee County and the case was strong, that the nexus between Macon County and the case was weak, and that the trial court thus had exceeded its discretion in refusing to transfer the case to Lee County.' "Ex parte Autauga Heating & Cooling, 58 So. 3d at 750 (discussing Ex parte Indiana Mills) (emphasis added). "In this case, as in Autauga Heating & Cooling and Indiana Mills, the injury occurred in the county to which the transfer is sought. Here, as in Autauga Heating & Cooling and Indiana Mills, no material act or omission occurred in the forum county. As in Indiana Mills, the official investigation of the incident was in the county to which the transfer was sought –- here, Lee County." 77 So. 3d at 573-75. 12 1130302 As in Wachovia, Ex parte Autauga Heating & Cooling, LLC, 58 So. 3d 745 (Ala. 2010), and Ex parte Indiana Mills & Manufacturing, Inc., 10 So. 3d 536 (Ala. 2008), Watkins's injury occurred in the county to which transfer is sought –- Jefferson County; Watkins is also a resident of Jefferson County and received treatment in four separate medical facilities located in Jefferson County. Additionally, as in Wachovia and Indiana Mills, the official investigation of the incident was conducted in the county to which the transfer is sought. Furthermore, as in Wachovia, Autauga Heating & Cooling, and Indiana Mills, no material act or omission occurred in Greene County. Watkins argues that Wachovia, Autauga Heating & Cooling, and Indiana Mills are distinguishable because each of those cases involved multiple defendants residing in both the forum and transferee counties. Although the number and residency of the defendants may affect an interest-of-justice analysis under § 6-3-21.1(a), the fact that the above cases involved multiple defendants does not render them inapposite to the present case involving only one defendant. Considering the similarities between the above cases and the present one, that 13 1130302 factual distinction in this case –- that Morton is the sole defendant –- is de minimis. See, e.g., Wachovia, 77 So. 3d at 575 ("As in [Autauga Heating & Cooling and Indiana Mills], the only material connection with the forum county is a defendant's residence. To be sure, in this case two defendants reside in the forum county, rather than one. Given the posture of this case, however, that distinction is inconsequential."). For the reasons explained above, Jefferson County has a significantly stronger connection to this case than does Greene County, which is connected to this case only by the fact that Morton resides there –- a connection this Court has characterized as "weak." See Autauga Heating & Cooling, 58 So. 3d at 750 ("This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defendant does some business there."); Indiana Mills, 10 So. 3d at 542 ("We see no need for Macon County, with its weak connection with this case, to be burdened with an action that arose in Lee County simply because one of several defendants 14 1130302 resides there. Instead, Lee County clearly has a strong connection with this case. See Ex parte Verbena United Methodist Church, 953 So. 2d 395, 400 (Ala. 2006) (holding that the 'weak nexus' with the county in which an action was filed did not 'justify burdening' that county with the trial of that action; thus, the doctrine of forum non conveniens required the case be transferred to a county that had 'a much stronger nexus')."). Accordingly, the interest of justice overrides Watkins's choice of forum. Therefore, Morton has a clear legal right to the relief she seeks. Conclusion Morton has met her burden of showing that transfer of this action to Jefferson County is justified in the interest of justice. The trial court exceeded its discretion, therefore, in denying the motion to transfer the case. Morton is entitled to a writ of mandamus directing the trial court to grant her motion; thus, we grant the petition and issue the writ. PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Murdock, J., dissent. 15 1130302 MURDOCK, Justice (dissenting). For the reasons explained in my special writings in Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 576-78 (Ala. 2011) (Murdock, J., dissenting), and Ex parte Autauga Heating & Cooling, LLC, 58 So. 3d 745, 751-52 (Ala. 2010) (Murdock, J., dissenting), I disagree with the proposition that Elizabeth A. Morton is entitled to a transfer of this action to Jefferson County based on the "interest-of-justice prong" of § 6-3-21.1, Ala. Code 1975. Additionally, I am concerned that, notwithstanding its acceptance of Ex parte Coley, 942 So. 2d 349 (Ala. 2006), as a case decided under the convenience prong of § 6-3-21.1, some portions of the main opinion could be read as further expanding the field of operation of the interest-of-justice prong to include certain convenience-prong factors. 16	August 29, 2014
4c14e0d9-0ec1-49c3-8de1-9c5bd62e3ff5	Ex parte Gasteria, Inc., d/b/a Lamar's Quick Stop, and Salim K. Gillani. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Lamar's Quickstop, Gasteria, Inc., and Salim K. Gillani v. Andalusia Enterprises, Inc.) (Jefferson Circuit Court: CV-11-904273; Civil Appeals : 2120363). Writ Denied. No Opinion.	N/A	1130740	Alabama	Alabama Supreme Court	REL: 06/06/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130740 ____________________ Ex parte Gasteria, Inc., d/b/a Lamar's Quick Stop, and Salim K. Gillani PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Lamar's Quickstop, Gasteria, Inc., and Salim K. Gillani v. Andalusia Enterprises, Inc.) (Jefferson Circuit Court, CV-11-904273; Court of Civil Appeals, 2120363) STUART, Justice. 1130740 WRIT DENIED. NO OPINION. Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 2 1130740 MOORE, Chief Justice (dissenting). I respectfully dissent from this Court's decision to deny the petition for the writ of certiorari because I believe the trial court and the Court of Civil Appeals overlooked a key provision regarding the calculation of late charges in the invoices at issue in this case. I believe we should grant the petition for the writ of certiorari and review the Court of Civil Appeals' decision. I. Facts and Procedural History In December 2005, Salim K. Gillani, the owner of Gasteria, Inc., d/b/a Lamar's Quick Stop, a gas station and convenience store in Hueytown ("Quick Stop"), entered into an oral open-account agreement with Andalusia Enterprises, Inc. ("AEI"), in which AEI agreed to supply petroleum products to Quick Stop. AEI issued an invoice to Quick Stop after each delivery, but the parties did not execute a written contract. AEI's invoices indicated that net payment was due in 10 days and contained the following provision regarding the interest charged in late payments: "Customer agrees to pay a late charge on due balance of 1.5% per month, or the maximum rate allowed in customer's state of residence, whichever is less. Customer agrees to pay all expenses incurred in 3 1130740 collection of the indebtedness as a result of default of payment including court costs and reasonable attorney's fees." AEI supplied approximately $2.5 million in petroleum products to Quick Stop from December 2005 until July 2010, when Quick Stop made its last purchase. Quick Stop paid most of AEI's invoices, but generally not within the required 10-day period. As a result, many of Quick Stop's invoices incurred late charges, which accumulated in nearly every month from December 2005 to July 2010. In December 2011, AEI sued Quick Stop for unpaid principal, interest, and attorney fees on the open account. AEI claimed damages of $15,198, a sum largely attributable to unpaid late charges, and $3,040 in attorney fees. After a bench trial, the trial court entered a judgment in favor of AEI and awarded it the sums claimed plus an additional $638 in interest, for a total award of $18,876. Quick Stop subsequently filed a postjudgment motion to alter, amend, or vacate the trial court's judgment, arguing, among other things, that the late charges could not exceed the legal rate of prejudgment interest and that attorney fees were not allowed on an open account. 4 1130740 The trial court found as follows: "[T]his case [is] analogous to Staples v. Jenkins Builders, Inc., 447 So. 2d 779 (Ala. Civ. App. 1984). In Staples, the invoices contained the statement: 'Terms: Net 30 days. A service charge of 1½% will be charged on all unpaid balances not paid by the 10th day of the following month. 1½% = 18% per year.' Id. at 781. In the instant action, the invoices contain the terms 'CREDIT/TERMS NET 10 DAYS' and the following language at the bottom of the invoice, 'CUSTOMER AGREES TO PAY A LATE CHARGE ON DUE BALANCE OF 1.5% PER MONTH, OR THE MAXIMUM RATE ALLOWED IN CUSTOMER'S STATE OF RESIDENCE, WHICHEVER IS LESS.' "The law authorizes the imposition of interest on a delinquent open account. Staples, 447 So. 2d at 782. ... In this case, the invoices clearly set out the late charge on the delinquent open account, as did the invoices in Staples. See id. Furthermore, as in Staples, the 'defendant had notice that interest would be charged on the unpaid balance, he had notice of the rate of interest, and he had notice of the period over which interest would be assessed.' Id. Were there no invoices sent, or were the invoices lacking of the terms of the late charge, the Court would be inclined to agree with Defense counsel that 6% per annum is the maximum interest that may be charged on a delinquent open account. However, given the similarity between this matter and Staples, the Court hereby finds the order of September 18, 2012, to be correct as it relates to the principal amount owed and the interest accrued. Accordingly, [Quick Stop's] Motion to Alter, Amend or Vacate Judgment as it relates to the principal amount and interest awarded is hereby DENIED." (Capitalization in original.) However, the trial court granted Quick Stop's motion in part and amended its judgment to remove 5 1130740 the attorney-fees award, rendering a final judgment in favor of AEI for $15,836. Quick Stop appealed that judgment to the Court of Civil Appeals, which affirmed the trial court's judgment without an opinion. Lamar's Quickstop v. Andalusia Enters., Inc. (No. 2120363, March 21, 2014), ___ So. 3d ___ (Ala. Civ. App. 2014) (table). Quick Stop now seeks certiorari review of the Court of Civil Appeals' decision. II. Discussion Quick Stop maintains that the trial court erred in calculating the amount of interest it owed AEI on the delinquent payments. The trial court found that Staples v. Jenkins Builders, Inc., 447 So. 2d 779 (Ala. Civ. App. 1984), controlled because AEI's invoices provided Quick Stop with notice that interest would be charged and notice of the rate of that interest. Although these facts are true, the terms of the invoices in Staples differ from AEI's invoices. The invoices in Staples provided for a service charge of 1½% per month, or 18% per annum. Staples, 447 So. 2d at 781. In Staples, the terms of the invoice on the open account controlled the rate of interest. 447 So. 2d at 782 ("[T]he defendant was informed by the August 1, 1981 statement ... 6 1130740 that if he did not pay [the balance due] by the tenth of the following month a one and one-half percent service charge would be assessed on the unpaid balance. ... [D]efendant ... had notice of the rate of interest ...."). In contrast, AEI's invoices provided that the late charges on Quick Stop's balance due would be 1.5% per month (18% per annum), or Alabama's maximum interest rate, which is 6% per annum, "WHICHEVER IS LESS." See § 8-8-1, Ala. Code 1975 (maximum interest rate "except by written contract" is 6% per annum). The trial court concluded correctly that Quick Stop had notice from AEI's invoices that interest would be charged and that the invoices generally controlled the rate of interest. However, the trial court failed to apply the "whichever is less" term from AEI's invoices and imposed AEI's customary rate of 18% per annum in calculating the interest owed on Quick Stop's open account. If Staples is similar to this case, the specific terms of AEI's invoices should control the rate of interest. Although the ore tenus standard of review extends to a trial court's damages award, Edwards v. Valentine, 926 So. 2d 315, 325 (Ala. 2005), the trial court's judgment based on 7 1130740 findings of fact in support of AEI's damages award is due to be reversed if those findings are "clearly and palpably erroneous." Robinson v. Morse, 352 So. 2d 1355, 1357 (Ala. 1977). I believe the Court of Civil Appeals' affirmance of the trial court's clearly erroneous calculation of the rate of interest in AEI's damages award provides us with "special and important reasons for the issuance of the writ," Rule 39(a), Ala. R. App. P. III. Conclusion I therefore dissent from the Court's decision to deny Quick Stop's petition for the writ of certiorari. 8	June 6, 2014
3beb8344-6e1d-47a7-972f-0088cf7be43b	Bryant Bank v. Talmage Kirkland & Company, Inc.	N/A	1130080	Alabama	Alabama Supreme Court	Rel: 05/23/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130080 ____________________ Bryant Bank v. Talmage Kirkland & Company, Inc., d/b/a Kirkland & Company, et al. Appeal from Baldwin Circuit Court (CV-10-902237) PARKER, Justice. Bryant Bank appeals from a partial summary judgment in favor of Talmage Kirkland & Company, Inc., d/b/a Kirkland & Company ("TKC"), and Quentin Ball and Jason Stoutamire, 1130080 appraisers for TKC (hereinafter collectively referred to as "the defendants"), by the Baldwin Circuit Court. We reverse the circuit court's judgment and remand the case for further proceedings. Facts and Procedural History This case arises out of an appraisal of real property ("the property") conducted by TKC for Bryant Bank in the course of Bryant Bank's consideration of a loan application submitted by Wallace Seafood Traders, Inc. ("WST"), in September 2007 for the purchase of the property, which WST was renting and out of which it was operating its business. At the time of WST's application, Bryant Bank was in possession of an appraisal of the property, which included a seafood- storage facility, that had been prepared for another bank by Weldon Payne in July 2007. Payne's appraisal report indicated that, in his opinion, the property had a market value of $2,400,000. Payne's appraisal report included a quote from J.P. Refrigeration, which indicated that the "as new" cost of the scheduled equipment in the seafood-storage facility was $1,950,000. Payne's appraisal report indicates that the 2 1130080 depreciated value of the equipment at the time of the appraisal was $1,250,000. In the course of considering WST's loan application, Bryant Bank contacted TKC and requested an additional appraisal of the property. On November 26, 2007, Ball, a real-estate appraiser for TKC, signed an engagement letter agreeing to provide Bryant Bank "an appraisal report estimating the Market Value of the ... property as defined by the Uniform Standards of Professional Appraisal Practice (USPAP)." The engagement letter further stated: "It is fully understood and agreed upon that this appraisal is being engaged by and prepared solely for Bryant Bank, the client of this report. The appraisal report is intended for use as an aid in property underwriting, loan classification and/or disposition of the asset." On December 10, 2007, TKC provided Bryant Bank with an appraisal report indicating that the property had a market value of $1,700,000. TKC's appraisal report contained a 1 The deposition testimony of Keith Watson, a Bryant Bank 1 employee, indicates that TKC originally supplied an appraisal report that indicated the value of the property using only a cost-approach analysis. Watson's deposition testimony also indicates that Bryant Bank requested that the value of the property be calculated using at least one additional method of 3 1130080 certification, signed by Ball and Stoutamire, another real- estate appraiser for TKC, that the "analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice (USPAP) of The Appraisal Foundation. The individual appraisers are in compliance with the Competency Provision of USPAP." The Bryant Bank employees responsible for approving WST's loan application suspected that the value of the property might have been overstated in TKC's appraisal. However, Bryant Bank approved WST's loan application and issued the loan to WST on or about December 18, 2007, because, even if 2 Bryant Bank "deeply discounted" the value of the property valuation. The final appraisal report indicates that the $1,700,000 value is the average of a cost-approach value of $1,800,000 and a sales-comparison-approach value of $1,600,000. The loan actually consisted of two loans: 1) a loan of 2 $610,000 that was obtained to purchase a piece of real property for $540,000, to cover the closing costs associated with the purchase, and to refinance a $50,000 term loan from another bank and 2) a $400,000 line of credit to finance accounts receivables and inventory purchases. However, the loans were part of a single transaction; therefore, we refer to them as a single loan for the purposes of this appeal. Additionally, Bryant Bank extended WST's line of credit in April 2008. 4 1130080 based the uniqueness of the property, the property would still serve as sufficient collateral to cover the loan. On or about October 28, 2008, WST defaulted on the loan. Subsequently, Bryant Bank obtained another appraisal of the property from a different appraisal firm; this new appraisal indicated that the property had a value of $205,000. On July 3 3, 2010, Bryant Bank sued the defendants, alleging breach of contract and negligent misrepresentation arising from its reliance on TKC's appraisal report in issuing the loan to WST. On October 19, 2012, the defendants filed a motion for a partial summary judgment. In their partial-summary-judgment motion, the defendants argued that Ball and Stoutamire were entitled to a summary judgment as to the breach-of-contract claim because they were acting as agents of a disclosed principal –- Bryant Bank. As to the negligent- misrepresentation claim, the defendants argued that they were entitled to a summary judgment in their favor because, they argued, 1) the opinion of value expressed in TKC's appraisal report could not serve as the basis of a negligent- Although the record does not contain the new appraisal, 3 the deposition testimony of Peter Petroutson, a Bryant Bank representative, indicates that the new appraisal valued the property at $205,000. 5 1130080 misrepresentation claim, 2) Bryant Bank had not relied upon the opinion of value contained in TKC's appraisal report, and 3) the claim was barred by the statute of limitations. The defendants also argued that Bryant Bank's negligent- misrepresentation claim would be "more appropriately characterized as a claim [of] promissory fraud" and, therefore, that they were entitled to a summary judgment in their favor because Bryant Bank never alleged that the defendants intended to deceive Bryant Bank when they agreed to conduct the appraisal of the property in conformity with the Uniform Standards of Professional Appraisal Practice and then produced an appraisal that allegedly failed to conform to those standards. On February 15, 2013, Bryant Bank filed a response to the defendants' partial-summary-judgment motion. Bryant Bank argued that an appraisal of real estate can serve as the basis of a negligent-misrepresentation claim. In support of this argument, Bryant Bank quoted Zanaty Realty, Inc. v. Williams, 935 So. 2d 1163, 1167 (Ala. 2005): "In Fisher v. Comer Plantation, Inc., 772 So. 2d 455, 462 (Ala. 2000), this Court held that 'real-estate appraisers are subject to liability for negligent or wanton misrepresentation.' However, the 6 1130080 appraiser's liability for negligence is limited to those parties to whom the real-estate appraiser owes a duty –- that is, '"specifically foreseen and limited groups of third parties for whose benefit and guidance the [appraiser] supplied the [appraisal] and who used it as the [appraiser] intended it to be used."' Fisher, 772 So. 2d at 462 (quoting Boykin v. Arthur Andersen & Co., 639 So. 2d 504, 510 (Ala. 1994))." Bryant Bank argued that under Fisher v. Comer Plantation, Inc., 772 So. 2d 455 (Ala. 2000), and Zanaty Realty, TKC's appraisal could serve as the basis of its negligent- misrepresentation claim because TKC conducted the appraisal for Bryant Bank and, therefore, owed a duty to Bryant Bank. Bryant Bank also argued that it relied to its detriment on the appraisal when it issued the loan to WST, using the property as collateral. In support of this assertion, Bryant Bank attached the following portion of the deposition testimony of Peter Petroutson, a Bryant Bank representative: "[Counsel for Bryant Bank:] There's been some discussion along the way about loan-to-value and how that appraisal amount would have a bearing on the decision to make the loan. If the [TKC] appraisal had come in at a million dollars, would Bryant Bank have loaned the money? "[Petroutson:] No. "[Counsel for Bryant Bank:] So, in that regard, the appraisal has a role in the decision to approve a loan application; is that right? 7 1130080 "[Petroutson:] Of course." Bryant Bank also argued that the statute of limitations began to run when WST defaulted on the loan and caused Bryant Bank to incur a legal injury. In support of this argument, Bryant Bank quoted Chandiwala v. Pate Construction Co., 889 So. 2d 540, 543 (Ala. 2004): "A cause of action accrues as soon as the claimant is entitled to maintain an action, regardless of whether the full amount of the damage is apparent at the time of the first legal injury." Bryant Bank also argued that whether Ball and Stoutamire were liable for breach of contract is a question of fact within the purview of a jury. On June 10, 2013, the circuit court granted the defendants' partial-summary-judgment motion. On September 4 17, 2013, the circuit court certified the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Bryant Bank appealed. Standard of Review "'The standard of review applicable to a summary judgment is the same as the standard for granting the motion....' McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957, 958 (Ala. 1992). The record does not contain a copy of the circuit court's 4 June 10, 2013, order granting the defendants' motion. 8 1130080 "'A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact –- "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Ala. Code 1975, § 12–21–12; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).' "Capital Alliance Ins. Co. v. Thorough–Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004)." Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 935 (Ala. 2006). Discussion Bryant Bank does not appeal the circuit court's summary judgment in favor of Ball and Stoutamire on its breach-of- contract claim. Rather, Bryant Bank's arguments on appeal 9 1130080 relate solely to the summary judgment in favor of the defendants on Bryant Bank's negligent-misrepresentation claim. The circuit court's partial-summary-judgment order is not included in the record; accordingly, we do not know if the circuit court provided a specific basis for granting the motion. Initially, we note that the defendants were not entitled to a summary judgment on Bryant Bank's negligent- misrepresentation claim based on the statute of limitations. A negligent misrepresentation constitutes legal fraud. See § 6-5-101, Ala. Code 1975 ("Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud."). Therefore, negligent- misrepresentation claims are subject to a two-year statute of limitations, which begins running when the plaintiff discovers, or should have discovered, the fact constituting the fraud. See § 6-2-38(l)("All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within 10 1130080 two years."); § 6-2-3, Ala. Code 1975 ("In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action."). In Auto-Owners Insurance Co. v. Abston, 822 So. 2d 1187, 1194-95 (Ala. 2001), this Court set forth the standard for evaluating when a fraud claim accrues and, therefore, when the statutory limitations period commences: "In Foremost[ Insurance Co. v. Parham, 693 So. 2d 409 (Ala. 1997)], we reinstated important, historical principles regarding the law of fraud in Alabama, including the proper standard for evaluating when the statutory limitations period commences: " ' C l a i m s o f f r a u d u l e n t misrepresentation and suppression are subject to a two-year statute of limitations. Ala. Code 1975, § 6–2–38(l). Prior to Hickox v. Stover, 551 So. 2d 259 (Ala. 1989), and Hicks v. Globe Life & Accident Ins. Co., 584 So. 2d 458 (Ala. 1991), this Court had held that a fraud claim accrued, thus commencing the running of the statutory limitations period, when the plaintiff discovered the fraud or when the plaintiff should have discovered the fraud in the exercise of reasonable care. Parsons Steel, Inc. v. Beasley, 522 So. 2d 253 (Ala. 1988); Moulder v. Chambers, 390 11 1130080 So. 2d 1044 (Ala. 1980); Jefferson County Truck Growers Ass'n v. Tanner, 341 So. 2d 485 (Ala. 1977). ... "'"...." "'However, in Hicks, a plurality of this Court rejected the long-standing rule that our objective standard of reviewing the statute of limitations issue in fraud cases incorporated the duty to read a document upon its receipt or presentation; and it held that "[t]he question of when a plaintiff should have discovered fraud should be taken away from the jury and decided as a matter of law only in cases where the plaintiff actually knew of facts that would have put a reasonable person on notice of fraud." 584 So. 2d at 463. (Emphasis in Hicks.) Hicks was a natural and predictable extension of Hickox, which had been decided less than two years before. In Hickox, this Court, by a vote of five to three, adopted what has become known as the "justifiable reliance standard." ... "'.... "'There has been a tension among the Justices on this Court ever since the 140–year–old standard for determining the reliance issue in fraud cases was changed in Hickox. ... "'"...." "'After careful consideration, we conclude that the "justifiable reliance" standard adopted in Hickox, which eliminated the general duty on the part of a person to read the documents received in 12 1130080 connection with a particular transaction (consumer or commercial), should be replaced with the "reasonable reliance" standard most closely associated with Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala. 1983) .... "'For the foregoing reasons, we overrule Hickox, to the extent that it changed the law of fraud as it had existed prior thereto. Furthermore, we overrule Hicks, to the extent that it changed the standard that had previously existed for determining the statute of limitations issue in fraud cases. Because this return to the reasonable reliance standard represents a fundamental change in the law of fraud, we think it appropriate to make the new standard applicable in all fraud cases filed after the date of this decision, i.e., all cases filed after March 14, 1997.' "Foremost, 693 So. 2d at 417–21. "The changes in the law of fraud brought about by our decision in Foremost are not mere word games; rather, Foremost signifies a real, substantive difference in the standards to be applied to fraud cases filed after March 14, 1997. For such cases ... § 6–2–3 does not 'save' a plaintiff's fraud claim so that the statutory limitations period does not begin to run until that plaintiff has some sort of actual knowledge of fraud. Instead, under Foremost, the limitations period begins to run when the plaintiff was privy to facts which would 'provoke inquiry in the mind of a [person] of reasonable prudence, and which, if followed up, would have led to the discovery of the fraud.' Willcutt v. Union Oil Co., 432 So. 2d 1217, 1219 (Ala. 1983) (quoting Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 397, 281 So. 2d 636 (1973)); see also Jefferson County Truck 13 1130080 Growers Ass'n v. Tanner, 341 So. 2d 485, 488 (Ala. 1977) ('Fraud is deemed to have been discovered when it ought to have been discovered. It is sufficient to begin the running of the statute of limitations that facts were known which would put a reasonable mind on notice that facts to support a claim of fraud might be discovered upon inquiry.')." (Final emphasis added.) The question of when a person of reasonable prudence would have discovered the alleged fraud is generally a question of fact within the purview of a jury. As this Court stated in Jim Walter Homes, Inc. v. Kendrick, 810 So. 2d 645, 650 (Ala. 2001): "'When a claim accrues, for statute-of-limitations purposes, is a question of law if the facts are undisputed and the evidence warrants but one conclusion. However, when a disputed issue of fact is raised, the determination of the date of accrual of a cause of action for statute-of-limitations purposes is a question of fact to be submitted to and decided by a jury.' "Kindred v. Burlington Northern R.R., 742 So. 2d 155, 157 (Ala. 1999) (citations omitted). "'A fraud action is subject to a two-year statute of limitations. Ala. Code 1975, § 6–2–38. However, the fraud claim accrues only when the plaintiff discovers the fraud or when the plaintiff, acting as a reasonable person, should have discovered the fraud. Ala. Code 1975, § 6–2–3. ... "The question of when a plaintiff should 14 1130080 have discovered fraud should be taken away from the jury and decided as a matter of law only in cases in which the plaintiff actually knew of facts that would have put a reasonable person on notice of fraud." Hicks v. Globe Life & Accident Insurance Co., 584 So. 2d 458, 463 (Ala. 1991)(emphasis in original).' "Liberty Nat'l Life Ins. Co. v. McAllister, 675 So. 2d 1292, 1297 (Ala. 1995)(some citations omitted)." In Jim Walter Homes, the plaintiff sued a builder alleging fraud on the part of the builder in failing to build a "quality home" –- the kind of house the plaintiff alleges the builder promised would be his if he purchased a house from the builder. The plaintiff testified at trial that he knew for more than two years before commencing the lawsuit that the house he was sold was not a "quality home." The jury returned a verdict in favor of the plaintiff; the defendant appealed. On appeal, this Court concluded that the plaintiff's fraud claim was barred by the statute of limitations as a matter of law because the plaintiff had actual knowledge that his house was not a "quality home" more than two years before he filed his action. In the present case, Bryant Bank alleges TKC negligently misrepresented the value of the property in its appraisal 15 1130080 report. Bryant Bank argues that its negligent- misrepresentation claim accrued when it incurred damage as a result of WST's default on the loan. Bryant Bank alleges that it was not until WST's default that it began to investigate its mitigation options and became aware of the facts that led Bryant Bank to believe that TKC had negligently conducted the appraisal. The defendants argue that Bryant Bank's negligent- misrepresentation claim accrued when it approved WST's loan application in December 2007 and thereby relied on TKC's appraisal to its detriment. Additionally, the defendants argue that, under the discovery rule set forth in § 6-2-3, a reasonable person would have investigated and discovered the alleged misrepresentation when Bryant Bank suspected TKC's appraisal overstated the value of the property before issuing the loan to WST in December 2007 or, alternatively, in April 2008 when Bryant Bank reconsidered the value of the property in the process of deciding whether to extend WST's line of credit. No evidence was presented indicating that Bryant Bank had actual knowledge –- for more than two years before commencing this action –- that the appraisal was conducted in a negligent 16 1130080 manner. Accordingly, Bryant Bank's negligent- misrepresentation claim accrued when a reasonable person would have discovered the fraud –- a question within the purview of the jury. Because a genuine issue of material fact exists as to when Bryant Bank discovered facts that would have caused a reasonable person to inquire and led to the discovery of the fraud giving rise to Bryant Bank's negligent-misrepresentation claim, the defendants were not entitled to a summary judgment on the basis that the statute of limitations had run on its negligent-misrepresentation claim. Accordingly, we turn our analysis to the merits of Bryant Bank's negligent- misrepresentation claim. The elements of a misrepresentation claim are 1) a misrepresentation of material fact, 2) made willfully to deceive, recklessly, without knowledge, or mistakenly, 3) which was justifiably relied on by the plaintiff under the circumstances, and 4) which caused damage as a proximate consequence. See Foremost Ins. Co. v. Parham, 693 So. 2d 409, 422 (Ala. 1997)(citing § 6–5–101, Ala. Code 1975, and Harrington v. Johnson–Rast & Hays Co., 577 So. 2d 437 (Ala. 1991)). As set forth above, the defendants argued in their 17 1130080 partial-summary-judgment motion that Bryant Bank did not satisfy the first and third elements of its negligent- misrepresentation claim; Bryant Bank argues on appeal that it presented substantial evidence of both of those elements. First, Bryant Bank argues that under Fisher v. Comer Plantation, Inc., supra, a real-estate appraisal can serve as the basis of a negligent-misrepresentation claim. In Fisher, this Court held that a real-estate appraiser could be held liable for a negligently conducted appraisal under Restatement (Second) of Torts § 552 (1977), which it quoted, in pertinent part, as follows: "'(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. "'(2) Except as stated in Subsection (3),[ ] the 5 liability stated in Subsection (1) is limited to loss suffered "'(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the The exception in Subsection (3) is not applicable here. 5 18 1130080 information or knows that the recipient intends to supply it; and "'(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.'" 722 So. 2d at 461. In Fisher, this Court held that its adoption of Restatement (Second) of Torts § 552 extended liability to a real-estate appraiser for a negligently conducted appraisal, as follows: "The rule of § 552 may be applied to anyone who in the course of his 'business, profession or employment' engages in an activity that meets the requirements set forth in Subsection (1). Comment c to § 552 states that this rule 'subjects to liability only such persons as make it a part of their business or profession to supply information for the guidance of others in their business transactions.' Section 552 would clearly, by its terms, govern real-estate appraisers, who, as an integral part of their business, facilitate real-estate transactions by issuing opinions regarding the value of real property.2 "____________________ " Several cases decided by courts in other 2 states have applied to appraisers an analysis involving negligent misrepresentation. Some of these cases are Tackling v. Shinerman, 42 Conn. Supp. 517, 630 A.2d 1381 (1993); Larsen v. United Fed. Sav. & Loan Ass'n of Des Moines, 300 N.W.2d 281 (Iowa 1981); Mattingly v. First Bank of Lincoln, 285 Mont. 209, 947 P.2d 66 (1997); Ballance v. Rinehart, 105 N.C. App. 203, 412 S.E.2d 106 (1992); First Fed. 19 1130080 Sav. Bank v. Knauss, 296 S.C. 136, 370 S.E.2d 906 (Ct. App. 1988); Behn v. Northeast Appraisal Co., 145 Vt. 101, 483 A.2d 604 (1984); and Schaaf v. Highfield, 127 Wash. 2d 17, 896 P.2d 665 (1995)." 772 So. 2d at 462 (emphasis added). The defendants argue that the value of the property contained in the appraisal is a statement of opinion –- not a statement of fact –- and, therefore, that it cannot serve as the basis of a negligent-misrepresentation claim. In support of their argument, the defendants cite Brushwitz v. Ezell, 757 So. 2d 423, 432 (Ala. 2000), which states the following in analyzing a suppression claim: "As with the misrepresentation claim, there arises with the suppression claim a question whether the statements in the appraisal were material, given that appraisals are considered statements of opinion, rather than statements of fact. Kaye v. Pawnee Constr. Co., 680 F.2d 1360, 1368 (11th Cir. 1982)." (Emphasis added.) However, Kaye v. Pawnee Construction Co., 680 F.2d 1360 (11th Cir. 1982), the case relied upon in Brushwitz, sets forth the following exception to the general rule stated in Brushwitz under which an opinion of value in an appraisal can serve as the basis of a misrepresentation claim: 20 1130080 "Alabama courts consider a statement of value to be an opinion and not a fact. See, e.g., Stevens v. Alabama State Land Co., 121 Ala. 450, 25 So. 995 (1899) (land); Lake v. Security Loan Association, 72 Ala. 207 (1882) (stock). Whether a given representation is an opinion or a fact 'depends upon all the circumstances of the particular case, such as the form and subject matter of the representation and the knowledge, intelligence and relation of the respective parties.' Fidelity & Casualty Co. v. J. D. Pittman Tractor Co., 244 Ala. 354, 358, 13 So. 2d 669, 672 (1943). When parties deal at arm's length and the recipient of a statement is not fraudulently induced to forbear inquiries that a competent person would make for his own protection, 'expressions of opinion as to matters which lie in opinion merely –- opinions as to current market values furnishing the most common example –-' will not be grounds for a misrepresentation claim because the recipient, knowing the nature of such expressions, has no right to rely on them. Id. Even an opinion on value is actionable, however, if the recipient states his ignorance and invites the opinion, and the speaker understands the recipient relies on the speaker's opinion as a fact so that the onus of a confidential relation results: if the recipient forbears independent inquiry because of an opinion elicited under these circumstances of confidence, Alabama courts will treat the statement as a fact reasonably relied upon. Id." 680 F.2d at 1368 (emphasis added; footnote omitted). The exception stated in Kaye is consistent with a reading of Fisher that would make actionable a negligently conducted appraisal of value when the remaining elements of the claim are met. Such an interpretation is also consistent with 21 1130080 Comment b. to Restatement (Second) of Torts § 552, which states, in pertinent part: "The rule stated in this Section applies not only to information given as to the existence of facts but also to an opinion given upon facts equally well known to both the supplier and the recipient. Such an opinion is often given by one whose only knowledge of the facts is derived from the person who asks it." (Emphasis added.) We find persuasive the analysis of Comment b. by the United States Court of Appeals for the Fourth Circuit in Private Mortgage Investment Services, Inc. v. Hotel & Club Associates, Inc., 296 F.3d 308, 314-15 (4th Cir. 2002): "Notably for our purposes, Comment b. to Restatement (Second) of Torts § 552 provides that '[t]he rule stated in this Section applies not only to information given as to the existence of facts but also to an opinion given upon facts equally well known to both the supplier and the recipient.' Restatement (Second) of Torts § 552, cmt. b. (1977) (emphasis added). To be sure, the alleged negligent misrepresentations in ML–Lee [Acquisition Fund v. Deloitte & Touche, 489 S.E.2d 470, 471 n. 3 (S.C. 1997),] did not involve expressions of opinion, but rather involved misstatements of fact. Accordingly, neither court had occasion to address Comment b. to Restatement (Second) of Torts § 552 in ML–Lee. "Such circumstance, however, far from keeps us in the dark about how the South Carolina Supreme Court would rule if presented with the issue before us. First, common sense tells us that if the South Carolina Supreme Court was comfortable in adopting the Restatement (Second) of Torts § 552 with respect to the liability of a professional accounting firm 22 1130080 to a third party in the context of a misrepresentation of fact negligently supplied for the guidance of others, the court, if presented with the opportunity, would not hesitate to adopt Comment b. to § 552 with respect to the liability of a professional real estate appraisal firm to a third party in the context of a negligent appraisal of a parcel of real property supplied for the guidance of others. After all, Comment b. is the drafters of the Restatement (Second) of Torts' considered explanation of when § 552 applies to a particular fact pattern. Moreover, as with accountants, the Restatement (Second) of Torts' approach represents the soundest method of determining the scope of a professional real estate appraiser's duty to third persons for negligent misrepresentation because it balances the need to hold professional real estate appraisers to a standard that accounts for their contemporary role in the financial world with the need to protect them from liability that unreasonably exceeds the bounds of their real undertaking. "Next, dicta in another decision by the South Carolina Court of Appeals, namely AMA Management Corp. v. Strasburger, 309 S.C. 213, 420 S.E.2d 868 (S.C. Ct. App. 1992), suggests that if faced with the facts of the present case, that court would adopt Comment b. to Restatement (Second) of Torts § 552. In AMA, the plaintiff, a sophisticated commercial entity, brought a negligent misrepresentation claim against another sophisticated commercial entity. AMA, 420 S.E.2d at 870. The plaintiff alleged that the defendant, via one of its contract negotiators, negligently misrepresented that certain loan guarantees that it was offering for purchase were 'good.' Id. at 875. Before disposing of the claim on the basis that the plaintiff had failed to prove that the alleged misrepresentation was false when made, and alternatively on the basis that the plaintiff's reliance on the alleged misrepresentation was not 23 1130080 reasonable under the circumstances, id., the court stated in dicta that although a 'mere statement of opinion, commendation of goods or services, or expression of confidence that a bargain will be satisfactory does not give rise to liability in tort, ... if the defendant has a pecuniary interest in making the statement and he possesses expertise or special knowledge that would ordinarily make it reasonable for another to rely on his judgment or ability to make careful enquiry, the law places on him a duty of care with respect to representations made to plaintiff,' id. at 874. This language is fully consistent with Comment b. to Restatement (Second) of Torts § 552." (Final emphasis added.) Accordingly, TKC's opinion of the value of the property as stated in TKC's appraisal report can serve as the basis of Bryant Bank's negligent- misrepresentation claim. Next, Bryant Bank argues that it presented substantial evidence that it relied upon TKC's appraisal report in deciding to issue the loan to WST. As set forth above, Petroutson's deposition testimony indicates that the opinion of value expressed in TKC's appraisal report directly affected Bryant Bank's decision to approve WST's loan application. Therefore, Bryant Bank presented substantial evidence that it relied on TKC's appraisal of the property. For the reasons stated above, each of the arguments raised by the defendants in their partial-summary-judgment 24 1130080 motion does not warrant the entry of a summary judgment in favor of the defendants on Bryant Bank's negligent- misrepresentation claim. Therefore, the defendants' partial- summary-judgment motion was due to be denied. Conclusion For the reasons stated above, we reverse the partial summary judgment as to Bryant Bank's negligent- misrepresentation claim and we remand the case for further proceedings. REVERSED AND REMANDED. Moore, C.J., and Stuart, Shaw, and Wise, JJ., concur. 25	May 23, 2014
0f95c8f8-d383-48a4-b66e-2a20db48d530	Ex parte John Henley Hyer. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: John Henley Hyer v. State of Alabama)(Fayette Circuit Court: CC-71-644.60; Criminal Appeals : CR-12-1711). Writ Denied. No Opinion.	N/A	1130801	Alabama	Alabama Supreme Court	REL: 05/23/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130801 ____________________ Ex parte John Henley Hyer PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: John Henley Hyer v. State of Alabama) (Fayette Circuit Court, CC-71-644.60; Court of Criminal Appeals, CR-12-1711) STUART, Justice. WRIT DENIED. NO OPINION. 1130801 Parker, Shaw, and Wise, JJ., concur. Moore, C.J., concurs specially. 2 1130801 MOORE, Chief Justice (concurring specially). I concur in denying this petition for a writ of certiorari to the Court of Criminal Appeals. In his petition for the writ of certiorari, John Henley Hyer argues, among other things, that the Court of Criminal Appeals erred in refusing to remand his case to the circuit court for an evidentiary hearing to address his claim that the trial court lacked jurisdiction to render a judgment or to impose a sentence because Hyer was deprived of his right to counsel and did not knowingly, intelligently, or voluntarily waive that right when he pleaded guilty to murder in 1975. The Court of Criminal Appeals addressed this issue in its unpublished memorandum affirming the circuit court's denial of Hyer's Rule 32, Ala. R. Crim. P., petition: "Hyer's claim on appeal that he was deprived of his right to counsel at his arraignment was not first presented in his [Rule 32, Ala. R. Crim. P.,] petition. We acknowledge, however, that '[t]he right of a defendant to have counsel present at arraignment is a jurisdictional prerequisite to a conviction,' Weakley v. State, 721 So. 2d 235, 236 (Ala. 1998), and that jurisdictional issues can be raised at any time. See Nunn v. Baker, 518 So. 2d 711 (Ala. 1987). However, we also recognize that: "'"A court of general jurisdiction proceeding within the scope of its powers will be 3 1130801 presumed to have jurisdiction to give the judgments and decrees it renders until the contrary appears. So, a court of general jurisdiction is presumed to have acted within its powers, and the burden is on the accused affirmatively to show that it had no jurisdiction, unless facts showing want of jurisdiction affirmatively appear on the record." "'22 C.J.S. Criminal Law § 174 (1989). "[A] court conducting a criminal proceeding is presumed to have jurisdiction, whether or not there are recitals in its record to show it." 22A C.J.S. Criminal Law 702 (1989).' "Willingham v. State, 796 So. 2d 440, 443 (Ala. Crim. App. 2001)(emphasis added). "Hyer did not include this claim in his Rule 32 petition, and nothing in the Rule 32 record indicates that Hyer was not represented by counsel at his arraignment. We will not presume a jurisdictional defect where there is no indication in the record that one exists. "'This Court will not remand a case to the circuit court to hold an evidentiary hearing on a jurisdictional claim that was not presented in the petitioner's Rule 32 petition unless facts appear in the record affirmatively showing a lack of jurisdiction.' "Fincher v. State, 837 So. 2d 876, 881 (Ala. Crim. App. 2002)." 4 1130801 Hyer v. State (No. CR-12-1711, February 7, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014)(table). Hyer argues that this holding by the Court of Criminal Appeals conflicts with Ex parte Walker, 800 So. 2d 135, 138 (Ala. 2000)("If a Rule 32 petition contains allegations that, if true, would entitle the petitioner to relief, the trial court must hold an evidentiary hearing."). Walker, however, is inapplicable to this case because Hyer did not plead this jurisdictional claim in his petition; therefore, the Court of Criminal Appeals' decision does not conflict with Walker. Nevertheless, Hyer may raise this claim in another Rule 32 petition under Rule 32.2(b), Ala. R. Crim. App., if he can show that he "is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence" or that "good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and ... failure to entertain the petition will result in a miscarriage of justice." 5	May 23, 2014
f5f9c9f8-0f91-40a8-905e-fdecbd3f4c42	Ex parte Spencer Parker. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Spencer Parker v. State of Alabama)(Baldwin Circuit Court: CC-12-722; Criminal Appeals : CR-12-1752). Writ Denied. No Opinion.	N/A	1131136	Alabama	Alabama Supreme Court	Rel: 8/29/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1131136 ____________________ Ex parte Spencer Parker PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Spencer Parker v. State of Alabama) (Baldwin Circuit Court, CC-12-722; Court of Criminal Appeals, CR-12-1752) BRYAN, Justice. WRIT DENIED. NO OPINION. 1131136 Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. Moore, C.J., dissents. 2 1131136 MOORE, Chief Justice (dissenting). I dissent from the denial of the petition for a writ of certiorari in this case because Spencer Parker was denied his right of confrontation under the Sixth Amendment to the United States Constitution. In an unpublished memorandum, the Court of Criminal Appeals held that Parker did not preserve for review his Sixth Amendment claim because his objection at trial was based on the best-evidence rule and the rule against hearsay. Parker v. State (No. CR-12-1752, June 6, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014) (table). During his trial for unlawful possession of a controlled substance, Parker objected on three separate occasions to the admission of the testimony of Alabama Department of Forensic Sciences section chief Katrina Hanks. Hanks supervised Stephanie Fisher, who actually analyzed the evidence at issue and prepared the forensic drug report the State intended to use against Parker. On the second objection, Parker argued that he had "'absolutely no way to cross-examine [Fisher] because she is not here ....'" Thus it is apparent that Parker objected not only to the alleged admission of hearsay evidence and to the court's alleged 3 1131136 disregard of the best-evidence rule, but also to the denial of his right to confront a witness against him. Therefore, Parker's Sixth Amendment claim was preserved for review. The Court of Criminal Appeals further held that even if Parker had preserved his Sixth Amendment claim, "[b]ecause Hanks was a competent witness who provided live testimony and was subject to cross-examination, we find that the admission of the forensic drug report did not violate Parker's confrontation rights." This holding is plainly contrary to the Sixth Amendment, which provides that, "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." Amend. VI, U.S. Const. (emphasis added). Here, the witness against Parker was Fisher, who prepared the forensic drug report. However qualified Hanks may have been as an expert in drug chemistry, she was not the one who prepared the report used to convict Parker and therefore was not a witness against Parker with regard to that testimony. See Ex parte Ware, [Ms. 1100963, Jan. 17, 2014] ___ So. 3d ___, ___ (Ala. 2014) (Moore, C.J., concurring in part and dissenting in part) ("The Confrontation Clause protects the accused's right to confront the witnesses 4 1131136 against him, not the witnesses' supervisor or reviewer, or the custodian of records."). Under the facts presented to us, it appears Parker has been denied his Sixth Amendment right of confrontation. Accordingly, I respectfully dissent. 5	August 29, 2014
222c52cf-73ca-4c69-9949-eefbc06b32da	Merchants Bank v. Head	N/A	1121142	Alabama	Alabama Supreme Court	Rel: 5/30/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121142 ____________________ Merchants Bank v. Elizabeth Head Appeal from Baldwin Circuit Court (CV-12-901249) BRYAN, Justice. Merchants Bank appeals a judgment entered by the Baldwin Circuit Court in favor of Elizabeth Head on Merchants Bank's claim against her alleging breach of a promissory note. We reverse the judgment and remand the cause with instructions. Facts and Procedural History 1121142 2 In March 2008, David Head ("David") and Elizabeth Head ("Elizabeth") executed a promissory note in favor of Merchants Bank for a $400,000 business loan ("the 2008 promissory note"). The 2008 promissory note was secured by a mortgage on the Heads' personal residence. David had completed the loan application, and Merchants Bank had reviewed his financial information in determining whether to make the loan. According to Merchants Bank, it had requested financial information from both David and Elizabeth but had received information from only David. David and Elizabeth signed the 2008 promissory note on the lines provided at the end of the document, on page three. In signing on page three, David and Elizabeth indicated that they were "agree[ing] to the terms of th[e] note." One of the terms provided, in pertinent part: "I understand that I must pay this note even if someone else has agreed to pay it (by, for example, signing this form or a separate guarantee or endorsement). You may sue me [the signatory] alone, or anyone else who is obligated on this note, or any number of us together, to collect this note." The 2008 promissory note also included a box on page two of the note, which indicated: "Any person who signs within this box does so to give you a security interest in the 1121142 3 Property described on this page. This person does not promise to pay the note. 'I' as used in this security agreement will include the borrower and any person who signs within this box." The box on page two of the 2008 promissory note was left blank. After the 2008 promissory note was executed, Merchants Bank wired the $400,000 to David's personal account. David testified that he then wrote a check distributing the funds to his real-estate-development company, Head Companies, LLC. The Heads renewed the 2008 promissory note in March 2009 and again in March 2010, in August 2010, in February 2011, and, finally, in July 2011. With the exception of the July 2011 renewal, each renewal was signed on page three by both David and Elizabeth. The box on page two was left blank. On the initial version of the July 2011 renewal of the note ("the initial July 2011 note"), however, Elizabeth signed in both the box on page two, indicating that she intended to "give [Merchants Bank] a security interest" in the Heads' personal residence, and at the end of the document on page three. Ron Clolinger, Merchants Bank's assistant vice president and loan-review administrator, testified that Elizabeth's 1121142 Clolinger also testified that attaching the initial July 1 2011 note to the complaint as evidence of David's and Elizabeth's debt was a mistake and that the corrected July 2011 note should have been attached. The corrected July 2011 note was admitted into evidence without objection from David or Elizabeth. 4 signature on page two of the initial July 2011 note was "a mistake in the nature of a scrivener's error and [Merchants] Bank subsequently had the Heads execute a corrected note, which they did knowingly and voluntarily." Merchants Bank's brief, at 10. Elizabeth presented no evidence to the contrary. The "corrected note" ("the corrected July 2011 note") bears the same date as the initial July 2011 note and, like all the previous renewals, was signed by both David and Elizabeth on page three of the document only. The box on page two of the corrected July 2011 note was left blank. The Heads defaulted on the promissory note in April 2012. In September 2012, Merchants Bank sued the Heads, alleging breach of the promissory note and attaching to the complaint the initial July 2011 note as evidence of the debt. David 1 did not answer the complaint, and Merchants Bank obtained a default judgment against him in the amount of $415,142.57 plus interest on the judgment. Elizabeth did answer the complaint, arguing that the note was unenforceable against her because 1121142 5 she had signed the initial July 2011 note only to give a security interest in her and David's residence not "for the purpose of agreeing to pay the debt evidenced thereby" and because she had not received consideration for her signature on the note. Merchants Bank moved for a summary judgment against Elizabeth. That motion was denied. After a bench trial in March 2013, the circuit court entered a final judgment, which provided, in its entirety: "On the evidence presented at trial, judgment is for defendant, Elizabeth Head, on suit on the promissory note. Costs taxed to [Merchants Bank]." Merchants Bank has appealed the circuit court's judgment. Standard of Review "The ore tenus standard of review generally applies to judgments entered following a bench trial." R&G, LLC v. RCH IV-WB, LLC, 122 So. 3d 1253, 1256 (Ala. 2013). "Under the ore tenus standard of review, findings on disputed facts are presumed correct, and the trial court's judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust. Southside Cmty. Dev. Corp. v. White, 10 So. 3d 990, 991 (Ala. 2008). '"'"The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment."'"' 10 So. 3d at 991–92 (quoting Retail 1121142 6 Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So. 2d 924, 929 (Ala. 2007), quoting in turn Waltman v. Rowell, 913 So. 2d 1083, 1086 (Ala. 2005), quoting in turn Dennis v. Dobbs, 474 So. 2d 77, 79 (Ala. 1985))." Lawson v. Harris Culinary Enters., LLC, 83 So. 3d 483, 491 (Ala. 2011). Under the ore tenus standard, "when a trial court makes no specific findings of fact, 'this Court will assume that the trial judge made those findings necessary to support the judgment.'" New Props., L.L.C. v. Stewart, 905 So. 2d 797, 799 (Ala. 2004) (quoting Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So. 2d 375, 378 (Ala. 1992)). "Additionally, we note that 'the ore tenus standard is inapplicable "where the evidence is undisputed, or where the material facts are established by the undisputed evidence." Salter v. Hamiter, 887 So. 2d 230, 234 (Ala. 2004).' Burkes Mechanical[, Inc. v. Ft. James-Pennington, Inc.], 908 So. 2d [905,] 910 [(Ala. 2004)]. In such cases, appellate review is de novo. Id." Lawson, 83 So. 3d at 491. Analysis Merchants Bank makes two arguments on appeal. First, it argues that the circuit court erred in finding that Elizabeth 1121142 7 was not liable to Merchants Bank because, Merchants Bank argues, she signed the initial July 2011 note and the corrected July 2011 note in the capacity of a maker. "A promissory note is a form of contract; therefore, it must be construed under general contract principles. See 11 Am. Jur. 2d Bills and Notes § 2 (1997) ('Bills and notes ... are contracts; accordingly, the fundamental rules governing contract law are applicable to the determination of the legal questions which arise over such instruments.' (footnotes omitted)) .... '"General contract law requires a court to enforce an unambiguous, lawful contract, as it is written."'" Bockman v. WCH, L.L.C., 943 So. 2d 789, 795 (Ala. 2006) (quoting Dawkins v. Walker, 794 So. 2d 333, 339 (Ala. 2001), quoting in turn Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 35–36 (Ala. 1998)). Elizabeth argues here, as she did to the circuit court, that "[t]he language of the [initial July 2011] [n]ote is clear that Elizabeth signed the [n]ote to evidence her consent that a mortgage be taken on her home to secure payment of the [n]ote, not as an agreement to pay the debt evidenced by the [initial July 2011] [n]ote. The Box on page two of the [initial July 2011] [n]ote states, '[t]his person does not promise to pay the note.' There is nothing unclear about that statement, below which Elizabeth's signature appears. It also states Elizabeth's intention in signing the [initial July 2011] [n]ote. 'Any person who signs within this box does so to give you a 1121142 8 security interest in the [p]roperty described on this page.'" Elizabeth's brief, at 30. Elizabeth points to other facts that, she argues, indicate that she intended to give only a security interest in the Heads' residence (e.g., that Merchants Bank examined only David's financial information before agreeing to the loan and that Elizabeth did not deal directly with anyone at Merchants Bank or sign the original loan application in 2008). Merchants Bank argues, however, that Clolinger's undisputed testimony indicated that Elizabeth's signature in the box on page two of the initial July 2011 note was a mistake and that the Heads subsequently executed a corrected version of the note, in which the box on page two was left blank. Thus, Merchants Bank argues, "it was undisputed at trial that Elizabeth signed the note in the capacity of a maker." Elizabeth argues in response that "the [circuit] court was correct in rejecting any evidence that the [initial July 2011] [n]ote was later corrected." Elizabeth's brief, at 35. Specifically, she argues that Merchants Bank had attached the initial July 2011 note to its complaint as evidence of the Heads' debt, that the corrected July 2011 note had been 1121142 9 improperly executed because neither David nor Elizabeth had initialed the first two pages of the document, and that there were no dates on either the initial July 2011 note or the corrected July 2011 note to indicate which version actually was executed later in time. However, as noted previously, Clolinger testified that Merchants Bank had mistakenly attached the initial July 2011 note to its complaint and that the corrected July 2011 note should have been included instead. The corrected July 2011 note was admitted into evidence without any objection from Elizabeth. Clolinger did acknowledge that it was Merchants Bank's general practice to have signatories initial the bottom of each page of a promissory note. However, he did not testify, and Elizabeth has cited no evidence indicating, that a failure to initial the pages rendered the promissory note invalid. Elizabeth has also failed to cite any evidence contradicting Clolinger's testimony that the corrected July 2011 note was executed after the initial July 2011 note because the corrected July 2011 note was intended to fix the mistake on the initial July 2011 note. Thus, the undisputed evidence indicates that the corrected July 2011 note is the 1121142 We note that our conclusion in this regard is consistent 2 with Elizabeth's signature on the original promissory note in 2008 and on all the renewals of that obligation before July 2011. 10 true representation of the Heads' debt to Merchants Bank, and the unambiguous language of the corrected note indicates that Elizabeth signed the note as a maker. Insofar as the circuit court's judgment in favor of Elizabeth was based on a finding that she had not acted as a co-maker in executing the July 2011 renewal of her obligations, that finding is in error. 2 Merchants Bank also argues that the 2008 promissory note was supported by sufficient consideration and, therefore, that the July 2011 renewal was enforceable against her. "'The basic elements of a contract are an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement.'" Stacey v. Peed, [Ms. 1120661, October 4, 2013] ___ So. 3d ___, ___ (Ala. 2013) (quoting Hargrove v. Tree of Life Christian Day Care Ctr., 699 So. 2d 1242, 1247 (Ala. 1997)). "'A test of good consideration for a contract is whether the promisee at the instance of the promisor has done, forborne or undertaken to do anything real, or whether he has suffered any detriment, or whether in return for the promise he has done something he was not bound to do, or 1121142 11 has promised to do some act or to abstain from doing something.' "Roberts v. Lindsey, 242 Ala. 522, 525, 7 So. 2d 82, 84 (1942); Russell v. Russell, 270 Ala. 662, 668, 120 So. 2d 733, 738 (1960). '[T]o constitute consideration for a promise, there must have been an act, a forbearance, a detriment, or a destruction of a legal right, or a return promise, bargained for and given in exchange for the promise.' Smoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d 585, 587 (Ala. 1987)." Ex parte Grant, 711 So. 2d 464, 465 (Ala. 1997). A promissory note "is 'prima facie evidence of sufficient consideration for the execution thereof, and the burden of proof is on the defendants to show there was no consideration.'" Seier v. Peek, 456 So. 2d 1079, 1081 (Ala. 1984) (quoting Day v. Ray E. Friedman & Co., 395 So. 2d 54, 56 (Ala. 1981)). Elizabeth argues that "'[c]onflicting evidence as to whether the consideration was adequate naturally creates a question of fact to be determined by the fact trier.' Nash v. Vann, 390 So. 2d 301, 303 (Ala. Civ. App. 1980). Here, the [circuit] court, after hearing evidence ore tenus, entered a judgment in favor of Elizabeth, which must be presumed to be based on a finding that she met her burden by showing that she did not receive adequate consideration in return for executing the instrument." Elizabeth's brief, at 21-22. 1121142 12 Elizabeth argued to the circuit court, as she does here, that the business loan could not serve as consideration for her execution of the promissory note because "[t]he evidence at trial showed that [she] not only failed to receive the loan proceeds bargained for in the Promissory Note, but she failed to receive any pecuniary benefit whatsoever. The loan proceeds were all wire transferred to an account belonging to David [Head] alone, and from there, the funds were transferred to a business account for Head Companies. Elizabeth Head received no benefit from the loan proceeds because she had no interest in either the bank account of David [Head], or that of Head Companies." Elizabeth's brief, at 22. It is undisputed that David and Elizabeth executed the promissory note in exchange for a $400,000 business loan from Merchants Bank. It is also undisputed that Elizabeth did not receive any of the funds directly but that the money was transferred to David and used for Head Companies. Thus, none of the evidence as to the "adequacy" of the consideration was in conflict, and our review of this issue is de novo. See Lawson, 83 So. 3d at 491 ("'[T]he ore tenus standard is inapplicable "where the evidence is undisputed, or where the material facts are established by the undisputed evidence." ... In such cases, appellate review is de novo.'" (quoting 1121142 13 Burkes Mechanical Inc. v. Ft. James-Pennington Inc., 908 So. 2d 905, 910 (Ala. 2004), quoting in turn Salter v. Hamiter, 887 So. 2d 230, 234 (Ala. 2004))). Elizabeth has cited no authority supporting her position that the $400,000 transferred to David cannot constitute consideration for her signature on the note, and we have found none. In fact, in Christie v. Durden, 205 Ala. 571, 572, 88 So. 667, 668 (1921), this Court stated that "consideration sufficiently exists or is implied if it arises from any act of the plaintiff from which the defendant or a third party at defendant's instance derived a pecuniary benefit, if such act is performed by the plaintiff to the desired end, with expressed or implied assent of the defendant." David and Head Companies received a pecuniary benefit that, from all that appears, was the "desired end" of David's and Elizabeth's execution of the 2008 promissory note and the subsequent renewals and was accomplished with Elizabeth's assent. David testified that the purpose of the note was to secure "a business loan," and Elizabeth makes no argument that, at the time she signed the 2008 promissory note or any of the renewal notes thereafter, she anticipated receipt of any of the loan 1121142 14 funds or had any other expectation than that the money would be transferred to David and used for his business. Thus, she had not demonstrated that she did not receive the benefit for which she bargained in 2008. Elizabeth relies on Kittle v. Sand Mountain Bank, 437 So. 2d 100 (Ala. 1983), in arguing that "[t]he receipt by [David] of the loan proceeds from the [2008 promissory] [n]ote does not constitute consideration flowing to [her] because consideration is required with respect to each spouse when a married couple contracts with a third party." Elizabeth's brief, at 23. However, Kittle is distinguishable in that the husband and wife in that case executed a mortgage as security for a preexisting debt of the husband's alone. This Court stated: "Since Mrs. Kittle did not sign the notes [that represented the debt for which the loan at issue was procured] and did not receive any of the loan proceeds, the mortgage of February 12, 1976, as to her, was null and void for lack of consideration. This court held in Bynum Mercantile Co. v. First National Bank of Anniston, 187 Ala. 281, 65 So. 815 (1914), that a mortgage given as security for a pre- existing debt of the mortgagor is valid and binding upon that consideration, but where the mortgagor is a stranger to the debt, and there is no other consideration, it is void for want of consideration." 1121142 15 Kittle, 437 So. 2d at 101. There is no evidence indicating that David and Elizabeth executed the promissory note to secure a preexisting debt of David's alone. Instead, they signed the 2008 promissory note to secure a new debt, and the plain language of the promissory note indicates that the debt is owed by each signatory. Merchants Bank cites Dalo v. Thalmann, 878 A.2d 194 (R.I. 2005), in which the Supreme Court of Rhode Island addressed an argument similar to the one presented in this case. In Dalo, Mark Stepanian and his then wife Judy Thalmann executed a promissory note payable to Kathy Dalo for $20,000. The note "expressly provided that Stepanian and [Thalmann] were jointly and severally liable for repayment of the note." 878 A.2d at 196. Stepanian and Thalmann divorced and subsequently defaulted on the note. Dalo obtained a default judgment against Stepanian, and the case continued to trial on the claim against Thalmann. Like Elizabeth, Thalmann argued at trial that the note was unenforceable against her because "'[she] never received any proceeds or benefit from this loan; ... [Dalo] ... never remitted to [Thalmann] any proceed[s] of this loan; [and] [Dalo] admit[ted] she remitted the proceeds 1121142 16 of this loan to Mark Stepanian in the form of a check.'" 878 A.2d at 198. The Rhode Island Supreme Court rejected Thalmann's argument, stating: "As a matter of law, these allegations do not afford defendant a means to escape liability for her obligations under the note. General Laws 1956 § 6A- 3-116 provides, in pertinent part: "'Joint and several liability- Contribution.-(a) Except as otherwise provided in the instrument, two or more persons who have the same liability on an instrument as makers, drawers, acceptors, indorsers who indorse as joint payees, or anomalous indorsers are jointly and severally liable in the capacity in which they sign.' (Emphases added.) "The note does not differentiate between the liability of Stepanian and Thalmann; in particular, both parties signed a note that clearly indicated that 'we jointly and severally promise to pay to the order of Kathy Dalo [$20,000, plus] 7% interest.' "... By failing to present any evidence that she or Stepanian fulfilled their obligations under the note or that she was entitled to a defense or otherwise excused for nonpayment, [Thalmann] failed to establish the existence of an issue of disputed fact, and the hearing justice properly granted summary judgment in favor of plaintiff on the issue of liability." Dalo, 878 A.2d at 198. 1121142 17 Like the General Laws of Rhode Island, Alabama law provides that, "[e]xcept as otherwise provided in the instrument, two or more persons who have the same liability on an instrument as makers, drawers, acceptors, indorsers who indorse as joint payees, or anomalous indorsers are jointly and severally liable in the capacity in which they sign." § 7- 3-116(a), Ala. Code 1975. See also Elrod v. Trussell, 266 Ala. 383, 385, 96 So. 2d 813, 814 (1957) ("The [promissory] note read 'I or we promise to pay' and was signed by both defendants. The defendants are regarded as joint makers and are jointly and severally liable to the payee."). Like the promissory note in Dalo, the 2008 promissory note and subsequent renewals expressly provide that each signatory "must pay this note even if someone else has also agreed to pay it." Thus, as in Dalo, David and Elizabeth were jointly and severally liable for the obligations set forth in the corrected July 2011 note, and "[Elizabeth's] allegations [that she did not receive any of the proceeds of the 2008 business loan] do not afford [her] a means to escape liability for her obligations under the note." Dalo, 878 A.2d at 198. Conclusion 1121142 18 For the foregoing reasons, we hold that in July 2011 Elizabeth renewed her obligations under the 2008 promissory note in the capacity of a maker and that her obligations under the 2008 promissory note were supported by valid consideration. It is undisputed that she and David defaulted on their obligations under the corrected July 2011 note. Thus, Elizabeth is liable to Merchants Bank on its claim of breach of promissory note, and the circuit court erred in entering a judgment in her favor. Therefore, the circuit court's judgment is reversed and the cause is remanded for the circuit court to enter a judgment in favor of Merchants Bank and to determine damages owed by Elizabeth. REVERSED AND REMANDED WITH INSTRUCTIONS. Moore, C.J., and Bolin, Murdock, and Main, JJ., concur.	May 30, 2014
5de58d31-3ddf-4f0b-9c67-22516d90d810	Kelley et al. v. Dailey	N/A	1130010	Alabama	Alabama Supreme Court	REL:06/06/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130010 ____________________ Ex parte David Labbe, mayor of the City of Valley Grande, and City of Valley Grande PETITION FOR WRIT OF MANDAMUS (In re: Marcus Kelley et al. v. W. Alan Dailey, County Coroner of Dallas County, et al.) (Dallas Circuit Court, CV-13-900002) BOLIN, Justice. The City of Valley Grande ("the City") and its mayor, David Labbe, who was sued in his official capacity 1130010 (hereinafter collectively referred to as "the petitioners"), petition this Court for a writ of mandamus directing the Dallas Circuit Court to vacate its order denying the petitioners' motion for a summary judgment and to enter a summary judgment for the petitioners on the claims asserted against them by Marcus Kelley, Yolanda Kelley, and Jeffery Barlow, Jr. (hereinafter collectively referred to as "the plaintiffs"). We grant the petition and issue the writ. Facts and Procedural History The Valley Grande Volunteer Fire Department ("the fire department") was incorporated on August 22, 1983, specifically for "charitable purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1954." The petitioners state that the City was incorporated sometime after the fire department was created. On August 4, 2008, the City entered into an agreement with the fire department pursuant to which the fire department agreed to provide fire- protection service to the City "without remuneration." However, the petitioners did acknowledge in the fire-service agreement that the City "ha[d] in the past and likely [would] continue to provide [the fire department] with some level of 2 1130010 annual funding." The evidence presented in support of the petitioners' summary-judgment motion indicates that the City made annual donations of $15,000 to the fire department in the years 2010-2012. Mayor Labbe testified in his affidavit that the City does not maintain a fire department and that it does not employ, train, or supervise firefighters. Mayor Labbe testified that the City and the fire department are separate entities and that the City does not maintain or reserve any right of control over the fire department. On January 25, 2011, James Barlow, Sr., and his mother, Bertha Yeager, were killed in a house fire. W. Alan Dailey, the coroner for Dallas County, pronounced Barlow and Yeager dead at the scene and directed members of the fire department to remove the remains of the deceased from the house. The plaintiffs allege that the fire department represented that it had recovered all the decedents' remains. The plaintiffs 1 state that in April 2011 the family discovered a body bag at the scene of the fire that contained additional remains of Barlow. The complaint asserts that the plaintiffs were the 1 "caregivers" to and next of kin of the decedents. 3 1130010 On January 4, 2013, the plaintiffs sued the petitioners, among others, asserting claims of negligence; wantonness; intentional infliction of emotional distress; fraud; suppression; and negligent and/or wanton hiring, training, and supervision of the individual firefighters against both the City and the mayor. On February 12, 2013, the petitioners answered the complaint, asserting certain affirmative defenses, including immunity. On February 25, 2013, the petitioners moved the trial court for a summary judgment, arguing, among other things, that the petitioners did not employ, supervise, or train any firefighters; that petitioners did not reserve any right of control over the fire department; that the petitioners were entitled to immunity pursuant to the Volunteer Service Act, § 6-5-336, Ala. Code 1975; that the City was immune from suit for intentional torts of its agents, officers, or employees pursuant to § 11-47-190, Ala. Code 1975; and that the petitioners could not be liable for negligent and/or wanton hiring, training, or supervision of the individual firefighters because, they said, no master-servant relationship existed between the City and the fire department. 4 1130010 On June 11, 2013, the plaintiffs filed their response in opposition to the motion for a summary judgment, arguing that the fire department is de facto the fire department for the City pursuant to a contract entered into between the City and the fire department in which the fire department agreed to provide fire-protection service to the City in exchange for annual funding provided by the City. The plaintiffs further argued that a master-servant relationship existed between the City and the fire department such that the City could be held liable for the actions of the fire department. On August 28, 2013, the trial court entered an order denying the petitioners' summary-judgment motion. This petition followed. Because of the procedural posture of this case, we address only those issues grounded on a claim of immunity; we do not address, and the petitioners did not argue, the claim alleging negligent hiring, training, or supervision of the individual firefighters. Standard of Review This Court has stated the following regarding the exception to the general rule that the denial of a motion for a summary judgment is not reviewable by a petition for a writ 5 1130010 of mandamus and the appropriate standard of review on a petition for a writ of mandamus: "'While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.' Ex parte Rizk, 791 So. 2d 911, 912 (Ala. 2000). A writ of mandamus is an extraordinary remedy available only when there is: '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001)." Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003). However, "whether review of the denial of a summary-judgment motion is by a petition for a writ of mandamus or by permissive appeal, the appellate court's standard of review remains the same. If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P. In determining whether there is a material fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in the light most favorable to the nonmoving party, accord the nonmoving party all reasonable favorable inferences from the evidence, and resolve all reasonable doubts against the moving party, considering only the evidence before the trial court at the time it denied the motion for a summary judgment. Ex parte Rizk, 791 So. 2d 911, 912 (Ala. 2000)." Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002). 6 1130010 Discussion The petitioners argue that the Volunteer Service Act immunizes the individual firefighters from liability in this case. The petitioners further argue, in reliance on Hollis v. City of Brighton, 885 So. 2d 135 (Ala. 2004), that, because the individual firefighters are immune from civil liability, they are protected from the vicarious liability for the firefighters' tortious acts. The plaintiffs contend that the petitioners are liable for the actions of the fire department because of a contractual relationship, as well as a master- servant relationship that they say exists between the petitioners and the individual firefighters. Section 6-5-336, Ala. Code 1975, provides: "(a) This section shall be known as 'The Volunteer Service Act.' ".... "(c) For the purposes of this section, the meaning of the terms specified shall be as follows: "(1) Governmental entity. Any ... municipality ...; "(2) Nonprofit corporation. Any corporation which is exempt from taxation pursuant to Section 501(a) of the Internal Revenue Code, 26 U.S.C. Section 501(a); 7 1130010 "(3) Nonprofit organization. Any organization which is exempt from taxation pursuant to Section 501(c) of the Internal Revenue Code, 26 U.S.C. Section 501(c), as amended; "(4) Volunteer. A person performing services for a nonprofit organization, a nonprofit corporation, a hospital, or a governmental entity without compensation, other than reimbursement for actual expenses incurred. The term includes a volunteer serving as a director, officer, trustee, or direct service volunteer. "(d) Any volunteer shall be immune from civil liability in any action on the basis of any act or omission of a volunteer resulting in damage or injury if: "(1) The volunteer was acting in good faith and within the scope of such volunteer's official functions and duties for a nonprofit organization, a nonprofit corporation, hospital, or a governmental entity; and "(2) The damage or injury was not caused by willful or wanton misconduct by such volunteer. "(e) In any suit against a nonprofit organization, nonprofit corporation, or a hospital for civil damages based upon the negligent act or omission of a volunteer, proof of such act or omission shall be sufficient to establish the responsibility of the organization therefor under the doctrine of 'respondeat superior,' notwithstanding the immunity granted to the volunteer with respect to any act or omission included under subsection (d)." 8 1130010 This Court has specifically addressed the Volunteer Service Act in the context of fire-protection services provided by a volunteer fire department and the liability of a municipality for the alleged negligent and wanton acts of the firefighters. In Hollis, supra, the plaintiffs sued the City of Brighton alleging that the volunteer fire department had negligently failed to extinguish a fire that destroyed their house. The plaintiffs alleged that the City of Brighton had undertaken a duty to provide skillful fire-protection services by creating a volunteer fire department and then had breached that duty through the negligent acts of the firefighters. The plaintiffs also alleged that the City of Brighton was vicariously liable for the negligent or wanton acts of the individual firefighters in failing to extinguish the fire that destroyed their house. The City of Brighton argued in support of its motion for a summary judgment that it was entitled to substantive immunity from the plaintiffs' claims for direct liability and vicarious liability for the acts or omissions of the fire department and its firefighters. The city also argued that the Volunteer Service Act immunized the volunteer firefighters 9 1130010 from individual liability and thereby protected the city from vicarious liability for the firefighters' torts. The plaintiffs argued in response to the motion for a summary judgment that the City of Brighton was not entitled to substantive immunity on their claims of direct and vicarious liability of the city for the tortious acts of the fire department and its firefighters. The plaintiffs also argued that the Volunteer Service Act was not applicable because, they said, the firefighters were not "volunteers" within the meaning of the Volunteer Service Act. The plaintiffs contended that the firefighters were not volunteers because the city paid the firefighters a stipend of $10 per fire for expenses. The trial court entered a summary judgment in favor of the City of Brighton. On appeal, this Court concluded that the firefighters were "volunteers" within the meaning of the Volunteer Service Act and that, "in creating a volunteer fire department, a city does not thereby undertake a legally enforceable duty to provide skillful fire protection." Hollis, 885 So. 2d at 141. This Court reasoned that "because, in creating a volunteer fire department, a city is relegated to the vagaries of 10 1130010 volunteer manpower, the undertaking by the city is too indistinct to support a legally enforceable duty to provide skillful fire protection." Hollis, 885 So. 2d at 141. Thus, this Court affirmed the summary judgment as to the direct- liability claim against the city because "the [c]ity did not owe a duty to provide skillful fire protection." Id. As to the claim seeking to hold the City of Brighton vicariously liable for the acts or omissions of the firefighters, this Court stated: "The vicarious liability of a putative master under the rule of respondeat superior depends upon the liability of the putative servant. See Larry Terry Contractors, Inc. v. Bogle, 404 So. 2d 613, 614 (Ala. 1981) ('"[W]hen [a] principal and his agent are sued in [a] joint action in tort for misfeasance or malfeasance of the servant, and his liability for the conduct of said servant is under the rule of respondeat superior, a verdict in favor of the servant entitles the master to have the verdict against him set aside."') (quoting Louisville & N.R.R. v. Maddox, 236 Ala. 594, 600, 183 So. 849, 853 (1938)), and Gore v. City of Hoover, 559 So. 2d 163, 165 (Ala. 1990), overruled on other grounds, Franklin v. City of Huntsville, 670 So. 2d 848 (Ala. 1995) (holding that a city could not be held vicariously liable for the act of a magistrate who was immune from liability). Thus, if a putative servant is not liable, either because he is innocent or because he is immune, no liability exists to be visited upon the putative master under the rule of respondeat superior. Id. ".... 11 1130010 "As discussed above, the firefighters, the putative servants in the case now before us, were volunteers who did not receive compensation for their service as volunteer firefighters. Consequently, they were immune from liability for negligence under the Volunteer Service Act. Because the firefighters were immune from liability for negligence under the Volunteer Service Act, no liability for negligence could befall them to be visited upon the City [of Brighton], the putative master in the case now before us. While the plaintiffs allege not only negligence but also wantonness by the firefighters, and while § 6–5–336 excepts wanton volunteers from the immunity, a city cannot be liable for wanton conduct. Town of Loxley v. Coleman, 720 So. 2d 907, 909 (Ala. 1998), and Hilliard v. City of Huntsville, 585 So. 2d 889, 892 (Ala. 1991)." Hollis, 885 So. 2d at 141-42. Thus, this Court affirmed the summary judgment on the plaintiffs' claim against the City of Brighton alleging vicarious liability based on the acts or omissions of the volunteer firefighters. Hollis, supra. Here the plaintiffs seek to circumvent the immunity afforded by the Volunteer Service Act by arguing that the fire department was not a volunteer department within the meaning of the Volunteer Service Act but, rather, that it was a professional fire department operating under the control of the City. The plaintiffs base their contention that the fire department is a professional fire department on the contractual relationship that exists between the City and the 12 1130010 fire department and the annual donations made by the City to the fire department. Initially we note that Mayor Labbe testified in his affidavit that the City does not maintain a fire department and that it does not employ, train, or supervise firefighters. Mayor Labbe further testified that the City and the fire department are separate entities and that the City does not maintain or reserve any right of control over the fire department. The plaintiffs failed to present any evidence to the contrary in their response in opposition to the motion for summary judgment. The agreement entered into by the City and the fire department specifically provided that the fire department would provide the City fire-protection services "without remuneration." Nothing in the agreement granted the City any authority to control, train, or supervise the firefighters or the fire department. Although the agreement specifically provided that the individual firefighters would not be paid salaries, it did provide that the City would provide the fire department with some level of funding. In fact, the City donated to the fire department $15,000 for the years 2010- 13 1130010 2012. Section 11-43-140, Ala. Code 1975, specifically provides that "[c]ities and towns may maintain and operate a volunteer ... fire department and may do any and all things necessary to secure efficient service." (Emphasis added.) Municipalities may enter into contracts in furtherance of a governmental purpose. § 11-40-1, Ala. Code 1975. Further, § 9-3-18(a), Ala. Code 1975, provides that it is the intent of the legislature to provide assistance to organized volunteer fire departments, which are deemed to be "public in nature, as they protect the health, safety, and welfare of the public." Therefore, "any municipality ... may donate money, property, equipment, or other thing of value to [organized volunteer fire departments]." § 9-3-18(b), Ala. Code 1975. Based on the foregoing statutory provisions, the attorney general has opined that a municipality may, and in fact should, contract with a volunteer fire department to provide fire services to its citizens in exchange for funds and equipment. See Op. Att'y Gen. No. 2005-046 (January 19, 2005); Op. Att'y Gen. No. 92-00260 (April 24, 1992); and Op. Att'y Gen. No. 84-00279 (May 15, 1984). 14 1130010 We conclude that the agreement between the City and the fire department, as well as the donations made to the fire department by the City, does not alter the fire department's status as a "volunteer" fire department. Nothing in the agreement between the City and the fire department or in the donations made by the City to the fire department can be construed as converting the volunteer fire department to a professional fire department. The foregoing statutory provisions allow municipalities, including the City, to enter into contracts and to make monetary donations to volunteer fire departments in exchange for fire-protection services without altering the volunteer status of the fire department. Having determined that the fire department is a "volunteer" fire department, we must conclude that its firefighters are thus immune from liability for their negligent acts under the Volunteer Service Act. Because the firefighters are immune from liability for their negligent acts, the City is likewise immune from liability for the negligent acts of the firefighters. Hollis, supra. Further, because the City cannot be held liable for wanton or intentional conduct, it is likewise immune from suit for those 15 1130010 claims asserted by the plaintiffs alleging wanton and/or intentional conduct by the City. § 11-47-190, Ala. Code 1975; Hollis, supra; and Walker v. City of Huntsville, 62 So. 3d 474 (Ala. 2010). Finally, the claims asserted against Mayor Labbe in his official capacity are simply claims asserted against the City. Dickinson v. City of Huntsville, 822 So. 2d 411 (Ala. 2001). Accordingly, Mayor Labbe enjoys the same protections from suit in this case as does the City. Conclusion The petitioners have established a clear legal right to the relief sought. Accordingly, we grant the petition for a writ of mandamus in this case and direct the trial court to enter a summary judgment for the petitioners. PETITION GRANTED; WRIT ISSUED. Stuart, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs specially. Moore, C.J., dissents. 16 1130010 MURDOCK, Justice (concurring specially). Although § 6-5-336, Ala. Code 1975, the Volunteer Service Act, speaks in terms of "immunity" for the parties to whom it is directed, in Hollis v. City of Brighton, 885 So. 2d 135, 141 (Ala. 2004), this Court held that a municipality, by relying upon the services of a volunteer fire department, does not "undertake a legally enforceable duty to provide skillful fire protection." With this in mind, and given the main opinion's reliance upon Hollis, I concur. 17	June 6, 2014
f4767101-fcba-4fb5-9e93-4555c6da1453	Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Terry Donell Watson v. State of Alabama) (Tuscaloosa Circuit Court: CC-99-487.60; CC-99-1393.60; Criminal Appeals : CR-12-2002). Writ Denied. No Opinion.	N/A	1130838	Alabama	Alabama Supreme Court	Rel: 8/8/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130838 ____________________ Ex parte State of Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Terry Donnell Watson v. State of Alabama) (Tuscaloosa Circuit Court, CC-99-487.60 and CC-99-1393.60; Court of Criminal Appeals, CR-12-2002) BRYAN, Justice. WRIT DENIED. NO OPINION. Moore, C.J., and Bolin, Murdock, and Main, JJ., concur. Bryan, J., concurs specially. 1130838 BRYAN, Justice (concurring specially). The State of Alabama filed a petition for a writ of certiorari requesting this Court to review the Court of Criminal Appeals' decision in this case on the grounds that a question before the Court of Criminal Appeals presents a question of first impression for the Supreme Court of Alabama and that the Court of Criminal Appeals' decision conflicts with Ex parte Seymour, 946 So. 2d 536 (Ala. 2006). See Rule 39(a)(1)(C) and (D), Ala. R. App. P. I concur in denying the State's petition for a writ of certiorari based on those two grounds for certiorari review. I write specially to note that my vote to deny the State's petition should not be construed as approval of this Court's decision in Ex parte Holbert, 4 So. 3d 410 (Ala. 2008), which was decided before I became a Justice on the Court. The State did not ask this Court to consider overruling Ex parte Holbert. 2	August 8, 2014
0ea03078-1ad8-4927-9f33-2e3fb5ee9bb5	Ex parte T.M. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: T.M. v. M.D.) (DeKalb Juvenile Court: JU-08-117.02; Civil Appeals : 2121005). Writ Denied. No Opinion.	N/A	1130811	Alabama	Alabama Supreme Court	REL: 07/03/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130811 _________________________ Ex parte T.M. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: T.M. v. M.D.) (DeKalb Juvenile Court, JU-08-117.02; Court of Civil Appeals, 2121005) WISE, Justice. WRIT DENIED. NO OPINION. 1130811 Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., dissents. 2 1130811 MOORE, Chief Justice (dissenting). This petition raises important questions about the propriety of terminating the parental rights of a natural father, T.M., to satisfy the desire of the mother's new husband to adopt the father's child as his own. The natural father poses no danger to the welfare of his child, whose only supposed benefit from the termination of his father's parental rights is that the child will be spared from learning of his true paternity until many years in the future. Because I believe that the Court of Civil Appeals seriously erred in affirming the termination of T.M.'s parental rights, I respectfully dissent from the denial of T.M.'s petition for a writ of certiorari. I. Facts and Procedural History T.M. ("the father") and M.D. ("the mother") began dating in high school when they were 17 years old. During their senior year, the mother, who was living with her parents, became pregnant. The father and the mother concealed the pregnancy from everyone, including the mother's parents, who learned one night in September 2007 that the mother needed to go to the hospital to give birth. In February 2008, the couple 3 1130811 consented to transferring temporary legal custody of the child to the mother's parents. The mother continued to live with her parents and cared for the child with her parents' help. A year after the child's birth, the couple broke up. Although the father had visited the child regularly up to that point, his visits after the breakup became sporadic. The last time he saw the child before the termination hearing in July 2013 was on his son's third birthday in September 2010. He claims that his visits ceased because the mother and her parents deliberately avoided him and he eventually gave up trying to see the child. The father's sister provided some corroboration of this testimony, but the mother and her parents denied that they had avoided the father. The father's pastor testified that the father came to him in 2009 and asked for help in getting to see his son. The father testified that he hired a lawyer in the fall of 2012 to seek visitation but that he was unable to effect service on the mother. In 2010, the father married and started a family. He has a daughter who is now three years old. In May 2012, the mother married and moved from her parents' home to live with her husband and the child, who calls the husband "Daddy." The 4 1130811 father would like his son to know that he is the father and is willing to have a gradual structured reintroduction to his son that would not be disorienting to the child. The mother claims that simply knowing about the father would be emotionally stressful for the child. In February 2013, in order to facilitate a stepparent adoption of the child by her husband, the mother moved the juvenile court to terminate the father's parental rights. The father counterclaimed for an order declaring paternity and for custody. He also sought temporary visitation. The juvenile court heard testimony from 10 witnesses. Finding that the father had abandoned his son, a statutory ground for the termination of parental rights, § 12-15- 319(a)(1), Ala. Code 1975, the juvenile court terminated the father's parental rights in order, it reasoned, to provide the child with "stability." The juvenile court did not discuss or analyze any viable alternatives to termination. The Court of Civil Appeals affirmed the juvenile court's ruling on the ground of abandonment and the lack of viable alternatives. T.M. v. M.D., [Ms. 2121005, April 11, 2014] ___ So. 3d ___ (Ala. Civ. App. 2014). However, the Court of Civil Appeals did 5 1130811 not seriously consider the alternative of maintaining the status quo and allowing the father visitation. II. Analysis "[U]nder Ex parte Beasley, [564 So. 2d 950 (Ala. 1990),] upon finding that abandonment constitutes a ground for a termination of parental rights, a trial court must consider whether viable alternatives to termination exist." Ex parte J.E., 1 So. 3d 1002, 1013 (Ala. 2008) (Cobb, C.J., concurring specially). In previous cases in which a custodial parent has initiated a termination-of-parental-rights proceeding, appellate courts have been reluctant to affirm the severance of the parental bond between the child and the noncustodial parent in the absence of evidence that the noncustodial parent poses some tangible threat to the child's welfare. "Since [1987] this court has consistently held that termination of parental rights is not appropriate in cases like this one in which the children are safely residing with the custodial parent and the continuation of the noncustodial parent's parental rights does not present any harm to the children." A.J.H.T. v. K.O.H., 983 So. 2d 394, 406-07 (Ala. Civ. App. 2007) (Moore, J., concurring in part and dissenting in part). See also Ex parte M.D.C., 39 So. 3d 1117, 1143 n.14 (Ala. 2009) (Murdock, J., dissenting) (noting that cases "come 6 1130811 before the appellate courts of this State in which the record suggests that an effort to terminate has occurred because of animosity or spite, out of convenience, or simply to accommodate a new spouse who wishes to adopt a child" (emphasis added)). 1 In Ex parte A.S., 73 So. 3d 1223 (Ala. 2011), the mother was incarcerated, and the grandmother had sole legal custody of the child. The grandmother petitioned to terminate the mother's parental rights in order to adopt the child. The trial court terminated the mother's parental rights, and the Court of Civil Appeals affirmed the termination. This Court reversed the Court of Civil Appeals' judgment, holding that "[t]he grandmother's maintaining custody of the child and having the ability to determine and supervise the mother's visitation with the child is a viable alternative to termination of the mother's parental rights ...." 73 So. 3d at The concept that a custodial parent may initiate the 1 termination of the parental rights of a noncustodial parent seems inherently dubious to me. What is the purpose of terminating the parental rights of the noncustodial parent when the child is already experiencing permanency with the custodial parent? See S.D.P. v. U.R.S., 18 So. 3d 936, 944 (Ala. Civ. App. 2009) (Moore, J., concurring specially) (noting that "[t]he record indicates that the continuation of the father-child relationship does not currently affect the stability and permanency of the child in any manner"). 7 1130811 1229. In S.M.M. v. R.S.M., 83 So. 3d 572 (Ala. Civ. App. 2011), the father of the child, who had sole custody, sought to terminate the parental rights of the mother, who had a prison record. The trial court terminated the mother's parental rights. The Court of Civil Appeals reversed its judgment, holding that "[m]aintenance of the status quo and allowing the mother continued supervised visitation with the child adequately protects the welfare of the child while allowing for a beneficial relationship with both parents." 83 So. 3d at 577. The court specifically noted that "no evidence was offered to suggest that [the mother] posed a physical threat to the child." Id. at 576. In this case no evidence was presented indicating that the father posed a threat of physical harm to the child. Instead, the mother predicted that the child would experience emotional conflict by knowing his father while being raised by the husband. The Court of Civil Appeals considered this testimony to be clear and convincing evidence that no viable alternative to the termination of the father's parental rights existed: "The mother and her witnesses offered testimony in opposition to the grant of visitation, saying that 8 1130811 visitation would cause the child to experience pain, a broken heart, and emotional conflict because he has no knowledge of his biological relationship to the father and believes that the husband is his father. "The evidence was sufficient to support the juvenile court's finding that no viable alternative to the termination of the father's parental rights existed." T.M., ___ So. 3d at ___. The father argues that "[p]arenting time or visitation could have been awarded incrementally, gradually and even supervised if necessary." T.M.'s brief, at 7. The Court of Civil Appeals rejected as unviable the alternative of "gradual visitation with the child." T.M., ___ So. 3d at ___. The difference between this case and those cited above in which the child was residing safely with the custodial parent and thus "continuation of the noncustodial parent's parental rights [did] not present any harm to the children," A.J.H.T., 983 So. 2d at 407, is the presence of a new substitute "Daddy," who is now married to the mother. This circumstance supposedly creates a heart-wrenching conflict for the child that can be remedied only by terminating the parental rights of the natural father. But what about the emotional impact upon the child when years later he learns the identity of his 9 1130811 natural father, whose existence has been deliberately concealed from him? The mother offered the testimony of a social worker who had known the mother and the grandparents for many years and who had recently interviewed the child. When asked if it would be in the child's best interests for the father's parental rights to be terminated, he stated: "I don't know all the factors in the case, so I can't really state that at this point in time." Cutting the child off from knowledge of his natural lineage and a relationship with the father's immediate and extended family -- contact that is more likely to nurture than to harm the child -- seems intuitively detrimental to the child's sound emotional development. See Ex parte Monroe, 727 So. 2d 104 (Ala. 1999) (reinstating a trial court's judgment that awarded a change of custody for the purpose of preserving a child's ties with his extended family). Even were the child to benefit from having his natural father erased from his life, that fact would not justify 2 "Termination of parental rights, by abrogating the 2 parent's legal right to visitation, normally forecloses the child's opportunity to visit or communicate with the parent until the child reaches the age of majority." D.M. Blair, Parent-Initiated Termination of Parental Rights: The Ultimate Weapon in Matrimonial Warfare, 24 Tulsa L.J. 299, 328 (1989) 10 1130811 terminating the father's parental rights. The state may not terminate a parent's rights simply because a child will supposedly experience superior nurturing from an adoptive parent. "[T]hat a more ideal living situation exists for the children provides no basis for terminating the parental rights of the [father]." S.U. v. Madison Cnty. Dep't of Human Res., 91 So. 3d 716, 722 (Ala. Civ. App. 1988). "[T]he courts of this state do not have the power to sever the bonds of blood relationship merely in order to gain some real or fancied advantage for a minor child." Griggs v. Barnes, 262 Ala. 357, 362, 78 So. 2d 910, 916 (1955). A trial court, facing similar facts, stated: "'[T]he Court does not find that it is in the best interests of the child to terminate the parental rights of the biological father merely to delay the child's knowledge of the truth or to avoid or delay facing the same in an organized and therapeutic manner, merely to assist the stepfather in his desire to become an adoptive father.'" K.H.M. v. D.L.I., 895 So. 2d 950, 953 (Ala. Civ. App. 2003) (quoting trial court's order and affirming the trial court's (footnote omitted). 11 1130811 judgment, with one judge concurring and another concurring in the result).3 The right of a father and his son to enjoy their unique natural relationship is fundamental in our law. "The father and the child share reciprocal fundamental constitutional rights to association with one another." Meadows v. Meadows, 3 So. 3d 221, 236 (Ala. Civ. App. 2008) (Moore, J., concurring in the result). The state may sever this bond only if clear and convincing evidence exists that demonstrates the father's unfitness. "The clear and convincing evidence must demonstrate ... that the state has a compelling interest requiring interference with the rights of the parents and that that interest is being advanced by the least restrictive means." Ex parte E.R.G., 73 So. 3d 634, 645 (Ala. 2011). In the circumstances of this case, in which the child resides in a secure and nurturing environment with his mother and her husband, the state has no compelling interest in severing the natural father's parental rights. Furthermore, even if the state had an interest in protecting the child from the In the context of a custody contest between a natural 3 father and a stepfather, the law recognizes a presumption in favor of the natural parent. Ex parte D.J., 645 So. 2d 303, 305-06 (Ala. 1994). 12 1130811 potential emotional upset that might attend learning the truth about his conception, alternatives exist that are less drastic than a permanent severance of the child's filial bond with his natural father. See Franz v. United States, 707 F.2d 582, 602 (D.C. Cir. 1983) ("Severance of the filial bond ... obviously cuts deeply into the emotional interests of both parent and child ...."); Corey L. v. Martin L., 45 N.Y.2d 383, 392, 408 N.Y.S.2d 439, 443, 380 N.E.2d 266, 271 (1978) ("The filial bond is one of the strongest, yet most delicate, and most inviolable of all relationships ...."). Although "[a] juvenile court has an imperative duty to exhaust all viable alternatives before terminating a parent's parental rights," S.U., 91 So. 3d at 723, in this case the juvenile court did not consider any alternatives to termination of the father's parental rights. "[I]f some less drastic alternative to termination of parental rights can be used that will simultaneously protect the children from parental harm and preserve the beneficial aspects of the family relationship, then a juvenile court must explore whether that alternative can be successfully employed instead of terminating parental rights." T.D.K. v. L.A.W., 78 So. 3d 1006, 1011 (Ala. Civ. App. 2011) (emphasis added). See also Ex parte Beasley, 564 So. 2d 950, 13 1130811 955 (Ala. 1990) (reversing the Court of Civil Appeals' affirmance of the termination of the parental rights of the noncustodial parent because the Court of Civil Appeals did not address "the issue of whether other alternatives, less drastic than termination of parental rights, were available to protect the best interests of the child"). Maintaining the status quo and allowing the father visitation on a gradually increasing basis is a viable alternative to termination of the father's parental rights. Granting the father visits with his son would preserve the child's current home environment with the mother and the husband while allowing both father and child to enjoy their unique relationship. In short, "the evidence at this time 4 does not rise to a level of being so clear and convincing as to support termination of the parental rights of the [father], such action being the last and most extreme disposition permitted by statute." East v. Meadows, 529 So. 2d 1010, 1012 (Ala. Civ. App. 1988) (emphasis added). See also Beasley, 564 Another alternative to terminating the parental rights 4 of the natural parent as a prelude to adoption is to recognize the stepparent as a legal custodian of the child. See Elizabeth J. Aulik, Stepparent Custody: An Alternative to Stepparent Adoption, 12 U.C. Davis L. Rev. 604 (1979). 14 1130811 So. 2d at 952 ("[A] court should terminate parental rights only in the most egregious of circumstances."). III. Conclusion "The first official action of this nation declared the foundation of government in these words: 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.'" Gulf, Colo. & Santa Fe Ry. v. Ellis, 165 U.S. 150, 159-60 (1897) (quoting the Declaration of Independence ¶ 2 (1776)).5 The Creator has also ordained natural parenthood, "and a fallible judge should disturb the relationship thus established only where circumstances compel human intervention." Ex parte Sullivan, 407 So. 2d 559, 563-64 (Ala. 1981) (emphasis added). Because such circumstances are not present in this case, I dissent from the denial of the father's petition for a writ of certiorari. The United States Code, "the official codification of the 5 general and permanent laws of the United States," includes the Declaration of Independence in the section entitled "The Organic Laws of the United States of America." See Black's Law Dictionary 1274 (10th ed. 2014) (defining "organic law" as "[t]he body of laws (as in a constitution) that define and establish a government"). 15	July 3, 2014
46e2f637-d269-40f2-9b51-ff005f0b438e	Hall v. Environmental Litigation Group, P.C.	N/A	1130301	Alabama	Alabama Supreme Court	rel: 06/20/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130301 ____________________ Mary Hall, personal representative of the Estate of Adolphus Hall, Sr., and Anaya McKinnon, personal representative of the Estate of Wanzy Lee Bowman v. Environmental Litigation Group, P.C. Appeal from Jefferson Circuit Court (CV-13-901014) BRYAN, Justice. Mary Hall, the personal representative of the estate of Adolphus Hall, Sr., and Anaya McKinnon, the personal representative of the estate of Wanzy Lee Bowman (hereinafter 1130301 collectively referred to as "the plaintiffs"), appeal from the Jefferson Circuit Court's order dismissing their complaint filed against Environmental Litigation Group, P.C., a law firm ("ELG"). For the reasons set forth herein, we reverse and remand. Facts and Procedural History On March 19, 2013, the plaintiffs filed a complaint in the Jefferson Circuit Court against ELG, requesting a declaratory judgment and alleging one count of unjust enrichment and one count of breach of contract. The plaintiffs asserted those claims on behalf of the estates they represented and on behalf of "others similarly situated as a class action pursuant to Rule 23," Ala. R. Civ. P. The plaintiffs' complaint included the following factual allegations: in the 1990s, ELG agreed to represent hundreds of clients who had been exposed to asbestos, including Adolphus Hall and Bowman; ELG entered into an attorney-employment agreement with each client; pursuant to that agreement, ELG agreed to "take all legal steps necessary to enforce the said tort claim," and in return ELG would receive 40% of amounts collected from any settlement or judgment as its fee; the 2 1130301 agreement also permitted ELG to reimburse itself for reasonable expenses related to the clients' claims; on February 23, 2012, ELG sent a memorandum to all of its "asbestos clients" stating that, as a result of additional work required to obtain the proceeds of a settlement that ELG had negotiated, ELG would begin charging an "administrative- service-expense charge" in the amount of $250 for living clients and $600 for clients who were deceased, which could be deducted from settlement proceeds due to be passed on to the client; between April 2011 and July 2012, the estate of Adolphus Hall received settlement proceeds from three asbestos defendants and, from those proceeds, ELG deducted $192.01 in expenses and a $600 administrative-service-expense charge, in addition to deducting 40% of the settlement proceeds as an attorney fee; and, in December 2012, the estate of Wanzy Lee Bowman received settlement proceeds from one asbestos defendant and ELG deducted $68.64 as an "administrative credit" in addition to deducting 40% of the proceeds as an attorney fee. The plaintiffs alleged that the administrative- service-expense charge "is nothing more than an extra attorney fee collected by ELG in addition to the 40% contingent fee" 3 1130301 provided as the attorney fee in the attorney-employment agreement. The plaintiffs asked the circuit court to enter an order declaring that ELG had breached the attorney-employment agreement "by charging, without legal authority, more than 40% for attorney staff services"; that ELG had been unjustly enriched by its wrongful activities; that the plaintiffs were due monetary relief; and that the plaintiffs were entitled to recover an attorney fee and reasonable expenses related to the prosecution of this action. In addition, the plaintiffs alleged separate counts of unjust enrichment and breach of contract, which were based on ELG's alleged breach of the attorney-employment agreement. In response to the plaintiffs' complaint, ELG moved the circuit court to dismiss the complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief could be granted. ELG attached several 1 ELG also requested that the circuit court seal the record 1 and enter a protective order in favor of ELG so that it would not be required to respond to the plaintiffs' discovery requests, in order to protect the attorney-client privilege of ELG's clients that were not parties to the proceeding. On June 3, 2013, the circuit court entered an order granting ELG's motion for a protective order and its motion to seal the record. 4 1130301 documents to its motion to dismiss, including the attorney- employment agreement signed by Adolphus Hall and Mary Hall, the attorney-employment agreement signed by Bowman, and an "adoption and ratification" of Bowman's attorney-employment agreement signed by McKinnon. ELG also attached the memorandum dated February 23, 2012, from ELG to its asbestos clients informing them of the implementation of the administrative-service-expense charge. ELG subsequently filed a supplement to its motion to dismiss, arguing that the plaintiffs had, "in essence, ... asserted that ELG has charged its clients an excessive fee and [they] ask this court to enter a declaratory judgment to that effect." ELG further argued, among other things, that Rule 1.5, Ala. R. Prof. Cond., directly addresses the issue of excessive attorney fees; that the Alabama State Bar was not 2 a party to the action; and that a declaratory judgment in the present case would constitute only an advisory opinion by the circuit court because, it argued, the Alabama State Bar has sole authority to enforce the Alabama Rules of Professional Rule 1.5(a), Ala. R. Prof. Cond., provides, in pertinent 2 part: "A lawyer shall not enter into an agreement for, or charge, or collect a clearly excessive fee." 5 1130301 Conduct and to determine whether an attorney fee is excessive under Rule 1.5. Thus, ELG argued, the circuit court was required to dismiss the plaintiffs' complaint for lack of subject-matter jurisdiction. See Rule 12(b)(1), Ala. R. Civ. P. (providing that "lack of jurisdiction over the subject matter" is a defense that may be made by motion). ELG cited B.W.T. v. Haynes & Haynes, P.C., 20 So. 3d 815, 822 (Ala. Civ. App. 2009), to support its position. The plaintiffs filed a response to ELG's motion to dismiss, arguing, among other things, that their complaint was not "based merely on an ethics charge of 'excessive fees'" but was based on an allegation that "ELG ha[d] breached the terms of the [attorney-employment agreement,] which ELG drafted and entered into with each client." On June 19, 2013, the circuit court entered an order denying ELG's motion to dismiss and ordered "review by the Alabama State Bar as it relates to Rule 1.5 of the Alabama Rules of Professional Conduct." The circuit court stayed the proceedings "until ruling from the Alabama State Bar." On September 4, 2013, the plaintiffs filed a motion to reconsider the circuit court's June 19 order. The plaintiffs 6 1130301 alleged that, in the time that had passed since the entry of that order, the Alabama State Bar had not responded to the circuit court's order. The plaintiffs also reiterated that their complaint was based on a breach of contract by ELG, not a purported violation of the Alabama Rules of Professional Conduct by ELG. In response, ELG filed another motion to dismiss the plaintiffs' complaint because, it alleged, the circuit court was without subject-matter jurisdiction. ELG argued that the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar have exclusive disciplinary jurisdiction over attorneys admitted to practice law in Alabama and that "the only claim made by the plaintiffs –- that ELG is engaging in professional misconduct by charging excessive fees –- falls outside the [circuit] court's jurisdiction." On November 20, 2013, the circuit entered an order denying the plaintiffs' motion to reconsider its June 19 order and dismissing the case with prejudice. The plaintiffs timely filed a notice of appeal. On appeal, the plaintiffs argue that the circuit court erred in dismissing their complaint because, they say, the allegations in their complaint 7 1130301 articulated a breach-of-contract claim against ELG and because their complaint was not an ethics complaint against ELG, which, they contend, would have been subject to the exclusive jurisdiction of the Alabama State Bar. In response, ELG asserts that the circuit court properly dismissed the plaintiffs' complaint because, ELG says, the circuit court did not have subject-matter jurisdiction over the plaintiffs' complaint. Discussion In Newman v. Savas, 878 So. 2d 1147 (Ala. 2003), this Court set forth the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction: "A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So. 2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So. 2d at 299." 878 So. 2d at 1148-49. ELG argued below, and maintains on appeal, that the Court of Civil Appeals' decision in B.W.T. v. Haynes & Haynes, P.C., supra, required the dismissal of the plaintiffs' complaint for 8 1130301 lack of subject-matter jurisdiction. The plaintiffs argued below, and they maintain on appeal, that B.W.T. is distinguishable from the present case. In B.W.T., B.W.T., the client and an attorney, entered into a fee agreement with Haynes & Haynes, P.C. ("the law firm"), which had agreed to represent B.W.T. in an employment- discrimination case. Pursuant to the fee agreement, the law firm was entitled to 45% of all amounts recovered as a result of a judgment or settlement in favor of B.W.T., plus expenses incurred by the law firm. In addition, the law firm was entitled to 100% of any attorney-fee award assessed against the adverse party. In the employment-discrimination action, the jury returned a verdict in favor of B.W.T., and B.W.T. was awarded attorney fees in the trial court and on appeal; the total award to be divided between B.W.T. and the law firm was $437,920. When the law firm proposed to give B.W.T. only $127,034.82 as his portion of the recovery, B.W.T. objected and sent the law firm several opinions from other jurisdictions holding that an attorney is not entitled to recover a contingency fee in addition to court-ordered attorney fees provided by statute. 9 1130301 The law firm subsequently filed a complaint in the Jefferson Circuit Court requesting a judgment declaring that the fee agreement between the law firm and B.W.T. was valid and enforceable. In his answer, B.W.T. alleged that the issue in the case was whether the law firm's retention of $310,885.18 constituted a double recovery and was, therefore, a violation of Rule 1.5, Ala. R. Prof. Cond., which provides: "A lawyer shall not enter into an agreement for, or charge, or collect a clearly excessive fee." B.W.T. further alleged that only the Alabama State Bar had jurisdiction to determine whether the law firm had violated Rule 1.5. The law firm moved for a summary judgment, arguing that the fee agreement was valid and enforceable and that the proposed distribution of the award was consistent with the fee agreement and did not violate Rule 1.5. According to the Court of Civil Appeals, the law firm recognized "that the crux of the matter did not actually relate to the existence of a contract but, rather, to the question whether the fee agreement violated Rule 1.5." 20 So. 3d at 818. Thus, the law firm argued that "the fee it charged B.W.T. for its work on his behalf was reasonable under the circumstances presented by B.W.T.'s case and, as a result, 10 1130301 did not violate Rule 1.5." Id. B.W.T. maintained that the action should be dismissed but argued, in the alternative, that the circuit court should enter a judgment in his favor because "'any contingent fee contract that awards [to] an attorney fees and expenses of nearly 71% of the total recovery is unfair, excessive, and unconscionable under the Rules of Professional Conduct.'" Id. The circuit court granted the law firm's motion and entered a summary judgment in its favor. Because the law firm had sought a judgment declaring whether the fee agreement violated Rule 1.5 and because B.W.T. had argued that issue extensively in his response, the Court of Civil Appeals "interpret[ed] the [circuit] court's judgment as holding that the fee agreement [did] not violate Rule 1.5, Ala. R. Prof. Cond." 20 So. 3d at 819. In concluding that the appeal was due to be dismissed as having been taken from a void judgment, the Court of Civil Appeals stated: "The legislature has conferred on the [Alabama] State Bar's Board of Commissioners the power 'to formulate rules governing the conduct of all persons admitted to practice and to investigate, or cause to be investigated, and to pass upon all complaints that may be made concerning the professional conduct of any person who has been, or may hereafter be, admitted to the practice of the law.' § 11 1130301 34-3-43(a)(3)[, Ala. Code 1975]. As to the investigation and prosecution of complaints against attorneys for, among other things, violations of the Rules of Professional Conduct, the legislature has empowered the Board of Commissioners of the [Alabama] State Bar '[t]o appoint one or more committees from the membership of the board, or from the membership of the entire bar, or partly from one and partly from the other, to take evidence in connection with any complaint filed against any attorney and forward the same to the board.' § 34-3-43(a)(5). That subsection further provides: "'The district attorney of the circuit in which such accused attorney resides shall prosecute any such charge or case, interrogate the witnesses, introduce the evidence in support of such charges and, when requested by any member of the board, argue the matter before the board. The board shall administer such discipline, by public or private reprimand, suspension from the practice of law or exclusion and disbarment therefrom, as the case shall, in its judgment, warrant.' "Id. Thus, as it relates to the present case, the legislature authorized the State Bar to create Rule 1.5, and the legislature has committed to the State Bar the authority to enforce that rule. "... [A] declaratory judgment is binding only on the parties to the action in which the judgment was sought. The State Bar was not made a party to this action. As a result, the trial court's determination as to whether the fee agreement violates Rule 1.5 is not binding on the State Bar. Thus, the State Bar, which is charged with enforcing Rule 1.5, is free to interpret and enforce Rule 1.5 with regard to the fee agreement at issue in this case without regard to the trial court's judgment, and without regard to any disposition by this court of the appeal from 12 1130301 that judgment. The trial court's judgment, and any disposition by this court that affirms or reverses that judgment, is, as a result, merely advisory. "Because this case presents a dispute that is not justiciable and for which any judgment constitutes merely an advisory opinion, the trial court never obtained subject-matter jurisdiction over the action; its judgment is therefore void. See Stamps [v. Jefferson Cnty. Bd. of Educ.], 642 So. 2d [941,] 945 [(Ala. 1994)]. Because a void judgment will not support an appeal, we are left with no choice but to dismiss the appeal and to instruct the trial court to dismiss the action. Id." 20 So. 3d at 821-22. In the present case, unlike B.W.T., the "crux" of the plaintiffs' case is not whether ELG's fee arrangement with the plaintiffs violated Rule 1.5, Ala. R. Prof. Cond. Although ELG attempted to make that issue the crux of the plaintiffs' case, the plaintiffs did not ask the circuit court to determine whether ELG had violated Rule 1.5, and a determination of whether ELG violated Rule 1.5 is not necessary to the resolution of the plaintiffs' claims. Thus, 3 unlike B.W.T., the circuit court in this case has not been asked to determine only whether ELG has violated the Alabama Rules of Professional Conduct. The "crux" of the plaintiffs' We note that ELG, in its initial motion to dismiss, 3 stated: "The plaintiffs make allegations which essentially assert a simple breach of contract." 13 1130301 claims is that ELG breached the attorney-employment agreement by allegedly taking as an attorney fee more than 40% of the settlement proceeds. Thus, unlike B.W.T., there is no reason that the Alabama State Bar should have been a party to this action, nor would a judgment on the claims presented by the plaintiffs constitute merely an "advisory opinion" to the Alabama State Bar. Thus, we conclude that B.W.T. is distinguishable from the present case and does not require dismissal of the plaintiffs' action for lack of subject-matter jurisdiction. The claims brought by the plaintiffs fall within the subject-matter jurisdiction of the circuit court. Accordingly, the circuit court's judgment dismissing the plaintiffs' complaint with prejudice is reversed, and the cause is remanded for further proceedings. ELG filed a motion to dismiss the plaintiffs' appeal, arguing that this Court does not have subject-matter jurisdiction over the plaintiffs' appeal because "[o]nly the Alabama State Bar has jurisdiction to resolve the dispute between the parties." In light of our conclusion in this case, we deny ELG's motion to dismiss. 14 1130301 MOTION TO DISMISS DENIED; REVERSED AND REMANDED. Moore, C.J., and Bolin, Murdock, and Main, JJ., concur. 15	June 20, 2014
64fc7dc4-2b90-4beb-b54e-c4dda8e9e9fc	Ex parte USA Water Ski, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Joy King Ewing, f/k/a Joy King, as personal representative of the Estate of Stewart Arthur Bieber, and Rachel K. Bieber v. Colonel Biggs Water Ski Show Team et al.) (Montgomery Circuit Court: CV-12-900283). Petition Denied. No Opinion.	N/A	1130229	Alabama	Alabama Supreme Court	REL: 05/30/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130229 ____________________ Ex parte USA Water Ski, Inc. PETITION FOR WRIT OF MANDAMUS (In re: Joy King Ewing, f/k/a Joy King, as personal representative of the Estate of Stewart Arthur Bieber, and Rachel K. Bieber v. Colonel Biggs Water Ski Show Team et al.) (Montgomery Circuit Court, CV-12-900283) STUART, Justice. PETITION DENIED. NO OPINION. 1130229 2 Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., concurs specially. 1130229 See also Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 1 817 (Ala. 2003) (Moore, C.J., concurring in the result). 3 MOORE, Chief Justice (concurring specially). I concur in denying the petition for the writ of mandamus. I write separately to emphasize that the petition before us demonstrates why this Court should avoid meddling in discovery matters before the trial court. In Ex parte USA Water Ski, Inc., [Ms. 1120744, June 21, 2013] ___ So. 3d ___ (Ala. 2013), this Court held that a certain post-accident report was privileged under the work-product doctrine and directed the trial court to vacate its order compelling USA Water Ski, Inc., to produce the post-accident report. Although I did not write, I dissented for the reasons I dissented in Ex parte Mobile Gas Corp., 123 So. 3d 499, 516 (Ala. 2013), namely, because "I do not believe mandamus relief is proper in the context of discovery proceedings." "Discovery matters are 1 within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion." Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). Now new facts have come to light in this case that suggest the post-accident report was not prepared in 1130229 4 anticipation of trial and, hence, is not protected by the work-product doctrine. We are back to where we began: The trial court has ordered USA Water Ski to produce the post- accident report, and USA Water Ski again seeks a writ of mandamus directing the trial court to protect the post- accident report as privileged under the work-product doctrine. This time the Court reaches the right conclusion by deferring to the trial court's findings and denying the petition for a writ of mandamus. A trial court's discretion in discovery matters is necessarily wide because discovery is detailed and intricate. Trial courts are more involved with the specific facts, the parties, and the evidence and are in a better position to evaluate what documents are or are not discoverable. The trial court did not exceed its discretion by ordering the production of the post-accident report. Nor did its order require an extraordinary remedy that would necessitate this Court's involvement in the case at this time. Therefore, I concur to deny the petition for a writ of mandamus.	May 30, 2014
83154b10-ee83-40b2-9e21-a2c5c0e42add	Guyoungtech USA, Inc. v. Dees	N/A	1120505	Alabama	Alabama Supreme Court	REL:06/06/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1120505 ____________________ Guyoungtech USA, Inc. v. Elaine Dees Appeal from Conecuh Circuit Court (CV-11-900045) MOORE, Chief Justice. Elaine Dees sued Guyoungtech USA, Inc. ("Guyoungtech"), in the Conecuh Circuit Court, alleging retaliatory discharge. See § 25-5-11.1, Ala. Code 1975. A jury awarded Dees $1 million in compensatory damages and $2.5 million in punitive 1120505 damages. The trial court denied Guyoungtech's posttrial motion for a judgment as a matter of law ("JML") or, alternatively, for a new trial but remitted the awards to $300,000 in compensatory damages and $900,000 in punitive damages, which Dees accepted. Guyoungtech appeals. Because we conclude that Guyoungtech is entitled to a new trial, we do not address the denial of its motion for a JML. I. Facts Guyoungtech manufactures automotive parts for Hyundai Motors Manufacturing Alabama ("HMMA") at a plant in Castleberry. On November 17, 2010, Guyoungtech hired Dees, who was then 28 years old, to inspect parts shipped to the plant from South Korea. Dees worked a 12-hour shift from 6:30 a.m. to 6:30 p.m. six days a week and was paid a base rate of $9.25 per hour. On March 14, 2011, nearly four months after being hired, Dees fell and injured her left wrist while performing her job. Guyoungtech sent Dees to Dr. Mark Roberts for an examination. She returned to work in a partial cast but was able to use her left hand and arm. At a follow-up visit on April 4, Dr. Roberts placed Dees's left arm in a splint, referred her to an 2 1120505 orthopedic specialist, and ordered that she work no more than eight hours a day and not lift more than three pounds. As a result, when she returned to work on April 5, Dees could effectively work with only one arm. On April 6, Dees was laid off. Previously, on October 23, 2010, citing receipt of "a lot of defective parts" from Guyoungtech, HMMA had informed Guyoungtech that it would be reducing its orders of the affected parts by 50% and acquiring those parts from other suppliers. To compensate for this loss of business, Guyoungtech reduced its workforce through layoffs and attrition from 300 employees in November 2010 to 212 in May 2011. Guyoungtech contends that Dees was laid off as part of this reduction in force and not because she had applied for worker's compensation benefits. II. Standard of Review "In a motion for a new trial, the movant normally tests the weight of the evidence, not its sufficiency." Shadwrick v. State Farm Fire & Cas. Co., 578 So. 2d 1075, 1077 (Ala. 1991). The trial court's ruling on a motion for a new trial "should not be disturbed on appeal unless the record plainly and 3 1120505 palpably shows that the trial court erred and that some legal right has been abused." McBride v. Sheppard, 624 So. 2d 1069, 1070-71 (Ala. 1993). "[W]e review a ruling on a question of law de novo." Parker Bldg. Servs. Co. v. Lightsey, 925 So. 2d 927, 930 (Ala. 2005). III. Discussion A. Liability Dees claims that her employment was terminated in retaliation for her filing a worker's compensation claim. Alabama is an at-will-employment state. Thus, an employment contract of indefinite duration "may be terminated by either party with or without cause or justification." Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725, 728 (Ala. 1987). However, the legislature has created the following exception: "No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits ...." § 25-5-11.1, Ala. Code 1975 (emphasis added). A violation of this section is answerable in damages according to general tort principles. Caraway v. Franklin Ferguson Mfg. Co., 507 So. 2d 925, 926 (Ala. 1987). 4 1120505 Guyoungtech argues that Dees's employment was terminated as part of a bona fide and continuing layoff resulting from a reduction in the orders of parts by HMMA. See Yates v. United States Fid. & Guar. Ins. Co., 670 So. 2d 908 (Ala. 1995) (holding that a layoff caused by a corporate downsizing unrelated to a worker's compensation claim is not actionable under § 25-5-11.1). Dees presented evidence from which the jury reasonably could infer that Guyoungtech's stated reason for the layoff was a mask to conceal an illegal firing. See Yates, 670 So. 2d at 909 (stating that if the employer presents a nonretaliatory reason for the discharge, "the plaintiff must then present evidence indicating that the stated reason was not the true reason"). Dees argues that the proximity between her return to work on April 5 with hour and weight-lifting restrictions and her discharge the next day permits an inference that she was fired because of her injury and resulting worker's compensation claim. Although "mere closeness in time typically is not sufficient evidence of a retaliatory discharge," Coca-Cola Bottling Co. Consol. v. Hollander, 885 So. 2d 125, 131 (Ala. 2003), Dees also points to evidence indicating that the 5 1120505 Guyoungtech executive who initiated her layoff most likely knew of her injury, even though he denied such knowledge. Further, the plant manager, who also served as safety director for the plant, denied knowing that Dees had been injured when he laid her off. The jury was entitled to find this testimony implausible. "It is settled law that the credibility of the witnesses is the province of the jury." Floyd v. Broughton, 664 So. 2d 897, 900 (Ala. 1995). Dees also presented evidence indicating that Guyoungtech, contrary to Alabama law, had ceased reporting nondisabling injuries to its workers' compensation insurer in an effort to reduce its premium costs. Guyoungtech, on the other hand, demonstrated that other workers, including those in Dees's department, had continued their employment at Guyoungtech despite having filed worker's compensation claims. Because we must view disputed evidence in a light most favorable to the jury verdict, Daugherty, 840 So. 2d at 156, we are not in a position to substitute our judgment for that of the jury when evidence existed from which it could reasonably find that Guyoungtech discharged Dees in violation of § 25-5-11.1. B. Compensatory Damages 6 1120505 The jury awarded Dees $1 million in compensatory damages, which the trial court remitted to $300,000. A plaintiff has the burden of proving her damages. "The rule has long been established that the party claiming damages has the burden of establishing the existence of and amount of those damages by competent evidence." Johnson v. Harrison, 404 So. 2d 337, 340 (Ala. 1981). Dees sought compensation for future lost wages1 and mental anguish. 1. Future Lost Wages Dees's proof of future lost wages as a result of her discharge was scant. No expert testified as to her lack of employability or restricted access to the labor market as a result of the discharge. When asked at trial, almost a year and a half after the termination of her employment, if she had applied for work elsewhere, Dees stated: "I've been under the treatment of the doctor and restrictions." Dees's answer, though indicating that she felt hampered in looking for work because of her injury, provided no evidence indicating that the discharge itself, the subject of this action, had rendered At trial Dees did not seek compensation for past lost 1 wages. 7 1120505 her less employable. Because Guyoungtech had provided her with a letter stating that "[h]er last day of employment was April 6, 2011 due to a reduction in force," she did not bear the stigma of relating to a prospective employer that she had been fired from her previous job for any fault of her own. Because the trial court bifurcated the worker's compensation action and the retaliatory-discharge case, Dees's damages, if any, for being out of work because of her injury were not at issue in this case. Thus, in computing damages for retaliatory discharge, the jury could not consider the physical effect of the injury in hindering Dees's search for employment. Dees presented no evidence indicating that the firing itself interfered with her ability to find other employment. When asked if she had "been to another company, applied for a job and at least asked them to see whether they would take your restrictions or not," Dees answered: "No, ma'am." Dees's failure to look for work prohibits her from arguing that her discharge negatively impacted her ability to find a job. See Lozier Corp. v. Gray, 624 So. 2d 1034, 1037 (Ala. 1993) (noting the absence of "evidence at trial that [the employer's] termination of [the employee] caused [the 8 1120505 employee] to be less marketable as an employee"); Gold Kist, Inc. v. Griffin, 657 So. 2d 826, 829-30 (Ala. 1994) (noting that discharged employee seeking damages for retaliatory discharge had "unsuccessfully applied for 20-25 different jobs," thus indicating that "other potential employers would be reluctant to hire her because she was fired after suffering an on-the-job injury"). 2. Mental Anguish Dees also sought damages for mental anguish. She testified to the fear and worry she experienced after losing her job at Guyoungtech. "There is no fixed standard for ascertaining the amount of compensatory damages that may be awarded for emotional distress. The determination of how much to award is left to the sound discretion of the jury, subject only to review by the court for a clear abuse of that discretion." First Commercial Bank v. Spivey, 694 So. 2d 1316, 1326 (Ala. 1997). See also Foster v. Life Ins. Co. of Georgia, 656 So. 2d 333, 337 (Ala. 1994) (recognizing "that mental anguish and emotional distress are not items for which a precise amount of damages can be assessed"). 9 1120505 Recognizing the broad discretion allotted to the jury in determining compensation for mental suffering, we note that in retaliatory-discharge cases where testimony has indicated more severe effects than Dees experienced the awards were considerably lower. See Black Creek, Inc. v. Wood, 69 So. 3d 172 (Ala. Civ. App. 2011) (upholding $30,000 award for mental anguish where plaintiff saw a psychiatrist, took medication for depression, and suffered a divorce); Montgomery Coca-Cola Bottling Co. v. Golson, 725 So. 2d 996, 1000 (Ala. Civ. App. 1998) (upholding $75,000 award for mental anguish where plaintiff "could not pay his bills, his car was repossessed, he was evicted from his apartment, and he and his wife divorced"). Although Dees expressed concern for the stability of her marriage as evidence of her mental anguish, she did not experience a divorce. She presented no evidence indicating that she had lost her home or vehicle or that she needed mental-health treatment. 3. Admission of Mortality Tables into Evidence 10 1120505 Dees submitted a pretrial "Notice of Supplemental Exhibit of Mortality Tables." Guyoungtech objected on the ground of 2 relevancy, stating that "any alleged damages resulting from Guyoungtech's alleged retaliatory discharge has absolutely no relevance to [Dees's] life expectancy." During trial Guyoungtech objected to the admission of the mortality tables as "too speculative" a basis for calculating damages. Dees responded that the tables were relevant to the mental-anguish claim. Guyoungtech's counsel answered: "And again, Your Honor, if it's just for future anguish or mental pain and anguish, it's again pure speculation. She may or may not have it. How can, without other evidence from the psychiatrist or a physician or anybody in the know, how can that be admitted into evidence to make an argument that she's going to have it for the rest of her life? It's pure speculation." Counsel for Dees replied that "[w]e believe that it's required to be in evidence to be able to argue about mental anguish and the effects on her life." The trial court admitted the mortality tables into evidence. Guyoungtech objected to admission of the mortality A mortality table is "[a]n organized chart of statistical 2 data indicating life expectancies ...." Black's Law Dictionary 41 (9th ed. 2009) (entry for "actuarial table"). 11 1120505 tables during the jury-charge conference and also in its motion for a JML at the close of the evidence. While arguing in opposition to the motion for a JML, Dees's counsel stated: "Are [the jurors] satisfied, are they reasonably satisfied that she would have worked there for a period of time and earned wages in the future and that's why we wanted the mortality table." The trial court charged the jury as follows: "Now one of the exhibits that's in evidence is called a mortality table. Let me read you a charge explaining that. Mortality tables are a means of ascertaining the probable number of years a person of a given age in ordinary health will live. And the mortality table may be used by you as an aid in computing damages if you are reasonably satisfied from the evidence that the injuries sustained by Mrs. Dees are permanent. Such tables are not binding upon you and they are not conclusive." In its posttrial "Motion to Remit Damages," Guyoungtech argued that the admission of the mortality tables was improper because Dees "offered no evidence that she could never work again, for any reason, for the remainder of her life expectancy." During argument on the motion, Guyoungtech reiterated: "And the point being, Your Honor, there was no basis for the mortality table[s] and no testimony as to how it applied, no testimony that Ms. Dees would somehow be 12 1120505 permanently precluded from obtaining work ...." The mortality tables, Guyoungtech concluded, "[c]aused confusion and prejudice." On appeal Guyoungtech argues that the mortality tables were inadmissible to prove damages for either lost wages or mental anguish because "no issues of permanent disability were argued in this case" and because, it says, the issue of Dees's physical injury was reserved for the separate worker's compensation case. Guyoungtech's brief, at 35-36. Dees responds that the admissibility of the mortality tables is not reviewable because "the jury verdict form did not distinguish between the two types of damages." Dees's brief, at 60. "Mortality tables are admissible where there is evidence that the plaintiff has suffered permanent personal injuries or the question of a person's life expectancy is a material question to be decided." Drummond Co. v. Self, 622 So. 2d 336, 337 (Ala. 1993) (citing C. Gamble, McElroy's Alabama Evidence § 259.01(1) (4th ed. 1991)). See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Smelley, 295 Ala. 346, 349, 329 So. 2d 544, 546 (1976) ("In Alabama, mortality tables are admissible when there is evidence (even though it may be controverted) from 13 1120505 which the jury may draw a reasonable inference that a plaintiff's injuries are permanent."). See also Ozment v. Wilkerson, 646 So. 2d 4, 6 (Ala. 1994) (holding that mortality tables were admissible where the jury "reasonably could have concluded that [a surgical] scar constituted a permanent injury"); Louisville & Nashville R.R. v. Richardson, 285 Ala. 281, 283, 231 So. 2d 316, 317 (1970) (holding that mortality tables "are competent evidence, where the injury is permanent"); Clark v. Hudson, 265 Ala. 630, 635, 93 So. 2d 138, 142 (1956) (holding that mortality tables were admissible in light of "evidence from which there is a reasonable inference that plaintiff's injuries are permanent"). In Collins v. Windham, 277 Ala. 129, 167 So. 2d 690 (1964), this Court considered the use of a mortality table in a case where the injury alleged was mental anguish. "The specific question before us," the Court stated, "is whether there was sufficient evidence from which the jury could draw a reasonable inference that the plaintiff's injuries were permanent, since the alleged injury was subjective and there was no expert medical testimony showing the injuries to be permanent." Collins, 277 Ala. at 131, 167 So. 2d at 692. After 14 1120505 reviewing similar cases from other jurisdictions, the Court concluded: "[W]here the injury complained of is purely subjective, as in the present case, and where there is no expert medical testimony tending to show the permanency of the alleged injury, mortality tables are not admissible in evidence. To hold otherwise would permit the jury to award damages based on speculation and guesswork." 277 Ala. at 132-33, 167 So. 2d at 693-94. See also Flowers Hosp., Inc. v. Arnold, 638 So. 2d 851, 852 (Ala. 1994) (reversing a compensatory-damages award to a plaintiff who fell out of a wheelchair in a hospital and developed a mental condition dubbed "fear of hospitals" because "neither side presented expert testimony as to whether [the plaintiff's] fear of hospitals was permanent"); Jones v. Fortner, 507 So. 2d 908, 910 (Ala. 1987) ("It has been held that where there is nothing from which a layman can form any well-grounded opinion as to the permanency of the injury or where the injury is purely subjective, expert evidence must be introduced." (citing 25A C.J.S. Damages § 162(9), at 110 (1966))). Testifying about the mental anguish she suffered, Dees expressed concern about the potential effect of her discharge 15 1120505 on the well-being of her daughters and on her relationship with her husband, Brad. "Q. Now, I want to ask you about how you felt when you found out that you had been terminated, okay? Now, first of all, how does it feel to be what you think is wrongfully terminated? How did that feel to you to lose your job in the way that you lost it? "A. I was hurt. "Q. Okay. And can you tell the jury why it hurt you? "A. Because even -- even though I'm married, those are not Brad's kids and I feel obligated to take care of my girls. ".... "Q. Now, what kind of worries has this created for you now that you do not have a job instead of working in the quality control department? "A. Everything is on Brad's shoulders. I'm not able -- like I said, those are not his children, even though we're married. What can I -- I mean, what can I do for my daughters? They don't look to Brad, they look to me to provide for them, not Brad. "Q. Well, Brad does provide for the family right now, doesn't he? "A. (Witness shakes head in the affirmative.) "Q. And is Brad continuing to work at Guyoungtech? "A. Yes. "Q. Do you worry about that? "A. I do. 16 1120505 "Q. And why do you worry about that? "A. I'm scared that no matter how this case go[es], in the end they're going to let him go. "Q. So you're worried that this case when it's over, he's going to get fired, is that what you're saying? "A. Yes, sir. "Q. And then, do you worry about what would happen to your marriage if that happened? "A. Yes, sir." Dees felt hurt about losing her job; she was afraid of being unable to provide for her daughters, even though her husband continued to be employed at Guyoungtech; and she feared that Guyoungtech would eventually fire her husband, which could adversely affect her marriage. This testimony of a "purely subjective" injury unsupported by expert medical evidence of its permanency failed as a matter of law to support the admission into evidence of the mortality tables. Jones v. Fortner, 507 So. 2d at 910. Additionally, the trial court's instruction that "the mortality table may be used by you as an aid in computing damages if you are reasonably satisfied from the evidence that the injuries sustained by Mrs. Dees are permanent" was also improper. The jury was in no position to assess the permanency of Dees's subjective mental 17 1120505 injury without expert medical testimony. As this Court stated in Flowers Hospital, in the absence of expert medical evidence, "the trial court erred in charging the jury that it could award damages for permanent injury if it was satisfied that [the plaintiff] suffered a permanent injury." 638 So. 2d at 853. In Flowers Hospital, this Court concluded: "Because we cannot determine whether the instructions on permanent injury affected the jury's verdict, we must reverse the judgment based on that verdict and remand the case for a new trial." 638 So. 2d at 853. In Collins, the Court stated: "We cannot say, in the present case, that the admission in evidence of the mortality table did not affect the jury in arriving at the verdict, especially in view of the argument made to the jury and the amount of the verdict." 277 Ala. at 133, 167 So. 2d at 694. Dees's counsel did not specifically reference the mortality tables in his closing argument, but he did argue that "[t]here's no evidence that she wouldn't have worked for the rest of her life" at Guyoungtech. The $15,000 verdict in Collins was remitted by the trial court to $12,000. Given the size of the compensatory-damages award in this case -- $1 18 1120505 million remitted by the trial court to $300,000 -- the concern of the Collins Court about the effect of an improperly admitted mortality table on the size of the mental-anguish verdict applies here. 4. Verdict Form The verdict form distinguished between compensatory damages and punitive damages but did not ask the jury to itemize the individual components of the compensatory-damages award: lost future wages and mental anguish. Thus, the compensatory-damages award of $1 million (remitted to $300,000) might have been entirely for either lost future wages or mental anguish, or for some indiscernible combination of the two. If the trial court's evidentiary and instructional errors were confined solely to the calculation of lost wages or solely to the calculation of mental-anguish damages, we would not be in a position to review the compensatory-damages verdict. In that situation, the verdict could have represented solely the type of damages unaffected by the trial court's error. Reviewing a case in which the verdict form did not distinguish between compensatory damages and punitive damages, 19 1120505 this Court declined to speculate as to how the damages were apportioned between those two components. "We cannot say whether the [verdict] is right or wrong; we do not know what it represents, and it could be either right or wrong, i.e., either appropriate or excessive." City Realty, Inc. v. Continental Cas. Co., 623 So. 2d 1039, 1046 (Ala. 1993). In that case, the Court also declined to remand the case for itemization of the verdict "because the parties did not object to the undesignated verdict at trial." Id. In Coastal Bail Bonds, Inc. v. Cope, 697 So. 2d 48 (Ala. Civ. App. 1996), the trial court refused the defendants' request for a verdict form differentiating between compensatory damages and punitive damages. The Court of Civil Appeals, affirming the judgment entered on the verdict, found the error to be harmless because the evidence supported assigning the entire award either to compensatory damages or to punitive damages. "Obviously, since both extremes of compensatory and punitive damages are supported by the evidence, any combination of the two also is supported by the evidence." 697 So. 2d at 52. Conversely, in this case, because the lost-wages and mental-anguish prongs of the compensatory- 20 1120505 damages award are both infected by error, we may reverse without knowing how the jury allotted damages between lost wages and mental anguish. To paraphrase the Coastal court: Because neither extreme of lost-wages or mental-anguish damages is supported by the evidence, any combination of the two also is not supported by the evidence. 5. Remedy Dees argued at trial that the mortality tables were offered into evidence to support both lost-wages and mental- anguish damages. Guyoungtech objected to their use on both grounds. The trial court's instruction did not differentiate between the use of the mortality tables to compute the two types of damages, stating generically that "the mortality table[s] may be used by you as an aid in computing damages if you are reasonably satisfied from the evidence that the injuries sustained by Mrs. Dees are permanent." The mortality tables were erroneously admitted in regard to mental-anguish damages because the permanence of a subjective injury cannot be determined without expert medical testimony. The mortality table were erroneously admitted in regard to future-lost-wages damages because Dees offered no evidence of permanent 21 1120505 unemployability ascribable to the termination of her employment at Guyoungtech. Accordingly, we reverse the award of compensatory damages. C. Punitive Damages Because we are reversing the compensatory-damages award, we must also reverse the punitive-damages award. Compensatory or nominal damages must first be awarded before punitive damages can be assessed. Life Ins. Co. of Georgia v. Smith, 719 So. 2d 797, 806 (Ala. 1998). Because a jury may possibly consider awarding punitive damages on any retrial of this case, we offer some guidance to the trial court to avoid an evidentiary error that affected these proceedings and to which Guyoungtech objected. At trial, the foundation of Dees's argument that punitive damages should be awarded was that Guyoungtech had not timely reported many workers' compensation claims to its insurance carrier. See Rule 480-5-1-.01, Ala. Admin. Code (Dep't of Labor) (requiring filing of "First Report of Injury" form within 15 days of claim). Dees presented evidence indicating that this policy was a conscious decision by management at Guyoungtech to reduce insurance costs. As the trial court pointed out in its postjudgment 22 1120505 order, such a policy violates Alabama law, which requires the reporting of all workplace injuries to the State. Alternatively, a company may self-insure, as Guyoungtech apparently did for some injuries, but Guyoungtech did not meet the legal requirements to self-insure. See Rule 480-5-2-.02, Ala. Admin. Code (Dep't of Labor). Dees argued that the evidence of nonreporting of injuries demonstrated Guyoungtech's callousness toward injured workers and was probative in particular of Guyoungtech's animus toward Dees as an injured worker, thus justifying a large punitive- damages award. Guyoungtech objected to admission of this evidence, arguing that its failure to report small workers' compensation claims had no effect on Dees because, it reasoned, Guyoungtech reported Dees's injury to its carrier and she had received worker's compensation medical and lost- wage benefits. The trial court erred in allowing the jury to consider behavior of Guyoungtech unrelated to Dees's claimed injury as a basis for imposing punitive damages. "[T]he most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of 23 1120505 the defendant's conduct." BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996). "A defendant's dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties' hypothetical claims against a defendant under the guise of the reprehensibility analysis .... ".... "... The reprehensibility guidepost does not permit courts to expand the scope of the case so that a defendant may be punished for any malfeasance ...." State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422- 24 (2003). Several years later the United States Supreme Court reiterated that "we can find no authority supporting the use of punitive damages awards for the purpose of punishing a defendant for harming others." Philip Morris USA v. Williams, 549 U.S. 346, 354 (2007). Allowing a jury to base its punitive-damages award "in part upon its desire to punish the defendant for harming persons who are not before the court" "would amount to a taking of property from the defendant without due process." 549 U.S. at 349. See also Williams v. 24 1120505 ConAgra Poultry Co., 378 F.3d 790, 797 (8th Cir. 2004) (citing State Farm for the proposition that "courts cannot award punitive damages to plaintiffs for wrongful behavior that they did not themselves suffer"); § 6-11-20(a), Ala. Code 1975 (stating that to receive punitive damages a plaintiff must prove "by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff" (emphasis added)). Guyoungtech sent a timely "First Report of Injury" for Dees to its workers' compensation insurance carrier, who then paid worker's compensation benefits to Dees. Although the court allowed Dees to present evidence showing that Guyoungtech's carrier had denied payment of benefits to injured workers whose "First Reports of Injury" forms were untimely filed, the jury should not have been allowed to consider that fact in assessing punitive damages. This conduct, which concerned "other parties' hypothetical claims," did not harm Dees. State Farm, 538 U.S. at 423. Consideration of potential malfeasance arising from these late-filed claims expanded the scope of the case to facts unrelated to Dees's 25 1120505 injury and allowed an award of punitive damages for "defendant's dissimilar acts, independent from the acts upon which liability was premised." State Farm, 538 U.S. at 422. The trial court allowed testimony, admitted exhibits, and permitted argument about these dissimilar acts affecting nonparties. Near the beginning of his opening statement, counsel for Dees stated: "This is a case about holding this company responsible for the way they treat this employee and other employees." (Emphasis added.) At the close of his opening statement, counsel for Dees reiterated: "This case is about two things: It's about what they did to her and it's about what they did to other people." (Emphasis added.) The trial court instructed the jury that "you may consider the defendant's general policy and practice with respect to other employees" and gave an extensive critique of business practices that did not affect Dees: "The law of Alabama does not allow a company to decide not to report claims and call itself self-insured unless it is approved by the State of Alabama Department of Industrial Relations.[3] Effective October 1, 2012, shortly after the trial in 3 this case, the Alabama Department of Labor merged into the Alabama Department of Industrial Relations, which was renamed the Alabama Department of Labor. § 25-2-1.1, Ala. Code 1975. 26 1120505 ".... "... [T]he laws of the State of Alabama do not allow any company at any time to engage in any activity to stop first report of injury forms from being filed with the Department of Industrial Relations Workers' Compensation Division." By allowing evidence, argument, and jury instructions -- over objections from Guyoungtech -- that permitted and encouraged the jury to punish Guyoungtech for allegedly wrongful behavior to other employees that caused Dees no harm, the trial court erred. D. Scope of a New Trial Because the trial court erred in admitting into evidence the mortality tables to support Dees's claim for compensatory damages, we are reversing its judgment and remanding the case for a new trial on both the liability and the compensatory- damages and punitive-damages issues. "A partial new trial ... may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice." Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 500 (1931). Where "the question of damages ... is so interwoven with that of liability that the former cannot be 27 1120505 submitted to the jury independently of the latter without confusion and uncertainty," id., a new trial should be ordered on all issues. In this case a determination of compensatory damages cannot be made without rehearing the evidence of liability. A jury cannot evaluate mental-anguish damages or lost future wages without hearing testimony about the circumstances surrounding the termination of Dees's employment. Other courts have held that the question of punitive damages is too intertwined with the issue of liability for one to be tried without the other. "[A]n award of punitive damages should rest on the jury's assessment of all the evidence in the case. Hence, the issue of punitive damages is so intertwined with the other issues that it should be retried with them." Fury Imports, Inc. v. Shakespeare Co., 554 F.2d 1376, 1389 (5th Cir. 1977). See also Mason v. Texaco, Inc., 948 F.2d 1546, 1554 (10th Cir. 1991) ("A punitive damage[s] claim is not an independent cause of action or issue separate from the balance of a plaintiff's case. It is part and parcel of a liability determination ...."). Under Alabama law, an award of punitive damages requires proof "by clear and 28 1120505 convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff." § 6-11-20(e), Ala. Code 1975. The evidence affecting liability is thus intermingled with the evidence necessary to determine punitive damages. Because a determination of both compensatory damages and punitive damages is dependent upon consideration of the evidence that supports a finding of liability, a new trial on all issues will best serve the ends of justice. Because "the issues in this case are interrelated, thereby complicating our separation of them, we believe justice will be best served by a reversal and retrial of the case in its entirety." Beneficial Mgmt. Corp. of America v. Evan, 421 So. 2d 92, 98 (Ala. 1982). IV. Conclusion We reverse the judgment of the trial court and remand the case for a new trial on all issues. We caution the trial court that on remand evidence about business practices that caused Dees no harm is not admissible for the purpose of assessing punitive damages. REVERSED AND REMANDED. 29 1120505 Wise, J., concurs. Murdock, J., concurs specially. Stuart, Bolin, and Bryan, JJ., concur in the result. Parker and Main, JJ., dissent. 30 1120505 MURDOCK, Justice (concurring specially). I concur. I write separately to be clear that I do not believe that an employee's "failure to look for work" necessarily prohibits him or her from asserting a claim for damages based on lost wages resulting from an unlawful termination of the employee's employment under § 25-5-11.1, Ala. Code 1975. Instead, I read the main opinion's statement regarding such a failure in the present case as simply explaining the nature of the evidence in this particular case and, specifically, the context within which this Court should consider the absence in the record of any evidence indicating that Elaine Dees's continued unemployment has been caused by the termination of her employment by Guyoungtech USA, Inc. I also write separately to comment upon the issue of Guyoungtech's failure to report certain smaller workers' compensation claims to the company that administers its workers' compensation claims. The main opinion correctly notes that Dees's claim for worker's compensation benefits, both medical and lost wages, was reported to the administrator and, on this basis, concludes that Guyoungtech's failure to report other employees' claims for workers' compensation 31 1120505 benefits was not properly admissible in relation to the issue of punitive damages. I do not wish to be understood as implying that I necessarily agree with the converse proposition, i.e., that had Guyoungtech in fact failed to report Dees's injury, that failure would have been admissible as a basis for awarding punitive damages. The gravamen of the claim in this case is the termination of Dees's employment, not some act or omission by Guyoungtech that resulted in a denial to Dees of worker's compensation benefits. Accordingly, even if Guyoungtech had failed to report Dees's injury, that omission would not have been the conduct for which Dees seeks recovery from Guyoungtech in this case. As the main opinion, itself, notes, "'[a] defendant's dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages.'" ___ So. 3d at ___ (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003) (emphasis added)). In addition, in discussing Guyoungtech's failure to report certain workers' compensation claims, the main opinion quotes further from State Farm, as follows: 32 1120505 "'A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties' hypothetical claims against a defendant under the guise of the reprehensibility analysis ....'" ___ So. 3d at ___ (quoting State Farm, 538 U.S. at 423 (emphasis added)). I am not persuaded that Guyoungtech's failure to report certain other workers' compensation claims warrants the application of such adjectives as "unsavory" and "reprehensible." The record indicates merely that Guyoungtech made the decision to pay certain smaller workers' compensation claims out of its own pocket, rather than filing a claim with its insurer (in effect, self-insuring certain claims). Although this may or may not be a technical violation of some workers' compensation statute or regulation, the fact remains that those claims were indeed paid by Guyoungtech. Accordingly, I find nothing in this practice, at least as it related to Guyoungtech's employees such as Dees, that could be deemed unsavory, reprehensible, or otherwise a basis for a punitive-damages award. More specifically, I find nothing in this conduct to justify a conclusion that Guyoungtech "engaged in oppression, fraud, wantonness, or malice with regard to" 33 1120505 any such employee, as would be required for an award of punitive damages under Ala. Code 1975, § 6-11-20(a).4 Nor do I see any relationship in this case between any 4 practice of self-paying small workers' compensation claims, or being late in filing such claims, and any pattern of terminating the employment of employees who have filed such claims. 34 1120505 PARKER, Justice (dissenting). I concur with the conclusion in the main opinion that the evidence supported the jury's finding that Guyoungtech USA, Inc., terminated Elaine Dees's employment in violation of Alabama's wrongful-termination statute. I respectfully dissent, however, from its reversal of the judgment as to liability. I also dissent from the portions of the main opinion concerning the award of damages. I would affirm the judgment; therefore, I dissent. The main opinion reverses the trial court's judgment on the compensatory-damages award based on its conclusion that the improper admission into evidence of the mortality tables potentially injuriously affected the substantial rights of Guyoungtech. In Atkins v. Lee, 603 So. 2d 937, 946 (Ala. 1992), this Court held: "We will not reverse a judgment 'unless ... the error complained of has probably injuriously affected substantial rights of the parties.' Rule 45, Ala. R. App. P.; Bianco v. Graham, 268 Ala. 385, 388, 106 So. 2d 655, 657 (1958). The appellant bears the burden of proof on this issue. Roubicek v. Roubicek, 246 Ala. 442, 21 So. 2d 244 (1945)." (Emphasis added.) I respectfully dissent because the main opinion has prematurely shifted the burden of proof to Dees on 35 1120505 this issue; Guyoungtech has not demonstrated that the improper admission of the mortality tables probably injuriously affected its substantial rights. Even though Guyoungtech has not carried its burden of demonstrating that the admission of the mortality tables probably injuriously affected its substantial rights, the main opinion shifts the burden to Dees to demonstrate that the improper admission of the mortality tables definitely did not affect Guyoungtech's substantial rights. The main opinion creates a new standard in that an appellant no longer has to demonstrate that an error occurred, but only that an error potentially occurred. In the trial court, Dees sued Guyoungtech alleging wrongful termination and seeking damages for lost wages and mental anguish. The jury returned a general verdict in favor of Dees, awarding $1,000,000 in compensatory damages. Concerning the award of compensatory damages, the trial court held as follows: "In addition, Guyoung[tech] did not request a special interrogatory or verdict form to itemize and differentiate between lost wages, compensatory damage[s,] and mental anguish damages. Alabama Code [1975,] Section 6-11-1 on Itemization provides that '[i]n any civil action based upon tort ... the damages assessed by the factfinder shall be itemized 36 1120505 as follows: (1) Past damages. (2) Future damages. (3) Punitive Damages.'[ ] 5 "While [Guyoungtech] requested itemization between compensatory and punitive damages, it did not request itemization between past and future damages related to mental anguish, and it did not request itemization of compensatory damages for future lost earnings. In Coastal Bail Bonds v. Cope, 697 So. 2d 48, 51 (Ala. Civ. App. 1996), the court held that the failure to request itemization is attributable as an error of the defendant, not the trial judge. See, also, Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 46 (Ala. 1990)('Although there is no dispute that the jury did not utilize itemized verdict forms, there is no evidence that this error was brought to the attention of the trial court.') In Dunlop Tire Corp. v. Allen, 725 So. 2d 960, 968 (Ala. 1998), the Court affirmed a compensatory damages award of $735,000 in Section 6-11-1, Ala. Code 1975, states in full: 5 "In any civil action based upon tort and any action for personal injury based upon breach of warranty, except actions for wrongful death pursuant to Sections 6-5-391 and 6-5-410, the damages assessed by the factfinder shall be itemized as follows: "(1) Past damages. "(2) Future damages. "(3) Punitive damages. "The factfinder shall not reduce any future damages to present value. Where the court determines that any one or more of the above categories is not recoverable in the action, those categories shall be omitted from the itemization." 37 1120505 future damages where the defendant did not request a jury form which would have addressed its concerns, reasoning, 'if Dunlop had thought that future damages were not recoverable in this action, it should have asked to have that category omitted from the itemization.' "Finally, in Continental Eagle Corp.[ v. Mokrzycki, 611 So. 2d 313 (Ala. 1992)], such apportionment was defined by the jury. In this case Guyoung[tech] did not request apportionment. The damages could be for mental anguish damages alone. "... Dees was required to present 'evidence tending to show the extent of damages as a matter of just and reasonable inference.' Lindy Mfg. Co. v. Twentieth Century Mktg., 706 So. 2d 1169, 1178 (Ala. 1997)(quoting C. Gamble, Alabama Law of Damages 7-1 (2d ed. 1988)). When proving general damages, the standard is relevancy, not 'reasonable certainty.' Med Plus Properties v. Colcock Constr. Group, 628 So. 2d 370, 377 (Ala. 1993)(citing Gamble, McElroy's Alabama Evidence [§] 21.01(1) (4th ed. 1991)). The jury properly considered the issue of damages as submitted to them by this Court." On appeal, Guyoungtech does not challenge the trial court's holding that Guyoungtech failed to "request a special interrogatory or verdict form to itemize and differentiate between lost wages ... and mental anguish damages." Neither does Guyoungtech challenge the trial court's statement that "[t]he damages [awarded by the jury] could be for mental anguish damages alone." In fact, there is nothing in the clerk's record indicating what portion of the jury's award of 38 1120505 compensatory damages was for future damages and what portion was for past damages, and Guyoungtech offers no explanation. There is no way to determine from the general compensatory- damages award whether the jury awarded any future damages; the amount awarded could have been for her mental anguish suffered from the time Dees was terminated from her employment until trial. Instead, Guyoungtech argues only that the admission of the mortality tables was improper. However, unless Guyoungtech has demonstrated that its substantial rights were probably injuriously affected by the improper admission of the mortality tables, Guyoungtech is not entitled to have the trial court's judgment reversed. As set forth by the trial court, there was a method available to Guyoungtech to determine if its substantial rights had been injuriously affected by the improper admission of the mortality tables, but Guyoungtech chose not to avail itself of that protection; it is not this Court's function to make arguments for a party who chooses not to make those arguments for itself. The main opinion recognizes that if the jury's verdict "could have represented solely the type of damages unaffected 39 1120505 by the trial court's error," then "we would not be in a position to review the compensatory-damages verdict." ___ So. 3d at ___. The main opinion then concludes that "the lost- wages and mental-anguish prongs of the compensatory-damages award are both infected by error." ___ So. 3d at ___. However, the main opinion offers no explanation as to why an award of mental-anguish damages would have been affected by the improper admission of the mortality tables. Therefore, based on Guyoungtech's failure to demonstrate that the improper admission of the mortality tables probably injuriously affected its substantial rights even though Guyoungtech had available to it the protection of § 6-11-1, Ala. Code 1975, I respectfully dissent from the holding in the main opinion that the admission of the mortality tables was error. Dees should not pay the cost of Guyoungtech's failure to properly defend the action. The main opinion improperly shifts to Dees the burden of proof that the law places upon Guyoungtech. 40	June 6, 2014
2404962c-0f5a-42bb-92d0-6ce5a341cb47	Carr v. Arvin Industries	N/A	1130110	Alabama	Alabama Supreme Court	rel: 06/20/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130110 ____________________ Ex parte International Refining & Manufacturing Co. d/b/a IRMCO, et al. PETITION FOR WRIT OF MANDAMUS (In re: Bell Carr, Jr., et al. v. Arvin Industries d/b/a Arvin-Meritor, Inc., et al.) (Fayette Circuit Court, CV-03-0142) ____________________ 1130111 ____________________ Ex parte GE Betz, Inc., et al. PETITION FOR WRIT OF MANDAMUS (In re: Bell Carr, Jr., et al. v. Arvin Industries d/b/a Arvin-Meritor, Inc., et al.) (Fayette Circuit Court, CV-03-0142) BRYAN, Justice. International Refining & Manufacturing Co. d/b/a IRMCO, among others, and GE Betz, Inc., among others, separately seek mandamus relief from the trial court's denial of a motion for a summary judgment and a motion to dismiss. Although the first named petitioner differs in each petition, the petitioners in both are the same. Therefore, we will hereinafter refer to the petitioners in case no. 1130110 and case no. 1130111 collectively as "the new defendants." The 1 two petitions were consolidated for the purpose of writing one opinion. We deny the petition in case no. 1130110, and in case no. 1130111 we grant the petition in part, deny it in part, and issue a writ of mandamus, directing the trial court to dismiss any conspiracy claims against the new defendants. Facts and Procedural History These parties are referred to as "the new defendants" in 1 the two earlier opinions in this Court involving these parties because they were added as defendants after the filing of the original complaint. See discussion of those cases, infra. 2 1130110, 1130111 This is the third time this case has come before this Court. See Ex parte International Refining & Mfg. Co., 972 So. 2d 784 (Ala. 2007) ("International Refining"), and Carr v. International Refining & Mfg. Co., 13 So. 3d 947 (Ala. 2009) ("Carr"). In Carr, we described the facts and procedural history as follows: "'On November 13, 2003, Bell Carr, Jr., and approximately 320 other former employees at a manufacturing plant operated by Arvin Industries d/b/a Arvin–Meritor, Inc. (hereinafter "the [former employees]"), sued Arvin–Meritor and six individual defendants, also former employees at the plant, where automotive mufflers were manufactured. The complaint alleged that up until the closing of the plant in May 2002, the [former employees] suffered harm from "exposure to toxic and dangerous chemicals" that were flushed from the manufacturing machines and eventually circulated into a large pit, which the [former employees] were responsible for draining and cleaning. In addition to these seven defendants, the original complaint fictitiously named 40 other defendants in the caption and in the body of the complaint. "'On May 6, 2005, approximately three years after their last exposure to the chemicals, the [former employees] filed their first amended complaint, seeking to add 64 new named defendants, including the petitioners, in place of the fictitiously named defendants (hereinafter "the new defendants"), 113 new plaintiffs, as well 3 1130110, 1130111 as additional fictitiously named defendants. The [first] amended complaint reasserted the five claims asserted in the original complaint, but only against the seven original defendants. The first amended complaint also alleged claims of negligence, wantonness, liability under the Alabama Extended Manufacturer's Liability Doctrine, civil conspiracy, and the tort of outrage, but only against the new defendants.' "[International Refining,] 972 So. 2d at 787. "Regarding wantonness, the former employees alleged in count 6 of the first amended complaint that the new defendants had 'wantonly engineered, designed, developed, configured, manufactured, assembled, distributed, and/or sold the chemicals' and other products that the former employees were exposed to through their work at Arvin. The former employees also alleged in count 13 that 5 of the new defendants had 'wantonly engineered, designed, ... manufactured, ... sold, inspected or consulted regarding the design, engineering, manufacturing, production, distribution and/or warnings associated with' the equipment used in Arvin's manufacturing process. "'On June 14, 2005, the new defendants removed the case to the United States District Court for the Northern District of Alabama pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1453. The district court remanded the [claims] to the Fayette Circuit Court .... "'Upon remand, the new defendants filed motions to dismiss, or, in the alternative, for a summary judgment, on the ground that the claims asserted against them in the amended complaint did not 4 1130110, 1130111 relate back to the date of the filing of the original complaint and are thus barred by the two-year statute of limitations. See § 6–2–38(l), Ala. Code 1975. The trial court conducted a hearing and denied the motions. The new defendants sought a certification to file a permissive appeal under Rule 5, Ala. R.App. P., but the trial court denied the request for the certification. The [new defendants] then filed [a] petition for a writ of mandamus.' "International Refining, 972 So. 2d at 787–88 (footnote omitted). "This Court granted the new defendants' petition and issued the writ of mandamus. We concluded in International Refining that the claims the former employees stated against the new defendants in the first amended complaint did not relate back to the claims they stated against the fictitiously named defendants identified in their original complaint. 972 So. 2d at 791. Because the first amended complaint was filed in May 2005, three years after the former employees' last possible exposure to the allegedly toxic chemicals, any new claims stated in that complaint, which were subject to a two-year statutory limitations period, see § 6–2–38(l), Ala. Code 1975, were time-barred and due to be dismissed. 972 So. 2d at 791. "We noted in International Refining that the former employees argued 'that some of their claims nonetheless survive, because, they say, those claims fall within a six-year statute of limitations.' 972 So. 2d at 791. See § 6–2–34, Ala. Code 1975. However, we declined to reach the question whether a six-year statute of limitations applied to any of the former employees' claims against the new defendants, stating: 5 1130110, 1130111 "'That issue ... is not before us; our mandamus review extends to reviewing the denial of motions for a dismissal or for a summary judgment that asserted a statute- of-limitations defense only as to fictitious-party practice. See [Ex parte] Stover, 663 So. 2d [948,] 951–52 [(Ala. 1995)]. The extent to which the amended complaint, filed within six years of the events made the basis of the action but not within two years thereof, states claims not barred by the two-year statute of limitations is a question not before us.' "972 So. 2d at 791. Therefore, we 'reverse[d] the trial court's order denying the motions to dismiss, or for a summary judgment, and we remand[ed] the case for further proceedings, including a determination of the extent to which any claims are timely, without the availability of the relation- back doctrine.' 972 So. 2d at 791. "On remand, the new defendants filed motions to dismiss or, in the alternative, for a summary judgment, on the ground that all the claims asserted against them were subject to the two-year limitations period stated in § 6–2–38(l), Ala. Code 1975, and were due to be dismissed pursuant to this Court's decision in International Refining. The former employees responded, arguing that their wantonness claims involved trespass to the person and, under McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004), were subject to the six-year limitations period stated in § 6–2–34(1), Ala. Code 1975. The former employees conceded that their other claims against the new defendants were subject to the two- year limitations period and, without the availability of the relation-back doctrine, were due to be dismissed. "On August 16, 2007, the former employees amended their complaint a second time. The second 6 1130110, 1130111 amended complaint stated that it was 'intended to clarify the allegations contained in the Complaint and the First Amended Complaint in the wake of [International Refining].' It also stated that 'no new plaintiffs or defendants [were] added by way of [the] amendment' and that 'all claims stated [therein arose] out of the conduct, transaction, or occurrences set forth in the First Amended Complaint [and] no new causes of action [were] stated by way of [the] amendment.' The second amended complaint asserted only a workers' compensation claim against Arvin, a wantonness claim against the new defendants, and a separate wantonness claim against five of the new defendants who the former employees alleged had provided the equipment Arvin used in its manufacturing process. "The wantonness claim asserted against the new defendants in the second amended complaint stated, in relevant part: "'[The new defendants] acted willfully and/or wantonly, and committed trespass to the persons of the former employees, in that the said defendants consciously acted or omitted to act, and in that they willfully and wantonly engineered, designed, developed, configured, manufactured, assembled, distributed and/or sold [the chemicals and other products] that resulted in physical impact to the persons of the former employees and injured the former employees, and in that the defendants acted or omitted a duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury would likely or probably result to the former employees, in reckless or conscious disregard of the rights or safety of the former employees.' 7 1130110, 1130111 "The wantonness claim asserted against the five new defendants who the former employees alleged had provided equipment to Arvin stated similar allegations. "The new defendants moved to strike the second amended complaint. However, the trial court did not rule on the motion to strike. Instead, the trial court concluded in its eventual ruling on the new defendants' motions to dismiss that, because the second amended complaint purported to state no new cause of action and to arise out of the same conduct and occurrences stated in the first amended complaint, the claims stated in the second amended complaint were subject to the same analysis as those in the first amended complaint. The new defendants argued that the wantonness claims in the first and second amended complaints were subject to a two-year limitations period because, they said, the claims were based on a products-liability theory. The new defendants relied on Malsch v. Bell Helicopter Textron, Inc., 916 So. 2d 600, 601 (Ala. 2005); Boyce v. Cassese, 941 So. 2d 932, 945–46 (Ala. 2006); Gilmore v. M & B Realty Co., 895 So. 2d 200, 207–09 (Ala. 2004); and Smith v. Medtronic, Inc., 607 So. 2d 156, 159 (Ala. 1992). Based on this authority, on February 4, 2008, the trial court entered an order dismissing all the former employees' claims against the new defendants. The former employees' claims against Arvin remained pending; however, the trial court certified its February 4, 2008, order as final pursuant to Rule 54(b), Ala. R. Civ. P. The former employees filed a timely notice of appeal to this Court." 13 So. 3d at 949-52 (footnote omitted). In Carr, this Court concluded: "We stated in McKenzie[ v. Killian, 887 So. 2d 861 (Ala. 2004)]: '[W]anton conduct is the equivalent in law to intentional conduct. Such an allegation of 8 1130110, 1130111 intent renders the six-year statutory period of limitations applicable.' 887 So. 2d at 870. We also adopted Justice Jones's conclusion that wanton conduct, '"resulting in injury, is actionable in trespass and governed by the six-year statute of limitations."' Id. (quoting Strozier[ v. Marchich,] 380 So. 2d [804,] 806 [(Ala. 1980)] (Jones, J., dissenting) (emphasis added)). Based on the analysis adopted in McKenzie, because the former employees have alleged wanton conduct by the new defendants, which resulted in injury to them, their wantonness claims are subject to the six-year limitations period of § 6–2–34(1)." 13 So. 3d at 954. The Court went on to hold: "We find no rational basis upon which to distinguish McKenzie so as to render its holding inapplicable. The former employees can prove a set of circumstances that would entitle them to relief; therefore, the trial court erred in dismissing the former employees' wantonness claims. We reverse its decision as to those claims and remand the case for further proceedings consistent with this opinion." 13 So. 3d at 955 (citation omitted). At a case-management conference in June 2010, the new defendants raised concerns that the former employees were trying to allege conspiracy-based and non-bodily-injury wantonness claims against them, which, they argued, were not alleged in the second amendment complaint and would be precluded by this Court's decision in Carr. The new defendants raised those concerns again in a motion to "dismiss all conspiracy-based claims or claims for non-bodily-injury, 9 1130110, 1130111 or in the alternative, to preclude [the former employees] from asserting any such claims at trial." The new defendants argued, among other things, that after Carr the only surviving claims against the new defendants were wantonness claims based on bodily injury. While the case was still pending on remand, this Court decided Ex parte Capstone Building Corp., 96 So. 3d 77, 86 (Ala. 2012), in which we overruled McKenzie, stating: "We are clear to the conclusion that recklessness and wantonness are fundamentally different concepts than intent, and that claims alleging reckless or wanton conduct are distinctively different types of claims than those alleging intentional harm to a plaintiff. We therefore cannot place claims of wantonness within the governance of § 6-2-34(1), which we interpret as imposing a six-year statute of limitations on the intentional torts described therein, i.e., 'trespass to person or liberty, such as false imprisonment or assault and battery.' Concomitantly, we conclude that claims alleging reckless and wanton conduct fall within the governance of the catchall provision in § 6-2-38(l) providing a two-year limitations period for '[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section.'" The Court went on to overrule McKenzie but held that the decision in Capstone should apply prospectively only. The Court also stated: 10 1130110, 1130111 "This Court's decision today is not based on the constitution, either state or federal, nor does it recognize any 'constitutional error' in any prior decision. Our decision today is simply a matter of statutory construction. We recognize today that the statutory interpretation advanced in McKenzie was incorrect, and we supply today in its place a correct statutory interpretation. Contrary to the suggestion made by the invocation of the quoted passage from Justice Scalia's special concurrence in American Trucking Ass'n v. Smith, 496 U.S. 167, 110 S. Ct. 2323, 110 L.Ed. 2d 148 (1990), this Court did not in McKenzie, nor do we in the present case, engage in some 'interpretation of the Constitution'; rather, the analysis provided in both McKenzie and in the present case reflects merely an effort to discern correctly the legislative intent reflected in the language of §§ 6–2–34(1) and 6–2–38(l)." Capstone, 96 So. 3d at 92. In March 2012, the new defendants moved the trial court for a summary judgment, arguing that the wantonness claims of certain of the former employees, whose last exposure to the chemicals was more than two years before McKenzie was decided, were barred by the two-year statute of limitations that was applicable to wantonness claims before this Court issued its opinion in McKenzie. After a hearing, the trial court denied both the new defendants' summary-judgment motion and their motion to dismiss the conspiracy-based and non-bodily-injury wantonness claims. The new defendants have petitioned in two 11 1130110, 1130111 separate petitions for mandamus relief from the denial of those motions. Analysis "A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.'" Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001)). I. Case No. 1130110 The new defendants argue that mandamus is an appropriate remedy for seeking review of the trial court's denial of their summary-judgment motion because, they argue, "certain [of the former employees'] claims of wantonness are governed by a two- year statute of limitations and are time-barred because those claims do not relate-back to the date of filing of [the former employees'] original complaint." Petition (no. 1130110), at 6. The new defendants note that, "[a]lthough denial of a dispositive motion is generally not considered appropriate for review by a petition for writ of mandamus, a well-established 12 1130110, 1130111 exception exists when the doctrine of relation back is implicated." This Court recently stated in Ex parte Hodge, [Ms. 1121194, February 7, 2014] ___ So. 3d ___, ___ (Ala. 2014): "'The general rule is that "'a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.'" Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998) (quoting Ex parte Central Bank of the South, 675 So. 2d 403 (Ala. 1996)). In all but the most extraordinary cases, an appeal is an adequate remedy; however, there are exceptions –- for example, when the trial court denies a motion for a summary judgment that is based on an argument that governmental immunity bars the plaintiff's claim. See, e.g., Ex parte Butts, 775 So. 2d 173, 177–78 (Ala. 2000). In such a case, the defendant may seek pretrial appellate review by petitioning for permission to appeal an interlocutory order in accordance with Rule 5, Ala. R. App. P., or by petitioning for a writ of mandamus. See id. "'In Ex parte Southland Bank, 514 So. 2d 954, 955 (Ala. 1987), this Court stated that "[t]he fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal." 514 So. 2d at 955. Subject to a narrow exception, that statement remains true. In a narrow class of cases involving fictitious parties and the relation-back doctrine, this Court has reviewed the merits of a trial court's denial of a summary- judgment motion in which a defendant argued that the plaintiff's claim was barred by the applicable statute of limitations.'" (Quoting Ex parte Jackson, 780 So. 2d 681, 684 (Ala. 2000).) 13 1130110, 1130111 The new defendants argue that this case falls within the "narrow exception" mentioned in Ex parte Hodge because "[t]he facts before this [C]ourt show that this petition for [the] writ of mandamus: (1) is filed by [the new defendants] who were fictitiously named in an original complaint and subsequently added after the two-year limitations period expired; (2) requests this Court for an order directing judgment in favor of [the new defendants] on the two-year wantonness claims of [the former employees] that can only survive by application of the doctrine of relation back; and (3) fully establishes that [the former employees'] claims do not relate back." Petition (no. 1130110), at 7. However, this Court has already resolved the question whether the claims against the new defendants related back to the original complaint. In International Refining, this Court determined that none of the claims raised in the first amended complaint, including the wantonness claims at issue in the motion for a summary judgment here, related back to the original complaint. The former employees did not argue in opposition to the motion for a summary judgment that the claims related back, nor did the trial court, in its order denying the motion for summary judgment, find that the claims related back. Moreover, such a finding was not necessary to 14 1130110, 1130111 the trial court's decision to deny the summary-judgment motion.2 Although they stated in the summary-judgment motion that the former employees' claims did not relate back to the original complaint, the crux of the new defendants' argument in that motion and to this Court is that "the two year statute of limitations for wantonness applicable to these [former employees'] claims expired before [this Court's] ruling in McKenzie. Therefore, these [former employees] could not have relied on [this Court's] ruling in filing their claims because these [former employees'] claims were already time-barred when McKenzie was released." Petition (no. 1130110), Exhibit 1, p.3. This argument does not fall within the narrow relation- back exception for cases involving a denial of a motion for a summary judgment based on a statute-of-limitations ground.3 As will be shown hereinafter, the trial court could have 2 determined that the six-year statute of limitations in McKenzie applied to the former employees' wantonness claims against the new defendants. In Hodge this Court granted a petition for mandamus 3 relief based on a statute-of-limitations question that did not involve fictitiously named parties or the relation-back doctrine. However, we noted in Hodge that "the defendants ... are faced with the extraordinary circumstance of having to further litigate this 15 1130110, 1130111 The new defendants also argue that "the writ of mandamus should issue because the trial court failed to comply with the [Alabama] Supreme Court's mandate to dismiss claims barred by the two-year statute of limitations." "A petition for a writ of mandamus is the proper method for bringing before an appellate court the question whether a trial court, after remand, has complied with the mandate of this Court or of one of our intermediate appellate courts." Ex parte Edwards, 727 So. 2d 792, 794 (Ala. 1998). The new defendants argue that, in International Refining, matter after having demonstrated from the face of the plaintiff's complaint a clear legal right to have the action against them dismissed based on the four-year period of repose found in § 6-5-482(a)[, Ala. Code 1975]. Having concluded that an appeal pursuant to Rule 5[, Ala. R. App. P.,] or an appeal from a final judgment following further litigation is not an adequate remedy in this case, we conclude, based on the particular circumstances of this case, that mandamus is necessary in order to avoid the injustice that would result from the unavailability of any other adequate remedy." ___ So. 3d at ___. Unlike the defendants in Hodge, the new defendants do not argue and have not demonstrated that their clear legal right to a statute-of-limitations defense is apparent on the face of either the first amended or the second amended complaint. Therefore, they have not demonstrated that this case falls within the exception recognized in Hodge to the general rule against review by mandamus of the applicability of a statute-of-limitations defense. 16 1130110, 1130111 "[t]his Court specifically and unequivocally remanded this case 'for further proceedings, including a determination of the extent to which any claims are timely, without the availability of the relation-back doctrine.' [International Refining,] 972 So. 2d at 791. This Court also explained that claims 'governed by a statute of limitations that require the application of the doctrine of relation back under fictitious-party practice to survive are due to be dismissed.' Id. Thus, the trial court has defied its duties under the mandate by its failure to enter judgment against certain [of the former employees] whose claims would have only survived if relation back applied." Petition (no. 1130110), at 12. However, on remand from International Refining, the trial court determined that all the claims against the new defendants were barred by statutes of limitations and dismissed those claims. The former employees appealed, and this Court reversed that judgment as to the wantonness claims, finding that the wantonness claims were subject to a six-year statute of limitations. See Carr, supra. Thus, the trial court complied with this Court's mandate in International Refining. The new defendants have not pointed to any aspect of this Court's mandate in Carr related to this issue, with which, they argue, the trial court failed to comply.4 The new defendants do argue that the trial court failed 4 to comply with this Court's mandate in Carr by denying their motion to dismiss any conspiracy-based claims or wantonness 17 1130110, 1130111 Moreover, this Court has stated: "'"Remedial statutes" ... operate retrospectively, in the absence of language clearly showing a contrary intention. A statute of limitations has generally been viewed as a remedial statute, and the statute of limitations in effect at the time the suit is filed, as opposed to one in effect at the time of the accrual of the cause of action, has been held to apply unless the later statute clearly states the contrary. This is true whether the later statute extends or limits the time within which a cause of action may be brought, for it has frequently been held that the legislature can establish a new limitation where none existed before and make it applicable to a cause of action against which there was no such statute when the right was created, and it may also so change an existing statute and shorten periods of limitation, provided a reasonable time is allowed for the action to be brought.'" Foster v. Hacienda Nirvana, Inc., 32 So. 3d 1256, 1260 (Ala. 2009) (quoting Street v. City of Anniston, 381 So. 2d 26, 29 (Ala. 1980)). See also Schoen v. Gulledge, 481 So. 2d 1094, 1097 (Ala. 1985) (applying the statute of limitations in place at the time the action was filed rather than the statute of limitations in place at the time the events giving rise to the cause of action occurred); Jones v. Preuit & Mauldin, 876 F.2d 1480, 1484 (11th Cir. 1989) ("The general rule under Alabama claims based on non-bodily injury. That argument will be addressed later in the opinion. 18 1130110, 1130111 law is that the statute of limitations in effect at the time an action is brought applies."). Although a two-year statute of limitations on wantonness claims may have been in place at the time the former employees' claims arose, the six-year statute of limitations adopted in McKenzie was in place at the time the former employees asserted those claims against the new defendants in the first amended complaint. Thus, the new defendants have 5 not demonstrated that the trial court failed to comply with any prior mandate of this Court, nor have they demonstrated a clear legal right to the dismissal of the wantonness claims against them by way of a summary judgment. Therefore, the new defendants' petition for mandamus relief in case no. 1130110 is denied.6 The wantonness claims were not asserted against the new 5 defendants until the first amended complaint was filed in 2005, and this Court noted in International Refining that those claims do not relate back to the 2003 original complaint. Therefore, the former employees' wantonness claims are governed by a six-year statute of limitations in place at the time the first amended complaint was filed. By recognizing that the former employees' wantonness 6 claims against the new defendants are governed by the six-year statute of limitations set forth in McKenzie, which was in place at the time the claims were alleged, and not the two- year statute of limitations in place at the time the wantonness claims accrued, we pretermit consideration of the 19 1130110, 1130111 II. Case No. 1130111 The new defendants argue in case no. 1130111 that the writ of mandamus should issue because, they argue, the trial court failed to follow this Court's mandate in Carr by "allow[ing] [the former employees] to proceed with a conspiracy-based claim and claims for non-bodily injury." Petition (no. 1130111), at 10. As noted previously, "[a] petition for a writ of mandamus is the proper method for bringing before an appellate court the question whether a trial court, after remand, has complied with the mandate of this Court or of one of our intermediate appellate courts." Ex parte Edwards, 727 So. 2d at 794. "On remand, a trial court is not free to reconsider issues finally decided by the appellate court and must comply with the appellate mandate." Ex parte Mobil Oil Corp., 613 So. 2d 350, 352 (Ala. 1993). In Carr, the former employees appealed the trial court's February 4, 2008, order dismissing all the former employees' claims against the new defendants. The trial court certified the order as a final judgment, pursuant to Rule 54(b), Ala. R. issue whether this Court's decision in McKenzie revived otherwise time-barred claims or whether such a revival would violate the new defendants' constitutional rights. 20 1130110, 1130111 Civ. P. Although the first amended complaint had included claims against the new defendants alleging "negligence, wantonness, liability under the Alabama Extended Manufacturer's Liability Doctrine, civil conspiracy, and the tort of outrage," the former employees appealed only the dismissal of the wantonness claims, arguing that the wantonness claims were subject to the six-year statute of limitations set forth in McKenzie. This Court agreed, 7 concluding that "the trial court [had] erred in dismissing the former employees' wantonness claims. We reverse[d] its decision as to those claims and remand[ed] the case for further proceedings consistent with [that] opinion." 13 So. 3d at 955. After the remand in Carr, the new defendants moved the trial court "to enter an order dismissing any and all (a) conspiracy-based claims or (b) claims for non-bodily injury that [the former employees] may seek to assert, or, in the alternative, precluding [the former employees] from asserting In fact, as we noted in Carr, the former employees had 7 "conceded that their other claims against the new defendants were subject to the two-year limitations period and, without the availability of the relation-back doctrine, were due to be dismissed." Carr, 13 So. 3d at 951. 21 1130110, 1130111 any such claims hereafter and from arguing any such claims at the trial of this case." The trial court denied that motion, and the new defendants argue that, in doing so, it violated this Court's mandate in Carr by allowing the former employees to proceed with claims other than those included in the remand order in Carr. With regard to the conspiracy claims, we agree.8 The former employees' conspiracy claims were alleged as separate claims in the first amended complaint and were dismissed by the trial court along with the other claims against the new defendants in its February 4, 2008, order, which was certified as a final judgment pursuant to Rule 54(b). As noted previously, the former employees appealed only the wantonness claims, and this Court reversed the trial It is worth noting that the former employees have not 8 moved the trial court to amend the pleadings to assert any new claims alleging conspiracy or non-bodily injury. Instead, they argue that the conspiracy claims alleged in the first amended complaint remain intact because, they say, those claims "travel with" and "proceed in tandem" with the wantonness claims. Response to petition (no. 1130111), at 18. They also argue that their wantonness claims incorporated both claims for bodily and non-bodily injuries. Thus, although the motion to dismiss was framed in future terms (i.e., claims that "may be asserted"), the former employees appear to consider conspiracy and non-bodily-injury claims to be among the claims currently before the trial court in this case. 22 1130110, 1130111 court's judgment only as to those claims. See Carr, 13 So. 3d at 955 ("[T]he trial court erred in dismissing the former employees' wantonness claims. We reverse its decision as to those claims and remand the case for further proceedings consistent with this opinion."). We did not, as the former employees argue, "return[] to the trial court all claims stated by the [former employees,] which could be subject to a six-year statute of limitations, clearly regarding all allegations and damages within the constellation of [the former employees'] claims as likewise within the operation of that mandate." Response to petition (no. 1130111), at 9. The former employees argue, however, that the conspiracy claims "are wholly derivative of and dependent on their wantonness claims," response to petition (no. 1130111), at 9; that "[the former employees] pleaded facts and allegations in the first amended complaint sufficient to state claims for conspiracy that travel with the wantonness claims"; and that "[t]he allegations of civil conspiracy present no separate, independent cause of action subject to resolution or dismissal apart from wantonness, and proceed in tandem with the wantonness claims." Response to petition (no. 1130111), at 23 1130110, 1130111 18. In support of these arguments, the former employees cite cases indicating that "[c]onspiracy is not an independent cause of action; therefore, when alleging conspiracy, a plaintiff must have a viable underlying cause of action," Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So. 2d 1280, 1290 (Ala. 1993), and that "a conspiracy claim must fail if the underlying act itself would not support an action." Triple J Cattle, Inc. v. Chambers, 621 So. 2d 1221, 1225 (Ala. 1993). Although these cases demonstrate that a conspiracy claim cannot exist independently of a viable cause of action, they do not indicate that conspiracy claims automatically "travel with" or "proceed in tandem" with other causes of action such that, where both the conspiracy claim and the claim in the underlying cause of action have been dismissed, an appeal challenging the claim in the underlying cause of action is, effectively or implicitly, an appeal of the conspiracy claim as well. The former employees have cited no authority supporting the latter proposition, and we know of none. The former employees do cite DGB, LLC v. Hinds, 55 So. 3d 218 (Ala. 2010), in which, they argue, "this Court reversed [the] dismissal of [the] plaintiffs' conspiracy count when it 24 1130110, 1130111 found the tort underlying the conspiracy to have been erroneously dismissed." However, unlike the former employees, the appellants in DGB had appealed the dismissal of the conspiracy claims, as well as the dismissal of the underlying tort claims. This Court reversed the trial court's judgment as to the underlying tort claims and went on to state: "Because the investors have alleged valid underlying causes of action ..., the investors have stated a claim of civil conspiracy upon which relief may be granted against each of these defendants. Accordingly, the trial court erred in dismissing this claim." DGB, 55 So. 3d at 234. Here, however, the former employees did not appeal the dismissal of the conspiracy claims and, in fact, had "conceded that their other claims against the new defendants [besides the wantonness claims] were subject to the two-year limitations period and, without the availability of the relation-back 25 1130110, 1130111 doctrine, were due to be dismissed." Carr, 13 So. 3d at 951. 9 DGB is distinguishable on that basis. The former employees also argue that, "[e]ven if the [former employees'] allegations of ... conspiracy were dismissed, the trial court could consider such allegations within this Court's mandate to the extent Carr was not a final adjudication." Response to petition (no. 1130111), at 19. The former employees cite Ex parte Insurance Co. of North America, 523 So. 2d 1064, 1069 (Ala. 1988), for the proposition that "a trial court [has an] inherent ability to take up new claims, either of its own volition or on motion, after remand where there has been no final adjudication of the claims." However, as the former employees themselves assert, their conspiracy claims are not "new claims" but were raised initially in the first amended complaint. Moreover, the trial The former employees now argue that the conspiracy claims 9 related to wantonness are governed by the six-year statute of limitations applicable to the wantonness claims. This argument was not raised during the appeal of the February 4, 2008, judgment, which dismissed all the former employees' claims, including the conspiracy claims, as barred by the applicable statute of limitations. Thus, that argument was waived and will not be considered here. See Muhammad v. Ford, 986 So. 2d 1158, 1165 (Ala. 2007) ("'An argument not made on appeal is abandoned or waived.'" (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1124 n.8 (Ala. 2003))). 26 1130110, 1130111 court's February 4, 2008, judgment, which was made final pursuant to Rule 54(b), dismissed all the claims against the new defendants, and the former employees did not appeal the dismissal of any claims except the wantonness claims. "In cases where an appeal is taken with respect to only a particular issue or issues, there can be no retrial after remand of issues previously tried and determined but not appealed from." Ex parte Army Aviation Ctr. Fed. Credit Union, 477 So. 2d 379, 380-81 (Ala. 1985). Because the conspiracy claims were dismissed in the trial court's February 4, 2008, judgment and because this Court's decision in Carr reversed that judgment as to the wantonness claims only, this Court's decision in Carr was a final adjudication of the conspiracy claims, and allowing those claims to proceed is a violation of this Court's decision in Carr. The new defendants also argue that the trial court erred by failing to dismiss any wantonness claims for non-bodily injury. However, in reversing the trial court's judgment as to the wantonness claims, this Court in Carr did not distinguish between claims based on bodily injury and those based on non-bodily injury. Instead, we held that "the trial 27 1130110, 1130111 court erred in dismissing the former employees' wantonness claims." 13 So. 3d at 955. The wantonness claims as set forth in the first and second amended complaints listed "mental anguish, humiliation, and embarrassment" among the injuries allegedly caused by the new defendants' wantonness.10 Thus, the former employees' wantonness claims included allegations of non-bodily as well as bodily injury, and the trial court did not violate this Court's mandate in Carr by denying the new defendants' motion to dismiss the former employees' non-bodily-injury wantonness claims. Conclusion For the foregoing reasons, we conclude that the trial court erred by allowing the former employees to proceed against the new defendants on the conspiracy claims, and the new defendants are entitled to have any such claims dismissed. Therefore, we grant the petition in case no. 1130111 in part and issue the writ of mandamus, directing the trial court to dismiss all allegations of conspiracy against the new The new defendants argue that the second amended 10 complaint superseded the first amended and original complaints and "displace[d]" the claims alleged in those complaints. Because the wantonness claims in both the first and second amended complaints included claims for non-bodily injury, we need not address this issue at this time. 28 1130110, 1130111 defendants. The petition in case no. 1130111 is denied in all other respects. The petition in case no. 1130110 is denied. 1130110 -- PETITION DENIED. 1130111 -- PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Main, and Wise, JJ., concur. Shaw, J., concurs in the result. 29	June 20, 2014
47780dfc-f302-405e-a4e7-f5f11278b97e	Alabama v. Moyers	N/A	1130611	Alabama	Alabama Supreme Court	Rel: 08/29/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1130611 _________________________ Ex parte State of Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Ex parte Joel Patrick Moyers (In re: State of Alabama v. Joel Patrick Moyers)) (Limestone Circuit Court, CV-13-900357; Court of Criminal Appeals, CR-13-0093) MAIN, Justice. This Court granted the State's petition for a writ of certiorari to review the Court of Criminal Appeals' 1130611 unpublished order directing the Limestone Circuit Court to set bail for Joel Patrick Moyers. Ex parte Moyers (No. CR-13- 0093, Dec. 20, 2013), ___ So. 3d ___ (Ala. Crim. App. 2013) (table). The issue before that court, and before us, is whether a defendant who is charged with a capital offense is entitled to bail if the State does not intend to seek the death penalty. First, the State argues that the Court of Criminal Appeals' decision in this case conflicts with Ex parte Bynum, 294 Ala. 78, 312 So. 2d 52 (1975), in which this Court held that bail can be constitutionally denied in a capital-offense case even if the death penalty will not be imposed. Alternatively, the State argues that the Court of Criminal Appeals' decision raises a material question of first impression that requires decision by this Court. For the reasons discussed below, we reverse and remand. I. Facts and Procedural History In September 2012, Moyers was arrested and charged with reckless murder and shooting into an occupied vehicle. Bail was set at $260,000. In December 2012, Moyers was indicted for capital murder, reckless murder, and two counts of shooting into an occupied vehicle. In January 2013, the State 2 1130611 filed a notice of its intent not to seek the death penalty. In February 2013, Moyers applied for bail, but after a hearing the trial court denied bail. In June 2013, after the trial court dismissed the capital-murder charge in the indictment because it did not contain specific-intent language, a new indictment was returned against Moyers charging capital murder, reckless murder, and two counts of shooting into an occupied vehicle. Moyers again applied for bail, but after a hearing the trial court denied it. In August 2013, Moyers filed a petition for a writ of habeas corpus in the trial court, requesting that the trial court set bail. On September 24, 2013, the trial court denied Moyers's petition. Moyers then filed a petition for a writ of habeas corpus with the Court of Criminal Appeals, requesting that it direct the trial court to hold an evidentiary hearing on his habeas corpus petition or, in the alternative, to set bail. The Court of Criminal Appeals granted Moyers's petition for a writ of habeas corpus and, by an unpublished order, directed the trial court to set bail. The State petitioned this Court for a writ of certiorari on the grounds that whether bail should 3 1130611 be available to a defendant charged with a capital offense if that defendant is not facing the death penalty is a question of first impression and that the Court of Criminal Appeals' decision conflicts with prior decisions of this Court and the Court of Criminal Appeals. We granted the State's petition. II. Standard of Review "'"This Court reviews pure questions of law in criminal cases de novo."'" Ex parte Shabazz, 989 So. 2d 524, 525 (Ala. 2008)(quoting Ex parte Morrow, 915 So. 2d 539, 541 (Ala. 2004), quoting in turn Ex parte Key, 890 So. 2d 1056, 1059 (Ala. 2003)). Further, "'[u]nder the ore tenus standard of review, we must assume the trial court's factual finding ... was correct, and thus we must uphold the order based on that finding unless the court had before it no credible evidence to support that finding.' W.D. Williams, Inc. v. Ivey, 777 So. 2d 94, 98 (Ala. 2000)." Ex parte Wilding, 41 So. 3d 75, 77 (Ala. 2009). III. Analysis In granting Moyers's petition for a writ for a habeas corpus and directing the trial court to set bail, the Court of Criminal Appeals relied on Ex parte Patel, 879 So. 2d 532 4 1130611 (Ala. 2003), and said that in Ex parte Patel this Court "appears to have departed from its earlier interpretation in [Ex parte] Bynum." In Ex parte Bynum, this Court retained the classification of capital offenses even though Furman v. Georgia, 408 U.S. 238 (1972), had declared the death penalty, as it was then implemented, unconstitutional. In Ex parte Bynum, this Court followed the view of the majority of states that offenses that were classified as capital offenses before Furman were still capital offenses and that bail can constitutionally be denied in those cases. 294 Ala. at 81, 312 So. 2d at 55. We explained: "The rationale of these decisions indicates that the gravity of the offense is the distinguishing feature and not the penalty which may be imposed. Following this interpretation, certain crimes for purposes of bail are still classified as capital regardless of whether the death penalty may be invoked." 294 Ala. at 81, 312 So. 2d at 54. In Ex parte Patel, this Court said: "Article I, § 16, of the Alabama Constitution of 1901 provides: 'That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.' That constitutional provision allows a court to deny bail for a defendant charged with an offense defined by statute as capital. Ex parte Landers, 690 So. 2d 5 1130611 537, 538 (Ala. Crim. App. 1997). This court has established three prerequisites to the denial of bail in a capital case: 'The evidence must be clear and strong, that it would lead a well-guarded and dispassionate judgment to the conclusion that (1) the offense has been committed; (2) the accused is the guilty agent; and (3) he would probably be punished capitally if the law is administered.' Trammell v. State, 284 Ala. 31, 32, 221 So. 2d 390, 390 (1969). The State has the burden of proving that the crime was committed and showing 'facts that would convince the judge that upon final trial the judge would sustain a verdict pronouncing the defendant guilty and imposing the death penalty.' Roan v. State, 24 Ala. App. 517, 517, 137 So. 320, 321 (1931). A safe rule for a trial court to follow 'is to deny bail if the court could sustain a capital conviction by a jury based on the same evidence taken at the hearing seeking bail; and to allow bail if the evidence is not so efficacious.' Webb v. State, 35 Ala. App. 575, 576, 50 So. 2d 451, 452 (1951); Roddam v. State, 33 Ala. App. 356, 33 So. 2d 384 (1948)." 879 So. 2d at 533-34. Relying on Ex parte Patel, the Court of Criminal Appeals concluded that, because Moyers will not face the death penalty, the State failed to establish the prerequisites for denying bail in this case and directed the trial court to set bail. Based on Ex parte Bynum, the State contends that to be punished capitally does not mean only that the death penalty be imposed and argues that the question in this case is whether the offense is classified as a capital offense by 6 1130611 statute, not whether Moyers will be sentenced to death. The State maintains that, if a defendant is charged with an offense made capital under § 13A-5-40, Ala. Code 1975, and that defendant is convicted of that offense, there are two possible punishments, both of which are "capital"--a sentence of death or a sentence of life imprisonment without the possibility of parole. We thus consider whether a defendant who is charged with a capital offense is entitled to bail if the State does not intend to seek the death penalty for the offense. Alabama has a constitutional qualification on the presumptive right to bail for capital offenses. See Ala. Const. 1901, Art. I, § 16 (excepting from bailable offenses capital crimes when the proof is evident or the presumption great); and Ex parte Bynum. Ex parte Bynum explained that it is the gravity of the offense, not the sentence that could be imposed, that is to be considered in determining whether the defendant has a right to bail. Thus, "certain crimes for purposes of bail are still classified as capital regardless of whether the death penalty may be invoked." 294 Ala. at 81, 312 So. 2d at 54. The legislature has classified certain 7 1130611 murders as capital in § 13A–5–40. A capital offense is defined in § 13A–5–39(1), Ala. Code. 1975, as "[a]n offense for which a defendant shall be punished by a sentence of death or life imprisonment without parole according to the provisions of this article." Ex parte Patel further explained the proof required for determining whether bail is warranted as follows: "Alabama appellate courts have stated that 'where bail has been refused by the primary magistrate on oral evidence, the appellate court will not interfere, unless such denial appears from the record to have been manifestly erroneous.' Roan [v. State], 24 Ala. App. [517,] 517, 137 So. [320,] 321 [(1931)]. The Alabama Court of Criminal Appeals has recognized a presumption of guilt '"'[w]here one is imprisoned [for a capital offense] by virtue of an indictment.'"' [Ex parte] Landers, 690 So. 2d [537,] 538 [(Ala. Crim. App. 1987)] (quoting Burks v. State, 600 So. 2d 374, 381 (Ala. Crim. App. 1991), quoting in turn Livingston v. State, 40 Ala. App. 376, 377, 116 So. 2d 396, 397 (1959)). To be entitled to bail as of right, a defendant must overcome this presumption by proof. Landers, 690 So. 2d at 538." 879 So. 2d at 534 (footnote omitted). Patel had not been indicted when the trial court held a hearing on her request for bail. Therefore, this Court found that no presumption of her guilt existed and, after reviewing the evidence presented to the trial court, held that the State had presented 8 1130611 insufficient evidence upon which the trial court could have based a decision to deny bail. Id. Here, Moyers was indicted, and the trial court, after a hearing at which the court heard and considered evidence presented ore tenus, denied Moyers bail. Ex parte Patel, therefore, is factually distinguishable from this case. Based on the plain meaning of the statutory and constitutional provisions and the development of the caselaw in this area, we hold that a "capital offense" within the meaning of constitutional and statutory provisions relating to bail is an offense that is punishable by death or by life imprisonment without the possibility of parole. Therefore, when a defendant who is charged with a capital offense requests a trial court to set bail, under Ex parte Bynum the court can deny that request for bail even if the State will not seek the death penalty. In order for the trial court to deny a request for bail from a defendant charged with a capital offense, however, the State must prove the three prerequisites noted in Ex parte Patel: "'The evidence must be clear and strong, that it would lead a well-guarded and dispassionate judgment to the conclusion that (1) the offense 9 1130611 has been committed; (2) the accused is the guilty agent; and (3) he would probably be punished capitally if the law is administered.'" Ex parte Patel, 879 So. 2d at 533 (quoting Trammell v. State, 284 Ala. 31, 32, 221 So. 2d 390, 390 (1969)). Moreover, Ex parte Patel holds that if a defendant has been indicted for a capital offense, that defendant is presumed guilty for purposes of setting bail, and the defendant has the burden to overcome that presumption before he or she is entitled to bail as a matter of right. Id. In sum, our decision in this case synthesizes the constitutional and statutory provisions with the caselaw. IV. Conclusion For the foregoing reasons, we reverse the judgment of the Court of Criminal Appeals and remand this case for further proceedings consistent with this opinion. REVERSED AND REMANDED. Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur. Moore, C.J., and Shaw, J., concur specially. 10 1130611 MOORE, Chief Justice (concurring specially). All accused are entitled to preconviction bail "except for capital offenses, when the proof is evident or the presumption great." Art. I, § 16, Ala. Const. 1901. Because "the gravity of the offense is the distinguishing feature and not the penalty which may be imposed," this Court has held that bail may be constitutionally denied in a capital case even though the death penalty is not available. Ex parte Bynum, 294 Ala. 78, 81, 312 So. 2d 52, 54 (1975). Thus, under Ex parte Bynum, the trial court may deny Joel Patrick Moyers bail if the constitutional conditions are satisfied. However, in Ex parte Patel, 879 So. 2d 532 (Ala. 2003) (quoting Roan v. State, 24 Ala. App. 517, 517, 137 So. 320, 321 (1931)), this Court said that bail could be denied in a capital case if the trial judge was convinced that on a finding of guilt the death penalty would be imposed. Id. at 533-34. The Court of Criminal Appeals read Ex parte Patel as saying that where the death penalty was waived the constitutional entitlement to bail was automatically revived. Thus, it ordered the trial court to set bail for Moyers. 11 1130611 However, as Justice Houston explained in his concurrence in Ex parte Patel, and as Justice Shaw points out in his special concurrence here, Roan was decided before life imprisonment without the possibility of parole was an alternative punishment in a capital case. See § 13A-5-39(1), Ala. Code 1975 (stating that a capital offense is one punishable "by a sentence of death or life imprisonment without parole"). By relying on Ex parte Patel without taking cognizance of Justice Houston's observation about its potentially misleading quotation from Roan, the Court of Criminal Appeals misinterpreted Art. I, § 16. Article I, § 16, grants a trial court the discretion, upon a proper finding, to deny bail for any capital offense, not merely one in which the death penalty might be imposed. 12 1130611 SHAW, Justice (concurring specially). As the main opinion notes, Art. I, § 16, of the Alabama Constitution of 1901, provides that, under the specified circumstances, bail may be denied in capital cases. Prior caselaw has held that "certain crimes for purposes of bail are still classified as capital regardless of whether the death penalty may be invoked." Ex parte Bynum, 294 Ala. 78, 81, 312 So.2d 52, 54 (1975). Thus, under certain circumstances, one charged with a capital crime may be denied bail, even if the death penalty is not an option as punishment. In Ex parte Patel, 879 So. 2d 532, 533 (Ala. 2003), this Court discussed the factors to consider in determining whether bail is appropriate in a capital case: "This Court has established three prerequisites to the denial of bail in a capital case: 'The evidence must be clear and strong, that it would lead a well-guarded and dispassionate judgment to the conclusion that (1) the offense has been committed; (2) the accused is the guilty agent; and (3) he would probably be punished capitally if the law is administered.' Trammell v. State, 284 Ala. 31, 32, 221 So. 2d 390, 390 (1969)." The Court then noted: "The State has the burden of proving that the crime was committed and showing 'facts that would convince the judge that upon final trial the judge would sustain a verdict pronouncing the defendant guilty 13 1130611 and imposing the death penalty.' Roan v. State, 24 Ala. App. 517, 517, 137 So. 320, 321 (1931)." 879 So. 2d at 533 (emphasis added). In the instant case, the Court of Criminal Appeals believed that Ex parte Patel, in quoting the sentence above from Roan v. State, 24 Ala. App. 517, 137 So. 320 (1931), "appear[ed] to have departed from [this Court's] earlier interpretation in Bynum," and, thus, that in order to properly deny bail the trial court must be convinced that the death penalty would be imposed, which was not an option in Joel Patrick Moyers's case. The main opinion holds that Ex parte Patel is factually distinguishable from this case; I agree, but I do not believe that that is the only reason Ex parte Patel does not require the result reached by the Court of Criminal Appeals. Specifically, the issue in Ex parte Patel involved whether the evidence was sufficient to justify the denial of bail. The quotation of Roan in Ex parte Patel should be viewed only as discussing the quantum of evidence to be produced to the trial court and not a definition of crimes constituting capital offenses for purposes of determining whether a defendant has a right to bail. Roan's discussion, as quoted in Ex parte 14 1130611 Patel, is pertinent as to how much evidence is to be produced, not what constitutes a capital offense. In fact, the definition of what constituted a capital offense changed after Roan. As Justice Houston stated in his special writing on application for rehearing in Ex parte Patel: "[A]fter [the Court of Appeals] decided Roan v. State, 24 Ala. App. 517, 137 So. 320 (1931), quoted in the original opinion, the definition of 'capital offense' was revised to include an offense punishable by a sentence of life imprisonment without the possibility of parole. See Ala. Code 1975, § 13A–5–39." Ex parte Patel, 879 So. 2d at 535 (Houston, J., concurring specially). The issue in Ex parte Patel was whether the 1 Justice Houston called for the Court to clarify the 1 decision in Ex parte Patel: "I would revise the portion of the opinion in which we quote from Roan in order to clarify that, under the circumstances presented here, the State has the burden of proving that the crime was committed and showing 'facts that would convince the judge that upon final trial the judge would sustain a verdict pronouncing the defendant guilty and imposing the death penalty [or a sentence of life imprisonment without parole].' Roan, 24 Ala. App. at 517, 137 So. at 321." Ex parte Patel, 879 So. 2d at 535 (Houston, J., concurring specially). For whatever reason, the Court apparently declined to do so. 15 1130611 trial court had sufficient evidence on which to deny bail, and its citation of Roan was to show what must be demonstrated to the trial court to constitute sufficient evidence; there was no dispute whether the charged crime was a capital offense. For that reason, Ex parte Patel did not mandate the decision by the Court of Criminal Appeals in this case. 16	August 29, 2014
9a5ad849-c417-45b0-bed9-7ad537796cc6	Volcano Enterprises, Inc. v. Rush	N/A	1121185	Alabama	Alabama Supreme Court	REL: 05/09/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121185 ____________________ Volcano Enterprises, Inc., d/b/a Club Volcano v. Peggy Bender Rush, as administratrix of the Estate of Derric Edwin Rush, deceased, et al. Appeal from Jefferson Circuit Court (CV-11-902863) MURDOCK, Justice. Volcano Enterprises, Inc., d/b/a Club Volcano ("Volcano Enterprises"), appeals from the denial of its Rule 60(b)(4), Ala. R. Civ. P., motion to set aside the judgment entered against it in a wrongful-death action filed by Peggy Bender 1121185 Rush, as administratrix of the estate of her husband Derric Edwin Rush and as the widow of Derric Edwin Rush, and by Dashton Rush, the Rushes' minor son, by an through his mother and next friend, Peggy Bender Rush (hereinafter collectively referred to as "Rush"). We reverse and remand. I. Facts and Procedural History This appeal stems from a default judgment entered against Volcano Enterprises based on its failure to answer a complaint served upon it by publication under Rule 4.3, Ala. R. Civ. P. For purposes of this appeal, the uncontested facts provided in Rush's complaint are the only facts properly before us. In pertinent part, the complaint alleges that police officer James Lenoir Kendrick met a friend of his, an off-duty police officer, at Club Volcano (sometimes referred to hereinafter as "the club") after Kendrick's shift had ended. The complaint alleges that Kendrick consumed a substantial amount of alcohol while sitting in a parked vehicle in the parking lot of the club, after which he entered the club with his friend. The complaint further alleges that Kendrick "remained for several hours" in the club, that while there he "became visibly intoxicated," and that, "despite his "visibly 2 1121185 intoxicated condition, [he] was served additional alcohol and allowed to leave in an intoxicated condition." Finally, the complaint alleges that, in his intoxicated condition, Kendrick drove his vehicle in a manner that caused the death of Derric Edwin Rush. 1 On August, 11, 2011, Rush filed the complaint in the Jefferson Circuit Court, naming as defendants Kendrick and Volcano Enterprises and seeking damages based upon a claim of "wrongful death." Daryl Williams is the owner of Volcano Enterprises and its designated agent for service of process. Rush attempted to serve Volcano Enterprises by attempting to effect personal service on Williams in that capacity. In a "Motion for Extension of Time to Serve Defendant Volcano Enterprises and Service by Publication" filed by Rush on December 12, 2011, Rush's counsel stated: "On September 29, 2011, we received a 'No Service' notice from the Clerk's office. On November 9, 2011, plaintiffs' counsel was notified that the summons and complaint could not be served on Daryl Williams, the registered agent for Volcano Enterprises, Inc., at 836 Spring Street, Birmingham, Alabama, due to it being destroyed in the [April 2011] tornado. In addition to efforts by the The record indicates that Kendrick eventually was 1 convicted of reckless manslaughter in connection with these events. 3 1121185 Jefferson County Sheriff Department to serve Daryl Williams, the registered agent for Volcano Enterprises, plaintiffs' counsel has attempted service through an alias summons by personal process server." Rush attached to the motion an affidavit from Scott Hadly, a hired process server, in which Hadly averred, in pertinent part: "2. I have made the following efforts to serve Daryl Williams, the registered agent for Volcano Enterprises, at Club Volcano: "11/19/1l @6:08pm. Spoke with man inside bar icing down the beer, who told me he did not know of a Daryl Williams, that the bar manager was named Leonard Smith and I should come back when he was on. "11/20/11 @6:57 pm no one there -- could not get in. "ll/27/ll @7:14pm could not get in. "11/27/11 @7:14pm no one admitted to being or knowing a Daryl Williams. "12/3/11 @9:08 pm Same thing, no one would admit knowing anyone by that name. "3. ... Volcano Enterprises, Inc., d/b/a Club Volcano, is aware of the many efforts I have made to perform service. [Volcano Enterprises] employees have been informed of the nature of the papers to be served and that there is a lawsuit pending against Volcano Enterprises." 4 1121185 Additionally, on December 9, 2011, Hadly signed a "Return of Service" stating that the summons and complaint had not been served on Volcano Enterprises because Volcano Enterprises had "avoided service." In the motion for service by publication, Rush noted that, "[p]ursuant to Rule 4.3[, Ala. R. Civ. P.], numerous efforts have been made to serve Daryl Williams, the only known registered agent of Volcano Enterprises. Plaintiffs' counsel, through their process server, has been informed that Daryl Williams cannot be found in the state of Alabama and that his home was destroyed by the April tornado. Plaintiffs' counsel moves the Court to deem these circumstances as evidence of service under Rule 4.3(c) and allow service by publication to defendant Volcano Enterprises." On December 19, 2011, the trial court granted the motion to serve Volcano Enterprises by publication. Thereafter, Rush had an affidavit of publication published in the Alabama Messenger, a semi-weekly newspaper published in Jefferson County, for four consecutive weeks on February 8, 2012, February 15, 2012, February 22, 2012, and March 1, 2012. Volcano Enterprises did not file an answer or make any appearance in the action. 5 1121185 On April 18, 2012, Rush filed an application for a default judgment against Volcano Enterprises. The following day the trial court entered a default judgment against Volcano Enterprises and in favor of Rush with leave to prove damages. A jury trial on the claims against Kendrick and on the issue of damages as to Volcano Enterprises was held on February 25, 2013. The jury entered a verdict on February 27, 2013, in favor of Rush and against Kendrick. On March 1, 2013, the trial court entered a final order pursuant to the verdict, awarding $3.25 million in damages against Kendrick, who appeared and defended against the action, and $37 million in damages against Volcano Enterprises. On March 29, 2013, Volcano Enterprises filed a "Motion to Alter, Vacate, or Amend or in the alternative Motion for a New Trial." Pertinent to this appeal, the motion sought to set aside the default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P., on the ground that "said judgment is void due to the lack of in personam jurisdiction over [Volcano Enterprises] because proper service has not been effected pursuant to Rule 4.3 of the Alabama Rules of Civil Procedure." Volcano 2 In the motion, Volcano Enterprises also made arguments 2 for a remittitur and for a new trial. 6 1121185 Enterprises contended that Rush did not present facts sufficient to warrant service by publication based on avoidance of service by Volcano Enterprises. In support of its motion, Williams filed an affidavit executed on March 29, 2013, that provided, in pertinent part: 3 "3. The physical office of Volcano [Enterprises] for the Registered Agent, as registered with the Secretary of the State of Alabama is 836 Spring Street Birmingham, AL 35214, which is my personal residence. "4. In April of 2011, my personal residence was struck by a tornado and totally destroyed. As soon as practical, and after public access was granted to the area, the mailbox which serviced the address was fully functional. I have continued to receive mail at the physical address of the Registered Agent through the present date and have received no mail, certified mail, registered mail or any other correspondence or communication regarding any attempt or effort to deliver legal documents to me as the Registered Agent for Volcano [Enterprises] and which pertain to the litigation in this case. "5. Although I am the Registered Agent for Volcano [Enterprises], I do not manage the [Club] Volcano and do not attend to its daily functions. I do not participate in its day to day operations. "6. I have two (2) managers who handle the day to day operations and who deal with and communicate with the employees of the facility. Neither the Volcano Enterprises provided other submissions in support 3 of its motion, but those submissions pertained to arguments in its motion that did not address the issue of service of process, which is the only issue before us in this appeal. 7 1121185 management nor the employees are Registered Agents of Volcano [Enterprises] and are not authorized and have never been authorized to accept process on behalf of Volcano [Enterprises]. "7. I first learned about the lawsuit against Volcano [Enterprises] after entry of judgment when I was informed by an acquaintance that they had heard about the judgment on the news. ..." On April 30, 2013, Rush filed a response in opposition to Volcano Enterprises' motion. Rush attached to her response a copy of court records showing that over 30 filings had been mailed to Williams's home address during the course of litigation and that none of those filings had been returned as undelivered. The filings included, among other documents: Kendrick's answer to the complaint, subpoenas to various non- parties, Kendrick's motion for leave to appear at trial, motions in limine -- including one such motion filed by Rush specific to Volcano Enterprises, the parties' proposed jury charges, and the court order entering judgment on the jury verdict. Additionally, in an effort to refute Williams's assertion that he was not involved in the daily functions of Club Volcano, Rush submitted excerpts from files of the Alabama Alcoholic Beverage Control Board ("the ABC Board") pertaining 8 1121185 to Volcano Enterprises. Those documents showed that during the period leading up to the incident, Williams signed and filed documents with the ABC Board on behalf of Volcano Enterprises. The filings included affidavits executed by Williams for the renewal of Club Volcano's liquor licenses over the course of several years and documents showing that 4 at least two separate inspections of Club Volcano were performed by ABC Board agents in 2009, during which violations were found and for which Williams had signed violations notices and had paid fines, that an ABC Board agent had personally served Williams with an insufficient-fund/payment notice, and that payments had been made to the ABC Board on behalf of Club Volcano by money orders signed by Williams. Rush also submitted a copy of a complaint Williams had filed in the Madison Circuit Court against the City of Huntsville in February 2013 on behalf of Volcano Enterprises for its establishment in Huntsville, which averred that "Mr. Williams In a July 2009 application for an ABC license renewal for 4 Club Volcano, Williams certified that he was the "sole owner" of Volcano Enterprises and that Volcano Enterprises had the minimum required liability insurance for such an establishment of $100,000 with "Colony Insurance Co." Rush demonstrated during the trial on damages that this representation by Williams was false. 9 1121185 has twenty years of experience owning, managing, and operating adult entertainment clubs." Volcano Enterprises filed a motion to strike Rush's evidentiary submissions. Volcano Enterprises argued that the submissions were filed late under Rule 59(c), Ala. R. Civ. P., and that the submissions were not relevant to demonstrating that Williams actively managed Club Volcano. On May 21, 2013, the trial court denied Volcano Enterprises' motion to strike. On May 2, 2013, the trial court held a hearing on Volcano Enterprises' motion to set aside the default judgment. On May 21, 2013, the trial court entered an order denying Volcano Enterprises' motion to set aside the default judgment, concluding, among other things, that it did not find Williams's affidavit credible in certain respects. Among 5 other things, the court stated that it "reasonably inferred that Club Volcano employees probably knew Daryl Williams and that they probably would not falsely state to a process server Our holding today does not depend on a finding of 5 credibility on the part of Williams, or upon any of the information contained in his affidavit. Instead, our holding is based on the facts that the burden of proof for showing avoidance of service fell on Rush and that the limited facts presented to the trial court in Hadly's affidavit do not rise to a level sufficient to justify such a finding. 10 1121185 that they did not know Daryl Williams unless they were involved in the process of avoiding service as instructed by managers, officer, or agents of Club Volcano." Volcano Enterprises filed a timely appeal of the trial court's judgment. II. Standard of Review "A trial court's ruling on a Rule 60(b)(4) motion is subject to de novo review. Bank of America Corp. v. Edwards, 881 So. 2d 403 (Ala. 2003). In Bank of America, supra, our supreme court stated: "'"'The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield 11 1121185 v. Winston Industries, Inc., 553 So. 2d 61 (Ala. 1989).'"' "881 So. 2d at 405, quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So. 2d 655, 657 (Ala. 2001), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala. 1991). See also Northbrook Indem. Co. v. Westgate, Ltd., 769 So. 2d 890, 893 (Ala. 2000). "The failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the trial court of personal jurisdiction over the defendant and renders a default judgment void. Cameron v. Tillis, 952 So. 2d 352 (Ala. 2006); Image Auto, Inc. v. Mike Kelley Enters., Inc., supra. In Bank of America, supra, our supreme court also stated: "'"One of the requisites of personal jurisdiction over a defendant is 'perfected service of process giving notice to the defendant of the suit being b r o u g h t . ' Ex parte V o l k s w a g e n w e r k Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983). 'When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.' Id. A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void. Satterfield v. Winston Industries, Inc., 553 So. 2d 61 (Ala. 1989)."' 12 1121185 "881 So. 2d at 405, quoting Horizons 2000, Inc. v. Smith, 620 So. 2d 606, 607 (Ala. 1993)." Nichols v. Pate, 992 So. 2d 734, 736 (Ala. Civ. App. 2008). III. Analysis A default judgment was entered against Volcano Enterprises based on its failure to answer a complaint. Rule 4.3(c), Ala. R. Civ. P., addresses this situation and provides, in pertinent part, that, "[w]hen a defendant avoids service and that defendant's present location or residence is unknown and the process server has endorsed the fact of failure of service and the reason therefor on the process and returned it to the clerk or where the return receipt shows a failure of service, the court may, on motion, order service to be made by publication." The committee comments to Rule 4.3 observe that "more than mere inability to find the defendant is required because of the use of the term 'avoidance' of service. Without this element of culpability on the part of the defendant when plaintiff has failed to obtain service other than by publication, substantial constitutional questions may be posed by the obtaining of an in personam judgment by publication." Rule 4.3, Ala. R. Civ. P., Committee Comments on 1977 Complete Revision (emphasis added). Volcano Enterprises argues that Hadly's affidavit did not demonstrate the culpability necessary to find avoidance of 13 1121185 service rather than a mere failure on his part to find the defendant. We agree. Although there is no requirement for such in the Alabama Rules of Civil Procedure, it is worth noting that, following the failed attempt to achieve personal service upon Williams at the club, and despite having a mailing address for Williams at which he had clearly received a great deal of mail in this case, Rush did not attempt service by certified mail. She attempted personal service in two ways. First, the sheriff attempted to serve process by physically visiting Williams's residence, only to find that it had been destroyed by a tornado. The other attempt at personal service was made by sending Hadly, a hired process server, to the club in an effort to locate Williams at that location. Even giving Hadly's affidavit a generous reading, he merely attested that he visited the club on three occasions6 over a two-week period and that, on each visit, he talked to at least one employee of the club who informed him that he or she did not know anyone by the name Daryl Williams. On one 7 On a fourth visit, Hadly "could not get in" the club. 6 For that matter, Hadly's affidavit explicitly states that 7 he spoke with an employee of the club on only the first of his 14 1121185 of those visits, however, an employee with whom Hadly spoke recommended to Hadly that he return on another occasion when he could speak with one of the managers, a man identified by the employee as Leonard Smith. The affidavit submitted by Hadly does not state that Hadly ever attempted to follow this recommendation. 8 Ultimately, this is a case in which the trial court inferred that a process server spoke with a club employee on each of three occasions, that those employees did in fact know Daryl Williams, and that, moreover, those employees had been instructed by Daryl Williams to deny that they knew him. There is a substantial question of the sufficiency of the evidence to support the trial court's inferences. In addition, there is no evidence indicating that, on any of the visits to the club, November 19, 2011. As to the descriptions of visiting the club on November 27 and December 3, no similar averments are included in Hadly's affidavit; instead, he simply states that, on those occasions, "no one" stated that they knew Williams. He does not expressly aver that he spoke with any persons who were working at the club on either of those occasions. Hadly does not aver that he asked the unidentified 8 employee for a telephone number or other means by which he might contact Smith or that he inquired as to what day and time he should return to the establishment in an effort to find Smith in person. Nor does Hadly aver that he left his own contact information with the employee to relay to Smith. 15 1121185 occasions on which Hadly visited Club Volcano, Williams was in fact present at the club or that, even if the employees knew Williams, any of those individuals had any information regarding Williams's physical whereabouts that they could have shared with Hadly. Based on the facts before us in this particular case, we cannot conclude that the averments of Hadly's affidavit are sufficient to justify a finding of anything other than that Hadly simply did not find Williams at the club on the three occasions he visited there. The burden of proving "avoidance of service" in order to justify service by publication is on the plaintiff. See, e.g., Nichols v. Pate, 992 So. 2d 734, 737 (Ala. Civ. App. 2008). With one exception, Rush does not identify any of the persons with whom the process server spoke; none of them were called as witnesses; and there is no evidence indicating that any of them did in fact know Daryl Williams, despite the fact that he was the owner of the club and was listed as its registered agent. A fortiori, there is no direct evidence that any of these employees had been instructed by Williams to lie on his behalf. 16 1121185 Volcano Enterprises likens this case to Fisher v. Amaraneni, 565 So. 2d 84, 87-88 (Ala. 1990), in which this Court stated: "In the official comments to Rule 4.3(c), it is stated that 'more than mere inability to find the defendant is required because of the use of the term "avoidance" of service. Without this element of culpability on the part of the defendant when plaintiff has failed to obtain service other than by publication, substantial constitutional questions may be posed by the obtaining of an in personam judgment by publication.' In Federal Deposit Ins. Corp. v. Sims, 100 F.R.D. 792, 796 (N.D. Ala. 1984), a district court, interpreting Rule 4.3, [Ala.] R. Civ. P., stated the following: "'It is obvious that the draftsmen required proof of "culpability" or a "hiding out" by a defendant before suggesting that an in personam judgment can be entered on service by publication.' "In Gross v. Loewen, 522 So. 2d 306 (Ala. Civ. App. 1988), the court held that a wife's affidavit stating that 'the defendant [her husband] is avoiding service, as service attempted by certified mail was returned undelivered' was an insufficient averment of facts showing that her husband had avoided service of process; therefore, the affidavit did not satisfy the requirement of Rule 4.3(d)(1), and service by publication in that case was improperly allowed by the trial court. Consequently, the trial court's judgment in that case was void, since the court had not acquired personal jurisdiction over the defendant. "In this case, the plaintiffs essentially stated in their affidavit that because the process server had failed in six (6) attempts to serve process upon 17 1121185 the Fishers at their residence and had returned the process to the circuit clerk's office endorsed 'not found' that such 'facts' were sufficient to show avoidance of service on the Fishers' part and to allow the trial court to authorized service by publication. We disagree. "A reading of the plaintiffs' affidavit does indicate that the process server attempted on numerous occasions to serve process on the Fishers at their residence and was unable to serve them because of their absence, an absence that the process server was told was due to the Fishers' presence in California, but these 'facts' are not enough to show that the Fishers avoided service of process. "We cannot hold, under the facts of this case, that the conclusory statements made in the plaintiffs' affidavit that the Fishers were avoiding service, coupled with the process server's failed attempts to perfect service of process upon them and his later endorsement of the returned process as 'not found,' are sufficient to satisfy the requirement of Rule 4.3(d)(1), [Ala.] R. Civ. P., so that service by publication was proper." (Footnote omitted.) See also, e.g., Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So. 3d 667, 689 (Ala. 2009); Nichols v. Pate, 992 So. 2d at 738; and Wagner v. White, 985 So. 2d 458, 461-62 (Ala. Civ. App. 2007). Rush seeks to rely upon a 2003 Court of Civil Appeals' opinion, Snead v. Snead, 874 So. 2d 568 (Ala. Civ. App. 2003). In that case, a special process server visited the office where a defendant was known to be present and spoke to the 18 1121185 defendant's secretary in an outer office. The secretary informed the process server that the defendant was, in fact, in the building, in what she referred to as "the lab," but that he "would not come out." Unlike the evidence in the present case, the evidence in Snead made clear that an employee of the defendant did in fact know the defendant, that the defendant was in fact on the premises at the time of the process server's visit, and that the defendant refused to "come out," a scenario that was repeated on three separate occasions. The evidence presented by Rush simply does not rise to the same level as the evidence presented by the plaintiffs in Snead. In this case, Rush no doubt was frustrated by the inability of her process server to find Williams at the club on the several occasions he visited that establishment. Again, however, the mere inability to find a defendant is not a sufficient ground for service by publication. Without implicating the "substantial constitutional questions" relating to due process referenced in the Committee Comments to Rule 4.2, Ala. R. Civ. P., we cannot license the use of service by publication without the presentation of more 19 1121185 evidence of the avoidance of service than was presented by Rush in this case. IV. Conclusion Rush had the burden of demonstrating that Williams avoided service, which necessarily involves a level of culpability on the part of the defendant, such as hiding out or actively avoiding service, rather than just an inability to serve the defendant. Hadly's affidavit did not establish such avoidance of service, and Rush presented no other evidence. Without proper service, the judgment is void. Accordingly, the trial court erred in failing to grant Volcano Enterprises' Rule 60(b)(4) motion to set aside the default judgment against Volcano Enterprises. REVERSED AND REMANDED. Moore, C.J., and Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. 20	May 9, 2014
2d744917-6dce-49b3-8c95-5bb6f3562504	Megan Marie Russell v. Keone Kaukawele Fuqua	N/A	1120957	Alabama	Alabama Supreme Court	REL: 05/09/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1120957 ____________________ Megan Marie Russell v. Keone Kaukawele Fuqua Appeal from Mobile Probate Court (PR-12-2270) PER CURIAM. Keone Kaukawele Fuqua ("the father") filed a petition in the Mobile Probate Court asking that court to allow him to change the legal name of his daughter from Lyvia Grace Russell to Lyvia Grace Russell-Fuqua. Megan Marie Russell ("the 1120957 mother") opposed the petition, and she appeals from a probate court order granting the relief requested by the father. For the reasons explained below, we conclude that the probate court had no subject-matter jurisdiction over the parties' name-change dispute, and we therefore vacate the order and dismiss the appeal. Facts and Procedural History The mother and the father were married but did not reside in the same home when Lyvia Grace ("the child") was born in April 2010. It is undisputed that the father is the biological father of the child. It is also undisputed that, when the mother provided information for the child's birth certificate, she refused to provide the name of the child's father and did not include the father's surname as part of the child's name. At some point after the child's birth, the father filed a complaint in the Mobile Circuit Court for a divorce. In January 2011, the circuit court entered a judgment granting the father's complaint. As to the child, the divorce judgment awarded the mother custody, awarded the father visitation, and required the father to pay child support. The circuit court's 2 1120957 divorce judgment also stated "that the [mother] is ordered to add the [father's] name to the child's ... birth certificate as the father." Further, the divorce judgment states "that the Court retains jurisdiction in this cause for purpose of making such other or future orders or decrees as to the custody, support and maintenance of the minor child as the Court may deem necessary or as changed conditions require." The mother prepared the documents necessary to add the father's name to the birth certificate, but the father refused to sign the documents because he believed that by signing the documents he was agreeing that the child's legal name would be "Lyvia Grace Russell." Thereafter, the father filed in the probate court the petition to change the child's name. As noted above, the mother objected. Also, we note that there was no dispute between the father and the mother as to the child's legitimacy and that the father's petition to change the child's name did not purport to seek legitimation of the child. After an ore tenus proceeding, the probate court entered an order that states: "The [mother] and [the father] have an acrimonious relationship with each other. The 3 1120957 testimony presented to the Court reflects that the [mother's] parents (with whom the [mother] and the [child] reside) also have a poor relationship with the [father]. "The [father] is current on payments of child support due since ... the Judgment of Divorce. The [father] exercises his visitation rights vis-à-vis the [child]. ".... "... The [father] by action and words seems sincere in having a parental-child relationship with the [child]. The [mother's] demeanor while testifying before the Court calls into question the reliability of [her] testimony and her desire to promote the best interests of the [child]. ".... "Ala. Code 1975, § 26-11-2, provides that the father of a bastard child may seek to legitimate it and render the child capable of inheriting the father's estate. This statute further provides that after notice is properly served upon the mother of the child, the Court shall conduct a hearing at which all interested parties may present evidence for determination of whether legitimation is in the best interest of the child. "It is undisputed that the [father] is the father of the [child] and [the circuit judge] in the Domestic Relations Case has entered a final, non-appealable order determining the [father] to be the father of the [child]. "Based upon the evidence presented in this cause, it is obviously in the [child's] best 1 interests for the Court to permit the [father] to legitimate the [child] and facilitate the [child] being capable of inheriting the [father's] estate. 4 1120957 ".... "[The father's] petition is based upon Ala. Code 1975, § 26-11-3. This statute provides that after notice is properly served upon the mother of the child, the Court shall conduct a hearing at which all interested parties may present evidence for determination of whether the requested name change is in the best interest of the child. _______________ " Rule 15 of the Alabama Rules of Civil 1 Procedure provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." (Emphasis added.) The probate court's order also states in a footnote that § 26-11-3, Ala. Code 1975, "is the only provision in the Code of Alabama (1975) that facilitates a child's name being changed in an Alabama probate court by the father of the child. Ala. Code 1975, § 12-13-l(b)(10), assigns Alabama probate courts with jurisdiction to change the name of an adult person residing in the jurisdiction of said Alabama probate court. This statute has no application in the instant cause." (Emphasis added.) After reviewing the testimony presented by the parties, the order concludes "that the best interests of the [child] are served with the [child's] surname being 'Russell-Fuqua.'" It then states: 5 1120957 "1. The Motion For Name Change filed by the [father] is GRANTED IN PART AS PROVIDED HEREIN. The [mother's] objection thereto is DENIED. "2. The [father] is DETERMINED to be the father of the [child]. "3. The surname of the [child] shall be Russell-Fuqua and the full name of the [child] is Lyvia Grace Russell-Fuqua. "4. Within 60 days from the date of this Order, the [mother] and [the father] shall execute all appropriate documentation required by the Alabama Center For Health Statistics-Vital Records of the Alabama Department of Public Health to facilitate an amended birth certificate being issued for the [child] consistent with this Order." (Capitalization in original.) The mother appeals from the probate court's order. Analysis Although the parties have not raised the issue of subject-matter jurisdiction, such jurisdiction cannot be waived by the parties and may be raised by this Court ex mero motu. See Ex parte Smith, 438 So. 2d 766, 768 (Ala. 1983); see also, e.g., Blevins v. Hillwood Office Ctr. Owners' Ass'n, 51 So. 3d 317, 322 (Ala. 2010). We review the issue of subject-matter jurisdiction de novo. Solomon v. Liberty Nat'l Life Ins. Co., 953 So. 2d 1211, 1218 (Ala. 2006). 6 1120957 The jurisdiction of our probate courts "'is limited to the matters submitted to [them] by statute.'" AltaPointe Health Sys., Inc. v. Davis, 90 So. 3d 139, 154 (Ala. 2012) (quoting Wallace v. State, 507 So. 2d 466, 468 (Ala. 1987)). As the probate court acknowledges in its order, the legislature has given the probate courts jurisdiction over actions in which an adult requests a name change. See Ala. Code 1975, § 12-13-1(b)(10). An adult name change is not at 1 issue here. Chapter 11 of Tile 26 of the Code of Alabama 1975 governs so-called legitimation proceedings, i.e., actions in which a father seeks to legitimate a child as his own. Section 26-11-3, Ala. Code 1975, provides: "The father may petition at the time of filing the declaration of legitimation or at any time subsequent to the determination of legitimation to Section 12-13-1(b)(10), Ala. Code 1975, provides: 1 "(b) The probate court shall have original and general jurisdiction over the following matters: ".... "(10) The change of the name of any person residing in their county, upon his filing a declaration in writing, signed by him, stating the name by which he is known and the name to which he wishes it to be changed." 7 1120957 change the name of such child, stating in his declaration the name it is then known by and the name he wishes it afterwards to have. ..." In addition to the fact that this Code section is part of the chapter governing legitimation proceedings, it specifically states that the petition is filed "at the time of filing the declaration of legitimation" or "subsequent to the determination of legitimation." (Emphasis added.) "[T]he determination of legitimation" clearly refers to a ruling in the legitimation action. Thus, the probate court's jurisdiction to entertain a petition to change a child's name is derivative of that court's jurisdiction over legitimation actions. It is undisputed that the present dispute does not arise out of a legitimation proceeding. Although § 26-11-3(a) is an affirmative grant of subject- matter jurisdiction to the probate court when the circumstances described in that Code section are met, that section does nothing to deprive the circuit court of its general equity jurisdiction and, specifically, its jurisdiction over matters within the realm of custody disputes between two parents. As Judge Crawley explained in discussing 8 1120957 § 26-11-3(a) in his dissenting opinion in Clark v. Clark, 682 So. 2d 1051 (Ala. Civ. App. 1006) (plurality opinion):2 "[T]he statute providing for name changes is not exclusive in nature [and] ... the circuit courts have wide discretion in child custody matters and ... the circuit courts have inherent and continuing equity jurisdiction over minor children. Acknowledgment of these principles compels the conclusion that the circuit court does indeed have jurisdiction over the name change of minors under the wide discretion afforded it in child custody matters. ".... "'When equity's jurisdiction is invoked, minor children are wards of the court, and it is the court's duty to guard and protect the interest of its infant wards with scrupulous care.... In the case of divorce of the parents, equity courts have inherent power to protect the welfare of the minor children born of the broken marriage and to make appropriate allowances for them, ... and, having once obtained jurisdiction over the children of divorced parents, the court retains jurisdiction during their infancy.' "Wise v. Watson, 236 So. 2d 681, 684, 286 Ala. 22, 25 (1970) (emphasis added). Additionally, in a case The lead opinion in Clark, concurred in by only one judge 2 other than its author, wrongly construed § 26-11-3(a) as providing that the probate court has jurisdiction to the exclusion of the circuit court over petitions to change the names of minors. 682 So. 2d at 1052. Such a reading of § 26- 11-3(a) would create a serious problem because § 26-11-3 provides the probate court with authority only in the context of legitimation proceedings. Thus, a legitimate father would have no place to go to seek a change of name for his child. 9 1120957 involving child custody, any matter affecting the child becomes the subject of equity jurisdiction. "... In light of the circuit court's general jurisdiction, described in Ala. Code 1975, § 12–11–30, as well as its history as a court of equity jurisdiction, as provided for in Ala. Code 1975, § 12–11–31, and its child custody jurisdiction under Ala. Code 1975, § 30–3–1, I believe that in this case, the circuit court did have jurisdiction to decide upon the name change of the minor child. When the parents in this case were divorced in 1985, the circuit court attained jurisdiction over the minor child. When the father petitioned the circuit court to change the child's name back to Clark, she was ten, and the circuit court still had jurisdiction over her. The circuit court's jurisdiction over this minor child will continue until she reaches the age of majority. Because the child became a ward of the circuit court, the circuit court has the inherent power to protect her welfare. By acting to settle the dispute between the parents about their child's name, the circuit court simply acted with the appropriate goal of promoting the child's best interest. Since the change of a child's name is a matter affecting the child and within the realm of matters in respect to the custody of the child, that subject is encompassed in the circuit court's equity jurisdiction and within its jurisdiction under § 30–3–1[, Ala. Code 1975]." 682 So. 2d at 1054-55 (Crawley, J., dissenting) (final emphasis added; some citations omitted). See also 682 So. 2d at 1052 (Thigpen, J., dissenting to like effect and discussing the breadth of the circuit court's equity jurisdiction as to custody of children and the issues relating thereto). 10 1120957 Because the probate court lacked jurisdiction in this case, its judgment is void. See Johnson v. Hetzel, 100 So. 3d 1056, 1057 (Ala. 2012) (holding that the failure to satisfy a jurisdictional prerequisite renders a judgment void). A void 3 judgment will not support an appeal. Id. It is this Court's obligation to vacate such a judgment and dismiss the appeal. Ex parte Alabama Dep't of Human Res., 999 So. 2d 891, 898 (Ala. 2008). Conclusion Based on the foregoing, the probate court's order is hereby vacated and the appeal dismissed. JUDGMENT VACATED; APPEAL DISMISSED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. The father may still file a petition seeking a change of 3 the child's name with the circuit court, which, as noted in the divorce judgment, has retained jurisdiction as to matters involving the custody of the child. 11	May 9, 2014
ad887286-3336-4616-ad67-5454f8a92ad7	In re: Sherrod et al. v. Webber	N/A	1121443	Alabama	Alabama Supreme Court	REL: 06/27/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121443 ____________________ Ex parte Larry Webber PETITION FOR WRIT OF MANDAMUS (In re: Donald Sherrod et al. v. Larry Webber) (Pickens Circuit Court, CV-13-900026) MURDOCK, Justice. Larry Webber petitions this Court for a writ of mandamus directing the Pickens Circuit Court to vacate its August 19, 2013, order denying Webber's motion to dismiss an action filed 1121443 2 against him by Donald Sherrod, Helen Sherrod, and State Farm Fire and Casualty Company ("State Farm"). We grant the petition. I. Facts and Procedural History In June 2011, the Sherrods hired Webber to paint the interior of their house. The Sherrods and State Farm allege that Webber and his employees did not cover objects in the house before painting and that overspraying damaged the walls, floors, countertops, fixtures, appliances, and a number of items of personal property in the house. On July 12, 2011, Donald Sherrod sued Webber in the small-claims court in Pickens County ("the small-claims-court action"). It is undisputed that Sherrod's wife Helen was not a party to the small-claims-court action. The complaint alleged that Webber owed Sherrod $3,000 because the "[p]ainting on the inside of my home was not completed [and the] overspray paint all over the inside of the house" had caused damage. Following a bench trial, the district court -- the small-claims court -- entered an order on November 8, 2011, which recounted that the complaint alleged that "the painting 1121443 The Sherrods and State Farm note in their brief that 1 copies of the complaint in the small-claims-court action, the notation that Webber paid the judgment, and the order acknowledging satisfaction of the judgment that are attached to Webber's mandamus petition were not attached to Webber's motion to dismiss the underlying action. Thus, those items were not before the circuit court. "On mandamus review, this Court has consistently stated that we will not consider materials that have not been before the trial court." Ex parte East Alabama Med. Ctr., 109 So. 3d 1114, 1118 n.1 (Ala. 2012). Webber did attach to his motion to dismiss a copy of the district court's order entering a judgment in favor of Donald Sherrod for $3,136.09. That order substantially set out the allegations in the complaint in the small-claims-court action. Moreover, in his motion to dismiss, Webber stated that he had paid the judgment rendered in the small-claims-court action. In their brief to this Court, the Sherrods and State Farm admit that "[t]he small claims judgment was satisfied, but Webber presented nothing to 3 on the inside of [the Sherrods'] home was not completed, and that [Webber] oversprayed paint such that the inside of the house and other items were damaged and had to be cleaned." The district court concluded that Donald Sherrod "is entitled to recover from [Webber] for the damage caused to his home due to overspraying of paint in the amount of $3,000, plus cost in the amount of $136.09." Webber paid the judgment amount of $3,136.09 on November 21, 2011, and the district court entered an order acknowledging satisfaction of the judgment on November 28, 2011.1 1121443 the trial court to indicate when or how it was satisfied." Sherrods and State Farm's brief, p. 2. The Sherrods and State Farm do not dispute the authenticity or veracity of the documents submitted to this Court, nor do they contend that the exclusion of those documents from our consideration would affect our disposition of this petition. They merely object that three of those documents were not submitted to the circuit court in the present action. They are correct, but the supplemental documents only confirm information that was provided to the circuit court. A copy of the insurance contract between the Sherrods and 2 State Farm was not included in the materials submitted for our review. 4 In an affidavit filed in the present action, Helen Sherrod stated in part that "[m]y husband sued Larry Webber in Small Claims Court. I was not a party to this Small Claims Court case. After my husband sued Mr. Webber, we made a claim with our homeowner's insurance company, State Farm Fire & Casualty Company." In their response to Webber's motion to dismiss this action, the Sherrods and State Farm stated that, "[i]n December 2011, after investigating the Sherrods' claim, State Farm paid $41,996.19 to the Sherrods." In her affidavit, Helen Sherrod stated that State Farm's payment was "for the damage[] to the flooring, walls and interior of the home. State Farm did not pay us for the damage[] to any of the personal property because the damage[] to the personal property [was] not covered by our policy."2 1121443 5 On March 25, 2013, the Sherrods and State Farm filed an action in the Pickens Circuit Court against Webber ("the circuit-court action"). The complaint in the circuit-court action stated: "1. Plaintiffs, Helen Sherrod and Donald Sherrod, hired [Webber] to perform certain painting work on their residence in Pickensville, Alabama. "2. On or about June 25, 2011, the residence of Helen and Donald Sherrod, and their contents and other personal property located in such residence, [were] damaged extensively due to paint overspraying, negligence, and/or poor workmanship committed by [Webber]. "3. As a proximate consequence of [Webber's] said conduct, the residence, real property and personal property of plaintiffs, Helen Sherrod and Donald Sherrod, [were] rendered damaged and greatly depreciated in value. "4. Plaintiff, State Farm Fire and Casualty Company, is subrogated in part to the rights of Helen Sherrod and Donald Sherrod against [Webber] on account of the matters set forth above. "WHEREFORE, [the Sherrods and State Farm] demand judgment in their favor and against [Webber] as follows: in favor of the plaintiffs, Helen Sherrod and Donald Sherrod, and against [Webber] in the amount of $35,000.00 plus interest, and in favor of plaintiff, State [Farm], and against [Webber] in the amount of $41,996.19, plus interest, plus the costs accruing in this action." On May 24, 2013, Webber filed a motion to dismiss the complaint, asserting that the action was barred by the 1121443 6 doctrine of res judicata and the prohibition against double recovery. On June 14, 2013, the Sherrods filed a response to the motion to dismiss in which they argued that Helen Sherrod owned an undivided one-half interest in the personal property in the Sherrods' residence, that she was not a party to the small-claims-court action, and that she did not recover anything herself in that action. On June 21, 2013, the Sherrods and State Farm filed a second response to the motion to dismiss in which they argued that Helen Sherrod and State Farm were not parties to the small-claims-court action, that there was not "substantial identity of the parties" between the two actions, and that the small-claims court was not a court of competent jurisdiction, for purposes of res judicata. On June 25, 2013, Webber filed a reply to the the Sherrods and State Farm's response to his motion to dismiss. In that reply, Webber noted that, as a subrogee, State Farm "steps into the shoes of its subrogor and that [a] subrogee only gets those rights that its subrogor has." On June 27, 2013, the Sherrods and State Farm filed a "Supplemental Response" to the motion to dismiss in which they argued that Webber's motion was procedurally flawed because, they said, he should have 1121443 7 raised the defenses of res judicata and double recovery in a motion for a summary judgment rather than in a motion to dismiss. On August 19, 2013, the circuit court entered an order denying the motion to dismiss without explaining its reasons. This petition followed. II. Standard of Review In Lloyd Noland Foundation, Inc. v. HealthSouth Corp., 979 So. 2d 784, 792 (Ala. 2007), we observed: "Although HealthSouth's motion addressing its defenses of res judicata and collateral estoppel was actually framed as a 'motion to dismiss,' the motion should have been treated as one seeking a summary judgment because the face of the complaint did not reference the prior litigation .... Furthermore, the trial court clearly considered matters outside the pleadings in making its determination, thus converting the Rule 12(b)(6) motion to dismiss into a Rule 56, Ala. R. Civ. P., summary-judgment motion." In this case, the complaint did not acknowledge the existence and nature of the judgment that resulted from the small-claims-court action. Instead, Webber submitted a copy of that judgment with his motion to dismiss. The circuit court was due to consider that attachment, thus effectively converting Webber's motion to dismiss to a motion for a 1121443 8 summary judgment. See, e.g., Graveman v. Wind Drift Owners' Ass'n, Inc., 607 So. 2d 199, 202 (Ala. 1992) (stating that conversion of a motion to dismiss to a motion for a summary judgment "is proper where, as here, the parties, in support of, or in opposition to, the motion, file matters outside the pleadings and these matters are not excluded by the court"). A petition for a writ of mandamus is an appropriate method by which to seek this Court's review of the denial of a motion to dismiss or for a summary judgment predicated on the doctrine of res judicata. Ex parte LCS Inc., 12 So. 3d 55, 56 (Ala. 2008) (citing Ex parte Sears, Roebuck & Co., 895 So. 2d 265 (Ala. 2004)). See also Ex parte Jefferson Cnty., 656 So. 2d 382 (Ala. 1995). "The standard governing our review of an issue presented in a petition for the writ of mandamus is well established: "'[M]andamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.'" Ex parte Cupps, 782 So. 2d 772, 774-75 (Ala. 2000) (quoting Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989)). 1121443 9 Our standard of review for a ruling on a motion for a summary judgment is as follows: "We review the trial court's grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So. 2d 789 (Ala. 2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. 'We review the evidence in a light most favorable to the nonmovant.' 943 So. 2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So. 2d 330 (Ala. 2006)." Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346 (Ala. 2006). III. Analysis Webber's primary argument is that the circuit-court action is barred by the doctrine of res judicata. "The elements of res judicata are '"(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions."' Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d 914, 919 (Ala. 2007) (quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998))." Greene v. Jefferson Cnty. Comm'n, 13 So. 3d 901, 910 (Ala. 2008) (emphasis added). "'If those four elements are present, 1121443 10 then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation.'" Ex parte LCS Inc., 12 So. 3d at 57-58 (quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998)). "'"Res judicata is a broad, judicially developed doctrine, which rests upon the ground that public policy, and the interest of the litigants alike, mandate that there be an end to litigation; that those who have contested an issue shall be bound by the ruling of the court; and that issues once tried shall be considered forever settled between those same parties and their privies."'" 12 So. 3d at 57 (quoting Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 516-17 (Ala. 2002), quoting in turn Hughes v. Martin, 533 So. 2d 188, 190 (Ala. 1988) (emphasis added)). Webber's argument is straightforward. Webber notes that Donald Sherrod filed the small-claims-court action against him as a result of damage to property inside the Sherrods' house allegedly caused by "overspraying" of paint by Webber while he was painting the interior of the Sherrods' house. Donald Sherrod won a judgment against Webber in that action, and 1121443 11 Webber paid the judgment. Almost two years later, Donald Sherrod, his wife Helen, and their homeowners' insurance company, State Farm, filed the circuit-court action against Webber, alleging that property inside the Sherrods' house was damaged as a result of Webber's "overspraying" paint inside the house. Webber argues that the same cause of action is presented in both actions, that there was a prior judgment on the merits by a court of competent jurisdiction, and that the second action was filed by the same party (Donald Sherrod) and parties with substantially the same identity (Helen Sherrod and State Farm). The Sherrods and State Farm do not dispute that there was a prior judgment on the merits and that the two actions involve the same cause of action. They also make no attempt to contend that Donald Sherrod is not the same party who initiated the small-claims-court action. Instead, they raise two arguments to explain why the doctrine of res judicata should not apply to the circuit-court action: First, they contend that the small-claims court was not a court of competent jurisdiction as to the claims brought in the circuit-court action; second, they argue that neither Helen 1121443 Section 12-12-31(a), Ala. Code 1975, provides: 3 "The district court shall exercise exclusive jurisdiction over all civil actions in which the matter in controversy, exclusive of interest and costs, does not exceed three thousand dollars ($3,000). These actions shall be placed on a small claims docket by each district court and shall be 12 Sherrod nor State Farm were in privity with Donald Sherrod and thus that there is not a substantial identity of parties between the two actions. A. Jurisdiction of the Small-Claims Court Specifically, with regard to their first argument, the Sherrods and State Farm note that, in order for an action to be barred by the doctrine of res judicata, "'it must, among other things, ... involve a question that could have been litigated in the former cause or proceeding.'" Lee L. Saad Constr. Co., 851 So. 2d at 517 (quoting Stephenson v. Bird, 168 Ala. 363, 366, 53 So. 92, 93 (1910)). The Sherrods and State Farm argue that their claims in the circuit-court action could not have been brought in the small-claims court because the damages claimed by the Sherrods and by State Farm in the circuit-court action exceed the $3,000 jurisdictional limit for the small-claims court. See § 12-12-31(a), Ala. Code 1975. 3 1121443 processed according to uniform rules of simplified civil procedure as may be promulgated by the Supreme Court." 13 The Sherrods and State Farm's argument is misguided. A jurisdictional limitation on damages does not affect the res judicata effect of a judgment. "A court of competent jurisdiction is a court with jurisdiction over the subject matter. If a court lacks jurisdiction over a claim, then that claim would not qualify as one that 'might have been tried' by that court." Lloyd Noland Found., Inc., 979 So. 2d at 795 (emphasis added). "'A difference in the element of damages is not grounds for distinguishing two causes of action for res judicata purposes.'" Chiepalich v. Coale, 36 So. 3d 1, 4 (Ala. 2009) (quoting Robinson v. Holley, 549 So. 2d 1, 2 (Ala. 1989)). It is undisputed that the district court had jurisdiction over Donald Sherrod's claim based on property damage caused by overspraying of paint. The Sherrods presumably knew the approximate amount of damage Webber had caused soon after Webber completed the job, yet Donald Sherrod elected to file his claim in the small-claims court, a court with limited jurisdiction as to damages. The fact that almost two years 1121443 Restatement (Second) of Judgments § 24 (1982) provides: 4 "(1) When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar (see §§ 18, 19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. "(2) What factual grouping constitutes a 'transaction', and what groupings constitute a 'series', are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or 14 after filing that action the Sherrods decided to seek a damages amount that exceeds the jurisdictional amount of small-claims court for the same act does not remove the preclusive effect of the previous judgment. The argument posited by the Sherrods and State Farm would have us approve of a form of "claim-splitting" between different forums. Donald Sherrod sought and received the maximum amount available in the small-claims court. Now the Sherrods and State Farm seek further damages on the same claim. A comment to § 24 of Restatement (Second) of Judgments well explains why this is not permissible: 4 1121443 usage." This Court has stated that Alabama follows "a test that in certain respects is similar to, but which is not the same as, the 'same transaction' test, which is found in Restatement (Second) of Judgments and which is applied in the federal courts." Equity Res. Mgmt., Inc., 723 So. 2d at 638. Because the Sherrods and State Farm concede that the two actions involve the same cause of action, the difference between the two tests is irrelevant to the observation made above. 15 "The rule stated in this Section as to splitting a claim is applicable although the first action is brought in a court which has no jurisdiction to give a judgment for more than a designated amount. When the plaintiff brings an action in such a court and recovers judgment for the maximum amount which the court can award, he is precluded from thereafter maintaining an action for the balance of his claim. ... It is assumed here that a court was available to the plaintiff in the same system of courts -- say a court of general jurisdiction in the same state -- where he could have sued for the entire amount. ... The plaintiff, having voluntarily brought his action in a court which can grant him only limited relief, cannot insist upon maintaining another action on the claim." Restatement (Second) of Judgments § 24 cmt. g (1982). In short, the jurisdictional limitation of the small-claims court as to damages did not affect that court's "competent jurisdiction" over the claim for res judicata purposes. B. Virtual Representation of Helen Sherrod by Donald Sherrod in the Small-Claims-Court Action A question remains as to whether the small-claims-court action and the circuit-court action share a "substantial 1121443 16 identity of parties." As mentioned above, there is no dispute in this regard with respect to Donald Sherrod; consequently, res judicata bars his participation in the circuit-court action. The Sherrods and State Farm maintain, however, that neither Helen Sherrod nor State Farm can be closely identified with Donald Sherrod for res judicata purposes. Webber argues that Helen Sherrod shares an identity of interest in the subject matter of the litigation with Donald Sherrod because she is his wife, because she is a joint owner of the property that allegedly was damaged, and because she and her husband jointly hired Webber to perform the services that damaged their jointly owned property. (We further note that there is no dispute that Helen was aware of Donald's previous action against Webber.) Under these circumstances, there is sufficient identity of interest in the subject matter of the litigation that Helen is bound by the results of her husband's previous litigation. The Sherrods and State Farm argue that as a co-owner of the property, Helen Sherrod is entitled to a one-half share of the damages awarded. Because she was not a party to the small-claims-court action, the Sherrods and State Farm contend 1121443 17 that Helen Sherrod can maintain a separate action to recover the damages she incurred individually as a result of Webber's actions. For support, the Sherrods and State Farm cite McClurkin v. Ziebach & Webb Timber Co., 666 So. 2d 520, 522 (Ala. Civ. App. 1995), in which the Court of Civil Appeals observed that, "[i]n the case of Abbot v. Braswell, 289 Ala. 90, 265 So. 2d 871 (1972), the Supreme Court held that where property is owned by joint tenants, one of them alone can maintain an action for damage[] to the property suffered individually by that tenant." McClurkin merely stands for the proposition that one of two joint tenants may bring an action based on damage to jointly owned real property suffered by that tenant without, in all cases, having to join the other tenant as a coplaintiff. There was no issue in McClurkin as to whether a judgment in such an action would serve as a res judicata bar to some future action by the prevailing party or someone with whom the prevailing party shared a substantial identity of interest. This Court has explained: "Our caselaw requires that 'there is a substantial identity of parties in the two actions.' 1121443 18 Ex parte Ford Motor Credit Co., 772 So. 2d 437, 440 (Ala. 2000). Substantial identity requires that the '"parties be identical, sometimes referred to as the mutuality of estoppel requirement."' Stewart v. Brinley, 902 So. 2d 1, 10 (Ala. 2004) (quoting McMillian v. Johnson, 878 F. Supp. 1473, 1520 (M.D. Ala. 1995)). '"An exception is made to this requirement for parties in privity with a party to the prior action."' Stewart, 902 So. 2d at 10 (quoting McMillian, 878 F. Supp. at 1520) (emphasis omitted). A party is deemed to be in privity with a party to a prior action when there is '"'an identity of interest in the subject matter of litigation.'"' Stewart, 902 So. 2d at 11 (quoting Hughes v. Martin, 533 So. 2d 188, 191 (Ala. 1988), quoting in turn Issue Preclusion in Alabama, 32 Ala. L. Rev. 500, 521 (1981)). ".... "This Court has stated: '"'"A person may be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative."'"' Gonzalez, LLC v. DiVincenti, 844 So. 2d 1196, 1203 (Ala. 2002) (quoting Green v. Wedowee Hosp., 584 So. 2d 1309, 1315 ([Ala.] 1991), quoting other cases)." Greene, 13 So. 3d at 912 (emphasis added). In Owen v. Miller, 414 So. 2d 889 (Ala. 1981), this Court stated: "A non-party who has an interest sufficiently close to the matter litigated and who had an adequate opportunity to litigate the issue in the prior proceeding, may be bound by the earlier judgment. Hudson v. Wright, 164 Ala. 298, 51 So. 389 (1909); Moody v. Moody, 339 So. 2d 1030 (Ala. Civ. App.), cert. denied, 339 So. 2d 1035 (Ala. 1976). See 1121443 19 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1978); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). This Court held in Mitchell v. Austin, 266 Ala. 128, 94 So. 2d 391 (1957), that persons with mutual or successive interests in the same property may be bound by the results of a prior adjudication." 414 So. 2d at 891 (emphasis added). Similarly, in Mosley v. Builders South, Inc., 41 So. 3d 806 (Ala. Civ. App. 2010), the Court of Civil Appeals held that a corporation that had been solely owned by a divorcing wife and husband at the time of their divorce was bound by the divorce judgment, despite the fact that the corporation had not been made a party to the divorce action, because the corporation was "a nonparty who had an interest sufficiently close to the matter litigated and who had an adequate opportunity to litigate the issue in the [divorce action]." 41 So. 3d at 812. See also Simmons v. Simmons, 99 So. 3d 316, 321 (Ala. Civ. App. 2011) (concluding that, even if a daughter, an alleged joint owner of a house with her mother, had not been joined as a party to an action between her mother and the mother's husband concerning ownership of the house, the daughter would have been bound by the judgment in the 1121443 20 action "[b]ecause [the daughter] had actual notice of [the husband and wife's] action and an adequate opportunity to litigate the validity of her claim to own the house jointly with [her mother] as a joint tenant with right of survivorship"). We also note that federal courts have held that "[a]lthough a familial relationship need not, in and of itself, confer privity status, it does constitute an important factor when assessing the preclusive effects of a prior adjudication." Jaffree v. Wallace, 837 F.2d 1461, 1467 (11th Cir. 1988). See also Mesa Petroleum Co. v. Coniglio, 787 F.2d 1484, 1489–90 (11th Cir. 1986) (plaintiff-wife was precluded from litigating claims her husband previously had litigated); Cotton v. Federal Land Bank of Columbia, 676 F.2d 1368, 1369–71 (11th Cir. 1982) (plaintiff-husband was precluded from litigating claims his wife previously had litigated); Seamon v. Bell Tel. Co. of Pa., 576 F. Supp. 1458, 1460–61 (W.D. Pa. 1983) (plaintiff-husband was precluded from litigating claims his wife previously had litigated), aff'd, 740 F.2d 958 (3d Cir. 1984). In sum, as to Helen Sherrod, all the elements of res judicata, including the necessary substantial identity of 1121443 21 parties, are present in this case. Accordingly, Helen Sherrod is barred from filing the circuit-court action. C. State Farm's Status Having concluded that both Donald and Helen Sherrod are barred by the doctrine of res judicata from filing the circuit-court action, we are left with the question whether State Farm also is barred by the doctrine of res judicata. As Webber correctly observes, "[u]nder the equitable doctrine of subrogation, 'a subrogee steps into the shoes of its subrogor and that subrogee only gets those rights that its subrogor has. The subrogee can have no greater rights.'" Trott v. Brinks, Inc., 972 So. 2d 81, 87 (Ala. 2007) (quoting Star Freight, Inc. v. Sheffield, 587 So. 2d 946, 958 n.5 (Ala. 1991)). Because State Farm's rights as a subrogee extend only as far as the rights of the Sherrods, State Farm also must be barred from filing the circuit-court action. "'[O]ur courts have adopted the rule that an insurance company's right to subrogation is lost as against a wrongdoer who, without notice of the insurer's rights, settled with and was released from liability by the insured. A statement found at 46 C.J.S. Insurance § 1209 at 155 (1946) expresses both that rule and the natural converse thereof. 1121443 The Sherrods and State Farm asserted in their 5 supplemental response to the motion to dismiss that Webber should be estopped from raising the defense of res judicata because, "[a]t the time [the small-claims-court] case was tried, [Webber] and [his] attorney knew that the Sherrods' total damages greatly exceeded the court's jurisdictional limits. The proper procedure would have been to request that the case be transferred to circuit court for final disposition." The Sherrods and State Farm failed to offer any evidence as to Webber's knowledge, and they failed to offer any authority indicating why it would have been Webber's responsibility to insist that the claim against him was too small. We find this argument to be without merit. 22 "'"When a wrongdoer chargeable with notice of insurer's rights as subrogee of the insured makes a settlement with insured to which insurer is not a party, the settlement will be regarded as having been made subject to the rights of the insurer, and without destruction thereof; but a general release by insured to a third person without notice or knowledge of the insurance company's rights is a bar to the c o m p a n y ' s c l a i m t o subrogation."'" Commercial Union Ins. Co. v. Blue Cross & Blue Shield of Alabama, 540 So. 2d 1368, 1370 (Ala. 1989) (quoting Miller v. Auto–Owners Ins. Co., 392 So. 2d 1201, 1203 (Ala. Civ. App. 1981)). 5 One legal treatise succinctly summarized the principle at issue this way: 1121443 23 "Under equitable subrogation principles, a subrogee has no greater rights than the subrogor; thus, the subrogee is entitled to only those remedies to which the subrogor is entitled, and no greater remedies. No new cause of action is created, because the claim of the subrogee is derivative of the claim of the subrogor, and only changes the ownership of the claim. Thus, if a subrogor is barred by res judicata from maintaining claims or lacks standing, the subrogee is equally barred." 83 C.J.S. Subrogation § 88 (2010) (footnotes omitted). See also 73 Am. Jur. 2d Subrogation § 71 (2012). Unfortunately for State Farm, it simply cannot avoid the fact that, because its claim is based solely on its rights as a subrogee, it "'steps into the shoes of [the Sherrods] and [State Farm] only gets those rights that [the Sherrods] ha[ve].'" Trott, 972 So. 2d at 87 (quoting Star Freight, Inc., 587 So. 2d at 958 n.5). As we explained in Part III.B of this opinion, the Sherrods are precluded by the doctrine of res judicata from bringing the circuit-court action against Webber. Therefore, State Farm is likewise barred from participation in the circuit-court action. IV. Conclusion We conclude based on the foregoing that the doctrine of res judicata bars the Sherrods and State Farm from bringing the circuit-court action. Accordingly, the circuit court 1121443 24 should have granted Webber's motion for a summary judgment on all the claims against him. Because of our disposition of this case on the ground of res judicata, we need not address Webber's double-recovery argument. We grant the petition for a writ of mandamus and direct the Pickens Circuit Court to vacate its August 19, 2013, order and to enter a summary judgment in favor of Webber as to all claims. PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents.	June 27, 2014
09ece5d3-62c5-4e78-9754-40e1f167a335	CAG MLG, L.L.C. v. Smelley	N/A	1130659	Alabama	Alabama Supreme Court	Rel: 09/19/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130659 ____________________ CAG MLG, L.L.C. v. Bart Smelley and Smelley Family Investments, L.L.C. Appeal from Tuscaloosa Circuit Court (CV-13-900565) PARKER, Justice. CAG MLG, L.L.C. ("CAG"), appeals the Tuscaloosa Circuit Court's dismissal of its action against Bart Smelley and Smelley Family Investments, L.L.C. (hereinafter collectively referred to as "Smelley"). We reverse and remand. 1130659 Facts and Procedural History On May 10, 2013, CAG sued Smelley, alleging six counts of misrepresentation and/or fraud and a single count of unjust enrichment. On June 18, 2013, Smelley filed a motion to dismiss. In the motion to dismiss, Smelley alleged that CAG was a foreign limited-liability company formed and organized in the State of Florida in 2010 and that it was "not registered or qualified to do business in the State of Alabama." Smelley also alleged that CAG had domesticated in Wyoming as Oceans, LLC, in March 2011 and that CAG was subsequently dissolved as a Florida entity in April 2011. Smelley argued that CAG "failed to state the jurisdictional element establishing its ability to maintain an action in its initial pleading." Accordingly, Smelley argued, the circuit court lacked "subject matter jurisdiction and/or personal jurisdiction over the matters contained in the [c]omplaint." Additionally, Smelley argued that "[t]his lack of standing requires immediate dismissal of this action until [CAG] can demonstrate the legal capacity to pursue the same." In support of the motion to dismiss, Smelley attached a printout from the Alabama Secretary of State's Web site showing that 2 1130659 CAG is not listed as being registered with the State of Alabama and a printout from the Wyoming Secretary of State's Web site indicating that CAG was organized in Florida in 2010 and had domesticated in Wyoming as Oceans, LLC, in 2011. On July 24, 2013, CAG amended its complaint to add an eighth count requesting that the circuit court issue an injunction preventing Smelley from selling a piece of real property. On August 16, 2013, Smelley amended the motion to dismiss to include the additional claim. On August 19, 2013, CAG filed a motion to strike the paragraphs of Smelley's motion to dismiss that alleged that CAG was a foreign entity that was not registered to transact business in Alabama and the exhibits attached in support thereof. Also on August 19, 2013, the circuit court held a hearing on the motions. On the following day, the circuit court issued an order granting CAG's motion to strike the objected- to paragraphs of Smelley's motion to dismiss and the supporting exhibits, dismissing the request for an injunction as moot, and instructing the parties to file briefs regarding the remainder of Smelley's motion to dismiss, which included 3 1130659 an allegation that CAG could not maintain an action in Alabama because it was not registered to transact business in Alabama. On August 26, 2013, Smelley filed a brief in support of the motion to dismiss and argued that CAG's complaint was due to be dismissed pursuant to former §§ 10A-2-15.01 and 10A-2- 15.02, Ala. Code 1975. Former § 10A-2-15.01 stated, in 1 relevant part: "(a) A foreign corporation may not transact business in this state until it registers with the Secretary of State as required under Section 10A-1- 7.01." Former § 10A-2-15.02 stated, in relevant part: "(a) A foreign corporation transacting business in this state without registering as required under Section 10A-1-7.01 or without complying with Chapter 14A of Title 40 may not maintain a proceeding in this state without so registering and complying. All contracts or agreements made or entered into in this state by foreign corporations prior to registering to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity."2 Sections 10A-2-15.01 and 10A-2-15.02, Ala. Code 1975, 1 were repealed effective January 1, 2014, by Act No. 2012-304, Ala. Acts 2012. As indicated by the plain language of the statutes, 2 former §§ 10A-2-15.01(a) and 10A-2-15.02(a) applied 4 1130659 On August 29, 2013, CAG filed a brief and argued that, under Florida law, the dissolution of a limited-liability company does not "[p]revent commencement of a proceeding by or against the limited liability company in its name." Fla. Stat. § 608.4431(2)(b). CAG also admitted that it was not registered with the State of Alabama to transact business; however, CAG argued that, under Freeman Webb Investments, Inc. v. Hale, 536 So. 2d 30 (Ala. 1988), former § 10A-2-15.02 did not preclude its action because, CAG argued, former § 10A-2- 15.02 precludes only ex contractu claims, not ex delicto 3 claims such as those brought by CAG against Smelley. 4 On September 3, 2013, Smelley responded to CAG's brief and argued that former § 10A-2-15.02 precluded CAG's claims and that Alabama law –- not Florida law –- governed whether CAG lacked capacity to sue in Alabama courts. In support of this argument, Smelley quoted Rule 17(b), Ala. R. Civ. P., exclusively to corporations –- not limited-liability companies such as CAG, which, as explained below, are governed by § 10A- 1-7.21, Ala. Code 1975. "Ex contractu" is defined in Black's Law Dictionary 566 3 (6th ed. 1990) as "[f]rom or out of a contract." "Ex delicto" is defined in Black's Law Dictionary 567 4 (6th ed. 1990) as "[f]rom a delict, tort, fault, crime, or malfeasance." 5 1130659 which states: "The capacity of a party, including one acting in a representative capacity, to sue or be sued shall be determined by the law of this state." On December 30, 2013, the circuit court granted Smelley's motion and dismissed the case pursuant to § 10A-1-7.21, Ala. Code 1975. The version of § 10A-1-7.21(a) then in effect provided: "A foreign entity transacting business in this state may not maintain any action, suit, or proceeding in any court of this state until it has registered in this state."5 On January 8, 2014, CAG filed a motion to alter, amend, or vacate the circuit court's judgment of dismissal pursuant to Rule 59, Ala. R. Civ. P. In its motion, CAG argued that Freeman Webb stood for the proposition that its ex delicto claims were not barred by § 10A-1-7.21. The 6 As set forth above, in its order dismissing this case, 5 the circuit court applied § 10A-1-7.21, Ala. Code 1975, which, effective January 1, 2011, replaced former § 10-12-52, Ala. Code 1975, which applied exclusively to limited-liability companies. See Act No. 2009-513, Ala. Acts 2009. Act No. 2012-304, Ala. Acts 2012, effective January 1, 2014, in addition to repealing former §§ 10A-2-15.01 and 10A-2-15.02, amended § 10A-1-7.21(a) to include an exception that is inapplicable to this case. See supra note 1. Freeman Webb did not involve the application of § 10A-1- 6 7.21 or, as Smelley argued in support of the motion to dismiss, former § 10A-2-15.02(a). Rather, Freeman Webb involved the application of former § 10-2A-247(a), Ala. Code 6 1130659 1975, which included significantly different language: "(a) All contracts or agreements made or entered into in this state by foreign corporations which have not obtained a certificate of authority to transact business in this state shall be held void at the action of such foreign corporation or any person claiming through or under such foreign corporation by virtue of said void contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity." In 1994, § 10-2A-247, Ala. Code 1975, was repealed and replaced by § 10-2B-15.02, Ala. Code 1975. See Ala. Acts 1994, Act No. 94-245, p. 439. In 1995, the then existing version of § 10-2B-15.02 was repealed, and a new version of § 10-2B-15.02 was enacted. See Ala. Acts 1995, Act No. 95-663. The version of § 10-2B-15.02(a) enacted in 1995 essentially borrowed the language of former § 10-2A-247(a) quoted above and added a sentence to the beginning of the borrowed language. By broadening the scope of the statute, the additional sentence, emphasized below, is particularly relevant to this appeal; that version of § 10-2B-15.02(a) provided, in its entirety: "(a) A foreign corporation transacting business in this state without a certificate of authority or without complying with Sections 40-14-1 to 40-14-3, inclusive, 40-14-21, or 40-14-41, may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity." 7 1130659 (Emphasis added.) Section 10-2B-15.02 was again amended in 1999. See Ala. Acts 1999, Act No. 99-665, § 3. That amendment –- replacing the reference to "Sections 40-14-1 to 40-14-3, inclusive, 40- 14-21, or 40-14-41" with a reference to "Chapter 14A of Title 40" –- is not relevant to this discussion. Effective January 1, 2011, that door-closing statute was once again amended and renumbered as § 10A-2-15.02 by Ala. Acts 2009, Act No. 2009- 513. Act No. 2009-513 only slightly modified the substance of the statute by changing the reference to obtaining "a certificate of authority" to "registering"; § 10A-2-15.02(a) provided: "(a) A foreign corporation transacting business in this state without registering as required under Section 10A-1-7.01 or without complying with Chapter 14A of Title 40 may not maintain a proceeding in this state without so registering and complying. All contracts or agreements made or entered into in this state by foreign corporations prior to registering to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he or she who seeks equity must do equity." Act No. 2009-513 amended the first sentence of former § 10A-2-15.02(a) to reflect the substantive language of former § 10-12-52(a), Ala. Code 1975, which provided: "A foreign limited liability company transacting business in this state may not maintain any action, suit, or proceeding in any court of this state until it has registered in this state." However, Act No. 2009-513 also renumbered § 10-12-52 as § 10A- 1-7.21 and amended it to make it applicable to all foreign entities –- not just foreign limited-liability companies. We note that in TradeWinds Environmental Restoration, Inc. v. Brown Bros. Construction, L.L.C., 999 So. 2d 875 (Ala. 8 1130659 circuit court denied CAG's Rule 59 motion on February 6, 2014. CAG appeals. Discussion "We have set forth the standard of review that must be applied in reviewing a dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P.: "'On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the 2008), this Court relied on Freeman Webb in dismissing a foreign corporation's ex contractu claim under former § 10-2B- 15.02(a), which included the additional sentence, the substance of which is present in § 10A-1-7.21. However, because an ex delicto claim was not brought in Tradewinds, this Court did not include a discussion about what effect, if any, the additional sentence in former § 10-2B-15.02(a) had on ex delicto claims. The legislative history of § 10A-1-7.21, therefore, indicates that the language that was construed in Freeman Webb to prohibit only ex contractu –- and not ex delicto –- claims was never included in the language of the statutes that have been applicable to limited-liability companies. Accordingly, Freeman Webb's differentiation between ex contractu and ex delicto claims is not relevant to an interpretation of § 10A- 1-7.21. 9 1130659 plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.' "Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993) (citations omitted)." Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So. 2d 784, 791 (Ala. 2007).7 As set forth above, the circuit court dismissed CAG's case upon application of Alabama's door-closing statute, § 10A-1-7.21, Ala. Code 1975, which provides, in pertinent part: "A foreign entity transacting business in this state, except a corporation or other organization formed under federal law, may not maintain any action, suit, or proceeding in any court of this state until it has registered in this state." Such registration is required by § 10A-1-7.01, which provides: "(a) To transact business in this state, a foreign entity must register under this chapter if the entity: Smelley supplemented the motion to dismiss with exhibits. 7 That submission would normally convert a motion to dismiss to a summary-judgment motion. See Rule 12(b), Ala. R. Civ. P.; Ex parte Hodge, [Ms. 1121194, February 7, 2014] ___ So. 3d ___, ___ (Ala. 2014). However, because the circuit court struck the exhibits Smelley attached to the motion to dismiss, the exhibits did not affect the nature of the motion. 10 1130659 "(1) is a foreign entity, the formation of which, if formed in this state, would require the filing under Article 3 of a certificate of formation; or "(2) affords limited liability under the law of its jurisdiction of formation for any owner or member. "(b) A foreign entity described by subsection (a) must maintain the entity's registration while transacting business in this state." A foreign entity's failure to comply with the registration requirements of a statute such as § 10A-1-7.01 is a capacity defense, and it does not per se implicate standing or subject-matter jurisdiction. As this Court stated in Penick v. Most Worshipful Prince Hall Grand Lodge F & A M of Alabama, Inc., 46 So. 3d 416, 425-26 (Ala. 2010): "A foreign corporation's failure to obtain authorization to do business in Alabama is a capacity defense and does not per se implicate standing and subject-matter jurisdiction. Archer Western Contractors, Ltd. v. Benise–Dowling & Assocs., Inc., 33 So. 3d 1216, 1219 n. 4 (Ala. 2009) ('[Section 10A–2–15.02(a)], Ala. Code 1975, does not preclude the courts of this state from exercising jurisdiction over actions brought by unauthorized foreign entities transacting business in Alabama for the purpose of enforcing their contracts.'); Moseley v. Commercial State Bank, 457 So. 2d 967 (Ala. 1984) (holding that a foreign corporation's lack of authorization to do business in Alabama is a capacity defense that is waived unless timely asserted by specific negative averment); cf. [State v. Property at 2018] Rainbow Drive, 740 So. 2d [1025] at 1028 [(Ala. 1999)] ('"Standing represents 11 1130659 a jurisdictional requirement which remains open to review at all stages of the litigation."' (quoting National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S. Ct. 798, 127 L. Ed. 2d 99 (1994))); Ex parte Smith, 438 So. 2d 766, 768 (Ala. 1983) ('Lack of subject matter jurisdiction may not be waived by the parties....'); and Mobile, Alabama–Pensacola, Florida Bldg. & Constr. Trades Council v. Williams, 346 So. 2d 964, 966 (Ala. 1977) (Faulkner, J., dissenting) ('There is a difference between capacity to sue and standing to sue.')." See also Wausau Dev. Corp. v. Natural Gas & Oil, Inc., [Ms. 1120614, November 22, 2013] ___ So. 3d ___, ___ (Ala. 2013)(quoting Penick). Lack of capacity is an affirmative defense. See Wausau, ___ So. 3d at ___ (quoting Rikard v. Lile, 622 So. 2d 413, 414 (Ala. Civ. App. 1993))("'The lack of capacity to sue is an affirmative defense which must be specifically pled.'"); Alabama Power Co. v. White, 377 So. 2d 930, 935 (Ala. 1979)(quoting Chemacid, S.A. v. Ferrotar Corp., 3 F.R.D. 45, 46 (S.D.N.Y. 1942), in its interpretation of Rule 9(a), Fed. R. Civ. P.)("'[L]ack of capacity is an affirmative defense.'"); see also Pretl v. Ford, 723 So. 2d 1, 3 (Ala. 1998). The Court of Civil Appeals set forth the proper method of raising an affirmative defense in Williams v. Nash, 428 So. 2d 96, 99-100 (Ala. Civ. App. 1983): 12 1130659 "Having determined that Nash has attempted to raise an affirmative defense by the materials in his motion, we look to the Alabama Rules of Civil Procedure for the proper method of pleading such a defense. The language of rule 8(c), as quoted below, provides the answer: "'(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury to fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.' (Emphasis supplied.) "The matters raised in Nash's motion, since they were an affirmative defense, should have been raised by his answer to Williams's complaint. Our supreme court has taken the strict view that an affirmative defense can be raised by motion only where the face of the complaint shows that the defense is a bar to the action. In those instances in which the face of the complaint fails to show that the action is barred by the affirmative defense, it may not be raised by a rule 12(b), [Ala.] R. Civ. P., motion but must be raised by an answer under rule 8(c), [Ala.] R. Civ. P. In Sims v. Lewis, 374 So. 2d 298 (Ala. 1979), the court said: "'The courts seem now to agree that limitations and laches may indeed be raised on a 12(b)(6) motion where the face of the complaint shows that the claim is barred by the statute of limitations, and/or laches, [5 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1277 (1969)]; see McGruder v. B. & L. Construction Company, 13 1130659 Inc., 293 Ala. 354, 303 So. 2d 103 (1974). We hold that while the defenses of laches or limitations should be presented in a pleading to a preceding pleading, both may be properly raised via the 12(b)(6) motion where the face of the complaint shows that the claim is barred.' "Wright and Miller state that the rationale for this rule is found in the fact that the pleadings under federal rules practice are designed merely to provide notice of the claims and defenses which will later be involved in the trial. It is based on the view that the pleading stages of litigation should not be turned into 'little trials.' Motions under rule 12(b)(6) then should not deal with matters which are outside the complaint. 5 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1277 (1969)." As noted above, the circuit court granted Smelley's motion to dismiss without considering the exhibits attached thereto -- having struck those exhibits pursuant to CAG's motion. Accordingly, Smelley's motion was not converted to a motion for a summary judgment. See supra note 7. Therefore, 8 In Ex parte Scannelly, 74 So. 3d 432, 438 (Ala. 2011), 8 this Court noted the distinction between a motion to dismiss filed pursuant to Rule 12(b)(6), Ala. R. Civ. P., and a motion for a summary judgment: "It is apparent that the portion of Toxey's motion relating to the affirmative defense of res judicata (paragraphs 6 and 7 of his 'Motion to Dismiss'), which portion Toxey insists constitutes a Rule 12(b)(6) challenge, was, instead, a motion for a summary judgment. There is a notable distinction between a motion to dismiss filed 14 1130659 the circuit court's dismissal of CAG's complaint was proper pursuant to Rule 12(b)(6) and a motion for a summary judgment: "'The Rule 12(b)(6) motion ... must be distinguished from a motion for summary judgment under Rule 56, which goes to the merits of the claim –- indeed, to its very existence –- and is designed to test whether there is a genuine issue of material fact. The Rule 12(b)(6) motion ... only tests whether the claim has been adequately stated in the complaint. Thus, ... on a motion under Rule 12(b)(6), the [trial] court's inquiry essentially is limited to the content of the complaint; a motion for summary judgment, on the other hand, often involves the use of pleadings, depositions, answers to interrogatories, and affidavits.' "5B Charles Alan Wright & Arthur C. Miller, Federal Practice and Procedure § 1356, at 372–75 (3d ed. 2004) (footnote omitted). See also Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So. 2d 784, 791 (Ala. 2007) ('"Since the facts necessary to establish an affirmative defense generally must be shown by matters outside the complaint, the defense technically cannot be adjudicated on a motion under Rule 12[, Fed. R. Civ. P.]." 5 Charles Alan Wright and Arthur C. Miller, Federal Practice and Procedure § 1277 (3d ed. 2004).'), and 1 Moore's Federal Rules Pamphlet § 12.4[5][b], p. 186 (2010) ('When the plaintiff's own factual allegations affirmatively demonstrate that the plaintiff cannot recover, dismissal under Rule 12(b)(6) is appropriate.... Similarly, a dismissal under Rule 12(b)(6) may be based on an affirmative defense when the defense is clear from the face of the pleadings.' (emphasis added))." 15 1130659 only if CAG's alleged lack of capacity is evident from the face of CAG's complaint. We hold that it is not. CAG's original and amended complaints do not indicate that CAG is a foreign entity or that it is not registered to transact business in Alabama pursuant to § 10A-1-7.01. 9 Accordingly, CAG's alleged lack of capacity to sue Smelley is not apparent from the face of its complaint. Therefore, the circuit's court's dismissal of the complaint pursuant to § 10A-1-7.21 is due to be reversed. Ex parte Scannelly, 74 So. 3d 432, 438 (Ala. 2011). Conclusion For the reasons stated above, the circuit court's dismissal of CAG's complaint was improper. Therefore, we reverse the circuit court's judgment and remand the case for further proceedings. REVERSED AND REMANDED. Moore, C.J., and Stuart, Shaw, and Wise, JJ., concur. Under Rule 9(a), Ala. R. Civ. P., CAG is not required to 9 aver its capacity to bring the lawsuit in its complaint. 16	September 19, 2014
90f605fe-d21b-4406-b157-1b1a30790783	In re: O.S. and J.A.S. v. E.S.	N/A	1121134	Alabama	Alabama Supreme Court	Rel: 06/20/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121134 ____________________ Ex parte O.S. and J.A.S. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: O.S. and J.A.S. v. E.S.) (Walker Circuit Court, DR-10-900006; Court of Civil Appeals, 2110621) PARKER, Justice. 1121134 O.S. and J.A.S. petitioned this Court for a writ of certiorari to review the Court of Civil Appeals' decision affirming the judgment of the Walker Circuit Court ("the circuit court") in favor of E.S. setting aside a final judgment of adoption rendered on March 11, 2008, by the Probate Court of Walker County ("the probate court"). See O.S. v. E.S., [Ms. 2110621, April 19, 2013] ___ So. 3d ___ (Ala. Civ. App. 2013). We granted certiorari review solely to determine whether the circuit court had jurisdiction to consider E.S.'s independent action seeking to set aside the probate court's judgment of adoption. I. Facts and Procedural History The Court of Civil Appeals set forth the relevant facts and procedural history in O.S., supra, as follows: "B.O.S. ('the husband') and E.S. ('the wife') began living together in 2005. Their union produced a daughter, B.T.S. ('the child'), in August 2006; the couple married in March 2007. The husband, the wife, and the child lived in a mobile home next door to O.S., the child's paternal grandfather ('the grandfather'), and his wife, J.A.S. ('the stepgrandmother') (hereinafter sometimes referred to collectively as 'the grandparents'). The evidence was undisputed that the grandparents had given the husband and the wife financial assistance and that the child had spent substantial time with the grandparents. 2 1121134 "In January 2010, the husband and wife separated. The wife took the child and went to stay with her parents. On February 3, 2010, the husband filed a complaint seeking a divorce. The complaint alleged, among other things, that one child had been born to the couple but that the child had been adopted by the grandparents in 2008 after the husband and the wife had 'signed over all parental rights' to the grandparents. The complaint requested that the child be removed from the physical custody of the wife and returned to the adoptive parents –- i.e., the grandparents –- immediately. "The grandparents moved to intervene in the divorce action, asserting that they were the child's adoptive parents and seeking immediate pendente lite physical custody of the child. On February 4, 2010, the circuit court issued an order allowing the grandparents to intervene in the action, granting their request for pendente lite custody of the child, and directing the wife to return the child to them immediately. "The wife answered the husband's complaint and filed a 'counterclaim and independent action' against the grandparents, seeking to set aside a final judgment of adoption rendered on March 11, 2008, by the Probate Court of Walker County. The wife alleged that the grandfather had fraudulently induced her to consent to 'something that was similar to an adoption but was not an adoption, so that the child might receive college assistance in the future.' The wife further alleged that the grandfather had assured her that, if she consented to his proposal, 'nothing would change' and she would always be the child's mother. The wife acknowledged that she had signed a document labeled 'consent for adoption' in the office of an attorney for the grandfather, but, she alleged, nothing had been explained to her, she had not been assisted by her own attorney, and she had not been given copies 3 1121134 of the documents she had signed. Further, the wife alleged that the grandparents had falsely asserted in their adoption petition that the child had 'resided in the [grandparents'] home since [the child's birth on] August 31, 2006,' thereby perpetrating, the wife claimed, a fraud on the probate court. "The grandparents answered the wife's claim, asserting that an independent action seeking to set aside a probate court's adoption judgment could properly be filed only in the probate court and that the circuit court had no subject-matter jurisdiction to consider the matter. The grandparents also asserted that the wife's claim was barred by the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975, specifically, § 26-10A-14(a), Ala. Code 1975, which provides, in pertinent part: "'(a) The consent [to an adoption]..., once signed or confirmed, may not be withdrawn except: "'.... "'(2) .... After one year from the date a final decree of adoption is entered, a consent ... may not be challenged on any ground, except in cases where the adoptee has been kidnapped.' "(Emphasis added.) "The wife and the grandparents filed cross- motions for a partial summary judgment on the issue of the circuit court's jurisdiction to set aside the judgment of adoption. Citing Ala. Code 1975, § 26-10A-16(a) (requiring that an adoption petition be 'signed, and verified by each petitioner'), the wife argued that, in addition to the ground of fraud on the court, the circuit court could set aside the 4 1121134 adoption judgment on the ground that the judgment was 'void on its face' because the grandparents' adoption petition was unverified. The circuit court entered a partial summary judgment in favor of the wife on the jurisdictional issue and then conducted an evidentiary hearing on the merits of the wife's claim. "At the hearing, the wife testified that in November 2005, soon after she had learned that she was pregnant with the child, the grandfather had informed her that if she signed certain papers, her child would be able to 'go to college for free,' using his veteran's benefits. According to the wife, the grandfather stated that he was proposing something 'like an adoption,' but, he said, 'nothing would ever change, that [the wife] would always be [the child's] mother, and [the child] would always stay with [the husband and the wife].' The wife stated that the grandfather had asked her not to tell anyone about his proposal to adopt the child. "The wife testified that, after having considered the grandfather's proposal, she had agreed to the proposal because she had thought it would give the child a better life. She acknowledged that she had gone to a lawyer's office and had signed papers shown to her by a woman in the lawyer's office, but, she said, she had not read the documents or been given a copy of them. The wife testified that, after she had signed the papers, the grandfather's statement that 'nothing would ... change' proved to be true in fact. Nothing did change, she said –– the child still resided with the husband and her and regularly visited with the grandparents –– until she and the husband separated. "The husband testified that the grandfather had first proposed adoption when the child was about a year old. At that time, the husband said, the grandfather had not referred to the proposal as 'something like an adoption,' and the husband had 5 1121134 understood that an adoption meant giving up rights to a child. On cross-examination, however, the husband acknowledged that the grandfather had told him that the adoption would be, in effect, 'a paper adoption only' and that the husband and the wife would continue to be the child's parents. The husband stated that he and the wife had discussed the grandfather's proposal and that they had eventually decided that adoption would be in the child's best interest because, they thought, the child would have the advantage of the grandfather's veteran's benefits. The husband said that, on August 13, 2007, he and the wife had gone to a lawyer's office, where a woman had presented each of them with two documents –– a 'consent for adoption' and an 'affidavit of natural parent' –– that they had read and signed. The husband said that he and the wife had been shown no other documents, including the grandparents' petition for adoption, nor had he and the wife spoken with the lawyer who drafted the documents or had their own lawyers. "The stepgrandmother testified that, during a week when she and the grandfather had been separated, she had written a letter to her attorney, requesting that she be removed as a party from the instant litigation. She acknowledged that she had arranged for the wife to read the letter and that she had told the wife that 'it was wrong' for the grandfather to take the child from the husband and the wife. The stepgrandmother stated that she had also told the wife that she had already raised one child and that she was too old to raise another child. "The grandfather denied that he had proposed 'something like an adoption' to the wife, but he admitted that he had told the wife that, after the adoption, she would continue to be the child's mother and that 'things would go on just as usual.' The grandfather explained that it was usual for the child to 'reside' in both his home and in the home 6 1121134 of the husband and the wife, and, he insisted, the child was with him more than half the time. He admitted, however, that he had not informed the probate court in his petition for adoption that the child had resided anywhere other than with the grandparents since her birth. "On cross-examination, the grandfather acknowledged that his brother had adopted that brother's grandchildren. In addition, the grandfather admitted that he had previously proposed to the husband that he adopt a different child –– one born to the union of the husband and a woman other than the wife –– but, the grandfather said, the husband and the other woman had rejected that proposal. The grandfather acknowledged that after the adoption of the child in this case, the child had still been covered by the husband's health- insurance policy and had still been claimed as a dependent on the tax returns filed by the husband and the wife, but, the grandfather said, he had paid the majority of the expenses associated with the child because the husband and the wife had been struggling financially. Finally, the grandfather admitted that, by virtue of adopting the child, he had begun receiving additional veteran's benefits in the amount of $100 per month and additional Social Security benefits in the amount of $739 per month. He denied, however, that his motive for adopting the child was to receive those benefits. "On November 17, 2011, the circuit court ruled on the wife's claim against the grandparents and directed the entry of a final judgment as to that ruling. See Rule 54(b), Ala. R. Civ. P. The 1 circuit court's judgment states: "'This cause, coming for trial before this court on November 2, 2011, and November 4, 2011, on the complaint for intervention filed by the [grandparents] and the [wife's] counterclaim thereto, and 7 1121134 upon consideration thereof, together with ore tenus testimony, it is hereby ordered, adjudged and decreed as follows: "'1. The court determines, as the parties have been previously advised, that it has jurisdiction to determine the claims presented by the parties.[ ] 1 "'2. That the [wife's] motion for a summary judgment on the issue of whether the judgment of adoption is void on its face is hereby denied. "'3. The Court determines that the [wife] has proven that the [grandparents] perpetrated a fraud against the Probate Court of Walker County, Alabama, and made false representations to that Court in order to invoke the jurisdiction of that Court and to obtain the adoption the subject of this action. "'4. Judgment is hereby rendered in favor of the [wife] and against the [grandparents] on the [wife's] counterclaim and independent action to set aside an order of adoption for fraud upon the court. Therefore, the final decree of adoption of March 11, 2008, is hereby set aside and said adoption is held null and void. "'5. This court's order of February 4, 2010[, directing the wife to return the child to the grandparents,] is hereby On June 29, 2011, the circuit court entered an order 1 indicating that it had considered all of the pertinent motions filed by the parties and concluding that "this court has jurisdiction of all issues raised by the pleadings in this matter." 8 1121134 dissolved, and judgment is rendered in favor of the [wife] and against the [grandparents] on the complaint in intervention.' "The grandparents appeal, arguing (1) that the circuit court did not have jurisdiction to set aside the probate court's judgment of adoption; (2) that the fraud alleged to have been committed in this case did not constitute 'fraud on the court'; and (3) that the circuit court's factual finding, that the grandparents had committed the alleged fraud, was unsupported by the evidence. The wife cross- appeals, arguing that the circuit court erred in determining that the judgment of adoption was not void because, she maintains, that judgment was predicated on a petition that had not been verified as required by § 26-10A-16(a). "____________________ " The husband's claim against the wife for a 1 divorce remained pending before the circuit court." O.S., ___ So. 3d at ___. II. Standard of Review "Our review of the argument that the trial court lacks subject-matter jurisdiction is, of course, de novo." State Dep't of Revenue v. Arnold, 909 So. 2d 192, 193 (Ala. 2005). III. Discussion O.S. and J.A.S. argue that the circuit court lacked jurisdiction to consider E.S.'s independent action challenging the probate court's judgment of adoption. We agree. 9 1121134 Initially, we note that the jurisdiction of probate courts in Alabama "'is limited to the matters submitted to [them] by statute.'" AltaPointe Health Sys., Inc. v. Davis, 90 So. 3d 139, 154 (Ala. 2012) (quoting Wallace v. State, 507 So. 2d 466, 468 (Ala. 1987)). The legislature has given original jurisdiction over all adoption proceedings to the probate court. Section 26-10A-3, Ala. Code 1975, a part of the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975, provides: "The probate court shall have original jurisdiction over proceedings brought under the chapter. If any party whose consent is required fails to consent or is unable to consent, the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights. The provisions of this chapter shall be applicable to proceedings in the court having jurisdiction over juvenile matters." (Emphasis added.) In addition to this general grant of original jurisdiction over adoption proceedings, the legislature further specified in § 26-10A-25(d), Ala. Code 1975, that "[a] final decree of adoption may not be collaterally attacked, except in cases of fraud or where the adoptee has been kidnapped, after the expiration of one year 10 1121134 from the entry of the final decree and after all appeals, if any." In O.S., the Court of Civil Appeals recognized the above- mentioned statutes but nevertheless found that the circuit court had jurisdiction to consider E.S.'s independent action challenging the judgment of adoption rendered by the probate court based on the circuit court's general equitable jurisdiction set forth in § 12-11-31, Ala. Code 1975, which states, in pertinent part: "The powers and jurisdiction of circuit courts as to equitable matters or proceedings shall extend: "(1) To all civil actions in which a plain and adequate remedy is not provided in the other judicial tribunals." The Court of Civil Appeals concluded that E.S.'s independent action filed in the circuit court seeking to set aside the probate court's judgment of adoption was a Rule 60(b), Ala. R. Civ. P., motion, which the circuit court had jurisdiction to consider under § 12-11-31. O.S., ___ So. 3d at ___. Concerning the plain and adequate remedy that was available to E.S. under §§ 26-10A-3 and -25(d), the Court of Civil Appeals stated: 11 1121134 "A probate court's authority to set aside an adoption on collateral attack is governed by Ala. Code 1975, § 26–10A–25(d), which provides that "'[a] final decree of adoption may not be collaterally attacked, except in cases of fraud or where the adoptee has been kidnapped, after the expiration of one year from the entry of the final decree and after all appeals, if any.' "See G.M. v. T.W., 75 So. 3d 1181, 1186-87 (Ala. Civ. App. 2011). The fact that the probate court has statutory jurisdiction, pursuant to § 26-10A-25(d), to entertain a collateral attack on a judgment of adoption does not, however, vitiate either (a) the circuit court's jurisdiction to entertain an independent action to have a probate court's judgment set aside on the ground of fraud on the court or (b) the circuit court's general equitable jurisdiction to decide all issues between the parties in a divorce action." O.S., ___ So. 3d at ___ (footnote omitted). We disagree. Both of the Court of Civil Appeals' conclusions are incorrect for the same reason: §§ 26-10A-3 and -25(d) vitiate the circuit court's general equitable jurisdiction to consider an independent action challenging a judgment of adoption entered by the probate court, whether in a divorce action or otherwise. Section 12-11-31(1) grants the circuit court jurisdiction over equitable matters "in which a plain and adequate remedy is not provided in the other judicial tribunals." In §§ 26- 12 1121134 10A-3 and -25(d), the legislature provided a "plain and 2 adequate remedy" in the probate court for a parent to challenge a judgment of adoption rendered by the probate court. As a result, the Court of Civil Appeals' conclusion that the circuit court had jurisdiction pursuant to § 12-11-31 over E.S.'s independent action seeking to set aside the probate court's judgment of adoption is incorrect. The legislature definitively vested the probate court with jurisdiction over all adoption proceedings, including challenges to a judgment of adoption based on fraud. Therefore, contrary to the Court of Civil Appeals' opinion, See also § 26-10A-14(a), Ala. Code 1975, which states, 2 in pertinent part, as follows: "(a) The consent [to adoption] or relinquishment [for adoption], once signed or confirmed, may not be withdrawn except: ".... "(2) At any time until the final decree upon a showing that the consent or relinquishment was obtained by fraud, duress, mistake, or undue influence on the part of a petitioner or his or her agent or the agency to whom or for whose benefit it was given. After one year from the date of final decree of adoption is entered, a consent or relinquishment may not be challenged on any ground, except in cases where the adoptee has been kidnapped." 13 1121134 the probate court is the only court that has jurisdiction to consider E.S.'s challenge to the probate court's judgment of adoption.3 The Court of Civil Appeals' holding that E.S.'s "independent action seeking to set aside the adoption was a compulsory counterclaim that implicated a central issue in the divorce action, namely: the parentage and custody of a child born to the husband and the wife before they married," does not change our analysis. O.S., ___ So. 3d at ___. The parentage and custody of the child in this case was not a central issue in the divorce action because, years before B.O.S. filed the divorce action, the probate court had entered a judgment of adoption based on B.O.S.'s and E.S.'s consenting to O.S.'s and J.A.S.'s adopting the child. The probate court's judgment of adoption, which determined the parentage of the child, was a valid and final judgment at the time the divorce action was filed and was due to be "accorded the same We note that E.S. also argues that "[t]he circuit court 3 also has jurisdiction to set aside a judgment of the probate court that is void on its face." E.S.'s brief, at p. 13. However, the circuit court's jurisdiction to consider such a challenge is also based on the circuit court's general equitable jurisdiction set forth in § 12-11-31. Therefore, for the same reasoning set forth above, this argument is not persuasive. 14 1121134 validity and presumptions which are accorded to judgments and orders of others courts of general jurisdiction." § 12-13- 1(c), Ala. Code 1975. Legally, as B.O.S.'s divorce complaint alleged, B.O.S. and E.S. had no children at the time B.O.S. filed the divorce action. If E.S. sought to challenge the probate court's judgment of adoption based on her allegation that O.S. and J.A.S. employed fraudulent methods to adopt the child as a "benefit baby" solely to gain extra government benefits, the probate court was the proper court in which to bring such an action, as set forth above. In their argument before this Court and the Court of Civil Appeals, O.S. and J.A.S. rely upon B.W.C. v. A.N.M., 590 So. 2d 282 (Ala. Civ. App. 1991)("B.W.C. II")(on remand from this Court, see Ex parte B.W.C., 590 So. 2d 279 (Ala. 1991)), and Holcomb v. Bomar, 392 So. 2d 1204 (Ala. Civ. App. 1981). In reaching its decision, the Court of Civil Appeals overruled, either in whole or in part, B.W.C. II and Holcomb; O.S. and J.A.S. have asked this Court to uphold those decisions. Based on the reasoning set forth above, we conclude that the Court of Civil Appeals erred in overruling those cases. 15 1121134 In Ex parte B.W.C., 590 So. 2d at 280-81, this Court set forth the facts relevant in B.W.C. II: "On June 22, 1984, the probate court entered final orders holding that B.W.C. had legally adopted A.N.M. and K.K.M. After B.W.C. and his wife divorced, and approximately three years after the probate court had entered the orders of adoption, B.W.C. filed a petition in the probate court to set aside the adoptions as fraudulent, alleging that his signature had been forged on the petitions for adoption. "On April 7, 1989, the probate court transferred the case to the juvenile court, which denied B.W.C.'s petition with the following order: "'After careful review of the facts presented during the trial of this case, it is the opinion of the Court that the relief sought by the petitioner is due to be denied. On Aug. 22, 1985, the Circuit Court of Marshall County entered a divorce decree in case DR–85–200170 which terminated the marriage of [B.W.C. and K.C.]. Said decree provided that [B.W.C.] was to pay child support in the amount of $300.00 each month. [B.W.C.], the petitioner in this action, made no attempt to appeal his divorce decree. Some two years after the entry of the decree of divorce, [B.W.C.] filed this action seeking to set aside the adoption granted on June 22, 1984. "'It is apparent to the Court after review of the transcript of the divorce proceeding that the issue of the validity of the adoption was raised at that time. The Circuit Court found that [B.W.C.] had an obligation to pay support for these children. If [B.W.C.] wished to contest 16 1121134 that finding, the proper method was to appeal from the order of the Circuit Court, not file an action some two years later in another Court.' "After the trial court denied his motion for new trial, B.W.C. appealed to the Court of Civil Appeals. The Court of Civil Appeals dismissed the appeal on the authority of § 26–10–5(c),[ ] stating 4 the following: "'Section 26–10–5(c) Code 1975, prohibits a decree of adoption from being set aside after the lapse of five years. ...' "[B.W.C. v. A.N.M.,] 590 So. 2d 279 [(Ala. Civ. App. 1991)]." This Court reversed the Court of Civil Appeals' decision in B.W.C. v. A.N.M., 590 So. 2d 279 (Ala. Civ. App. 1991)("B.W.C. I"), because this Court determined that, under now repealed § 26-10-5(c), Ala. Code 1975, "an action to set aside a final order of adoption under the statute has as one of its constituent elements the requirement that the suit be begun within five years from the date of the final order, not that it must be completed within that period." Ex parte B.W.C., 590 So. 2d at 282. This Court further stated: "By reversing the judgment and remanding the cause, we should not be understood as addressing Section 26-10-5, Ala. Code 1975, was repealed effective 4 January 1, 1991, by Act No. 90-554, Ala. Acts 1990. 17 1121134 whether the petitioner was barred for some other reason, such as that stated by the trial judge -- that the issue of the validity of the adoption had been adjudicated or could have been adjudicated in the divorce proceeding." Id. On return to remand, the Court of Civil Appeals was tasked by this Court with considering "whether the trial court correctly determined that B.W.C. was barred from contesting the validity of the adoptions of A.N.M. and K.K.M. in juvenile court." B.W.C. II, 590 So. 2d at 283. The Court of Civil Appeals answered that question as follows: "An inquiry into subject matter jurisdiction may be made at any time. C.C.K. v. M.R.K., 579 So. 2d 1368 (Ala. Civ. App. 1991). If a court does not have subject matter jurisdiction, then it does not have authority to act. Mobile & Gulf R.R. Co. v. Crocker, 455 So. 2d 829 (Ala. 1984). "In the past, this court has held that primary jurisdiction over adoption proceedings is in the probate court. C.C.K.; Ex parte Hicks, 451 So. 2d 324 (Ala. Civ. App. 1984). Further, this court held in Holcomb v. Bomar, 392 So. 2d 1204 (Ala. Civ. App. 1981), that the facts of that case made the probate court the proper place to file a motion to set aside an adoption. Moreover, unless the juvenile court acquired jurisdiction over a petition to adopt by the 'transfer' mechanism found at § 12-12-35, Code 1975, the juvenile court would be without authority to grant an adoption. See Ex parte D.C.H., C.W.H., & J.L.H., 575 So. 2d 100 (Ala. Civ. App. 1990). We find that the same principle applies in a proceeding to set aside an adoption. 18 1121134 "It is well settled that adoption is purely statutory, unknown to the common law, and that strict statutory adherence is required. Ex parte Sullivan, 407 So. 2d 559 (Ala. 1981); Wolf v. Smith, 435 So. 2d 749 (Ala. Civ. App. 1983). Here, the circuit court which granted the divorce had not acquired subject matter jurisdiction over the adoptions by any statutory mechanism. Therefore, we hold that the circuit court that granted the divorce in this case could not have ratified or set aside the adoptions, because it had not acquired subject matter jurisdiction pursuant to any statute." B.W.C. II, 590 So. 2d at 283. O.S. and J.A.S. appropriately relied upon B.W.C. II in making their argument. The same principles concerning the probate court and adoption proceedings applied by the Court of Civil Appeals in B.W.C. II apply today. As set forth above, the legislature has given the probate court original jurisdiction over all adoption proceedings, including a challenge to a judgment of adoption on the basis of fraud. Therefore, there is no reason to overrule B.W.C. II or Holcomb, and the Court of Civil Appeals erred in doing so. IV. Conclusion Based on the foregoing, we reverse the Court of Civil 19 1121134 Appeals' judgment and remand the matter for further proceedings consistent with this opinion. REVERSED AND REMANDED. Stuart, Bolin, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Murdock and Shaw, JJ., dissent. 20 1121134 MURDOCK, Justice (dissenting). After no small degree of struggle on my part and with some trepidation given the now antiquated rules of pleading and procedure in play in some of the cases discussed in the Court of Civil Appeals' opinion, I respectfully dissent. I offer the following thoughts. Initially, my angst regarding the result achieved in the main opinion focused on a concern that the main opinion might be in error for failing to recognize and accommodate fully the plenary role of the circuit court as our court of general equity jurisdiction. The language of Ala. Code 1975, § 12-11- 31 -- upon which the main opinion ultimately rests -- has been a part of our Code since the earliest years of Alabama's statehood. Despite this fact, in multiple cases dating back to that time, this Court has recognized the authority of the circuit court to adjudicate collateral attacks on the validity of probate court judgments on equitable grounds. By its wording, § 12-11-31 assumes a preexisting, general 21 1121134 equity jurisdiction in circuit courts. See generally Walker 5 v. City of Birmingham, 279 Ala. 53, 181 So. 2d 493 (1965) (recognizing that circuit courts are courts of general equity jurisdiction); Ala. Const. 1901, § 142 ("The circuit court shall exercise general jurisdiction in all cases except as otherwise be provided by law."). The language in § 12-11-31 -- including the identical language now codified in subdivision (1) of that statute -- has been understood as simply affirmatively confirming or extending that general equity jurisdiction to certain categories of cases, not withholding from circuit courts equitable authority as to categories of cases not specifically listed therein. In Waldron, Isley & Co. v. Simmons, 28 Ala. 629 (1856), this Court addressed the language of § 602, 1852 Code, which was Section 12-11-31 provides in part as follows: 5 "The powers and jurisdiction of circuit courts as to equitable matters or proceedings shall extend: "(1) To all civil actions in which a plain and adequate remedy is not provided in the other judicial tribunals." 22 1121134 identical to the language now codified in § 12-11-31(1) that states that the equitable jurisdiction of circuit courts shall extend "[t]o all civil actions in which a plain and adequate remedy is not provided in the other judicial tribunals." As to this language, the Court explained: "[W]e are entirely satisfied that, as to cases in which originally jurisdiction had vested legitimately in courts of chancery, the jurisdiction is not abolished by anything contained in section 602, although a plain and adequate remedy at law in such cases is provided by some other section of the Code, -– no prohibitory or restrictive words being used." 28 Ala. at 633. Consistent with the foregoing, the language now found in § 12-11-31 has never been understood to prevent circuit courts, as Alabama's courts of general equity jurisdiction, from exercising jurisdiction over "bills of review" and other common-law writs that tested the validity of the judgments of other courts, including probate courts, on equitable grounds. See, e.g., Laney v. Dean, 267 Ala. 129, 136, 100 So. 2d 688, 695 (1958) ("There is no doubt of the general jurisdiction of a court of equity to annul decrees of courts of competent 23 1121134 jurisdiction which have been obtained by fraud."); Keenum v. Dodson, 212 Ala. 146, 148, 102 So. 230, 232 (1924) (holding as to a probate court judgment that "[t]he decree ... being charged as having been procured through fraud and requiring proof of extraneous facts to establish same, the complainants had the right to resort to a court of equity as for a cancellation or reformation of the decree"). (Again, the identical language now found in § 12-11-31(1) was in place when these cases were decided. See 1923 Code, § 6465; 1940 Code (Recomp. 1958), tit. 13, § 129.) That said, it cannot be denied that the need for circuit courts to be able to consider equity-based challenges to probate court judgments has at least in part been a function of the inability of the probate courts, as courts of law, to take up such matters for themselves. See Bolden v. Sloss–Sheffield Steel & Iron Co., 215 Ala. 334, 335, 110 So. 574, 575 (1926) ("[W]here the jurisdiction of the court of law is acquired by the fraudulent concoction of a simulated cause of action, the fraud itself to be consummated through the 24 1121134 instrumentality of a court of justice, the protection of the court demands that there should be a remedy."). At least to the extent that the "case" for circuit court authority to review probate court judgments previously has found support in this need for a remedy, we can say that that "case" has been diminished with the modern-day extension of Rule 60(b), Ala. R. Civ. P , to the probate courts. With at least this concern laid to the side, our consideration of the jurisdictional issue at hand might naturally turn to concerns over the orderly functioning of our courts and the dignity and binding force of a judgment of the probate court as a court of coordinate jurisdiction. Nonetheless, I dissent. I do so for a reason not subsumed by the foregoing discussion and not addressed in the main opinion. Specifically, the circuit court in this case, no differently than any other court, whether "sitting" in equity or in law, is not obligated to recognize or enforce any judgment of another court that is shown to be a void judgment. In Wanninger v. Lange, 268 Ala. 402, 406, 108 So. 2d 331, 335 25 1121134 (1959), this Court explained that "'[c]ourts acting without authority can impart no validity to their proceedings and their judgments are assailable in any proceeding.'" (Quoting Crump v. Knight, 256 Ala. 601, 603-04, 56 So. 2d 625, 627 (1952).) As to probate court judgments specifically, this Court has acknowledged that such judgments can be collaterally attacked if "plainly void or made without jurisdiction." Black v. Seals, 474 So. 2d 696, 697 (Ala. 1985). Cf. Martin v. Martin, 173 Ala. 106, 115, 55 So. 632, 634 (1911)(permitting a collateral attack on a divorce judgment procured through false jurisdictional allegations because such a judgment is "a nullity under all circumstances"). In Wightman v. Karsner, 20 Ala. 446, 453-54 (1852), this Court stated: "As far as our search has extended, the best authorities on the subject concur in saying, that a judgment void in one court, is not binding upon any other court, in which an interest arising under it is sought to be enforced. If the proceedings were merely irregular or erroneous, and liable to be set aside on appeal or writ of error, the case would be different." (Emphasis added.) Ultimately, therefore, I must dissent because the main 26 1121134 opinion errs in concluding that the circuit court did not have jurisdiction even to assess whether there had been a fraud on the probate court that rendered the probate court's judgment void. The circuit court may or may not have made a 6 correct decision on this issue, but that is a matter of the merits of its decision that we do not even reach. The circuit court had the jurisdiction to make that decision. 7 Because this Court denies the jurisdiction of a circuit court to even consider whether a probate court judgment is void, circuit courts hereafter will have no choice but to give Not even the dissenting judges in the Court of Civil 6 Appeals take issue with the authority of the circuit court to make a decision as to whether the fraud in this case was a fraud upon the probate court that vitiated its judgment; they merely challenge the correctness of that decision on its merits, see O.S. v. E.S., [Ms. 2110621, April 19, 2013] ___ So. 3d __, __ (Ala. Civ. App. 2013)(Donaldson, J., dissenting, joined by Thompson, P.J.) –- something we stop short of doing because of our decision that the circuit court was without jurisdiction to consider that issue. This is so even if its decision in this regard also bore 7 on the circuit court's own jurisdiction. See generally Ex parte Board of Educ. of Blount Cnty., 264 Ala. 34, 38, 84 So. 2d 653, 656 (1956)("[E]very court of general jurisdiction has the judicial power to determine the question of its own jurisdiction."). 27 1121134 legal effect to probate court judgments that might well be void. I suppose the only alternative available to circuit courts in the future will be to interrupt their own proceedings and instruct the parties to "go to the probate court" and file a separate proceeding in that court and then await the outcome of such a proceeding before resuming the litigation already pending before the circuit court, a process with which our courts are not familiar, at least as to the question whether the judgment of another court is void. Based on the foregoing, I respectfully dissent. 28	June 20, 2014
0e808f89-b827-40f1-b9cf-df7cf5a27813	Alabama et al. v. Estate Yarbrough	N/A	1130114	Alabama	Alabama Supreme Court	Rel: 06/06/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130114 ____________________ State of Alabama et al. v. Estate of Frances Ann Yarbrough, deceased, et al. Appeal from St. Clair Circuit Court (CV-05-0246) PARKER, Justice. The State of Alabama, the Alabama Department of Finance, and the Comptroller of the State of Alabama (hereinafter collectively referred to as "the State"), nonparties to the 1130114 underlying action, appeal from the St. Clair Circuit Court's order denying the State's motion to intervene as of right. Facts and Procedural History The circuit court set forth the relevant facts and procedural history in its order of October 15, 2013, as follows: "This matter came before the Court on July 11, 2013, for a hearing on the Motion to Intervene filed by the State of Alabama, the Alabama Department of Finance, the Alabama Comptroller (the 'State') and the State's Rule 60(b)[, Ala. R. Civ. P.,] Motion for Relief from Judgment or Order ('Rule 60(b) Motion'), both of which motions were filed on June 25, 2013. .... "Upon review and consideration of the State's Motion to Intervene, the State's Rule 60(b) Motion, the remaining pleadings in this matter, arguments by counsel of the State and the Estate [of Frances Ann Yarbrough, deceased ('the Estate')], and applicable law, this Court finds as follows: "1. This estate matter has been pending since 2001. In March 2012, this Court found that the decedent, Mrs. Frances Ann Yarbrough, died intestate with no heirs that are in the line of descendant distribution under the laws of the State of Alabama; thus, in accordance with § 43-8-44, Ala. Code 1975, her assets escheated to the State of Alabama.[ ] 1 Section 43-8-44, Ala. Code 1975, states: 1 "If there is no taker under the provisions of this article, the intestate estate passes to the state of Alabama." 2 1130114 "2. By order dated March 19, 2012, this Court ordered the Estate to pay certain expenses of the Estate, and then to pay the balance of the Estate's funds to the State of Alabama. In that same order, this Court ordered the State of Alabama to pay the escheated funds to the St. Clair County's Circuit Clerk's office to be used by the Clerk 'to rehire some of the employees lost to proration.' "3. On May 7, 2012, a check in the amount of $247,850.17 was mailed to the State of Alabama with a copy of this Court's March 19th order. "4. Following receipt of the Estate's check and this Court's order, on or about May 15, 2012, the State of Alabama, through Assistant Attorney General J. Matt Bledsoe, contacted the Estate's counsel, Brandi Williams, to receive assistance from the Estate in seeking a modification of this Court's March 19th order. "5. The State, through its counsel Mr. Bledsoe, stated that the Estate's escheated funds must be used or applied in furtherance of education in accordance with the Alabama Constitution.[ ] Notably, 2 the State, through its counsel Mr. Bledsoe, declared that it had no objection to disbursing the Estate's escheated assets to the Pell City Board of Education and the St. Clair County Board of Education. "6. Based on that representation, the Estate moved this Court to Alter, Amend, or Vacate its March 19th order to direct the State of Alabama to pay the Estate's escheated assets to the Pell City Board of Education and the St. Clair County Board of Education. In that motion, the Estate informed the Court that 'the Attorney General's Office ha[d] no Article XIV, § 258, Ala. Const. 1901, states, in 2 pertinent part: "[A]ll estates of deceased persons who die without leaving a will or heir[] shall be used or applied to the furtherance of education." 3 1130114 objection to the balance of the Estate of Frances Ann Yarbrough being paid by the State of Alabama to the St. Clair County Board of Education and the Pell City Board of Education.' "7. This Court granted the Estate's motion and entered an amended order on May 22, 2012, directing the State of Alabama to pay the Estate's escheated assets to the Pell City Board of Education and the St. Clair County Board of Education. "8. By letter dated June 7, 2012, the State, through its counsel Deputy Attorney General Jerry Carpenter, objected to this Court's May 22nd order. This Court treated Mr. Carpenter's letter as a Motion to Alter, Amend, or Vacate, filed the letter with the circuit clerk on June 13, 2012, and set the matter for a hearing on July 12, 2012. "9. Because the State was not a party to this matter, the State apparently did not receive direct notice of the July 12th hearing. The Estate's counsel, Ms. Williams, however, provided the State notice of the hearing by e-mail to Mr. Bledsoe. "10. The State did not appear at the July 12th hearing, and this Court denied the relief requested by the State through its June 7th letter by an order dated July 17, 2012. "11. Thereafter, on August 15, 2012, the State filed a formal Motion for Reconsideration of this Court's denial of the relief requested in the State's June 7th letter. "12. This Court denied the State's Motion for Reconsideration on August 16, 2012. "13. On August 28, 2012, the State appealed this Court's May 22nd order to the Alabama Supreme Court." 4 1130114 On June 20, 2013, this Court dismissed the State's appeal (case no. 1111546) without prejudice. In addition to dismissing without prejudice the State's appeal, this Court's order stated: "IT IS FURTHER ORDERED that the appellants, the State of Alabama, the Alabama Department of Finance, and the Comptroller of the State of Alabama, may intervene in the underlying action for purposes of taking an appeal from the final judgment in this cause; and that the appellants may take a timely appeal after the St. Clair Circuit Court issues an order granting the appellants' motion to intervene in the underlying action. See Rule 4(a), Ala. R. App. P." (Capitalization in original.) The circuit court's October 15, 2013, order sets forth the remaining pertinent facts and procedural history, as follows: "15. On June 25, 2013, the State moved to intervene as a matter of right in this action pursuant to Rule 24(a)(2) of the Alabama Rules of Civil Procedure, so that the State could seek relief from this Court's May 22nd order pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure. "16. In its motion, the State asserts that 'Rule 24(a)(2), Ala. R. of Civ. P., provides for intervention of right "when the applicant claims an interest relating to the property or transaction which is the subject of the action" and the applicant's ability to protect its interest may be impaired or impeded, unless the applicant's interest 5 1130114 is adequately represented by an existing party.' Motion at [para.] 5." The circuit court then denied the State's motion to intervene, as follows: "17. While the State accurately quotes a portion of Rule 24(a)(2), Ala. R. Civ. P., the State fails to quote the most important provision of that Rule as it applies to this case. Both Ala. R. Civ. P. Rule 24(a) and Ala. R. Civ. P. Rule 24(b) require 'timely application' to the trial court for requests for intervention. The State makes no mention of this requirement in its Motion to Intervene and does not attempt to argue that its Motion is 'timely' under Rule 24(a)(2), Ala. R. Civ. P. "18. Since Ala. R. Civ. P. 24 'is silent concerning what constitutes a "timely application," it has long been held that the determination of timeliness is a matter committed to the sound discretion of the trial court.' Randolph County v. Thompson, 502 So. 2d 357, 364 (Ala. 1987). "19. In this matter, it is undisputed that the State had notice of the issues for which it seeks intervention at least as early as May 2012. Despite having this notice, the State chose not to intervene in this matter, but rather to seek review of this Court's order as a non-party to this case. Once that review was unsuccessful, the State sought intervention as a matter of right in June 2013. Under these facts, to hold that the State's Motion to Intervene is a 'timely application' under Rule 24(a)(2), Ala. R. Civ. P., would require an absurd construction of the word 'timely.' See Root v. City of Mobile, 592 So. 2d 1051, 1053 (Ala. 1992) (trial court did not abuse its discretion in denying a motion to intervene filed more than 10 months after the underlying action was filed). 6 1130114 "20. The State of Alabama and the Alabama Attorney General's Office are not exempt from the rules requiring 'timely application for intervention,' and the State must be held responsible for its failure to comply with Rule 24, Ala. R. Civ. P. See American Benefit Life Ins. Co. v. Ussery, 373 So. 2d 824, 828 (Ala. 1979) (holding that the Attorney General's petition for intervention 'came too late'). "21. The State's actions in this matter, including its failure to 'timely' apply for intervention, have resulted in wasted judicial resources and unnecessary delay in the final resolution of this case. To allow the State to intervene now, more than a year after the State's first knowledge of the matters it seeks to challenge through intervention, would be prejudicial and would create additional undue delay. "It is therefore ORDERED, ADJUDGED and DECREED by the Court as follows: "A. For the foregoing reasons, the State's Motion to Intervene is DENIED. "B. Because the State's Motion to Intervene is DENIED, this Court need not consider the merits of the State's Rule 60(b) Motion. The State's Rule 60(b) motion is also DENIED."3 (Capitalization in original.) The State appealed. Standard of Review The circuit court also entered a judgment awarding 3 attorney fees to trial counsel for the estate of Frances Ann Yarbrough; the circuit court later vacated that judgment ex mero motu. 7 1130114 "The standard of review applicable in cases involving a denial of a motion to intervene as of right is whether the trial court has acted outside its discretion. See City of Dora v. Beavers, 692 So. 2d 808, 810 (Ala. 1997)." Black Warrior Riverkeeper, Inc. v. East Walker Cnty. Sewer Auth., 979 So. 2d 69, 72 (Ala. Civ. App. 2007). Further, this Court reviews questions of law de novo. National Ins. Ass'n v. Sockwell, 829 So. 2d 111 (Ala. 2002); Moss v. Williams, 822 So. 2d 392 (Ala. 2001); and Reed v. Board of Trs. of Alabama State Univ., 778 So. 2d 791 (Ala. 2000). Discussion Initially, we note that the State's appeal is properly before this Court: "'[A] denial of a motion to intervene is always an appealable order.' Farmers Ins. Exch. v. Raine, 905 So. 2d 832, 833 (Ala. Civ. App. 2004) (citing Kids' Klub II, Inc. v. State Dep't of Human Res., 763 So. 2d 259, 260 (Ala. Civ. App. 2000); Alabama Fed. Sav. & Loan Ass'n v. Howard, 534 So. 2d 609 (Ala. 1988))." Jim Parker Bldg. Co. v. G & S Glass & Supply Co., 69 So. 3d 124, 130 (Ala. 2011). The State argues that the circuit court violated this Court's June 20, 2013, order allowing the State to intervene 8 1130114 in the underlying action; the State argues that the circuit court was without discretion to deny the State's motion to intervene. The estate of Frances Ann Yarbrough, deceased ("the estate"), argues that this Court's June 20, 2013, order was not a mandate to the circuit court to grant the State's motion to intervene, should the State file such a motion, but required the circuit court only to consider such a motion if filed by the State. The State's interpretation of this Court's June 20, 2013, order is correct. See Ex parte Stewart, 74 So. 3d 944, 948 (Ala. 2011)("Section 12-1-7(3), Ala. Code 1975, provides that every court has the power 'to compel obedience to its judgments, orders and process and to orders of a judge out of court, in an action or proceeding therein.'"). As set forth above, this Court's June 20, 2013, order stated, in pertinent part: "It is ... ordered that the appellants, the State of Alabama, the Alabama Department of Finance, and the Comptroller of the State of Alabama, may intervene in the underlying action for purposes of taking an appeal from the final judgment in this cause; and that the appellants may take a timely appeal after the St. Clair Circuit Court issues an order granting the appellants' motion to intervene in the underlying action." 9 1130114 (Emphasis added.) By stating that the State "may intervene in the underlying action," this Court's order left no discretion in the circuit court as to whether to allow the State to intervene, but required the circuit court to grant the State's motion to intervene, if the State filed such a motion. This Court's order did not state that the State may file a motion to intervene, but affirmatively concluded that the State "may intervene." The use of the word "may" in this Court's order pertained to the State's decision to intervene; it did not give the circuit court the discretion to deny a motion to intervene filed by the State. By denying the State's motion, the circuit court failed to comply with this Court's June 20, 2013, order; thus, the circuit court's order denying the State's motion to intervene is reversed. The State has requested that this Court, if it determines that the circuit court's denial of the State's motion to intervene was in error, determine the merits of the underlying case. In support of its request, the State cites Randolph County v. Thompson, 502 So. 2d 357 (Ala. 1987). 10 1130114 In Randolph County, the underlying action appealed from involved the then governor's appointment of Charlie Will Thompson to a position as a supernumerary sheriff of Randolph County ("the County"). The County was notified of Thompson's appointment, and the County filed a motion to intervene as of right pursuant to Rule 24(a), Ala. R. Civ. P., in an action Thompson had earlier filed against then Governor George Wallace, because, the County alleged, a supernumerary sheriff's salary is paid from County funds. The circuit court denied the County's motion to intervene, and the County appealed. This Court determined that the circuit court's order denying the County's motion to intervene was in error. This Court then went on to address the merits of the underlying action based on the following reasoning: "Having determined that the County could properly intervene as of right in Thompson v. Wallace in order to prosecute the appeal that was earlier dismissed on motion of the governor's office, we can see no just reason to delay making a determination on the underlying merits of this case. Both parties have submitted briefs in which they discussed these underlying issues. Further, at oral argument of this case, counsel for Thompson insisted that 'the merits' are now before this Court. Rule 1, A[la]. R. App. P., declares that these rules 'shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.' Similarly, Rule 1, A[la]. 11 1130114 R. Civ. P., declares that 'these rules shall be construed to secure the just, speedy and inexpensive determination of every action.' In accordance with these policies, we now address the merits of the County's appeal." 502 So. 2d at 366. In the present case, we have determined that the State had the right to intervene in the underlying action and that the circuit court erred in denying its motion to intervene. Further, the estate has presented no argument against or objection to this Court's considering the merits of the underlying case. Indeed, the estate notes the possibility that this Court may consider the merits of the underlying action and presents arguments concerning the merits in its brief on appeal, as will be discussed below. As was the case in Randolph County, we have concluded that the State had the right to intervene in the underlying action; the estate has no objections to consideration of the merits of the underlying action; and the merits of the underlying action have been briefed by both sides in their briefs presently before this Court. Thus, to "assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits," we 12 1130114 will consider the merits of the underlying action. Rule 1, Ala. R. App. P. As set forth above, on March 19, 2012, the circuit court entered an order determining that Mrs. Yarbrough had "died intestate with no heirs that are in the line of descendant distribution under the laws of the State of Alabama" and that the assets of the estate "must escheat to the State of Alabama." In that same order, the circuit court further stated: "Since this money originated in St. Clair County and further since proration has substantially decreased the number of employees in the circuit clerk's office, hampering the efficiency of that office, the comptroller is directed to pay these funds to the circuit clerk of St. Clair [C]ounty to be used solely to rehire some of the employees lost to proration." Also as set forth above, on May 7, 2012, a check in the amount of $247,850.17 was mailed to the State treasurer with a copy of the circuit court's March 19 order. The State has maintained possession of the escheated funds of the estate since that date. On May 22, 2012, the circuit court, upon motion of trial counsel for the personal representative of the estate, entered the following order, amending the March 19 order: 13 1130114 "Upon consideration of the Motion to Amend, Alter, or Vacate filed by ... [the] Personal Representative of the Estate ..., it is ORDERED, ADJUDGED and DECREED as follows: "1. That the State of Alabama shall pay the sum of $247,750.17[ ] to the St. Clair County Board of 4 Education and the Pell City Board of Education. "2. As determined by each system's school population, the State of Alabama shall disburse to the St. Clair County Board of Education the sum of $165,250.17. "3. The State of Alabama shall also disburse the sum of $82,500.00 to the Pell City Board of Education. "4. That each Board of Education shall spend the funds however it sees fit." (Capitalization in original.) On appeal, the State argues that the circuit court's May 22, 2012, order is unconstitutional in that it violates the separation-of-powers doctrine; we agree. The separation-of- powers doctrine is expressly set forth in the Alabama Constitution: "In Alabama, separation of powers is not merely an implicit 'doctrine' but rather an express command; a command stated with a forcefulness rivaled by few, if any, We note that, in its order denying the State's motion to 4 intervene, the circuit court states that $247,850.17 was submitted to the State as the escheated funds. Here, the circuit court is purporting to order the State to distribute $247,750.17; the parties do not explain this discrepancy. 14 1130114 similar provisions in constitutions of other sovereigns." Ex parte James, 836 So. 2d 813, 815 (Ala. 2002). Article III, § 42, Ala. Const. 1901, states: "The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." Article III, § 43, Ala. Const. 1901, states: "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men." (Emphasis added.) More specifically, as it pertains to the present case, Art. III, § 43.01, Ala. Const. 1901 (Off. Recomp.), states, in pertinent part: "No order of a state court, which requires disbursement of state funds, shall be binding on the state or any state official until the order has been approved by a simple majority of both houses of the Legislature." See Ex parte James, 836 So. 2d at 815 (stating that § 43.01 nullifies "any 'order of a state court, which 15 1130114 requires disbursement of state funds, ... until the order has been approved by a simple majority of both houses of the Legislature'"). Further, Art. IV, § 72, Ala. Const. 1901, states, in pertinent part: "No money shall be paid out of the treasury except upon appropriations made by law ...," i.e., approved by the Legislature. Ex parte James, 713 So. 2d 869, 903 (Ala. 1997)(Hooper, C.J., dissenting)("Article III, § 72, Ala. Const. 1901, provides that no money shall be paid out of the treasury except upon appropriation, made by law, i.e., passed by the Legislature."). See also 63C Am. Jur. 2d Public Funds § 34 (1997) ("The power to appropriate public funds for specific purposes and to reduce appropriations is solely a legislative power." (quoted with approval in McInnish v. Riley, 925 So. 2d 174, 179 (Ala. 2005))). In the present case, in accordance with Alabama law, the circuit court escheated the funds of the estate pursuant to § 43-8-44, which were paid to the State treasurer pursuant to § 43-6-7, Ala. Code 1975. Article XIV, § 258, Ala. Const. 1901, requires that "all estates of deceased persons who die without leaving a will or heir, shall be used or applied to the 16 1130114 furtherance of education." Additionally, Art. XIV, § 260, Ala. Const. 1901, states, in pertinent part: "The income arising from the sixteenth section trust fund, the surplus revenue fund, until it is called for by the United States government, and the funds enumerated in sections 257 and 258 of this Constitution, together with a special annual tax of thirty cents on each one hundred dollars of taxable property in this state, which the legislature shall levy, shall be applied to the support and furtherance of education, and it shall be the duty of the legislature to increase the educational fund from time to time as the necessity therefor and the condition of the treasury and the resources of the state may justify; provided, that nothing herein contained shall be so construed as to authorize the legislature to levy in any one year a greater rate of state taxation for all purposes, including schools, than sixty-five cents on each one hundred dollars' worth of taxable property; and provided further, that nothing herein contained shall prevent the legislature from first providing for the payment of the bonded indebtedness of the state and interest thereon out of all the revenue of the state." (Emphasis added.) Therefore, pursuant to the Alabama Constitution, there is no doubt that the escheated funds of the estate must be applied for the furtherance of education. However, the estate has not directed this Court's attention to any authority indicating that the circuit court had the authority to order the State to appropriate the escheated 17 1130114 funds to a specific State agency. As set forth above, such 5 power rests solely with the Legislature. This is not the first time a branch of government other than the Legislature has attempted to usurp the legislative power to appropriate State funds. In Wallace v. Baker, 336 So. 2d 156 (Ala. 1976), the question before this Court was: "Can the Governor, by executive order, appropriate public funds for education when the Legislature adjourns without passing an appropriation bill?" 336 So. 2d at 156. Based on the separation-of-powers doctrine, this Court concluded that the governor does not have the authority to appropriate State funds, stating: "Section 43 of our State Constitution prohibits the Executive branch from exercising either legislative or judicial powers. Section 72 of our Constitution specifically prohibits the payment out of the treasury of money 'except upon appropriations made by law.' Amendment 111, which states that it is the policy of the State 'to foster and promote the education of its citizens,' does not grant additional powers to the Executive. The power to appropriate is still legislative." See Ex parte Hale Cnty. Bd. of Educ., 14 So. 3d 844 (Ala. 5 2009)(recognizing that county boards of education are agencies of the State); and Ex parte Phenix City Bd. of Educ., 67 So. 3d 56 (Ala. 2011)(recognizing that city boards of education are agencies of the State). 18 1130114 Id. Just as this Court determined in Wallace that the governor cannot usurp the legislative authority to appropriate State funds by means of an executive order, neither can the circuit court usurp the legislative authority to appropriate State funds by means of an order or a judgment. The estate further argues that, because J. Matt Bledsoe, an assistant attorney general, approved the plan of the estate's trial counsel to ask the circuit court to amend its judgment to order the State to appropriate the escheated funds to the St. Clair County and Pell City Boards of Education, the State waived application of the separation-of-powers doctrine to this case. The estate has not cited any authority in support of its argument. Based on its failure to cite any applicable law, the estate's argument in this regard does not comply with Rule 28(a)(10), Ala. R. App. P., and we need not consider its argument. See Harris v. Owens, 105 So. 3d 430, 436-37 (Ala. 2012).6 We note that the estate also argues that it should be 6 awarded attorney fees out of the escheated funds based on Bledsoe's actions. However, the estate has cited no authority supporting this argument; thus, we need not consider it. See Rule 28(a)(10); see also Harris, supra. 19 1130114 However, we note that the estate's argument is not well taken. The estate essentially argues that the executive branch can waive the separation-of-powers doctrine on behalf of the legislative branch so that the judicial branch can order the legislative branch how to appropriate funds. First, we note that at the time Bledsoe advised the estate's trial counsel to file a postjudgment motion requesting that the circuit court enter an order appropriating State funds to the St. Clair County and Pell City Boards of Education, the State had not yet moved to intervene in the action; we fail to see how a nonparty can waive a constitutional doctrine. Moreover, the separation-of-powers doctrine is not an affirmative defense that can be waived, but a command expressly stated in the Alabama Constitution. See Ex parte James, supra. The circuit court lacked the authority to instruct the Legislature how to appropriate the escheated funds of the estate. The executive branch cannot waive the legislative branch's constitutional authority and allow the judicial branch to exercise that authority. Our constitution clearly defines the roles of each branch of government and expressly forbids each branch from exercising another branch's 20 1130114 constitutional authority. The estate's argument is both unsupported and unpersuasive. The circuit court's orders violate the separation-of- powers doctrine in that the circuit court sought in both orders to exercise a legislative power; the circuit court had no authority to appropriate State funds to a specific State agency. See Wallace, supra. As a result, we vacate the circuit court's May 22, 2012, order and that portion of the circuit court's March 19, 2012, order purporting to direct that the funds be paid to the circuit clerk of St. Clair County. The funds of the estate were properly escheated in the March 19, 2012, order, and that action of the circuit court stands. Conclusion Because the circuit court failed to follow this Court's June 20, 2013, order, we reverse the circuit court's October 15, 2013, order denying the State's motion to intervene. Further, having considered the merits of the underlying action, we vacate the circuit court's May 22, 2012, order purporting to order the disbursement of the escheated funds because the circuit court was without authority to do so based 21 1130114 on the separation-of-powers doctrine. In its March 19, 2012, order, the circuit court properly ordered the funds of the estate within its authority escheated, and, insofar as that order does so, it is affirmed. However, the circuit court exceeded its authority in attempting to appropriate the escheated funds. All issues having been decided on both the motion to intervene and the underlying action, a judgment is rendered for the State. ORDER OF OCTOBER 15, 2013, REVERSED; ORDER OF MAY 22, 2012, VACATED; ORDER OF MARCH 19, 2012, AFFIRMED IN PART AND VACATED IN PART; AND JUDGMENT RENDERED FOR THE STATE. Stuart, Murdock, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Bolin and Shaw, JJ., concur in the result. 22	June 6, 2014
a7498bfe-a737-4dcd-bc10-c09de41ab768	CVS Caremark Corporation et al. v. John Lauriello et al.	N/A	1120010	Alabama	Alabama Supreme Court	REL:09/12/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1120010 _________________________ CVS Caremark Corporation et al. v. John Lauriello et al. _________________________ 1120114 _________________________ John Lauriello et al. v. CVS Caremark Corporation et al. Appeals from Jefferson Circuit Court (CV-03-6630) 1120010; 1120114 SHAW, Justice. In case no. 1120010, CVS Caremark Corporation ("Caremark"); American International Group, Inc.; National Union Fire Insurance Company of Pittsburgh, PA; AIG Technical Services, Inc.; and American International Specialty Lines Insurance Company (hereinafter sometimes referred to collectively as "Caremark and the insurers") appeal from the trial court's order certifying as a class action the fraud claims asserted by John Lauriello; James O. Finney, Jr.; Sam Johnson; and the City of Birmingham Retirement and Relief System (hereinafter sometimes referred to collectively as "the plaintiffs"). In case no. 1120114, the plaintiffs cross- appeal from the same class-certification order, alleging that, though class treatment was appropriate, the trial court erred in certifying the class as an "opt-out" class pursuant to Rule 23(b)(3), Ala. R. Civ. P., rather than a "mandatory" class pursuant to Rule 23(b)(1), Ala. R. Civ. P. For the reasons discussed below, we affirm in both appeals. Facts and Procedural History In connection with a 1998 nationwide, securities-fraud class action initiated against MedPartners, Inc., a physician- 2 1120010; 1120114 practice-management/pharmacy-benefits-management corporation and the predecessor in interest to Caremark ("the 1998 litigation"), the Jefferson Circuit Court certified a class that included the plaintiffs. Based on the alleged financial 1 distress and limited insurance resources of MedPartners, the 1998 litigation was concluded in 1999 by means of a negotiated "global settlement," pursuant to which the claims of all class members were settled for $56 million –- an amount that, according to the representations of MedPartners, purportedly exhausted its available insurance coverage. Purportedly 2 based on representations of counsel that MedPartners lacked the financial means to pay any judgment in excess of the negotiated settlement and that the settlement amount was thus the best potential recovery for the class, the trial court, The 1998 litigation originated from 21 separate suits in 1 state and federal courts based on allegations that MedPartners, in connection with a planned merger, made false and misleading statements to both the public and the Securities and Exchange Commission concerning its financial condition and its anticipated performance. This amount was, according to the class representatives, 2 a bargain, given the egregious –- and purportedly indefensible -- nature of the alleged securities violations. In addition to the $56 million settlement of the class-based litigation, the global settlement also included an additional $9 million payout to settle non-class-based litigation. 3 1120010; 1120114 after a hearing, approved the settlement and entered a judgment in accordance therewith. Thereafter, however, MedPartners, now Caremark, allegedly 3 disclosed, in unrelated litigation, that it had actually obtained –- and thus had available during the 1998 litigation -- an excess-insurance policy providing alleged "unlimited coverage" with regard to its potential-damages exposure in the 1998 litigation -- the existence of which it had purportedly concealed in negotiating the class settlement. As a result, in 2003, Lauriello, seeking to be named as class representative, again sued Caremark and the insurers in the Jefferson Circuit Court, pursuant to a class-action complaint alleging misrepresentation and suppression –- specifically, that Caremark and the insurers had misrepresented the amount of insurance coverage available to settle the 1998 litigation and that they also had suppressed the existence of the purportedly unlimited excess policy -- on behalf of himself and all others similarly situated, i.e., the members of the class certified in the 1998 litigation. Alternatively, Nothing before this Court suggests that Caremark, as 3 successor in interest to MedPartners, did not assume all of MedPartners' assets and liabilities. 4 1120010; 1120114 Lauriello sought relief from the judgment pursuant to Rule 60(b), Ala. R. Civ. P. Frank G. McArthur, Bill Greene, and Virginia Greene, also members of the class certified in the 1998 litigation, filed a separate but substantially similar action in the Jefferson Circuit Court; their proposed class- action complaint asserted claims almost identical to Lauriello's but named, as additional defendants, plaintiffs' counsel from the 1998 litigation. In January 2005, the trial court issued an "Order on Class Certification," in which it concluded that it was unnecessary to certify a new class because, pursuant to the terms of the settlement agreement in the 1998 litigation, it retained jurisdiction of all matters relating to the settlement, including Lauriello's newly asserted fraud claims. Subsequently, Caremark and the insurers simultaneously appealed the trial court's January 2005 order and filed a petition for a writ of mandamus seeking relief therefrom. See Ex parte Caremark RX, Inc., 956 So. 2d 1117 (Ala. 2006). Also in response to the trial court's order, McArthur, Bill Greene, and Virginia Greene (hereinafter sometimes referred to collectively as "the intervenors") sought to 5 1120010; 1120114 intervene in the Lauriello litigation, challenging the qualifications of both Lauriello and his counsel to represent the class and specifically adding as defendants in the complaint in intervention both Lauriello and plaintiffs' counsel from the 1998 litigation. The trial court denied that request as untimely; the intervenors appealed. This Court, in considering the consolidated appeals and petition for the writ of mandamus, concluded that the petition for the writ of mandamus was the appropriate avenue by which to challenge the trial court's order. As a result, we 4 dismissed the direct appeal filed by Caremark and the insurers. 956 So. 2d at 1119-20. We further granted the mandamus petition and directed the trial court to vacate the challenged order on the ground that any action by Lauriello purportedly filed pursuant to Rule 60(b) was untimely in that it had not been filed within four months after the judgment from which Lauriello sought relief as mandated by Rule 60(b). 956 So. 2d at 1124. In addition, we noted that because Lauriello had added new defendants, namely insurers that had In reaching this conclusion, we specifically noted that 4 the "the trial court's ... order was not one certifying or refusing to certify a class...." 956 So. 2d at 1119. 6 1120010; 1120114 not been named in the 1998 litigation, "Lauriello [was] not seeking merely to reopen the settlement agreement [therein] to renegotiate the amount of damages payable to the class ...." 956 So. 2d at 1125. Therefore, despite the fact that the class identified by Lauriello was indisputably identical to the class certified by the trial court in the 1998 litigation, we nonetheless concluded that, in order to certify the class in the new action, Rule 23, Ala. R. Civ. P., and § 6-5-641, Ala. Code 1975, required the trial court's performance of a "rigorous analysis" to consider, as to the proposed class members, "their relationship to the particular claims and defenses to be asserted in the [new] class action," which the trial court had clearly failed to evaluate with regard to the suitability for class treatment. 956 So. 2d at 1125. As to the intervenors' appeal, we reversed the trial court's order denying them intervention based on our findings that "none of the parties [would] be prejudiced by the intervention, ... justice [might] not be attained if intervention [was] not allowed, and ... intervention at this stage of the litigation would not prejudice the ... parties." 956 So. 2d at 1129. 7 1120010; 1120114 Following the release of our opinion, proceedings resumed in the trial court in accordance with that opinion, including the trial court's entry of an order deeming the intervenors' "Class Action Complaint in Intervention" filed. Lauriello amended his class-action complaint to add Finney, Johnson, and the City of Birmingham Retirement and Relief System ("the Retirement System") as additional named plaintiffs; the newly added plaintiffs later moved to be named as class representatives. Following the defendants' answers to the amended complaint, the trial court entered an order dismissing with prejudice "the lawyer defendants" added by the intervenors' 5 complaint in intervention on the ground that the four-year statute of repose applicable under the Alabama Legal Services Liability Act, see § 6-5-574, Ala. Code 1975, barred all claims against them. The trial court certified that judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., and the This designation includes the following lawyers and/or 5 firms who served as plaintiffs' counsel in the 1998 litigation: Yearout & Traylor, P.C.; Lowey, Danenberg, Bemporad, Selinger & Cohen, P.C.; Milberg Weiss & Bershad LLP (formerly known as Milberg Weiss Bershad & Schulman LLP, formerly known as Milberg Weiss Bershad Hynes & Lerach LLP); William S. Lerach; Neil L. Selinger; Steven E. Cauley; Stephen E. Cauley, P.A.; D'Amato & Lynch; and Richard George. 8 1120010; 1120114 intervenors again timely appealed. The trial court, thereafter, denied Lauriello's motion seeking to similarly dismiss the remaining claims asserted against him by the intervenors' complaint. This Court subsequently affirmed, without an opinion, the trial court's dismissal of the lawyer defendants. See McArthur v. Yearout & Traylor, P.C. (No. 1070513, Sept. 12, 2008), 34 So. 3d 737 (2008) (table). Following our no-opinion affirmance, proceedings again resumed in the trial court, including the voluntary dismissal of intervenor Bill Greene as a party and the withdrawal by the remaining intervenors, McArthur and Virginia Greene, of their complaint in intervention, including the claims against Lauriello, and their motion seeking to disqualify Lauriello and Lauriello's counsel pursuant to a "Lead Counsel Agreement" reached between the two plaintiff groups and their respective counsel. In addition, Lauriello withdrew his previous 6 request to be appointed a class representative. McArthur was, in fact, later dismissed on his own motion 6 as a party; therefore, of the three original intervenors, only Virginia Greene, whose current legal name, according to the record on appeal, is now Virginia Greene Hoffman, remains a party. 9 1120010; 1120114 Thereafter, discovery as to the class-certification issue commenced. The record reflects numerous discovery-related disputes, which ultimately necessitated the trial court's appointment of a special master to oversee the process. The 7 plaintiffs, thereafter, sought certification pursuant to Rule 23(b)(1) and (b)(3), Ala. R. Civ. P. The plaintiffs' certification request was supported by an accompanying brief and numerous evidentiary exhibits and was opposed on various grounds by Caremark and the insurers. The trial court, as directed by this Court in Ex parte Caremark, subsequently conducted a lengthy class-certification hearing during which it both heard testimony and received numerous evidentiary submissions. Following the parties' further submission of post-hearing briefs, the trial court issued an order granting class-action certification under Rule 23(b)(3) based upon its purported rigorous analysis, which resulted in the following findings: "Alabama Rule of Civil Procedure 23(a) -- Prerequisites to a Class Action -- states that: At or around this time, the plaintiffs again amended 7 their class-action complaint to more accurately reflect Caremark's corporate name as "CVS Caremark Corporation." 10 1120010; 1120114 "'One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.' "1. Numerosity "'The test is whether the number of members in the class is so numerous as to make joinder impracticable. Ala. R. Civ. P. 23(a)(1); State Farm Fire & Cas. Co. v. Evans, 956 So. 2d 390 (Ala. 2006).' American Bar Association Survey of State Class Action Law: Alabama § 5 (database updated Dec. 2011). From the administration of this class's Fifty Six Million and No/100 ($56,000,000.00) Dollar settlement in 1999, it is clear there are about 80,000 potential class members, and it is certain that approximately 18,000 actually filed claims that were verified and approved. Thus, Plaintiffs have carried their burden of proving numerosity. Furthermore, Defendants do not dispute the issue. "2. Commonality "'Commonality requires only that there be common questions of law or fact.... [W]here essentially identical representations are made at different times to different class members but share a common thread and are redressable under the same theory of recovery, the test of commonality may be met.' ABA Survey, supra, at Alabama § 5. As shown by facts presented above and the evidence presented to the Court during the certification hearing, the Court is convinced that there are common questions of law and 11 1120010; 1120114 fact regarding every class member. Furthermore, like numerosity, Defendants do not dispute the issue. "3. Typicality "The typicality element is satisfied only if 'the relationship between the injury to the class representative and the conduct affecting the entire class of plaintiffs [is] sufficient for the Court to properly attribute a collective nature to the challenged conduct.' Warehouse Home Furnishing Distributors, Inc. v. Whitson, 709 So. 2d 1144, 1149 (Ala. 1997). To meet the typicality requirement, there must be 'a sufficient nexus ... between the legal claims of the named class representatives and those individual class members to warrant class certification.' Prado-Steiman v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000). "The three proposed class representatives, James O. Finney, Jr., Sam Johnson and the City of Birmingham Retirement and Relief System, have claims typical of the proposed class as each was a member of the 1999 Settlement Class. "Defendants argue that the typicality requirement cannot be met on this record because of the three subclasses -- common stock, TAPS and tender offer -- which existed in the underlying 1999 Settlement Class.[ ] It is Defendants' position that 8 each of the proposed class representatives is a The original class included three subclasses of 8 purchasers of MedPartners' securities: purchasers of MedPartners common stock during the applicable period; persons who purchased MedPartners 6 ½% Threshold Appreciation Price Securities ("TAPS") in a September 15, 1997, public offering or who purchased TAPS thereafter that were traceable to the public offering; and purchasers who tendered common shares of Talbert Medical Management Holdings Corporation to MedPartners in a tender offer. 12 1120010; 1120114 member of the common stock subclass and, therefore, they do not have claims which are typical of the TAPS and tender offer subclasses. "When examining whether these proposed class representatives present claims typical of the entire class, it is critical to understand that the parties are not re-litigating the underlying securities fraud claims. The claim presented in this action is for fraud-in-the-settlement. The alleged fraud did not vary depending on whether one owned common stock, TAPS or a tender offer. Any alleged fraud touched all class members identically. "It is the Court's determination that any conflicts between the subclasses were resolved in the 1999 class settlement. The three subclasses, with representation, and with joint participation of Defendants, settled all differences in Judge Wynn's court. The subclasses agreed in 1999 on a formula that defined how any class action recovery was to be distributed. All conflicts between the subclasses have been litigated and resolved. "Given the 1999 class settlement and the nature of the allegations in this action, it is this Court's conclusion that James O. Finney, Jr., Sam Johnson and the City of Birmingham Retirement and Relief System present claims typical of the proposed class." Applying an identical rationale, the trial court similarly found that Finney, Johnson, and the Retirement System "are adequate to represent this class." In addition, noting that "[a]lthough all parties agree that proposed class counsel are adequate to prosecute class actions, the parties disagree on whether these attorneys are 13 1120010; 1120114 competent and/or able to adequately represent this proposed class," the trial court considered and rejected, in turn, each challenge by Caremark and the insurers to proposed class counsel. Ultimately, as to this issue, the trial court concluded: "In opposition of proposed class counsel, Defendants have raised every possible roadblock and issue to endeavor to influence this Court to find proposed class counsel inadequate, as such is their duty. In their endeavor to have proposed class counsel disqualified, Defendants know full well that if this Court rules with them on this issue Defendants will have gained a victory without having to adjudicate this case before an Alabama jury. "Litigation is combative, particularly where the damages sought may exceed Three Billion and No/100 ($3,000,000,000.00) Dollars. These plaintiff attorneys [sic] have labored thousands of hours since 2003 seeking to represent and protect this proposed class, and have done so without remuneration for their time and monumental expenses incurred. Here, adequacy, not perfection, is the trait that this Court and the Supreme Court are seeking based upon the statute, the caselaw and Alabama Rule of Civil Procedure 23. This civil action spanning into its tenth year is so complex and replete with filings, depositions and rulings, it is a virtual certainty that no lawyer and/or law firm would now invest the time and incur the expense to represent this class. "Finally, Alabama Rule of Civil Procedure 1 states that '[the] rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action.' Given this mandate to apply the Alabama Rule of Civil 14 1120010; 1120114 Procedure 23 justly, it is this Court's considered judgment, as laid out above, that the Hare Wynn, North and Somerville firms are deemed adequate to represent this proposed class." Finally, having concluded that the plaintiffs satisfied the initial prerequisites to maintaining a class action, as set out in Rule 23(a), Ala. R. Civ. P., the trial court next determined that the plaintiffs had likewise met the additional requirement of satisfying Rule 23(b)(3). See, e.g., University Fed. Credit Union v. Grayson, 878 So. 2d 280, 286 (Ala. 2003). In reaching that conclusion, the trial court specifically rejected the objections of Caremark and the insurers to class certification, i.e., the alleged individual reliance of each class member on the purported misrepresentation and the potential for the necessity of applying conflicting laws from various states. Noting both that the conflict-of-law argument raised by Caremark and the insurers was untimely and that the parties' stipulation of settlement provided that Alabama law controlled, the trial court concluded that the only real challenge to Rule 23(b)(3) certification was the claim by Caremark and the insurers that issues of individual reliance predominated over common questions of law and fact. 15 1120010; 1120114 In sum, in consideration of the foregoing findings, the trial court appointed Finney, Johnson, and the Retirement System as class representatives; appointed Hare, Wynn, Newell & Newton; North & Associates; and Somerville, LLC, as class counsel, and certified a class consisting of the following: "All Persons who (i) purchased MedPartners, Inc. ('MedPartners') common stock [including, but not limited to, through open-market transactions, mergers or acquisitions in which MedPartners issued common stock, acquisition through the Company's Employee Stock Purchase Plan ('ESPP'), and any other type of transaction in which a person acquired one or more shares of MedPartners stock in return for consideration] during the period from October 30, 1996, through January 7, 1998, inclusive (MedPartners employees who purchased shares through the ESPP in January 1998 being deemed to have purchased their shares on December 31, 1997); (ii) purchased call option contracts on MedPartners common stock during the period October 30, 1996, through January 7, 1998, inclusive; (iii) sold put option contracts on MedPartners common stock during the period October 30, 1996, through January 7, 1998, inclusive; or (iv) purchased MedPartners Threshold Appreciation Price Securities ('TAPS') in the September 15, 1997, offering or thereafter through January 7, 1998; or (v) tendered shares of Talbert Medical Management Holdings Corporation to MedPartners between August 20, 1997, and September 19, 1997 ('The Settlement Class'); excluding all those members who opted out of the 1999 Class Settlement."9 The description of the certified class is, excepting the 9 addition of the final phrase excluding members who opted out of the class certified in the 1998 litigation, identical to the class certified by the trial court in the 1998 litigation. 16 1120010; 1120114 The parties appeal from the trial court's class- certification order. See § 6–5–642, Ala. Code 1975 ("A court's order certifying a class or refusing to certify a class action shall be appealable in the same manner as a final order to the appellate court which would otherwise have jurisdiction over the appeal from a final order in the action."). Standard of Review "'This Court has stated that "class actions may not be approved lightly and ... the determination of whether the prerequisites of Rule 23 have been satisfied requires a 'rigorous analysis.'"' Mayflower Nat'l Life Ins. Co. v. Thomas, 894 So. 2d [637] at 641 [(Ala. 2004)] (quoting Ex parte Citicorp Acceptance Co., 715 So. 2d 199, 203 (Ala. 1997)). 'In reviewing a class-certification order, this Court looks to see whether the trial court exceeded its discretion in entering the order; however, we review de novo the question whether the trial court applied the correct legal standard in reaching its decision.' University Fed. Credit Union v. Grayson, 878 So. 2d 280, 286 (Ala. 2003). Furthermore, "'[w]e note that an abuse of discretion in certifying a class action may be predicated upon a showing by the party seeking to have the class-certification order set aside that "the party seeking class action certification failed to carry the burden of producing sufficient evidence to satisfy the requirements of Rule 23." Ex parte Green Tree Fin. Corp., 684 So. 2d 1302, 1307 (Ala. 1996). Thus, we must consider 17 1120010; 1120114 the sufficiency of the evidence submitted by the plaintiff[s]....' "Compass Bank v. Snow, 823 So. 2d 667, 672 (Ala. 2001). See also Smart Prof'l Photocopy Corp. v. Childers–Sims, 850 So. 2d 1245, 1249 (Ala. 2002) (holding that if plaintiffs fail to meet the evidentiary burden as required by Rule 23, Ala. R. Civ. P., then the trial court exceeds its discretion in certifying a class action). If the plaintiffs here have failed to meet the evidentiary burden as required by Rule 23, then the trial court exceeded its discretion in certifying a class action." Eufaula Hosp. Corp. v. Lawrence, 32 So. 3d 30, 34-35 (Ala. 2009). Discussion I. Case No. 1120010 "In order to obtain class certification, the plaintiffs must establish all the criteria set forth in Rule 23(a), Ala. R. Civ. P., and at least one of the criteria set forth in Rule 23(b). University Federal Credit Union v. Grayson, 878 So. 2d [280] at 286 [(Ala. 2003)]. Rule 23(a) provides: "'(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.' 18 1120010; 1120114 "Rule 23(b) provides, in pertinent part: "'(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: "'.... "'(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or "'(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties 19 1120010; 1120114 likely to be encountered in the management of a class action.'" Lawrence, 32 So. 3d at 35. In the instant case, the trial court certified the class action under Rule 23(b)(3). On appeal, Caremark and the insurers present several challenges to the trial court's class-certification order. A. Alleged Predomination of Individual Issues First, Caremark and the insurers contend that the trial court exceeded its discretion in certifying the class pursuant to Rule 23(b)(3) because, they argue, the individual issues necessarily attendant to fraud claims predominate and render class certification inappropriate. More specifically, relying on past decisions of this Court indicating that "fraud claims are uniquely unsuited for class treatment," see, e.g., Compass Bank v. Snow, 823 So. 2d 667, 673 (Ala. 2001) (internal citations and quotation marks omitted), the plaintiffs argue that each member of the class must be individually questioned –- purportedly pursuant to the rules applicable in their various jurisdictions -- regarding the circumstances of that member's alleged knowledge of and reliance on the alleged misrepresentations regarding the insurance proceeds available to MedPartners. The plaintiffs counter that authorities cited 20 1120010; 1120114 by Caremark and the insurers are inapposite in that they "deal[] with individual fraud scenarios," whereas, here, it was the class itself [–- an 'entity' separate from the individual members comprising the class –-] that was defrauded" as a result of the fraud perpetrated on the class's appointed agent. Plaintiffs' brief, at p. 26. "As noted above, Rule 23(b)(3) requires a finding that 'questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.' This requirement '"tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation."' Reynolds Metals [Co. v. Hill], 825 So. 2d [100] at 104 [(Ala. 2002)] (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997)). In making this determination, '[c]ourts examine the substantive law applicable to the claims and determine whether the plaintiffs presented sufficient proof that common questions of law or fact predominate over individual claims.' Voyager Ins. Cos. v. Whitson, 867 So. 2d 1065, 1071 (Ala. 2003). 'When individual issues predominate over the common claims, manageability of the action as a class is not possible.' Voyager Ins., 867 So. 2d at 1077. Therefore, this Court must determine whether [the plaintiffs] presented sufficient evidence that common questions of law or fact predominate over individual issues as to [the plaintiffs' fraud- based] claims." Grayson, 878 So. 2d at 286. 21 1120010; 1120114 The parties' counsel acknowledge that they were unable to find a decision directly on point with the factual circumstances of the present case, i.e., a decision involving allegations of a fraud perpetrated on a certified class in connection with the settlement of the class action in which that class had previously been certified. Regardless, however, there are available certain established principles that guide our resolution of this issue. First, it is undisputed that both the plaintiffs' misrepresentation and suppression claims include, as the plaintiffs contend, a reliance element. See Grayson, supra, at 286-87, 289 (noting that the elements of a fraud action necessarily include a demonstration that the plaintiff reasonably relied on the alleged misrepresentation to his or her detriment and that the elements of a fraudulent- suppression claim include a demonstration that the alleged suppression "induced the plaintiff to act or to refrain from acting"). See also Regions Bank v. Lee, 905 So. 2d 765, 774 (Ala. 2004) ("The element of a duty to disclose in a fraudulent-suppression case is analogous to the element of reliance in a misrepresentation case." (citing Mack v. General 22 1120010; 1120114 Motors Acceptance Corp., 169 F.R.D. 671, 677 (M.D. Ala. 1996))). Additionally, it is true, as this Court has previously acknowledged, that the reliance element in fraud claims generally renders such claims unsuitable for class treatment. See, e.g., Snow, supra. That general principle, however, is not a hard and fast rule applicable in all fraud cases, as we have explained: "We agree with the [In re] Memorex [Security Cases, 61 F.R.D. 88, 98 (N.D. Cal. 1973) (securities-fraud cases),] court and hold that the issue whether proof of reliance involves so many individual questions of fact that the individual questions of fact predominate should be addressed at the initial stage of the proceeding. "As noted above, two other schools of thought exist as to whether proof of reliance raises too many individual questions of fact to certify a fraud action as a class action. One school prohibits the certification of fraud class actions, and the other examines the facts of each case according to the applicable rule of civil procedure. "Without addressing the issue of class-action treatment of the issue of reliance, this Court has affirmed the certification of fraud class actions. See Warehouse Home Furnishing Distributors, Inc. v. Whitson, 709 So. 2d 1144 (Ala. 1997); Ex parte Gold Kist, 646 So. 2d 1339 (Ala. 1994); Harbor Ins. Co. v. Blackwelder, 554 So. 2d 329 (Ala. 1989). Significantly, in Harbor Insurance Co., this Court held that '[w]here plaintiffs allege and prove a standard claim for fraud based on misrepresentations with a common thread, as is the case here, their 23 1120010; 1120114 cause is maintainable as a class action.' 554 So. 2d at 335. But, in Butler v. Audio/Video Affiliates, Inc., 611 So. 2d 330 (Ala. 1992), this Court affirmed the denial of certification in a fraud class action, where the denial was based, in part, on varying oral representations that created too many individual issues of reliance and damages. Butler, 611 So. 2d at 332. The differences in these cases indicate that this Court has not thus far adopted a blanket prohibition against the certification of a fraud class action. Therefore, as with other courts that have addressed the issue, we must consider whether proof of reliance in this case involves predominating individual issues of fact. In so doing, we use the same standard as the federal courts, i.e., whether there 'was a material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed.' Advisory Committee Notes to Rule 23(b)(3) (on 1966 amendments to rules), Fed. R. Civ. P." Ex parte Household Retail Servs., Inc., 744 So. 2d 871, 881 (Ala. 1999) (emphasis added). Further, we have stated: "'Whether a fraud claim is suitable for class-action treatment depends on the degree of similarity between the representations made to the class members.... Courts have often found that cases involving written misrepresentations distributed to all members of the class are suitable for class treatment.' Ex parte Household Retail Servs., 744 So. 2d at 877; see also Ex parte AmSouth Bancorporation, 717 So. 2d 357, 365 (Ala. 1998) ('questions of fraud based on documents are more typically suited for class-action determination'). Grayson argues, and the trial court noted, that the alleged fraud in this case stems from a common, uniform 'core' or nucleus of facts, namely, that a uniform misrepresentation was made to each and every 24 1120010; 1120114 member of the putative class: i.e., that they were paying a $2.50 'filing fee' when, in fact, nothing was actually filed with a government agency. Because this alleged misrepresentation is uniform, Grayson argues, common issues predominate. "Even if the alleged misrepresentations in a fraud case are uniform or have a 'common core,' the action may still be unsuited for class-action treatment if the degree of reliance varies among the persons to whom the representations were made. See Alfa Life Ins. Corp. v. Hughes, 861 So. 2d 1088, 1097 (Ala. 2003) ('Even if numerous representations have a "common core," an action may still be unsuited for class-action treatment if material variations exist in the representations or if the degree of reliance varies among the persons to whom the representations were made.' (emphasis added)); see also Committee Comments, Rule 23(b)(3), Fed. R. Civ. P. ('although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed'). In Hughes, an insurance policyholder alleged that his insurer, Alfa Life Insurance Corporation, had made certain fraudulent misrepresentations to him and to members of a class of policyholders. Hughes, 861 So. 2d at 1098. This Court stated: "'Even if we were to find that the misrepresentations the Alfa agents made to the plaintiff policyholders were uniform, the issue of each class member's "reasonable reliance" precludes class c e r t i f i c a t i o n o f t h e fraudulent-misrepresentation claim. See Foremost Ins. Co. v. Parham, 693 So. 2d 409 (Ala. 1997). The plaintiff policyholders contend that there was common reliance by the class members and that "[e]veryone acted the same." Plaintiff policyholders' 25 1120010; 1120114 brief, p. 62 n. 22. The trial court agreed and concluded that because of the objective "reasonable reliance" standard, individualized inquiries would not be necessary. However, a determination of each class member's reliance would require individualized inquiry as to whether that reliance was reasonable "'based on all of the circumstances surrounding [the] transaction, including the mental capacity, educational background, relative sophistication, and bargaining power of the parties.'" Reynolds Metals [Co. v. Hill], 825 So. 2d [100] at 108 [(Ala. 2002)] (quoting Foremost Insurance, 693 So. 2d at 421)).' "861 So. 2d at 1100. See also Voyager Ins. [Cos. v. Whitson], 867 So. 2d [1065] at 1070 [(Ala. 2003)] (recognizing that the plaintiff's failure to prove whether class members had relied on misrepresentations or omissions made class certification inappropriate)." Grayson, 878 So. 2d at 287-88 (first emphasis added). Thus, as Caremark and the insurers argue, "a fraud claim is not certifiable as a class action when individual reliance is an issue." Lee, 905 So. 2d at 775 (emphasis added). Here, however, the class-based fraud claim rests upon the purported representation by the defendants and/or their representatives to counsel for the original class certified in the 1998 litigation to induce counsel to accept a reduced settlement offer on behalf of the entire class. Thus, the alleged misrepresentation was uniform and the class members' 26 1120010; 1120114 individual reliance irrelevant. See Ex parte Household Retail Servs., 744 So. 2d at 877 ("Courts have often found that cases involving written misrepresentations distributed to all members of the class are suitable for class treatment."); Grainger v. State Sec. Life Ins. Co., 547 F.2d 303, 307 (5th Cir. 1977) ("[T]he key concept in determining the propriety of class action treatment is the existence or nonexistence of material variations in the alleged misrepresentations."). This fact distinguishes the present case from the authorities cited by Caremark and the insurers, in which a finding of liability is necessarily dependent upon varying communications to individual class members and the class members' varying reliance on those communications. Compare Ex parte Household Retail Servs., 744 So. 2d at 878-79 (concluding that the trial court erred in certifying a fraud claim for class treatment when the evidence demonstrated that oral representations made to the class members were not standardized but, instead, that the class members had dealt with different salespersons employed by different dealers); Compass Bank v. Snow, 823 So. 2d at 674-76 (concluding that the plaintiff customers failed to satisfy the predominance requirement of Rule 23(b)(3), Ala. R. Civ. P., as to their fraudulent-suppression claim when 27 1120010; 1120114 individual issues regarding each customer's knowledge of the posting order used by the bank defendant and the extent to which each customer relied on that knowledge predominated over common issues); Reynolds Metals Co. v. Hill, 825 So. 2d 100 (Ala. 2002) (holding, despite the alleged uniform nature of the oral representation, that evidence disputing common reliance by the plaintiff employees on that representation demonstrated that individualized issues necessarily predominated); Alfa Life Ins. Corp. v. Hughes, 861 So. 2d 1088, 1100 (Ala. 2003) (reversing the trial court's class certification of a fraudulent-suppression claim on the ground that, even assuming the alleged misrepresentations were uniform, "a determination of each class member's reliance would require individualized inquiry as to whether that reliance was reasonable '"based on all of the circumstances surrounding [the] transaction, including the mental capacity, educational background, relative sophistication, and bargaining power of the parties"'" (quoting Reynolds Metals, 825 So. 2d at 108)); Voyager Ins. Cos. v. Whitson, 867 So. 2d 1065, 1074 (Ala. 2003) (affirming the trial court's denial of class treatment as to fraud-based claims when the record failed to establish "whether the customers relied on varying 28 1120010; 1120114 representations made by the sales representatives instead of on the alleged nondisclosure or ... whether the information allegedly not disclosed would have made a difference ...."); Grayson, 878 So. 2d at 288-89 (vacating the trial court's certification order on the ground that the evidence demonstrated material variations in individual class members' reliance on alleged misrepresentation); Lee, 905 So. 2d at 775-76 (holding, despite the collective nature of the duty owed by the bank to bondholders and the collective nature of the bondholders' remedy, that individual issues nonetheless predominated, as "the trial court would have to determine whether the individual bondholders received notice of the occurrence of an event of default, if a majority of the bondholders would have agreed to take action upon notice of the default ... and what specific action they would have elected to take"). Under the present circumstances, we find persuasive the following rationale: "[In] In re Baldwin-United Corp. Litig. [122 F.R.D. 424, 426-27 (S.D.N.Y. 1986) ], a class of investors 10 Because the Alabama Rules of Civil Procedure were 10 patterned after the Federal Rules of Civil Procedure, cases construing the federal rules are considered authority in 29 1120010; 1120114 asserting federal securities, RICO, and state law claims against broker-dealers and a promotional corporation in a fraud action was certified despite the defendants' contention that the core issues in the plaintiffs' complaint turned on largely oral rather than written representation or on nonuniform documents that would require greater investigation and analysis of individual facts than class treatment would allow: "'This Court disagrees. The nub of plaintiffs' claims is that material information was withheld from the entire putative class in each action, either by written or oral communication. [Essentially, this is a course-of-conduct case, which as pleaded satisfies the commonality requirement of Rule 23, Fed. R. Civ. P.] ... Plaintiffs allege not that the promotional materials themselves were uniform, but rather that the information they contained -- and hence that the broker-dealers disseminated -- was uniformly misleading. ... Liability in this case does not depend on proof of the individual, face-to-face dealings between the class members and the registered representatives of the broker-dealers.... As a result, the relevant questions are readily susceptible to class-wide proof.'" 4 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 22.15 at 22–46 (3d ed. 1992) (emphasis added; footnotes omitted). Indeed, we have previously noted that "[w]here plaintiffs allege and prove a standard claim for fraud based construing the Alabama rules. Cutler v. Orkin Exterminating Co., 770 So. 2d 67, 70 n.2 (Ala. 2000). 30 1120010; 1120114 on misrepresentations with a common thread, as is the case here, their cause is maintainable as a class action." Harbor Ins. Co. v. Blackwelder, 554 So. 2d 329, 335 (Ala. 1989). See also Ex parte Household Retail Servs., 744 So. 2d at 877 ("Whether a fraud claim is suitable for class-action treatment depends on the degree of similarity between the representations made to the class members."). Further, there is nothing to suggest that any of the class members ever engaged in any type of oral communication with Caremark and the insurers and/or any representative thereof; thus, there is no danger of the individualized oral misrepresentations that have rendered the cases relied on by the plaintiffs unsuitable for class treatment. Instead, here, the class's fraud claims result from the fact that the class as a whole –- not each individual member -- was defrauded. As noted by Professor William B. Rubenstein, the plaintiffs' retained expert and the current editor of Newberg on Class Actions, supra –- an authority on which this Court has often relied -- "[i]n settling the [1998 litigation], the defendants did not negotiate with individual class members" but, instead, "negotiated solely with the class's agents and then sought approval of that settlement 31 1120010; 1120114 from the class's fiduciary." Thus, as Professor Rubenstein further explained: "[T]he normal problems that plague certification of fraud cases do not ... apply here for one simple reason related to the unique nature of this case: this is a class action lawsuit about a class action lawsuit, not about a set of individual market transactions. The nature of the underlying transaction -- the class action lawsuit -- renders individual class member reliance irrelevant." In consideration of the foregoing, we hold that the evidence supports the trial court's conclusion that the plaintiffs satisfied the predominance requirement of Rule 23(b)(3) in that the fraud claims present questions of law and fact that are common to the class and that they are therefore suitable for trial pursuant to a single adjudication. Therefore, Caremark and the insurers have failed to demonstrate that the trial court exceeded its discretion in certifying the class based on its conclusion that common issues predominate. See In re Warfarin Sodium Antitrust 11 Litig., 212 F.R.D. 231, 249 (D. Del. 2002), aff'd, 391 F.3d In making this determination, we express no opinion as 11 to the merits of the newly asserted fraud claims. See Mayflower Nat'l Life Ins. Co. v. Thomas, 894 So. 2d 637, 641 (Ala. 2004) ("On a motion for class certification, the sole issue before the trial court is whether the requirements of Rule 23 have been met ...."). 32 1120010; 1120114 516 (3d Cir. 2004) ("The fact that plaintiffs alleged purely economic harm from a common cause ... further supports certification of the class."); In re Towers Fin. Corp. Noteholders Litig., 177 F.R.D. 167, 171 (S.D.N.Y. 1997) ("The predominance inquiry tests 'whether proposed classes are sufficiently cohesive to warrant adjudication by representation.' Amchem Prods., Inc. v. Windsor, 521 U.S. [591] at 621, 117 S.Ct. [2231] at 2249 [(1997)]. As the Advisory Committee Notes make clear, 'a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action....' Fed. R. Civ. P. 23(b)(3) Advisory Committee's Note; accord, e.g., Green v. Wolf, 406 F.2d [291] at 300-01 [(C.A.N.Y. 1968)]."). The unique facts of this case -– the alleged representations were made to the class's agents (counsel) –- distinguishes this case from those in which the reliance of individual class members was at issue. In reaching this conclusion we specifically reject the importance of the pre-settlement differences among class members, which Caremark and the insurers emphasize. Cf. Walco Invs., Inc. v. Thenen, 168 F.R.D. 315, 325 (S.D. Fla. 1996) (noting, in recognizing the similarity of the common-issue requirement of Rule 23(a)(2) 33 1120010; 1120114 and the predominance requirement of 23(b)(3), that, "[w]hile it may be true ... that unique defenses will be asserted by the Defendants in this action, this fact alone is insufficient to destroy the commonality requirement," because "the commonality prerequisite does not require that all of the questions of law and/or fact be common"). B. Class Counsel as Necessary Witnesses Caremark and the insurers also argue on appeal that current class counsel cannot meet the adequacy requirements of Rule 23(a)(4), Ala. R. Civ. P., because, they say, "[c]lass counsel ... will be necessary witnesses for the defense, and their testimony will be adverse to the class." Caremark and the insurers' brief, at p. 63. Therefore, they contend, the trial court erred in failing to address this particular challenge in the context of its class-certification order. The plaintiffs dispute the fact that any of the current class counsel are necessary witnesses and therefore disqualified, as Caremark and the insurers urge. They further contend that, even if certain lawyers might ultimately be disqualified, that disqualification would not necessarily affect the ability of the disqualified lawyer's firm or remaining counsel to represent the class. 34 1120010; 1120114 Clearly, the trial court, in its certification order, made the necessary finding that proposed class counsel were adequate; however, it specifically declined to make a final ruling on the issue whether, despite their adequacy, counsel might be subject to disqualification on the ground that they might also be necessary witnesses at trial. The trial court's rationale was that discovery was not complete and that the issue was, therefore, not ripe for adjudication. We initially question whether, in the absence of an adverse ruling on the record below, Caremark and the insurers have adequately preserved this issue for appellate review; indeed, the record makes it abundantly clear that the trial court specifically reserved its ruling on this issue for future consideration in the event the matter actually proceeds to trial. See, e.g., CSX Transp., Inc. v. Day, 613 So. 2d 883, 884 (Ala. 1993) ("[I]t is familiar law that an adverse ruling below is a prerequisite to appellate review."). Additionally, the testimony of both parties' expert witnesses at the certification hearing indicated that, pursuant to advisory authority issued by the Alabama Bar Association, consideration of disqualification issues during pretrial proceedings is premature. In fact, Caremark and the insurers' own expert, 35 1120010; 1120114 Professor Tom Morgan, although attempting through his testimony to remove this case from within the ambit of that general rule, clearly acknowledged during the certification hearing that the exclusion of a lawyer as a potential witness is evaluated, not during pretrial proceedings, but at the time of trial. In light of that acknowledgment and the failure of Caremark and the insurers to actually cite any authority requiring the trial court's consideration of this issue at the time the class is certified, we find no error in the trial court's reservation of this issue for future consideration. C. Past Conduct of Appointed Counsel Caremark and the insurers next argue that alleged unethical conduct exhibited by class counsel in connection with both the 1998 litigation and the present case precludes their representation of the certified class. Therefore, according to Caremark and the insurers, the trial court erred in concluding that appointed counsel's representation would fairly and adequately protect the interest of the class as required by Rule 23(a)(4). Specifically, in support of this 12 It is undisputed that the challenge of Caremark and the 12 insurers in this regard is not based on the experience, ability, or credentials of class counsel, the high level of which all parties concede. 36 1120010; 1120114 claim, Caremark and the insurers identify the following instances of alleged disqualifying conduct: the alleged failure of class counsel to fulfill their fiduciary duty to class members by ascertaining the fairness of the settlement concluding the 1998 litigation by means of confirmatory discovery; the alleged unethical division of class counsel's fee with their client, Lauriello, in violation of Rule 5.4(a), Ala. R. Prof. Cond.; the alleged unethical division of class counsel's fee with their cocounsel in the 1998 litigation, in violation of Rule 1.5(e), Ala. R. Prof. Cond.; the alleged unethical representation of Lauriello by class counsel in his capacity –- at one time, at least –- as both a named plaintiff and a named defendant in this action, in violation of Rule 1.7(a), Ala. R. Prof. Cond.; and the execution in the present litigation of the lead-counsel agreement between class counsel and counsel for the intervenors. As Caremark and the insurers note, the trial court's class-certification order reflects that it considered -– and ultimately rejected pursuant to its rigorous analysis -– each 13 Reliable Money Order, Inc. v. McKnight Sales Co., 704 13 F.3d 489, 498 (7th Cir. 2013) ("So long as the district court employs the 'rigorous analysis' required by Rule 23, it enjoys broad leeway in deciding the adequacy of class counsel. See 37 1120010; 1120114 of the inadequacy grounds advanced by Caremark and the insurers below. Our review of the transcript of the class- certification hearing reflects that the instances of alleged misconduct were hotly contested, with the plaintiffs providing expert testimony establishing that each of the purported violations was not, as Caremark and the insurers allege, actually unethical when considered in the context in which the conduct occurred. Moreover, Caremark and the insurers cite no authority demonstrating that any of the alleged instances of misconduct automatically disqualifies class counsel from serving in the present case or renders them, as a matter of law, inadequate. The record further establishes, despite Caremark and the insurers' arguments to the contrary, that there was no evidence before the trial court suggesting the type of egregious self-dealing and/or dishonesty aimed at class members, which appears in the authorities on which Caremark and the insurers rely and which would require a denial of class certification. Compare Creative Montessori Learning Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 728 (11th Cir. 1987) (noting 'adequacy of class representation is primarily a factual issue')."). 38 1120010; 1120114 Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 917 (7th Cir. 2011) (observing that class counsel's undisputed misconduct in both obtaining material on the basis of a promise of confidentiality while concealing counsel's true intent and falsely implying to a potential named plaintiff that there already was a certified class to which the plaintiff belonged "demonstrated a lack of integrity that casts serious doubt on [counsel's] trustworthiness as representatives of the class" of which they were fiduciaries); In re Mid-Atlantic Toyota Antitrust Litig., 93 F.R.D. 485, 490 (D.C. Md. 1982) (holding that an agreement between named plaintiffs and class counsel was both unethical and prejudicial to unnamed class members in that, to the extent that counsel agreed to bear ultimate responsibility for all costs of litigation, counsel acquired a financial stake in the litigation that was "tantamount to the unacceptable situation of the attorney being a member of the class of litigants while serving as class counsel"). See also Reliable Money Order, Inc. v. McKnight Sales Co., 704 F.3d 489, 498 (7th. Cir. 2013) (noting that "[n]ot any ethical breach justifies the grave option of denying class 39 1120010; 1120114 certification"). Therefore, we decline to hold that the 14 trial court exceeded its discretion in approving class counsel. D. Alleged Overbreadth of the Certified Class Finally, Caremark and the insurers contend that the class, as defined in the trial court's class-certification order, is "impermissibly broad." Caremark and the insurers' brief, at p. 88. Specifically, according to Caremark and the insurers, the class definition improperly includes stockholders who did not opt into participation in the 1998 litigation and also improperly consolidates the three separate categories of stockholders identified in the 1998 litigation. They further note, however, that, although all three of the class representatives appointed by the trial court did submit a claim in the 1998 litigation, all three were holders of MedPartners common stock, i.e., from a single one of the original three classes included in the 1998 litigation. Therefore, Caremark and the insurers maintain, the appointed Further, although not determinative, we do note the 14 absence of the institution of disciplinary proceedings against class counsel as a result of the alleged misconduct. Additionally, the interests of the class may also be adequately protected by means of the trial court's inherent supervisory role in class-based litigation. 40 1120010; 1120114 representatives fail to satisfy the adequacy and typicality requirements of Rule 23 in that they have a purported conflict as a result of the difference in their interests from those of other class members. Contrary to this claim, however, the plaintiffs contend, as the trial court concluded in its certification order, that the current fraud claims "are common to each and every class member" and that the previous designation of the various classes of shareholders is irrelevant. Caremark and the insurers cite authority indicating that the Rule 23(a)(4) requirement of adequate representation is unsatisfied when the interests of the named plaintiffs and the class members conflict. See, e.g., Cutler v. Orkin Exterminating Co., 770 So. 2d 67, 71 (Ala. 2000). However, although Caremark and the insurers attempt to argue that the potential weakness of the underlying security-based claims of certain classes of shareholders may affect the determination of those shareholders' damages in the present fraud case, we fail to see the identified danger. Instead, it appears to this Court that the merits of the underlying claims of each group in the 1998 litigation are largely irrelevant in that the present fraud claims were perpetrated on the group as a 41 1120010; 1120114 whole, irrespective of their original, potentially individual interests. Moreover, as occurred by means of the percentage distribution in the 1998 litigation, we emphasize the trial court's ability to fashion any class-based recovery so as to prevent the excess recovery of any particular group within the class. We do agree, however, with the contention of Caremark and the insurers that the alleged fraud perpetrated by them in connection with the settlement of the 1998 litigation could not have damaged those shareholders who had previously opted out of participation therein and that their inclusion in the present class would render it impermissibly broad. The trial court's certification order, however, as quoted above, appears to specifically "exclud[e] all [potential class] members who opted out of the 1999 Class Settlement." Thus, because the trial court appears to have, on its own directive, limited the class to actual participants in the prior settlement process, we also fail to perceive the possibility advanced by Caremark and the insurers that "[t]he class, as certified, ... includes individuals who did not submit claims in the 1998 litigation." Caremark and the insurers' brief, at p. 93. We, therefore, conclude that the court did not exceed its discretion as to 42 1120010; 1120114 the designation of the class included in its certification order. II. Case No. 1120114 The plaintiffs' sole contention in their cross-appeal from the trial court's class-certification order is that the trial court exceeded its discretion in also failing to certify the class, as the plaintiffs had requested, pursuant to Rule 23(b)(1), Ala. R. Civ. P. Although acknowledging, as did the trial court, the contrary and well established legal principles demonstrated by this Court's decision in Funliner of Alabama, L.L.C. v. Pickard, 873 So. 2d 198, 217 (Ala. 2003), in which we clearly indicated that "certification under Rule 23(b)(1) is inappropriate when a plaintiff seeks monetary damages," the plaintiffs contend that "[Rule 23](b)(1) is a 15 better 'fit' to these unique facts" than is Rule 23(b)(3). Plaintiffs' brief, at p. 65. More specifically, they argue that the separate legal status afforded the class certified in the 1998 litigation makes a mandatory class certified pursuant See also Ex parte Government Emps. Ins. Co., 729 So. 2d 15 299, 306 (Ala. 1999) ("'Class suits seeking damages exclusively are prime candidates for Rule 23(b)(3) classes.'" (quoting 1 H. Newberg & A. Conte, Newberg on Class Actions § 4.08 (3d ed. 1992))). 43 1120010; 1120114 to Rule 23(b)(1) more appropriate than the opt-out class certified by the trial court pursuant to Rule 23(b)(3). 16 First, we note the plaintiffs' admitted inability to provide authority supporting the requested departure from this Court's established application of either provision of Rule 23(b)(1). Moreover, the plaintiffs similarly fail to demonstrate the potential danger of inconsistent adjudications of class members' rights, which they assert exists. See Ex parte Government Emps. Ins. Co., 729 So. 2d 299, 306-07 (Ala. 1999) ("'"Rule 23(b)(1)(A) class actions involve those classes formed if the prosecution of separate lawsuits would create the risk of inconsistent adjudications."'" (quoting Ex parte Holland, 692 So. 2d 811, 815 (Ala. 1997), quoting in turn Adams v. Robertson, 676 So. 2d 1265, 1269 (Ala. 1995))). Indeed, we see nothing to suggest the existence of such a risk in the present matter. Additionally, there is also nothing suggesting that the present case is a limited-fund case as was true in the 1998 litigation; therefore there is also no In support of their claim, the plaintiffs analogize the 16 present situation to one in which individuals, who are shareholders of the same corporate entity, seek collective redress: "If a corporation has been defrauded, the law does not permit each shareholder to file individual fraud claims." Plaintiffs' brief, at p. 67. 44 1120010; 1120114 indication –- at least in the arguments before us –- that adjudication of one class member's interest would necessarily either "be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." Rule 23(b)(1)(B). Conclusion Based on the foregoing, we conclude that the trial court properly certified the plaintiffs' claims for class treatment; that judgment is, therefore, due to be affirmed in all respects. 1120010 -- AFFIRMED. Moore, C.J., and Stuart, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. 1120114 -- AFFIRMED. Moore, C.J., and Stuart, Parker, Main, Wise, and Bryan, JJ., concur. Murdock, J., dissents. 45 1120010; 1120114 MURDOCK, Justice (dissenting in case no. 1120114). I disagree with the holding in the cross-appeal to the effect that certification of the class as an "opt-out" class under Rule 23(b)(3), Ala. R. Civ. P., is appropriate. We hold in the appeal (case no. 1120010) that individual-reliance issues are not material (thus justifying class certification at all) because it was "the class" that was defrauded. That is, the same misrepresentation was received and relied upon by the same persons on behalf of all the members of the class. By the same token, certification under Rule 23(b)(3) is inappropriate. The claims of the class members in this unusual case do not vary, and we therefore should not make possible a multitude of individual lawsuits that all seek to vindicate the same wrong with the same injury (proportionally) to each class member. Such a certification would allow inconsistent outcomes, even as to the most basic question of liability. The risk of such inconsistency is a key reason for certifying a "non-opt-out" class under Rule 23(b)(1), Ala. R. Civ. P. See, e.g., Ex parte Government Emps. Ins. Co., 729 So. 2d 299, 306 (Ala. 1999) (observing that "'"Rule 23(b)(1)(A) class actions involve those classes formed if the prosecution of separate lawsuits would create the risk of 46 1120010; 1120114 inconsistent adjudications"'" (quoting Ex parte Holland, 692 So. 2d 811, 815 (Ala. 1997), quoting in turn Adams v. Robertson, 676 So. 2d 1265, 1269 (Ala. 1995))). The trial court expressly stated that it felt obligated in its role as a lower court to follow precedent from this Court preferring Rule 23(b)(3) "opt-out" certification where money damages are involved but that it questioned whether this was the correct approach in this unusual case. With regard to our precedent, I note that this Court has not instituted a blanket prohibition on class certification under Rule 23(b)(1) where monetary relief is sought by the class in question. In Ryan v. Patterson, 23 So. 3d 12, 20 (Ala. 2009), we noted: "'[C]lose scrutiny is necessary if money damages are to be included in any mandatory class in order to protect the individual interests at stake ....' Coleman v. General Motors Acceptance Corp., 296 F.3d 443, 448 (6th Cir. 2002). This Court has observed that '[a]s a general rule, certification of a class pursuant to Rule 23(b)(2) is improper if the primary relief sought is money damages,' Compass Bank v. Snow, 823 So. 2d 667, 678 (Ala. 2001); it is also true that 'the fact that a Rule 23(b)(1) or (b)(2) suit may ultimately result in a monetary recovery from a defendant does not prevent certification under those subdivisions.' First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415, 423 (Ala. 1982)." Both the trial court and the main opinion agree that the situation presented in this case is a novel one. Given the 47 1120010; 1120114 nature and uniqueness of the claims presented, an exception to our general policy of not permitting class certification under Rule 23(b)(1) for actions seeking monetary relief is both prudent and permissible. In short, this is a novel case not governed by any indistinguishable precedent to the contrary; it therefore stands to reason that we can, indeed must, simply apply the language and policy underlying Rule 23 to decide this novel case. Doing so would require a reversal of the decision of the trial court in the cross-appeal. 48	September 12, 2014
f971b3ff-9334-463c-b485-aeea3377bed4	Dunn v. Alabama	N/A	1121506	Alabama	Alabama Supreme Court	Rel: 6/6/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121506 ____________________ Ex parte Chase Andrew Dunn PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Chase Andrew Dunn v. State of Alabama) (Mobile Circuit Court, CC-10-2119.71; Court of Criminal Appeals, CR-12-1223) BRYAN, Justice. Chase Andrew Dunn petitioned this Court for certiorari review of the Court of Criminal Appeals' decision affirming 1121506 the trial court's revocation of Dunn's probation. We granted the petition to determine whether the Court of Criminal Appeals' decision conflicts with Goodgain v. State, 775 So. 2d 591 (Ala. Crim. App. 1999). We hold that it does, and we reverse and remand. Facts and Procedural History On October 14, 2010, Dunn pleaded guilty to first-degree assault, a violation of § 13A-6-20, Ala. Code 1975, and was sentenced to 10 years' imprisonment. That sentence was split, and Dunn was ordered to serve two years' imprisonment followed by three years' probation. On March 6, 2013, Dunn's probation officer filed a delinquency report alleging that Dunn had violated the terms of his probation by (1) committing the new offense of third-degree robbery; (2) failing to pay court- ordered moneys; and (3) failing to pay supervision fees. The trial court held a probation-revocation hearing at which the State presented testimony from two witnesses: Matthew Shirey, a detective with the Mobile Police Department, and Donna Gibbons, a DNA analyst with the Alabama Department of Forensic Sciences. Detective Shirey testified that he was assigned to investigate a burglary at Alec Olensky's residence 2 1121506 that occurred on January 1, 2012. Two men, Robert Hager and James Weaver, were detained when Sgt. Alford caught them 1 running from Olensky's residence and getting into a vehicle. Olensky's television, but not the rest of the missing property, was found in the vehicle. Detective Shirey testified that, during an interview with Sgt. Alford, Hager and Weaver implicated Dunn and Jacob Wheeler in the burglary. Detective Shirey also testified that blood was found in Olensky's residence and that Cpl. Taylor was assigned to take pictures and to collect evidence at the scene. Detective Shirey presented three photographs submitted by Cpl. Taylor that depicted a broken window and blood inside Olensky's residence. Next, Gibbons testified for the State regarding DNA results of blood samples taken at the scene and from a pair of pants Gibbons testified were marked as "clothing that was found discarded with [the] stolen property next door from the scene." Gibbons testified that the blood from the pants was a match for Dunn's DNA. Gibbons stated that the pants had We note that neither the petition nor the respondent's 1 brief includes the first names of some of the officers involved. 3 1121506 been collected by Officer James McKinley. The trial court asked Gibbons if Dunn was also a match for the bloodstains inside the residence, and Gibbons testified that those bloodstains were from a different individual. The court questioned Detective Shirey regarding where the pants had been found, but Detective Shirey testified that he did not know and that it was Officer McKinley who had recovered the pants. Officer McKinley did not testify at the probation-revocation hearing. The trial court revoked Dunn's probation, stating that, based on the evidence, the trial court was "reasonably satisfied that Mr. Dunn violated the terms and conditions of his probation in that he participated in a burglary that took place on or about January 1, 2012." Dunn appealed to the Court of Criminal Appeals, arguing that the trial court erred by relying solely on hearsay evidence in revoking his probation. The Court of Criminal Appeals affirmed the trial court's judgment in an unpublished memorandum. Dunn v. State (No. CR-12-1223, August 23, 2013), ___ So. 3d ___ (Ala. Crim. App. 2013)(table). 4 1121506 Dunn applied for a rehearing in the Court of Criminal Appeals, which that court overruled on September 13, 2013. Dunn then petitioned this Court for certiorari review, which we granted to determine whether the Court of Criminal Appeals' decision conflicts with the principle set forth in Goodgain "that hearsay evidence may not form the sole basis for revoking an individual's probation." 755 So. 2d at 592. Standard of Review "'This Court reviews pure questions of law in criminal cases de novo.'" Ex parte Morrow, 915 So. 2d 539, 541 (Ala. 2004)(quoting Ex parte Key, 890 So. 2d 1056, 1059 (Ala. 2003)). Analysis Dunn argues that, in concluding that the State had corroborated the hearsay evidence presented at his revocation hearing with Gibbons's testimony regarding the DNA testing she had performed, the Court of Criminal Appeals "ignore[d] and overlook[ed] the fact that the only evidence connecting the clothing to the burglary for which Dunn's probation was sought to be revoked was hearsay." Petition, at 5. Thus, he argues, the trial court's decision was based entirely on hearsay and 5 1121506 the Court of Criminal Appeals' affirmance of that decision conflicts with Goodgain. In Goodgain, the defendant, William Lindsey Goodgain, appealed the revocation of his probation, arguing that it was based on hearsay evidence that he had committed a new criminal offense of robbery. The Court of Criminal Appeals noted: "At the revocation hearing, the State presented one witness: Gregory Johnson, a detective with the Birmingham Police Department. Detective Johnson testified that on December 13, 1998, he received an offense report prepared by an unidentified officer regarding a robbery that had allegedly occurred on December 12, 1998. According to Detective Johnson, the offense report indicated that the victim of the robbery had stated that Goodgain and another individual had come to her home and had robbed her a gunpoint, taking $500 in cash and a necklace. Detective Johnson stated that after he received the offense report, he conducted a live lineup and a photographic lineup as part of his investigation of the robbery. He testified that the victim identified Goodgain in the live lineup, and the victim's daughter, who was present during the robbery, identified Goodgain in the photographic lineup. Detective Johnson said that on December 17, 1998, he obtained an arrest warrant for Goodgain for the crime of robbery in the first degree. No other evidence was offered at the hearing to support the allegation in the probation officer's delinquency report. At the time of the revocation hearing, Goodgain had yet to be tried on the robbery charge." 755 So. 2d at 592. 6 1121506 The Court of Criminal Appeals stated: "'It is not necessary in a probation revocation hearing to provide proof beyond a reasonable doubt or by a preponderance of the evidence. Rather, the lower court need only be "reasonably satisfied from the evidence that the probationer has violated the conditions of his probation."'" 755 So. 2d at 592 (quoting Mitchell v. State, 462 So. 2d 740, 742 (Ala. Crim. App. 1984), quoting in turn Armstrong v. State, 294 Ala. 100, 103, 312 So. 2d 620, 623 (1975)). However, the Court of Criminal Appeals also stated: "[H]earsay evidence may not form the sole basis for revoking an individual's probation. ... 'The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation.'" 755 So. 2d at 592 (quoting Clayton v. State, 669 So. 2d 220, 222 (Ala. Crim. App. 1995)). The Court of Criminal Appeals in Goodgain determined that "the only evidence that Goodgain violated his probation by committing another crime was Detective Johnson's hearsay testimony regarding the statements of the robbery victim 7 1121506 contained in the offense report and regarding the lineup identifications of Goodgain by the victim and her daughter." Goodgain, 755 So. 2d at 592. The Court of Criminal Appeals concluded: "Because the State failed to present any evidence, other than the hearsay testimony of Detective Johnson, indicating that Goodgain had, in fact, committed the alleged robbery, the trial court erred in revoking Goodgain's probation. Accordingly, the trial court's order revoking Goodgain's probation is reversed and this cause is remanded for the court to hold another revocation hearing." 755 So. 2d at 593. Here, the State acknowledges that it "relied on hearsay evidence" in the revocation hearing, but it argues that "it corroborated the hearsay evidence when it relied on nonhearsay evidence -- Gibbons's testimony regarding the testing that she performed on the blood sample that ultimately matched Dunn's profile that was stored in a database containing DNA profiles from felons and misdemeanors throughout the state." State's brief, at 11. However, the State provided no nonhearsay evidence, from Gibbons or anyone else, as to where the pants from which the blood sample was taken were found or connecting those pants to the robbery. Gibbons testified that the 8 1121506 evidence-submission form indicated that "there was clothing that was found discarded along with [Olensky's] stolen property next door from the scene," but she had no personal knowledge of that discovery. Detective Shirey testified that Officer McKinley had found the pants, but Detective Shirey had no personal knowledge as to where they had been found. No testimony from Officer McKinley was offered at the revocation hearing. Thus, as was the case in Goodgain, the only evidence connecting Dunn to the alleged commission of the robbery was hearsay evidence. The State cites Ware v. State, [Ms. 1100963, January 17, 2014] ____ So. 3d ___, ___ (Ala. 2014), in support of its argument that the "hearsay evidence was supported by nonhearsay evidence." State's brief, at 11. In Ware, lab technicians performed DNA testing on a rape kit, but it was a lab supervisor who testified at trial as to the procedures for and results of the testing. Ware argued that allowing the supervisor to testify violated his Sixth Amendment right to confront witnesses against him, because, he argued, he could not cross-examine the lab technicians who had actually performed the testing. This Court rejected that argument, 9 1121506 concluding that "the Confrontation Clause was satisfied by the testimony of [an employee] who supervised and reviewed the DNA testing." ___ So. 3d at ___. Ware is inapposite here. Dunn has not alleged any claims in this Court regarding the admissibility of Gibbons's DNA testimony linking the blood on the pants to him. Instead, he argues that her testimony could not corroborate the notation on the evidence-submission form as to where those pants were found or Detective Shirey's hearsay evidence linking Dunn to the burglary. The corroboration of alleged hearsay evidence was not at issue in Ware, nor is the admissibility of the evidence presented at the revocation hearing at issue here. Thus the State's reliance on Ware is misplaced. As noted previously, the State has not corroborated by nonhearsay evidence the hearsay evidence connecting the pants, and by extension Dunn, to the burglary. Thus, as in Goodgain, "the State failed to present any evidence, other than the hearsay testimony of Detective [Shirey], indicating that [Dunn] had, in fact, committed the alleged [burglary]," 755 So. 2d at 593, and the Court of Criminal Appeals' decision, affirming the trial court's judgment, conflicts with Goodgain. 10 1121506 For the foregoing reasons, we reverse the Court of Criminal Appeals' judgment and remand the cause for further proceedings consistent with this opinion. REVERSED AND REMANDED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. 11	June 6, 2014
292420b7-1a59-4ef7-8b50-5ead3f17ad35	Ex parte The Poarch Band of Creek Indians and PCI Gaming Authority d/b/a Creek Casino Montgomery. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Adrianne Kelly and Edward Gilbert v. The Poarch Band of Creek Indians et al.) (Montgomery Circuit Court: CV-13-900487). Petition Denied. No Opinion.	N/A	1121411	Alabama	Alabama Supreme Court	Rel: 5/23/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121411 ____________________ Ex parte Poarch Band of Creek Indians and PCI Gaming Authority d/b/a Creek Casino Montgomery PETITION FOR WRIT OF MANDAMUS (In re: Adrianne Kelly and Edward Gilbert v. Poarch Band of Creek Indians et al.) (Montgomery Circuit Court, CV-13-900487) BRYAN, Justice. PETITION DENIED; NO OPINION. Bolin, Murdock, and Main, JJ., concur. Moore, C.J., concurs specially. 1121411 MOORE, Chief Justice (concurring specially). Because the Poarch Band of Creek Indians and PCI Gaming Authority d/b/a Creek Casino Montgomery (hereinafter referred to collectively as "PBCI") do not have a clear legal right to sovereign immunity in an Alabama state court from a dram-shop action, I concur in denying their petition for a writ of mandamus. I write separately to examine the law on this question of first impression. I. Facts and Procedural History On August 8, 2011, shortly after leaving Creek Casino Montgomery, a casino operated on land owned by the Poarch Band of Creek Indians, Elfago Ramirez crossed the centerline on Wares Ferry Road and collided head-on with a vehicle traveling in the opposite lane. The collision caused injuries to Adrianne Kelly and Edward Gilbert ("the plaintiffs"), the occupants of the other vehicle. On March 21, 2013, in the Montgomery Circuit Court, the plaintiffs sued PBCI and other defendants alleging that PBCI furnished alcoholic beverages to Ramirez knowing that he was visibly intoxicated. 2 1121411 Citing tribal immunity, PBCI moved to dismiss the action.1 The trial court denied the motion, finding that PBCI's agreement to maintain dram-shop insurance as a condition of receiving a liquor license for Creek Casino Montgomery constituted an express waiver of any immunity from suit based on a violation of Alabama's Dram Shop Act. § 6-5-71, Ala. Code 1975. PBCI then petitioned for a writ of mandamus on the ground of immunity. II. Standard of Review "[A] petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity." Ex parte Butts, 775 So. 2d 173, 176 (Ala. 2000). "Mandamus is a drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (1993). PCI Gaming Authority, wholly owned by the Poarch Band and 1 chartered under its tribal laws, shares the tribe's immunity. Freemanville Water Sys. Inc. v. Poarch Band of Creek Indians, 563 F.3d 1205, 1207 n.1 (11th Cir. 2009). 3 1121411 III. Analysis A. Tribal Sovereign Immunity "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Thus, "an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe of Okla. v. Manufacturing Techs., Inc., 523 U.S. 751, 754 (1998). Because the plaintiffs do not contend that dram-shop actions by private parties against Indian tribes have been authorized by Congress, the only issue before the Court is whether PBCI has waived its immunity from such actions. "It is settled that a waiver of sovereign immunity '"cannot be implied but must be unequivocally expressed."'" Santa Clara Pueblo, 436 U.S. at 58 (quoting United States v. Testan, 424 U.S. 392, 399 (1976), quoting in turn United States v. King, 395 U.S. 1, 4 (1969)). Such a waiver must be "clear." Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991). "Absent an effective waiver or consent, it is settled that a state court 4 1121411 may not exercise jurisdiction over a recognized Indian tribe." Puyallup Tribe, Inc. v. Department of Game of Wash., 433 U.S. 165, 172 (1977). B. Dram Shop Act and Sovereign Immunity A person injured by someone who is intoxicated may sue for damages anyone who caused the intoxication of the party causing the injury by furnishing "liquor or beverages" contrary to law. § 6-5-71, Ala. Code 1975. Regulations of the Alabama Alcoholic Beverage Control Board ("the ABC Board") "have the full force and effect of law." § 28-3-49(a), Ala. Code 1975. "No ABC Board on-premises licensee, employee or agent thereof shall serve any person alcoholic beverages if such person appears, considering the totality of the circumstances, to be intoxicated." Reg. 20-X-6-.02(4), Ala. Admin. Code (ABC Board). Although the complaint states a cause of action against PBCI under the Dram Shop Act and certain ABC Board regulations, PBCI argues that the defense of sovereign immunity based on its tribal status requires dismissal of this action. Although the United States Supreme Court has questioned "the wisdom of perpetuating the doctrine" of tribal 5 1121411 immunity, Kiowa Tribe, 523 U.S. at 758, the plaintiffs do not attack immunity per se. They argue, instead, that PBCI waived its immunity by subjecting itself to licensing by the ABC Board. They point in particular to the financial- responsibility provision in the ABC Board regulations that is reprinted in substantial part in the pre-application packet for an ABC Board license: "(1) All retail licensees of the ABC Board shall maintain, at all times, liquor liability (dram shop) insurance described below and shall comply with the following conditions of requirements of Financial Responsibility. "(a) Prior to the issuance or renewal of any retail alcoholic beverage license, each applicant must provide the ABC Board with sufficient information that it has liquor liability (dram shop) insurance coverage in the amount of at least one hundred thousand dollars ($100,000.00) per occurrence, exclusive of, and separate from, any attorney fees or other costs incurred in the defense of any claim asserted against the insured." Reg. 20-X-5-.14, Ala. Admin. Code (ABC Board) ("Requirements Of Financial Responsibility By Licensees") (emphasis added). See PBCI's brief, Exhibit 1. The first question on the formal application for a retail liquor license asks in oversize letters: "Has applicant complied with ABC Regulation # 20-X-5- 6 1121411 .14 regarding financial responsibility?" PBCI circled "Y" on its application. Plaintiffs' brief, Exhibit 5. The plaintiffs question how PBCI can be required to maintain dram-shop insurance for "the defense of any claim asserted against the insured" and yet claim immunity in a civil action that implicates the protection provided by that insurance. The plaintiffs contend that allowing tribal immunity to shield PBCI from a dram-shop action would nullify the insurance provision of the state liquor law that PBCI agreed to observe as a condition for licensing. In short, the plaintiffs argue that PBCI's acceptance of the financial- responsibility provision as a condition for obtaining an alcoholic-beverage license operates as an express waiver of the defense of sovereign immunity in a dram-shop action. C. The No-Forum Conundrum2 Although PBCI stated in its motion to dismiss that the "[p]laintiffs' remedy, if any, lies in the tribal court established by the Defendant sovereign, [the Poarch Band of Creek Indians]," the Poarch Band Tribal Code indicates that a See Matthew L.M. Fletcher, (Re)Solving the Tribal 2 No-Forum Conundrum: Michigan v. Bay Mills Indian Community, 123 Yale L.J. Online 311 (2013). 7 1121411 dram-shop action against PBCI in the tribal court would be ineffectual. Section 11-1-1(a), Poarch Band Tribal Code, empowers the Poarch Band Tribal Court to try "all civil causes of action and defenses thereto which are cognizable in the trial courts of the State of Alabama." However, the immediately following section states: "The recognition of causes of action and defenses thereto which are cognizable in the trial courts of the State of Alabama is not and shall not be deemed a waiver of tribal sovereignty or jurisdiction with respect to the Tribe or Tribal Courts." Section 11-1-1(b), Poarch Band Tribal Code. Thus, although the plaintiffs could formally file a dram-shop action in Poarch Band tribal court, PBCI would instantly have recourse to the defense of sovereign immunity. The Poarch Band Tort Claims Act, § 29-1-1 et seq., Poarch Band Tribal Code, does provide for a limited waiver of sovereign immunity, but it applies only to "an individual Gaming Facility patron," § 29-1-3(e), Poarch Band Tribal Code, and excludes third-party claims such as the injuries suffered by plaintiffs on a state highway. § 29-2-3(f), Poarch Band Tribal Code. Thus, if the plaintiffs have no remedy against 8 1121411 PBCI in a state court, they likely have no remedy against PBCI anywhere. Courts in many jurisdictions have remarked on the unsettling fact that recognition of tribal immunity can leave accident victims without a remedy against tribal defendants. "[I]mmunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims." Kiowa Tribe, 523 U.S. at 758. See also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, P.C., 476 U.S. 877, 893 (1986) (noting "[t]he perceived inequity of permitting the Tribe to recover from a non-Indian for civil wrongs in instances where a non-Indian allegedly may not recover against the Tribe"); Cook v. Avi Casino Enters., Inc., 548 F.3d 718, 727 (9th Cir. 2008) (lamenting that "an unjust result is reached that our law might better preclude") (Gould, J., concurring); Filer v. Tahono O'Odham Nation Gaming, 212 Ariz. 167, 173, 129 P.3d 78, 84 (Ct. App. 2006) (noting that tribal immunity from dram-shop actions "may be unsatisfactory to some and arguably is divorced from the realities of the modern world"); Foxworthy v. Puyallup Tribe 9 1121411 of Indians Ass'n, 141 Wash. App. 221, 234, 169 P.3d 53, 59 (2007) (noting that "the current state of dram shop case law" involving tribal defendants may "tolerate inequities"). D. Effect of Purchase of Insurance on Immunity The mere acquisition of insurance by an entity having sovereign immunity does not constitute an express consent to be sued in a state court for policy benefits. The Poarch Band Tribal Code, for example, delineates a workers' compensation plan of coverage for Poarch Band employees but allows enforcement only in tribal courts. §§ 35-4-1 & -4, Poarch Band Tribal Code. An employee "seeking any remedy in any Non-Tribal forum" forfeits coverage. § 35-1-6(d), Poarch Band Tribal Code. The workers' compensation title of the Poarch Band Tribal Code states that the Poarch Band "does not hereby waive its immunity from suit in state or federal court, or any other state or federal forum, for any purpose." § 35-1-6(b), Poarch Band Tribal Code. See Sanderford v. Creek Casino Montgomery, (No. 2:12-CV-455-WKW, Jan. 10, 2013) (M.D. Ala. 2013) (dismissing on sovereign-immunity grounds action brought in federal court by Creek Casino Montgomery employee for workers' compensation benefits). See also White Mountain 10 1121411 Apache Tribe v. Industrial Comm'n of Ariz., 144 Ariz. 129, 696 P.2d 223 (Ct. App. 1985) (holding that a tribe's purchase of workers' compensation insurance does not constitute an express waiver of sovereign immunity from a worker's compensation action). Similarly, the purchase of liability insurance by an agency of the Alabama state government does not of itself waive state immunity. "'[A] governmental unit's immunity from tort liability is unaffected by its procurement of insurance which purports to protect it from such liability.'" Thompson v. Druid City Hosp. Bd., 279 Ala. 314, 315, 184 So. 2d 825, 826 (1966) (quoting 68 A.L.R.2d 1437 (1959)). See also Alabama State Docks v. Saxon, 631 So. 2d 943, 946 (1994) (noting that "an intent to waive governmental immunity should not be presumed from the purchase of liability insurance"); Graves v. White Mountain Apache Tribe, 117 Ariz. 32, 570 P.2d 803 (Ct. App. 1977) (holding that purchase of liability insurance by an Apache tribe did not waive the tribe's governmental immunity). E. Countervailing Factors Courts that have addressed the issue uniformly hold that sovereign immunity protects Indian tribes from private dram- 11 1121411 shop actions. See Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224, 1233 (11th Cir. 2012); Filer, 212 Ariz. at 173, 129 P.3d at 84; Foxworthy, 141 Wash. App. at 234, 169 P.3d at 58; Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 854, (Tex. App. 1997). Recently Oklahoma reversed its contrary precedent. See Sheffer v. Buffalo Run Casino, PTE, Inc., 315 P.3d 359, 372 (Okla. 2013) (rev'g Bittle v. Bahe, 192 P.3d 810 (Okla. 2008)). Nevertheless, certain countervailing factors argue for denying PBCI's petition for a writ of mandamus. 1. Immunity is Minimal in the Area of Alcohol Regulation Although "[t]he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history," Rice v. Olson, 324 U.S. 786, 789 (1945), and "tribal immunity is a matter of federal law and is not subject to diminution by the States," Kiowa Tribe, 523 U.S. at 756, tribal immunity is at its weakest in the context of alcohol regulation. Although at one time federal law prohibited the possession or sale of alcoholic beverages in Indian territory, Congress in 1953 abrogated those provisions and instead gave the states authority to regulate and control the use of alcohol on tribal lands. 18 U.S.C. § 1161. Construing § 1161, 12 1121411 the United States Supreme Court noted that "Congress has divested the Indians of any inherent power to regulate in this area." Rice v. Rehner, 463 U.S. 713, 724 (1983). "With respect to the regulation of liquor transactions, ... Indians cannot be said to 'possess the usual accoutrements of tribal self- government.'" Id. (quoting McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 167-68 (1973)). "Because we find that there is no tradition of sovereign immunity that favors the Indians in this respect, and because we must consider that the activity in which Rehner seeks to engage potentially has a substantial impact beyond the reservation, we may accord little if any weight to any asserted interest in tribal sovereignty in this case." Rehner, 463 U.S. at 725. Because tribal immunity derives from tribal sovereignty, PBCI's assertion of immunity to thwart state law in the area of alcohol regulation has "little if any weight," especially when the activity whose regulation PBCI seeks to evade -- overserving gaming customers -- "has a substantial impact beyond the reservation." 463 U.S. at 725. 2. The Covenant of Financial Responsibility Even if, as other courts have held, the state's power to regulate alcohol usage on tribal lands does not of itself authorize private dram-shop actions, the nature of the 13 1121411 agreement PBCI made with the ABC Board constitutes a waiver of any residual immunity from such lawsuits. By purchasing dram- shop insurance as a condition for obtaining a liquor license, PBCI expressly agreed in writing to be "financially responsible" in damages for serving alcohol to any apparently intoxicated person. PBCI cannot both assume financial responsibility for compensating victims of its own wrongdoing and at the same time disclaim its responsibility for providing such compensation. An agreement to be financially responsible is an express declaration that excludes, i.e., waives, the alternative of being financially irresponsible. Otherwise, the assumption of financial responsibility would be meaningless. Compare C & L Enters., Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S. 411, 422 (2001) (noting that an arbitration clause in a contract "'would be meaningless if it did not constitute a waiver of whatever immunity [the Tribe] possessed'") (quoting Native Village of Eyak v. GC Contractors, 658 P.2d 756, 760 (Alaska 1983)).3 No "magic words" are needed to waive sovereign immunity. A waiver that has "the requisite clarity," C & L Enterprises, Oklahoma statutes allow for the enforcement of predispute 3 arbitration agreements. See Okla. Stat. 12, § 1851 et seq. 14 1121411 532 U.S. at 418, need not, "to be deemed explicit ... use the words 'sovereign immunity.'" Id. at 420-21 (quoting Sokaogon Gaming Enter. Corp. v. Tushie-Montgomery Assocs., 86 F.3d 656, 660 (7th Cir. 1996)). See also Rosebud Sioux v. Val-U Constr. Co. of S. Dakota, 50 F.3d 560, 563 (8th Cir. 1995) ("[W]hile the Supreme Court has expressed its protectiveness of tribal sovereign immunity by requiring that any waiver be explicit, it has never required the invocation of 'magic words' stating that the tribe hereby waives its sovereign immunity."); Narragansett Indian Tribe v. Rhode Island, 449 F. 3d 16, 25 (1st Cir. 2006) (citing C & L Enterprises for the proposition that a court need not employ "talismanic phrases"). In rejecting the assertion that a tribe may employ the doctrine of sovereign immunity to nullify an arbitration clause under Oklahoma law, the United States Supreme Court stated that "[the contract's dispute resolution] regime has a real world objective; it is not designed for a game lacking practical consequences." C & L Enterprises, 532 U.S. at 422. Likewise, in this case the financial-responsibility covenant PBCI made with the ABC Board as a condition for obtaining a liquor license had "a real world objective": the protection of 15 1121411 the general public from drunk drivers improvidently overserved in the casino. This agreement "was not designed for a game lacking practical consequences," as PBCI implausibly contends. Just as "[t]o agree to be sued is to waive any immunity one might have from being sued," Sokaogon, 86 F.3d at 659, so to agree to be financially responsible is to waive any immunity one might have to be financially irresponsible. To claim immunity in this context is to assert in "the real world" that PBCI has no coverage for dram-shop incidents. See Koscielak v. Stockbridge-Munsee Cmty., 340 Wis. 2d 409, 422, 811 N.W.2d 451, 458 (Ct. App. 2012) ("[A]n insurer is not liable unless its insured is."). But such an assertion functions as a repudiation of the legal requirement -- to which PBCI has assented –- that "current insurance coverage exists" that has not "been cancelled or otherwise is not in force for any reason." Reg. 20-X-5-.14(2), Ala. Admin. Code (ABC Board). Again, the requirement of dram-shop coverage is not a mere paper formality with no effect in the real world, a meaningless arrangement "lacking practical consequences." "It is ludicrous to contend that anyone can enter into an indemnifying contract and then refuse to fulfill the contract 16 1121411 against the injured party, contending in substance that there is no basis for the suit for there was no risk to be insured." Beach v. City of Springfield, 32 Ill. App. 2d 256, 261, 177 N.E.2d 436, 439 (1961). 3. The No-Forum Conundrum Revisited The absence of a tribal forum to hear dram-shop actions weighs against a finding of immunity. In refusing to infer a private cause of action for enforcement of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1304, the United States Supreme Court reasoned that such a remedy was not necessary because "[t]ribal forums are available to vindicate rights." Santa Clara Pueblo, 436 U.S. at 65. The Court forthrightly asserted: "Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians." Id. Because the Poarch Band has structured its Tribal Code to prevent dram-shop claims from being heard in the tribal court, its claim of immunity from a state-court action is accordingly diminished. See Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980) (reversing a trial court's order that dismissed a case on 17 1121411 immunity grounds because no tribal or other forum existed to settle the dispute). IV. Conclusion The doctrine of tribal immunity, intended in part to shield Indian tribes from exploitation by outsiders, is not also a sword tribes may wield to victimize outsiders. Pushing the doctrine to illogical extremes and employing it after the fact to repudiate freely assumed legal obligations must ultimately result in discrediting the doctrine itself. "Indian scholars ... have been warning tribal leaders and counsel for decades that if they do not solve the no-forum conundrum, someone else will –- either Congress or the federal courts." Matthew L.M. Fletcher, (Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community, 123 Yale L.J. Online 311, 314 (2013). Because PBCI's formal covenant to assume financial responsibility in dram-shop actions constitutes an explicit waiver of its sovereign immunity from liability for such actions, I concur in denying PBCI's petition for a writ of mandamus ordering the trial court to dismiss this action on the ground of tribal immunity. 18	May 23, 2014
507ee763-3e54-4f4c-8651-88a84eaf4298	Russell v. Fuqua	N/A	1120957	Alabama	Alabama Supreme Court	REL: 05/09/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1120957 ____________________ Megan Marie Russell v. Keone Kaukawele Fuqua Appeal from Mobile Probate Court (PR-12-2270) PER CURIAM. Keone Kaukawele Fuqua ("the father") filed a petition in the Mobile Probate Court asking that court to allow him to change the legal name of his daughter from Lyvia Grace Russell to Lyvia Grace Russell-Fuqua. Megan Marie Russell ("the 1120957 mother") opposed the petition, and she appeals from a probate court order granting the relief requested by the father. For the reasons explained below, we conclude that the probate court had no subject-matter jurisdiction over the parties' name-change dispute, and we therefore vacate the order and dismiss the appeal. Facts and Procedural History The mother and the father were married but did not reside in the same home when Lyvia Grace ("the child") was born in April 2010. It is undisputed that the father is the biological father of the child. It is also undisputed that, when the mother provided information for the child's birth certificate, she refused to provide the name of the child's father and did not include the father's surname as part of the child's name. At some point after the child's birth, the father filed a complaint in the Mobile Circuit Court for a divorce. In January 2011, the circuit court entered a judgment granting the father's complaint. As to the child, the divorce judgment awarded the mother custody, awarded the father visitation, and required the father to pay child support. The circuit court's 2 1120957 divorce judgment also stated "that the [mother] is ordered to add the [father's] name to the child's ... birth certificate as the father." Further, the divorce judgment states "that the Court retains jurisdiction in this cause for purpose of making such other or future orders or decrees as to the custody, support and maintenance of the minor child as the Court may deem necessary or as changed conditions require." The mother prepared the documents necessary to add the father's name to the birth certificate, but the father refused to sign the documents because he believed that by signing the documents he was agreeing that the child's legal name would be "Lyvia Grace Russell." Thereafter, the father filed in the probate court the petition to change the child's name. As noted above, the mother objected. Also, we note that there was no dispute between the father and the mother as to the child's legitimacy and that the father's petition to change the child's name did not purport to seek legitimation of the child. After an ore tenus proceeding, the probate court entered an order that states: "The [mother] and [the father] have an acrimonious relationship with each other. The 3 1120957 testimony presented to the Court reflects that the [mother's] parents (with whom the [mother] and the [child] reside) also have a poor relationship with the [father]. "The [father] is current on payments of child support due since ... the Judgment of Divorce. The [father] exercises his visitation rights vis-à-vis the [child]. ".... "... The [father] by action and words seems sincere in having a parental-child relationship with the [child]. The [mother's] demeanor while testifying before the Court calls into question the reliability of [her] testimony and her desire to promote the best interests of the [child]. ".... "Ala. Code 1975, § 26-11-2, provides that the father of a bastard child may seek to legitimate it and render the child capable of inheriting the father's estate. This statute further provides that after notice is properly served upon the mother of the child, the Court shall conduct a hearing at which all interested parties may present evidence for determination of whether legitimation is in the best interest of the child. "It is undisputed that the [father] is the father of the [child] and [the circuit judge] in the Domestic Relations Case has entered a final, non-appealable order determining the [father] to be the father of the [child]. "Based upon the evidence presented in this cause, it is obviously in the [child's] best 1 interests for the Court to permit the [father] to legitimate the [child] and facilitate the [child] being capable of inheriting the [father's] estate. 4 1120957 ".... "[The father's] petition is based upon Ala. Code 1975, § 26-11-3. This statute provides that after notice is properly served upon the mother of the child, the Court shall conduct a hearing at which all interested parties may present evidence for determination of whether the requested name change is in the best interest of the child. _______________ " Rule 15 of the Alabama Rules of Civil 1 Procedure provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." (Emphasis added.) The probate court's order also states in a footnote that § 26-11-3, Ala. Code 1975, "is the only provision in the Code of Alabama (1975) that facilitates a child's name being changed in an Alabama probate court by the father of the child. Ala. Code 1975, § 12-13-l(b)(10), assigns Alabama probate courts with jurisdiction to change the name of an adult person residing in the jurisdiction of said Alabama probate court. This statute has no application in the instant cause." (Emphasis added.) After reviewing the testimony presented by the parties, the order concludes "that the best interests of the [child] are served with the [child's] surname being 'Russell-Fuqua.'" It then states: 5 1120957 "1. The Motion For Name Change filed by the [father] is GRANTED IN PART AS PROVIDED HEREIN. The [mother's] objection thereto is DENIED. "2. The [father] is DETERMINED to be the father of the [child]. "3. The surname of the [child] shall be Russell-Fuqua and the full name of the [child] is Lyvia Grace Russell-Fuqua. "4. Within 60 days from the date of this Order, the [mother] and [the father] shall execute all appropriate documentation required by the Alabama Center For Health Statistics-Vital Records of the Alabama Department of Public Health to facilitate an amended birth certificate being issued for the [child] consistent with this Order." (Capitalization in original.) The mother appeals from the probate court's order. Analysis Although the parties have not raised the issue of subject-matter jurisdiction, such jurisdiction cannot be waived by the parties and may be raised by this Court ex mero motu. See Ex parte Smith, 438 So. 2d 766, 768 (Ala. 1983); see also, e.g., Blevins v. Hillwood Office Ctr. Owners' Ass'n, 51 So. 3d 317, 322 (Ala. 2010). We review the issue of subject-matter jurisdiction de novo. Solomon v. Liberty Nat'l Life Ins. Co., 953 So. 2d 1211, 1218 (Ala. 2006). 6 1120957 The jurisdiction of our probate courts "'is limited to the matters submitted to [them] by statute.'" AltaPointe Health Sys., Inc. v. Davis, 90 So. 3d 139, 154 (Ala. 2012) (quoting Wallace v. State, 507 So. 2d 466, 468 (Ala. 1987)). As the probate court acknowledges in its order, the legislature has given the probate courts jurisdiction over actions in which an adult requests a name change. See Ala. Code 1975, § 12-13-1(b)(10). An adult name change is not at 1 issue here. Chapter 11 of Tile 26 of the Code of Alabama 1975 governs so-called legitimation proceedings, i.e., actions in which a father seeks to legitimate a child as his own. Section 26-11-3, Ala. Code 1975, provides: "The father may petition at the time of filing the declaration of legitimation or at any time subsequent to the determination of legitimation to Section 12-13-1(b)(10), Ala. Code 1975, provides: 1 "(b) The probate court shall have original and general jurisdiction over the following matters: ".... "(10) The change of the name of any person residing in their county, upon his filing a declaration in writing, signed by him, stating the name by which he is known and the name to which he wishes it to be changed." 7 1120957 change the name of such child, stating in his declaration the name it is then known by and the name he wishes it afterwards to have. ..." In addition to the fact that this Code section is part of the chapter governing legitimation proceedings, it specifically states that the petition is filed "at the time of filing the declaration of legitimation" or "subsequent to the determination of legitimation." (Emphasis added.) "[T]he determination of legitimation" clearly refers to a ruling in the legitimation action. Thus, the probate court's jurisdiction to entertain a petition to change a child's name is derivative of that court's jurisdiction over legitimation actions. It is undisputed that the present dispute does not arise out of a legitimation proceeding. Although § 26-11-3(a) is an affirmative grant of subject- matter jurisdiction to the probate court when the circumstances described in that Code section are met, that section does nothing to deprive the circuit court of its general equity jurisdiction and, specifically, its jurisdiction over matters within the realm of custody disputes between two parents. As Judge Crawley explained in discussing 8 1120957 § 26-11-3(a) in his dissenting opinion in Clark v. Clark, 682 So. 2d 1051 (Ala. Civ. App. 1006) (plurality opinion):2 "[T]he statute providing for name changes is not exclusive in nature [and] ... the circuit courts have wide discretion in child custody matters and ... the circuit courts have inherent and continuing equity jurisdiction over minor children. Acknowledgment of these principles compels the conclusion that the circuit court does indeed have jurisdiction over the name change of minors under the wide discretion afforded it in child custody matters. ".... "'When equity's jurisdiction is invoked, minor children are wards of the court, and it is the court's duty to guard and protect the interest of its infant wards with scrupulous care.... In the case of divorce of the parents, equity courts have inherent power to protect the welfare of the minor children born of the broken marriage and to make appropriate allowances for them, ... and, having once obtained jurisdiction over the children of divorced parents, the court retains jurisdiction during their infancy.' "Wise v. Watson, 236 So. 2d 681, 684, 286 Ala. 22, 25 (1970) (emphasis added). Additionally, in a case The lead opinion in Clark, concurred in by only one judge 2 other than its author, wrongly construed § 26-11-3(a) as providing that the probate court has jurisdiction to the exclusion of the circuit court over petitions to change the names of minors. 682 So. 2d at 1052. Such a reading of § 26- 11-3(a) would create a serious problem because § 26-11-3 provides the probate court with authority only in the context of legitimation proceedings. Thus, a legitimate father would have no place to go to seek a change of name for his child. 9 1120957 involving child custody, any matter affecting the child becomes the subject of equity jurisdiction. "... In light of the circuit court's general jurisdiction, described in Ala. Code 1975, § 12–11–30, as well as its history as a court of equity jurisdiction, as provided for in Ala. Code 1975, § 12–11–31, and its child custody jurisdiction under Ala. Code 1975, § 30–3–1, I believe that in this case, the circuit court did have jurisdiction to decide upon the name change of the minor child. When the parents in this case were divorced in 1985, the circuit court attained jurisdiction over the minor child. When the father petitioned the circuit court to change the child's name back to Clark, she was ten, and the circuit court still had jurisdiction over her. The circuit court's jurisdiction over this minor child will continue until she reaches the age of majority. Because the child became a ward of the circuit court, the circuit court has the inherent power to protect her welfare. By acting to settle the dispute between the parents about their child's name, the circuit court simply acted with the appropriate goal of promoting the child's best interest. Since the change of a child's name is a matter affecting the child and within the realm of matters in respect to the custody of the child, that subject is encompassed in the circuit court's equity jurisdiction and within its jurisdiction under § 30–3–1[, Ala. Code 1975]." 682 So. 2d at 1054-55 (Crawley, J., dissenting) (final emphasis added; some citations omitted). See also 682 So. 2d at 1052 (Thigpen, J., dissenting to like effect and discussing the breadth of the circuit court's equity jurisdiction as to custody of children and the issues relating thereto). 10 1120957 Because the probate court lacked jurisdiction in this case, its judgment is void. See Johnson v. Hetzel, 100 So. 3d 1056, 1057 (Ala. 2012) (holding that the failure to satisfy a jurisdictional prerequisite renders a judgment void). A void 3 judgment will not support an appeal. Id. It is this Court's obligation to vacate such a judgment and dismiss the appeal. Ex parte Alabama Dep't of Human Res., 999 So. 2d 891, 898 (Ala. 2008). Conclusion Based on the foregoing, the probate court's order is hereby vacated and the appeal dismissed. JUDGMENT VACATED; APPEAL DISMISSED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. The father may still file a petition seeking a change of 3 the child's name with the circuit court, which, as noted in the divorce judgment, has retained jurisdiction as to matters involving the custody of the child. 11	May 9, 2014
ca036082-6f27-4657-8935-89d36892438e	Ex parte Cartez Woolen. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Cartez Woolen v. State of Alabama)	N/A	1130535	Alabama	Alabama Supreme Court	REL:05/09/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130535 ____________________ Ex parte Cartez Woolen PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Cartez Woolen v. State of Alabama) (Jefferson Circuit Court, CC-12-3519; Court of Criminal Appeals, CR-12-1434) BOLIN, Justice. The petition for the writ of certiorari is denied. 1130535 In denying 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 Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT DENIED. Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 2 1130535 MOORE, Chief Justice (dissenting). Because I believe that the State provided insufficient evidence of a preexisting plan by which to measure the conduct of the roadblock at issue in this case, I would grant the petition for a writ of certiorari to review this issue. I. Facts and Procedural History City of Birmingham police officers arrested Cartez Woolen at a roadblock and charged him with unlawful possession of a controlled substance. § 13A-12-212(a)(1), Ala. Code 1975. He entered a guilty plea, reserving for appeal the issue of the legality of the search at the roadblock. The Court of Criminal Appeals found that the roadblock search did not violate the Fourth Amendment. Woolen v. State, [Ms. CR-12-1434, Dec. 20, 2013] ___ So. 3d ___ (Ala. Crim. App. 2013). Woolen then sought a writ of certiorari from this Court to review the decision of the Court of Criminal Appeals. II. Standard of Review "Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the 3 1130535 law to those facts." Stiles v. Brown, 380 So. 2d 792, 794 (Ala. 1980). Additionally, because individualized suspicion for stopping a vehicle is not present at a roadblock where every driver is questioned, the State has the burden of proving that the roadblock was reasonable under the Fourth Amendment. Ex parte Jackson, 886 So. 2d 155, 163 (Ala. 2004). III. Analysis A. Purpose of the Roadblock Because the use of police roadblocks implicates the Fourth Amendment interest in being free from unreasonable searches and seizures, the United States Supreme Court has 1 limited the use of such roadblocks to certain specified purposes. See Illinois v. Lidster, 540 U.S. 419 (2004) (seeking information concerning a recent crime); Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (checking for sobriety); Texas v. Brown, 460 U.S. 730 (1983) (checking driver's licenses); and United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (intercepting illegal aliens). However, a roadblock whose primary purpose "is ultimately The Fourth Amendment "generally bars officials from 1 undertaking a search or seizure absent individualized suspicion." Chandler v. Miller, 520 U.S. 305, 308 (1997). 4 1130535 indistinguishable from the general interest in crime control ... violate[s] the Fourth Amendment." City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000). See also Hagood v. Town of Town Creek, 628 So. 2d 1057 (Ala. Crim. App. 1993) (noting that the "general interest in law enforcement simply does not outweigh the liberty interests of those seized, however brief the seizure may be"). On appeal to the Court of Criminal Appeals Woolen argued that "the roadblock in this case was established solely for the impermissible purpose of creating a police presence in a high-violence area as a deterrent of violent crime and, thus, was unconstitutional." Woolen, ___ So. 3d at ___. His petition for a writ of certiorari, however, does not raise the issue whether the purpose of the roadblock was impermissible. Instead he challenges, as he did below, the constitutionality of the manner in which the roadblock was conducted. B. Manner of Conducting the Roadblock A roadblock "'carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers'" is reasonable under the Fourth Amendment. Ogburn v. State, 104 So. 3d 267, 270 (Ala. Crim. App. 2012) (quoting 5 1130535 Brown v. Texas, 443 U.S. 47, 51 (1979)). Although the Ogburn court did not require the State to produce a preexisting written plan for conducting a roadblock, it did require, in conformity with Brown, that "a witness for the State must specifically articulate the full details of the previously established plan that limits the discretion of the individual officers at the checkpoint ...." 104 So. 3d at 275 (emphasis added). 2 The State's testimony in the trial court established only that the officers conducting the roadblock had an oral briefing "on what we're going to go do and these are the hours we're going to do it ... during this time span." The Court of Criminal Appeals held that this sparse testimony, which it conceded was "weak," satisfied the Ogburn requirement to "specifically articulate the full details of the previously established plan." Although this conclusion seems puzzling, the Court of Criminal Appeals, viewing the State's testimony in light of "the totality of the circumstances" inferred the existence of the unarticulated plan from the officers' actions Woolen suggests that "the neutral pre-existing plan, in 2 effect, acts as a substitute for the detached and neutral magistrate requirement of the Fourth Amendment." Woolen's petition, at 7 n.2. 6 1130535 at the roadblock, e.g., a well-lit stopping area, blinking emergency lights on the police vehicles, and a minimally intrusive detention to examine driver's licenses and proof of insurance. Because the State presented no evidence on the details of the plan or how it controlled the officers' discretion, it failed to meet its burden of demonstrating that "the checkpoint was in accordance with a plan embodying explicit, neutral limitations on the officers' conduct." Ogburn, 104 So. 3d at 275 (emphasis added). As Woolen argues in his petition, the State "offered absolutely no testimony about what [the officers] were actually instructed to do, or whether what they actually did was in accordance with a pre-established plan." By inferring the existence of a plan from the officers' actions, the Court of Criminal Appeals in effect relieved the State of its burden as articulated in Ogburn. IV. Conclusion Because the decision of the Court of Criminal Appeals in this case conflicts with the standard stated in Ogburn for determining the reasonableness of a roadblock under the Fourth 7 1130535 Amendment, I would grant Woolen's petition for a writ of certiorari to clarify the law in this area. 8	May 9, 2014
976c0d4d-c63c-4c60-94b9-eb8f232fe30a	Sheffield v. Alabama	N/A	1121172	Alabama	Alabama Supreme Court	REL: 05/30/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121172 ____________________ Ex parte James Linden Sheffield PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: James Linden Sheffield v. State of Alabama) (Chilton Circuit Court, CC-08-405; Court of Criminal Appeals, CR-11-1309) MURDOCK, Justice. 1121172 2 This Court issued a writ of certiorari to review the Court of Criminal Appeals' decision that it did not have jurisdiction to entertain an appeal from a new sentence imposed on remand following its reversal of a conviction. We reverse and remand. Facts and Procedural History James Linden Sheffield was indicted on two counts of reckless murder, see Ala. Code 1975, § 13A-6-2(a)(2), for intentionally setting fire to a cushion he had placed underneath a house that caused a house to catch fire, killing two persons inside the house. Sheffield was convicted of reckless murder on count I (for the death of Charles Edward Morrow, Jr.) and of the lesser-included offense of manslaughter on count II (the death of Charles Edward Morrow III). He was sentenced to 50 years in prison on the reckless- murder conviction and to 17 years on the manslaughter conviction, the sentences to run consecutively. Sheffield appealed. On appeal, the Court of Criminal Appeals affirmed the manslaughter conviction on count II but reversed the reckless- murder conviction on count I and remanded the case for the 1121172 3 circuit court to enter a judgment finding Sheffield guilty of manslaughter on count I and to resentence Sheffield accordingly. Sheffield v. State, 87 So. 3d 607 (Ala. Crim. App. 2010). On remand, the circuit court complied with the Court of Criminal Appeals' order and entered a judgment convicting Sheffield of manslaughter as to count I. The circuit court then sentenced Sheffield to 17 years' imprisonment for his conviction on count I, the sentence to run consecutively to Sheffield's 17-year sentence on his count II manslaughter conviction. Sheffield appealed, challenging the sentencing order and contending that the circuit court erred when it imposed consecutive sentences for multiple convictions arising out of a single act. The Court of Criminal Appeals dismissed the appeal on the basis that it lacked jurisdiction to hear an appeal from a sentencing order such as the one at issue here. The Court of Criminal Appeals cited Hart v. State, 939 So. 2d 948, 950 (Ala. Crim. App. 2005), but, as discussed below, that case is inapposite to the present case. Sheffield then petitioned this Court for certiorari review, which we granted. 1121172 Hart was sentenced to death for a capital murder 1 committed while he was less than 18 years old. Several years later, the United States Supreme Court held in Roper v. Simmons, 543 U.S. 551 (2005), that juveniles were not eligible 4 Standard of Review "'This Court reviews pure questions of law in criminal cases de novo.'" Ex parte Morrow, 915 So. 2d 539, 541 (Ala. 2004) (quoting Ex parte Key, 890 So. 2d 1056, 1059 (Ala. 2003)). Discussion Sheffield contends, and the State agrees, that the Court of Criminal Appeals had jurisdiction to consider Sheffield's appeal challenging the new sentence imposed by the circuit court on remand. We agree. In dismissing Sheffield's appeal, the Court of Criminal Appeals cited Hart for the proposition that there is no authority to appeal a sentencing order separately from a judgment of conviction. As this Court recently discussed in Ex parte Walker, [Ms. 1121407, Jan. 17, 2014] ___ So. 3d ___ (Ala. 2014), Hart must be limited to the unique procedural posture of that case: an appeal from a particular sentence specifically required of a state court by a federal court in a habeas corpus proceeding. 1 1121172 for the death penalty. Based on Roper, a federal district court, on habeas review, ordered the state circuit court to enter a new sentencing order sentencing Hart to life imprisonment without the possibility of parole. The Committee Comments to Rule 26.1, Ala. R. Crim. P., 2 note that "Alabama decisions define judgment to mean the decision or sentence of the law, pronounced by the court." See Evans v. State, 36 Ala. App. 145, 53 So. 2d 764 (1951) (holding that it is required that the judgment entry include the sentence imposed); Committee Comments to Rule 26.2 (citing Evans to same effect). Rule 4(b)(1), Ala. R. App. P., provides that a notice of appeal in a criminal case must be filed within 42 days after pronouncement of the sentence. 5 In contrast, the present case involves a new judgment entering not only a conviction, but also a new sentence imposed in the circuit court's discretion for the first time. It matters not that Sheffield's present appeal challenges only the sentence and not the newly entered conviction. Our courts routinely have entertained criminal appeals challenging only the sentence. See, e.g., Ex parte Dixon, 804 So. 2d 1075, 1078 (Ala. 2000) (appellate review of sentence after guilty plea); Marshall v. State, 25 So. 3d 1183 (Ala. Crim. App. 2008). See also, e.g., Ex parte McKelvey, 804 So. 2d 1075 (Ala. 2000) (holding that an improper sentence can be challenged on direct appeal).2 Unlike Hart, this appeal is Sheffield's first opportunity to address with an appellate court the propriety of the 1121172 We express no opinion on the merits of those claims. 3 That question should be addressed by the lower appellate court in the first instance. 6 particular sentence at issue -- a sentence that only now has been decided upon and entered by any court. Conclusion Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals dismissing Sheffield's appeal, and we remand the case for the Court of Criminal Appeals to consider the merits of the claims raised in the appeal.3 REVERSED AND REMANDED. Moore, C.J., and Stuart, Bolin, Parker, Shaw, and Bryan, JJ., concur. Main and Wise, JJ., recuse themselves.* *Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case initially.	May 30, 2014
b3b37d41-7299-4c66-ab90-941d8209a6f6	Ex parte Robert Gill. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Robert Gill v. State of Alabama) (Morgan Circuit Court: CC-95-43; Criminal Appeals : CR-12-1972). Writ Denied. No Opinion.	N/A	1130649	Alabama	Alabama Supreme Court	REL:06/20/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130649 ____________________ Ex parte Robert Gill PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Robert Gill v. State of Alabama) (Morgan Circuit Court, CC-95-43; Court of Criminal Appeals, CR-12-1972) BOLIN, Justice. WRIT DENIED. NO OPINION. 1130649 Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 2 1130649 MOORE, Chief Justice (dissenting). I would grant inmate Robert Gill's petition for a writ of certiorari to review the Court of Criminal Appeals' affirmance of the trial court's denial of Gill's motion for sentence reconsideration filed pursuant to § 13A-5-9.1, Ala. Code 1975. Gill v. State (No. CR-12-1972, Feb. 7, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014)(table). Therefore, I dissent from the denial of his petition. I believe that Gill's case is representative of a systemic problem associated with the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA"). Gill was convicted of first-degree robbery, a Class A felony, and was sentenced as a habitual felony offender to life imprisonment without the possibility of parole. His prior convictions included convictions for distribution of a controlled substance and for two counts of possession of a controlled substance. This petition for certiorari review arises out of Gill's fourth motion for sentence reconsideration, which the circuit court summarily denied. On his appeal of that denial to the Court of Criminal Appeals, Gill argued that, because he was a nonviolent offender, the 3 1130649 circuit court had exceeded its discretion in denying his motion for sentence reconsideration. Affirming the circuit court's denial of Gill's motion, the Court of Criminal Appeals issued an unpublished memorandum quoting its ruling in the appeal involving Gill's third motion for sentence reconsideration: "'Suffice it to say, we have reviewed the record and, considering that Gill was armed with a knife during the robbery, we find no abuse of discretion on the part of the circuit court in finding him to be a violent offender and thus ineligible for sentence reconsideration.'" This statement presupposes that the offense for which Gill was convicted determined whether he was a violent offender. As explained below, I reject this assumption. I believe that § 13A–5–9.1 and Kirby v. State, 899 So. 2d 968(Ala. 2004), and its progeny prohibit a sentencing or presiding judge from determining whether an inmate is a violent offender for purposes of sentence reconsideration based solely on the offense of which the inmate was convicted. The statutory requirement that the sentencing or presiding judge must consider "evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles" 4 1130649 in determining whether to reconsider a defendant's sentence suggests that the offense for which the inmate was convicted may not serve as the sole basis for determining whether an inmate is a violent or a nonviolent offender for purposes of § 13A–5–9.1. Before 2000, the HFOA read, in pertinent part: "(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows: "(1) On conviction of a Class C felony, he must be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years. "(2) On conviction of a Class B felony, he must be punished for life in the penitentiary. "(3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole." (Emphasis added.) The HFOA was amended effective May 25, 2000; subsection (c) now reads: "(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he or she must be punished as follows: 5 1130649 "(1) On conviction of a Class C felony, he or she must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years. "(2) On conviction of a Class B felony, he or she must be punished by imprisonment for life or any term of not less than 20 years. "(3) On conviction of a Class A felony, where the defendant has no prior convictions for any Class A felony, he or she must be punished by imprisonment for life or life without the possibility of parole, in the discretion of the trial court. "(4) On conviction of a Class A felony, where the defendant has one or more prior convictions for any Class A felony, he or she must be punished by imprisonment for life without the possibility of parole." (Emphasis added.) The Amendment Notes to the HFOA describe the changes effectuated by the 2000 amendment: "The 2000 amendment ... inserted 'or she' in eleven places; in subsection (a), in the introductory matter substituted 'a felony and after the' for 'any felony and after such'; in subsection (c), in subdivision (1) inserted 'of' following 'term', in subdivision (2) substituted 'by imprisonment for life or any term of not less than 20 years' for 'life in the penitentiary', in subdivision (3) substituted 'where the defendant has no prior convictions for any Class A felony, he or she must be punished by imprisonment for life or life without the possibility of parole, in the 6 1130649 discretion of the trial court' for 'he must be punished by imprisonment for life without parole', and added subdivision (4); and made nonsubstantive changes." Amendment Notes, § 13A-5-9(c), Ala. Code 1975. In Kirby, this Court described the reasoning behind, and the implementation of, the 2000 amendment to the HFOA: "In 2000, the Legislature amended the HFOA to allow a sentence to be imposed for certain habitual offenders less severe than life imprisonment without parole under certain circumstances. Specifically, and relevant to this proceeding, § 13A–5–9(c)(3) was amended so that a defendant with three prior felony convictions, none of which was for a Class A felony, who is subsequently convicted of a Class A felony may be sentenced to imprisonment for life or life imprisonment without the possibility of parole, in the discretion of the trial court.[ ] Before that 1 amendment, a sentence of life imprisonment without Justice Stuart has explained that "the 2000 amendment 1 provided judges with the discretion, when sentencing a defendant, to order the defendant to serve a sentence of life imprisonment when convicted of a fourth felony offense, provided that the fourth felony conviction was not for a Class A felony and the defendant had not previously been convicted of a Class A felony." Holt v. State, 960 So. 2d 740, 745 (Ala. 2006)(dissenting from quashing the writ of certiorari). Nabers, C.J., and See, Stuart, and Parker, JJ., dissented in that case. Justice See dissented on the ground that § 13A-5- 9.1 may violate the separation-of-powers doctrine insofar as the legislature in enacting it may have usurped powers reserved for the judiciary by requiring trial courts to recognize jurisdiction over criminal defendants more than 30 days after the criminal defendants were sentenced and by mandating that trial courts entertain motions for sentence reconsideration in certain circumstances. Holt, 960 So. 2d at 741-44. 7 1130649 the possibility of parole was mandatory under § 13A–5–9(c)(3) for a Class A felony offender with three prior felony convictions. In 2001, the Legislature passed Act No. 2001–977 ('the Act') in an attempt to make the 2000 amendments to § 13A–5–9 retroactive. The stated purpose of the Act was 'to provide further for eligibility for parole consideration of non-violent offenders.' The Act, now codified as § 13A–5–9.1, states in its entirety: "'The provisions of Section 13A–5–9 shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.' "The Act became effective on December 1, 2001. However, because the Department of Corrections ('the DOC') and the Board of Pardons and Paroles ('the Parole Board') concluded that there were significant problems with § 13A–5–9.1, it ha[d] not ... been implemented or applied [as of August 2004]. "On September 29, 2001, the same day he approved the Act, then Governor Siegelman signed Executive Order Number 62 ('EO 62') calling for the development of a 'process for evaluating non-violent offenders possibly affected by [§ 13A–5–9.1].' EO 62 directed the DOC to develop guidelines and procedures for determining which inmates would be eligible for reconsideration of their sentences under § 13A–5–9.1. EO 62 also purported to suspend operation of § 13A–5–9.1 until June 1, 2002, 'by which time the Department of Corrections should have developed an evaluation process to determine which offenders are "non-violent."'" 8 1130649 899 So. 2d at 969-70 (footnote omitted; all but initial emphasis added). "At the time § 13A-5-9.1, Ala. Code 1975, became effective the question arose as to how a circuit court retained the authority to reconsider an inmate's sentence when that court normally loses jurisdiction to modify a defendant's sentence in a criminal case within 30 days of sentencing if a postjudgment motion is not filed." Holt v. State, 960 So. 2d 740, 745 (Ala. 2006)(Stuart, J., dissenting from quashing the writ of certiorari). This Court resolved that question in Kirby, which held that an inmate need not have a case pending before the circuit court in order to file a motion for reconsideration of sentence under § 13A-5-9.1 and also that § 13A-5-9.1 vested the circuit courts with jurisdiction to consider such motions for sentence reconsideration. Kirby, 899 So. 2d at 971. Therefore, under Kirby, "an inmate may ask the sentencing judge or the presiding judge for relief from a previous sentence imposed pursuant to the HFOA." Id. As a result of Kirby and subsequent cases interpreting Kirby, a three-step "test" has developed for evaluating motions for sentence reconsideration under § 13A-5-9.1. Step one is to determine whether the motion was filed in the 9 1130649 appropriate court and assigned to the appropriate judge (i.e., the sentencing judge or the presiding judge). Ex parte Sandifer, 925 So. 2d 290, 295-96 (Ala. Crim. App. 2005). Step two is to determine whether the motion is a successive motion. Under Ex parte Gunn, 993 So. 2d 433, 435-37 (Ala. 2007), a circuit court does have jurisdiction to consider successive motions for sentence reconsideration; however, the fact that a motion for sentence reconsideration is successive has been held to be a valid basis for denying the motion. Ashford v. State, 12 So. 3d 160, 162 (Ala. Crim. App. 2008). Step three consists of three parts and addresses an inmate's eligibility for sentence reconsideration. Merely because an inmate is eligible for sentence reconsideration does not mean that the inmate must be resentenced. Holt, 960 So. 2d at 735 n.3 ("[A] circuit court is not required to resentence an inmate merely because it determines that the inmate is eligible for reconsideration of his or her sentence."). "There are three requirements for eligibility to have a sentence reconsidered under § 13A-5-9.1: (1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the HFOA became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole 10 1130649 pursuant to § 13A-5-9(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A-5-9(c)(2)...; and (3) the inmate is a 'nonviolent convicted offender.' An inmate must satisfy all three requirements before he or she is eligible for reconsideration of the sentence under § 13A-5-9.1. If a circuit court determines that an inmate is eligible for reconsideration of his or her sentence, the court then has the authority pursuant to § 13A-5-9.1 to resentence the inmate, within the bounds of § 13A-5- 9(c)(2) or § 13A-5-9(c)(3), as amended, if it so chooses. If, on the other hand, the circuit court determines that the inmate fails to meet any or all of the eligibility requirements then the circuit court must deny the inmate's § 13A-5-9.1 motion because a circuit court has jurisdiction to resentence only those inmates who meet the eligibility requirements of § 13A-5-9.1. ..." Holt, 960 So. 2d at 734-35 (emphasis added). Because § 13A-5-9.1 does not define "nonviolent convicted offender," circuit courts have had difficulty determining whether an inmate is "nonviolent" and hence eligible for sentence reconsideration. Although it is appropriate for a circuit court to consider whether the offense committed by an inmate seeking reconsideration of his or her sentence is statutorily defined as a "violent offense," this fact alone does not necessarily render an inmate a violent convicted offender. Holt, 960 So. 2d at 736. Accordingly, committing a "violent offense" as defined by statute does not permanently 11 1130649 brand an inmate as a "violent offender" for purposes of § 13A–5–9.1, which maintains that the sentencing or presiding judge must consider the "evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles." Holt, 760 So. 2d at 736; § 13A–5–9.1. "[I]n determining whether an inmate is a 'nonviolent convicted offender' within the meaning of § 13A-5-9.1, what weight to afford each factor presented to [the circuit court] is within the circuit court's discretion." Holt, 960 So. 2d at 738. "A circuit court is not required to make specific findings of fact regarding the weight it affords each factor, and in reviewing a circuit court's determination of whether an inmate is a 'nonviolent convicted offender,' this Court will give the trial court great deference regarding the weight it afforded the factors presented to it, and we will presume that the circuit court properly considered and weighed each factor presented, unless the record affirmatively shows otherwise." 960 So. 2d at 738. "[W]hether an inmate is a 'nonviolent convicted offender' is based on a totality of the circumstances." Id. By "totality of the circumstances," this Court means "the totality of the information before the circuit court when it rules on the § 13A-5-9.1 motion [for sentence reconsideration]." Id. "[A] circuit court is not 12 1130649 precluded from considering, nor may it refuse to consider, all of the factors presented to it by either party." Id. One factor involves "evaluations" of the inmate "performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court." § 13A-5-9.1. Kirby implies that a presumption of nonviolence attaches to a motion for sentence reconsideration by holding that "if the DOC [Department of Corrections] does not provide the evaluation in a timely fashion, the State will have waived any input as to the inmate's conduct while incarcerated that the sentencing judge or the presiding judge might otherwise have considered in determining whether the inmate is a nonviolent offender." Kirby, 899 So. 2d at 975. Moreover, "[w]hile the information available to the trial court in the DOC's evaluation will be helpful in making its determination," the Department of Corrections' failure to submit an evaluation waives the State's input regarding whether the inmate is a violent offender. 899 So. 2d at 874. If the Department of Corrections does not submit an evaluation, then it presents no evidence to rebut an inmate's claim that the inmate is a nonviolent convicted offender. I disagree that "§ 13A-5-9.1 13 1130649 does not require a circuit court to order, or the Department of Corrections to submit, an inmate evaluation, [and that] it merely permits the consideration by the circuit court of such an evaluation." Holt, 960 So. 2d at 737. The circuit court is required to order the Department of Corrections to submit an inmate evaluation. I note in conclusion that the legislature repealed 13A-5- 9.1, Ala. Code 1975, effective March 13, 2014. See Act No. 2014-165, Ala. Acts 2014. Therefore, the HFOA, as amended in 2000, will no longer be applied retroactively. Act No. 2014- 165 states that "this act shall be applied prospectively only." Section 2, Act No. 2014-165. Nevertheless, the repeal of 13A-5-9.1 is not effective as to all cases: "Any case, on the effective date of this act, in which a motion filed pursuant to 13A-5-9.1, Code of Alabama 1975, is pending in the trial court or is subject to an appeal or pending in an appellate court on appeal from the denial or dismissal of a motion shall not be affected by this act." Id. The retroactive application of the amended HFOA corrected an unjust sentencing scheme that mandated the imprisonment of many nonviolent convicted offenders for life with no 14 1130649 opportunity for parole. The recent repeal of § 13A-5-9.1 eliminates all chances of release for nonviolent inmates who are serving a term of life imprisonment without the possibility of parole but who are reformed or rehabilitated while in prison. Recent petitions before this Court have argued that, in contravention of § 13A-5-9.1, the Department of Corrections was not submitting inmate evaluations to the circuit courts when inmates moved for a reconsideration of their sentence and that, even when the Department of Corrections submitted such evaluations, circuit courts were not considering the inmate evaluations before ruling on motions for sentence reconsideration. See, e.g., Ex parte Pate, [Ms. 1120348, August 30, 2013] ___ So. 3d ___ (Ala. 2013) (noting that circuit court did not consider inmate's motion for sentence reconsideration on its merits); Ex parte Manley (No. 1120382, March 8, 2013), ___ So. 3d ___ (Ala. 2013)(table)(denying petition for a writ of certiorari in a case in which an inmate alleged that, instead of considering his inmate evaluations, the circuit court determined that he was a violent offender even though the previous felonies used to enhance his sentence under the HFOA were nonviolent 15 1130649 offenses and the offense for which he was convicted and sentenced under the HFOA was classified as robbery simply because he stole guns); and Ex parte Harper, [No. 1130496](a pending petition for certiorari review in which the inmate alleges that the circuit court refused to consider the evidence he submitted to the circuit court, including his prison records, before ruling, solely on the basis of his underlying offense of robbery, that he was a violent offender). If these allegations are true, then § 13A-5-9.1 is not being followed in letter or spirit. Therefore, because I believe there are special and important reasons for this Court to grant Gill's petition for a writ of certiorari in this case and the petitions in numerous other cases, I respectfully dissent. 16	June 20, 2014
caa6f660-6672-4c26-90d0-0c2b30e5f82c	Tucker v. Ernst & Young LLP	N/A	1121048	Alabama	Alabama Supreme Court	Rel: 06/13/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 _________________________ 1121048 _________________________ Wade Tucker and Wendell Cook Testamentary Trust, derivatively for HealthSouth Corporation v. Ernst & Young, LLP Appeal from Jefferson Circuit Court (CV-02-5212) MAIN, Justice. Wade Tucker and Wendell Cook Testamentary Trust, on behalf of shareholders of HealthSouth Corporation (hereinafter referred to collectively as "HealthSouth"), brought this shareholder-derivative action against Ernst & Young, LLP 1121048 ("E&Y"), asserting claims of "audit malpractice" based on E&Y's failure to discover and, if discovered, to report accounting fraud. The "audit malpractice" claims included various claims of negligence, breach of contract, and fraud.1 The action was referred to arbitration, and an arbitration award was entered in favor of E&Y. HealthSouth filed a motion in the Jefferson Circuit Court seeking to vacate the award. The circuit court denied the motion to vacate and entered a final judgment in favor of E&Y based on the award. HealthSouth appeals. We affirm. I. Facts and Procedural Background This action began as a shareholder-derivative action brought on behalf of HealthSouth Corporation by shareholders Wade Tucker and Wendell Cook Testamentary Trust, John P. Cook, trustee. It arises from accounting fraud at HealthSouth HealthSouth's complaint asserted 13 separate claims 1 against E&Y: claims alleging fraud, fraudulent suppression, aiding and abetting fraud, concert of action and conspiracy to defraud, reckless and negligent misrepresentations, breach of contract, professional malpractice/negligence, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, conspiracy to breach a fiduciary duty, unjust enrichment, and reckless and wanton conduct and a claim seeking the entry of a declaratory judgment regarding punitive damages. The heart of those claims, however, were the allegations that E&Y violated Generally Accepted Accounting Standards and failed to detect the fraud. 2 1121048 Corporation, which took place during the late 1990s and early 2000s. As a result of that accounting fraud, HealthSouth Corporation's earnings were falsely inflated by more than $2.6 billion; numerous HealthSouth Corporation officers, directors, and managerial employees were convicted of federal crimes for their roles in the fraud; and, upon discovery of the fraud, HealthSouth Corporation purportedly sustained billions of dollars in out-of-pocket losses. This shareholder-derivative action asserted contractual and tort claims against various officers and directors of HealthSouth Corporation and various business entities that had had dealings with HealthSouth Corporation, including E&Y, HealthSouth Corporation's independent auditor during the period when the accounting fraud occurred. This Court is no stranger to this litigation; various aspects of the action have previously come before us. See Scrushy v. Tucker, 70 So. 3d 289 (Ala. 2011); Scrushy v. Tucker, 955 So. 2d 988 (Ala. 2006); and Ernst & Young, LLP v. Tucker, 940 So. 2d 269 (Ala. 2006). This particular appeal concerns only the claims against E&Y and the subsequent arbitration award related to those 3 1121048 claims. HealthSouth asserted audit-malpractice claims against E&Y premised upon E&Y's failure to discover the accounting fraud at HealthSouth Corporation, or, alternatively, E&Y's failure to report its discovery of the accounting fraud. Pursuant to the arbitration provision of the engagement agreement between HealthSouth Corporation and E&Y pursuant to which E&Y was to audit the financial statements of HealthSouth Corporation, the circuit court, on December 29, 2004, entered an order referring HealthSouth's claims against E&Y to arbitration. This Court affirmed the circuit court's arbitration order in Ernst & Young, LLP v. Tucker, supra. For a detailed procedural background concerning the claims against E&Y and the referral of those claims to arbitration, see Ernst & Young, 940 So. 2d at 270-80. Following the referral of this case to arbitration, the parties selected a panel of three neutral arbitrators. The 2 arbitration hearing began on July 12, 2010. In September 2011, E&Y sought leave to file a dispositive motion at the close of HealthSouth's case-in-chief based on affirmative defenses raised in E&Y's answer. HealthSouth objected to the The panel was selected by the parties pursuant to the 2 procedures of the American Arbitration Association. 4 1121048 request on the grounds that the applicable arbitration rules contained no provision permitting the dispositive motion and that the motion would require HealthSouth to recalibrate its strategy to rebut E&Y's affirmative defenses during its case- in-chief. The arbitration panel overruled HealthSouth's objections, finding that the panel had the authority to permit dispositive motions at the close of evidence and noting that HealthSouth had been aware of the specific defenses from the outset of the hearing. The panel, however, ruled that 3 HealthSouth would be allowed the opportunity to present all relevant evidence and witnesses it thought necessary to oppose E&Y's dispositive motion before that motion would be heard. HealthSouth rested on March 1, 2012. During its case-in- chief, HealthSouth called 14 live witnesses who testified over 81 days spread over nearly 2 years. HealthSouth also presented the testimony of 61 witnesses by video designation and thousands of pages of exhibits. HealthSouth and E&Y submitted letter briefs to the panel 3 concerning their respective positions on E&Y's ability to file the dispositive motion. The panel considered the arguments and authorities cited in the parties' briefs and on oral argument. The panel issued a four-page order addressing HealthSouth's objections and concluding that E&Y could file the motion. 5 1121048 Upon the close of HealthSouth's case-in-chief, E&Y filed its dispositive motion requesting an award in favor of E&Y on all of HealthSouth's claims against it. The motion was based on Alabama's Hinkle rule and the doctrine of in pari delicto. 4 E&Y also argued that HealthSouth's negligence claims were barred by the doctrine of contributory negligence. In short, E&Y contended that the fraud committed by HealthSouth Corporation's officers and directors, imputed to HealthSouth, precluded HealthSouth's recovery under Alabama law. HealthSouth responded that accepting E&Y's affirmative defenses would be to allow an auditor a "free pass" to engage in malpractice. HealthSouth argued that E&Y had contractually agreed to provide HealthSouth Corporation "reasonable ... assurance" that its financial statements were "free of material misstatement caused by" management fraud. Thus, HealthSouth argued that granting E&Y's dispositive motion would essentially immunize E&Y and render the engagement agreement illusory. "A person cannot maintain a cause of action if, in order 4 to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party." Hinkle v. Railway Express Agency, 242 Ala. 374, 378, 6 So. 2d 417, 421 (1942). See discussion infra. 6 1121048 HealthSouth and E&Y submitted extensive briefing concerning E&Y's motion. The panel then held a three-day oral argument. A review of the record of the oral argument reveals that each member of the panel actively engaged and questioned counsel for E&Y and HealthSouth regarding their respective positions. The transcript indicates that the panel was familiar with the cases and authorities cited by the parties and that it worked hard, and in apparent good faith, to understand the parties' positions and applicable Alabama law. On December 18, 2012, the panel issued its unanimous decision, denying and dismissing all of HealthSouth's claims. The panel's award was supported by a 25-page decision, setting forth various findings of fact and applying Alabama law. The panel summarized some of the evidence presented during the proceedings as follows: "As part of their jobs, HealthSouth [Corporation] officials entered hundreds of fraudulent journal entries into [HealthSouth Corporation's] general ledger, designed computer programs to distribute the fraud among the over 1800 HealthSouth [Corporation] facilities, created false accounting records, and issued fraudulent financial statements, press releases, and other public disclosures. Day after day –- and year after year –- [HealthSouth Corporation's] officers, directors and employees labored to conceal the fraud from the investing public, governmental entities, and 7 1121048 especially [E&Y]. Regular meetings were presided over by the most senior HealthSouth [Corporation] officials at HealthSouth [Corporation] offices during regular working hours to develop and execute plans and strategies to perpetuate the fraud. Significantly, the record establishes that the actions of the HealthSouth [Corporation] officers, directors and employees engaged in the fraud were intended by them to benefit HealthSouth [Corporation] rather than create benefits for themselves, individually." After summarizing the evidence, the panel engaged in an analysis of Alabama law. First, the panel concluded that, 5 under Alabama law, the misconduct and knowledge of HealthSouth Corporation's officers, directors, and employees who had engaged in the fraud must be imputed to HealthSouth. The panel reasoned that § 8-2-7, Ala. Code 1975, could be invoked to impute to HealthSouth the conduct of HealthSouth Given the standard of review we must apply in this case, 5 we express no position in this opinion as to whether the panel correctly analyzed and applied Alabama law. As discussed further below, as well as in our recent decisions concerning the review of arbitration awards under 9 U.S.C. § 10(a), an arbitration award may not be set aside because this Court disagrees with the arbitrators' reasoning –- even if it believes that the arbitrators gravely misapplied the law. See, e.g., Oxford Health Plans LLC v. Sutter, ___ U.S. ___, ___, 133 S. Ct. 2064, 2070 (2013) ("[C]onvincing a court of an arbitrator's error –- even his grave error –- is not enough. So long as the arbitrator was 'arguably construing' the contract ... a court may not correct his mistakes under § 10(a)(4)."); Hereford v. D.R. Horton, Inc., 13 So. 3d 375, 378 (Ala. 2009). 8 1121048 Corporation's officers, directors, and employees. The panel 6 also relied on Todd v. Modern Woodmen of American, 620 So. 2d 591 (Ala. 1993), in which this Court held that the conduct of an agent may be imputed to the principal where, as the panel found here, the agent's wrongful acts were (1) "'in the line and scope of his employment'" or (2) "'in furtherance of the business of [the principal].'" 620 So. 2d at 513 (quoting Joyner v. AAA Cooper Transp., 477 So. 2d 364, 365 (Ala. 1985)). The panel also rejected HealthSouth's argument that imputation of conduct is available only to support a plaintiff's claims, and not a defendant's affirmative defenses. Likewise, the panel imputed the knowledge of 7 Section 8-2-7 provides: "Unless required by or under the 6 authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal." In rejecting HealthSouth's imputation argument, the panel 7 relied on the following Alabama cases: White-Spunner Constr., Inc. v. Construction Completion Co., 103 So. 3d 781 (Ala. 2012)(plurality opinion); Robinson v. Boohaker, Schillaci & Co., 767 So. 2d 1092 (Ala. 2000); J & M Bail Bonding Co. v. Hayes, 748 So. 2d 198 (Ala. 1999); Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala. 1989); Alfa Mut. Ins. Co. v. Roush, 723 So. 2d 1250 (Ala. 1998); and Reynolds v. Crown Pontiac, Inc., 753 So. 2d 522 (Ala. Civ. App. 1999). 9 1121048 HealthSouth Corporation's officers, directors, and employees of the fraud to the company, citing § 8-2-8, Ala. Code 1975;8 Stone v. Mellon Mortg. Co., 771 So. 2d 451, 457 (Ala. 2000) ("An agent's knowledge can bind the principal if the agent acquired the knowledge while acting within the line and scope of his authority ...."); and American Cent. Life Ins. Co. v. First Nat'l Bank, 206 Ala. 535, 536, 90 So. 294, 294 (1921) ("[W]hen, in the course of his employment, an agent acquires knowledge or receives notice of any fact material to the business he is employed to transact, his principal is deemed to have notice of such fact."). The panel concluded: 9 "In sum, dozens of HealthSouth [Corporation] officers, directors and employees learned of the fraud in the course of their employment and as part of their jobs. They were paid by HealthSouth Section 8-2-8 states: "As against a principal, both 8 principal and agent are deemed to have notice of whatever either has notice of and ought in good faith and the exercise of ordinary care and diligence to communicate to the other." The panel also relied upon the following statement from 9 Ex parte HealthSouth Corp., 978 So. 2d 745, 753 (Ala. 2007), a case where HealthSouth Corporation sought a refund for taxes overpaid as a result of its listing fictitious items of personal property on its tax returns as part of the same fraudulent accounting scheme at issue here: "'HealthSouth [Corporation] cannot be permitted to take advantage of its own wrong by receiving a refund based on its own inequitable conduct.'" (Quoting HealthSouth Corp. v. Jefferson Cnty. Tax Assessor, 978 So. 2d 737, 745 (Ala. Civ. App. 2006).) 10 1121048 [Corporation] to develop, strategize, and carry out the fraud as part of their duties. Because they acquired this knowledge and engaged in this misconduct 'while acting within the line and scope' of their authority, both the conduct and knowledge of these agents must be imputed to their principal, HealthSouth [Corporation]." Having imputed to HealthSouth the conduct and knowledge of HealthSouth Corporation's employees, the panel concluded that several Alabama legal doctrines barred recovery by HealthSouth. First, the panel set forth Alabama's "Hinkle Rule," enunciated by this Court in Hinkle v. Railway Express Agency, 242 Ala. 374, 378, 6 So. 2d 417, 421 (1942): "A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party." Citing this Court's application of the Hinkle rule in several recent cases, the panel concluded: 10 "HealthSouth's claims clearly rely 'in whole or in part on an illegal or immoral act or transaction.' HealthSouth's causes of action are all predicated on [E&Y's] failure to detect HealthSouth's criminal fraud. Absent the fraud, In addition to Hinkle, the panel cited: Limestone Creek 10 Developers, LLC v. Trapp, 107 So. 3d 189 (2012); White-Spunner Constr., Inc. v. Construction Completion Co., 103 So. 3d 781 (Ala. 2012)(plurality opinion); Ex parte W.D.J., 785 So. 2d 390, 392 (Ala. 2000); and Oden v. Pepsi Cola Bottling Co. of Decatur, 621 So. 2d 953 (Ala. 1993). 11 1121048 there is no claim and there are no damages. HealthSouth's criminal and immoral acts are central to HealthSouth's claims. Based upon application of the Hinkle rule, HealthSouth's claims must be dismissed." The panel also concluded that HealthSouth's claims were due to be dismissed under the doctrine of in pari delicto. Quoting this Court's decision in Robinson v. Boohaker, Schillaci & Co., 767 So. 2d 1092 (Ala. 2000), the panel noted that, "'[w]here the fault is mutual, the law will leave the case as it finds it.'" The panel concluded: "HealthSouth, the company that committed the fraud, is more at fault than [E&Y], which allegedly failed to detect that fraud. Certainly, HealthSouth is at least in equal fault. Thus, as required by Alabama law, we leave the parties 'where they have placed themselves.' HealthSouth's claims must be dismissed under the rule of in pari delicto." Furthermore, the panel concluded that, applying Alabama law, all of HealthSouth's claims against E&Y grounded in negligence were due to be dismissed based on the doctrine of contributory negligence. The panel's decision also specifically addressed and rejected a number of arguments made by HealthSouth in its briefs and during oral argument. The 11 The panel discussed and rejected HealthSouth's 11 contention that the "adverse interest" exception to imputation applied; it rejected HealthSouth's argument that our decision in National Union Fire Insurance Co. v. Lomax Johnson 12 1121048 panel's rejection of these arguments was based on its application and interpretation of Alabama law. Accordingly, the panel dismissed all claims –- HealthSouth's claims and a pending counterclaim asserted by E&Y.12 On December 18, 2012, HealthSouth filed a notice of appeal of the award in the Jefferson Circuit Court, and on December 28, 2012, HealthSouth filed a motion to vacate the panel's award. On February 1, 2013, pursuant to Rule 71B(f), Ala. R. Civ. P., the circuit court entered the award as a final judgment of the court. On that same day, HealthSouth renewed its motion to vacate the judgment entered on the award and filed a supporting brief. HealthSouth argued that the arbitration award was due to be vacated under two of the Insurance Agency, 496 So. 2d 737 (Ala. 1986), prohibited the imputation of fraudulent conduct by HealthSouth Corporation's officers, directors, and employees to HealthSouth; and it rejected HealthSouth's argument that there should be no imputation of conduct to HealthSouth because E&Y was not itself "innocent" of wrongdoing. E&Y had asserted a counterclaim against HealthSouth, and 12 the counterclaim was also before the arbitration panel. E&Y, however, had informed the panel that if it was inclined to grant E&Y's dispositive motion with respect to HealthSouth's claims, E&Y would dismiss its counterclaim. The panel's decision noted that E&Y had agreed to dismiss its pending counterclaim in the event HealthSouth's claims were dismissed. Accordingly, the panel dismissed all claims –- HealthSouth's claims and E&Y's counterclaim. 13 1121048 vacation provisions of the Federal Arbitration Act ("the FAA"), 9 U.S.C. § 10(a)(3) and (a)(4): "(3)where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any parties have been prejudiced; or "(4)where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." Specifically, HealthSouth argued that the arbitrators exceeded their powers by "disregarding binding principles of Alabama law that the parties agreed would govern." HealthSouth also argued that the arbitrators were guilty of misconduct by permitting E&Y to file its dispositive motion at the close of HealthSouth's case-in-chief. Following briefing and oral argument, the circuit court, on April 25, 2013, denied HealthSouth's motion. The circuit court, which had presided over other aspects of the HealthSouth litigation, summarized the panel's decision and concluded that HealthSouth's arguments were not well taken. The circuit court stated: "This Court is very familiar with the massive fraud that occurred at HealthSouth [Corporation] 14 1121048 from at least 1996 until February 2002. As this Court has previously held, issues of imputation of wrongful and dishonest knowledge and acts to the corporate principal and the adverse interest exception to imputation of their knowledge and acts in cases such as this case involve questions of fact for the fact finder, in this case the arbitration panel. "Even if this Court disagreed with the factual findings of the arbitration panel regarding imputation, in pari delicto and the Hinkle rule, this Court would not be authorized to substitute its judgment in place of the judgment of the arbitration panel on these issues of fact. "Having considered the arbitration award, the various briefs and exhibits submitted by the parties, and having considered the oral argument of the parties, the Court concludes HealthSouth's motion to vacate is not well taken and is hereby denied. The award of the arbitration panel is hereby affirmed and all claims in the consolidated action against [E&Y] are hereby dismissed with prejudice." HealthSouth appeals. II. Standard of Review HealthSouth argues that the circuit court erred in refusing to vacate the arbitration award in favor of E&Y. Judicial review of an arbitration award, however, is extremely limited, and a court may not vacate an award unless the party attacking the award clearly establishes one of the grounds for vacating an award specified in 9 U.S.C. § 10. 15 1121048 "'"Where parties, as in this case, have agreed that disputes should go to arbitration, the role of the courts in reviewing the arbitration award is limited. Transit Casualty Co. v. Trenwick Reinsurance Co., 659 F. Supp. 1346 (S.D.N.Y. 1987), affirmed, 841 F.2d 1117 (2d Cir. 1988); Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577 (2d Cir. 1967). On motions to confirm or to vacate an award, it is not the function of courts to agree or disagree with the reasoning of the arbitrators. Application of States Marine Corp. of Delaware, 127 F. Supp. 943 (S.D.N.Y. 1954). Courts are only to ascertain whether there exists one of the specific grounds for vacation of an award. Saxis Steamship Co. A court cannot set aside the arbitration award just because it disagrees with it; a policy allowing it to do so would undermine the federal policy of encouraging the settlement of disputes by arbitration. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Virgin Islands Nursing Association's Bargaining Unit v. Schneider, 668 F.2d 221 (3d Cir. 1981). An award should be vacated only where the party attacking the award clearly establishes one of the grounds specified [in 9 U.S.C. 10]. Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F. Supp. 549 (S.D.N.Y. 1968)."' "[R.P. Indus., Inc. v. S & M Equip. Co.,] 896 So. 2d [460,] 464 [(Ala. 2004)] (quoting Maxus, Inc. v. Sciacca, 598 So. 2d 1376, 1380-81 (Ala. 1992)). The standard by which an appellate court reviews a trial court's order confirming an arbitration award under the Federal Arbitration Act is that questions of law are reviewed de novo and findings of fact are 16 1121048 reviewed only for clear error. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1289 (11th Cir. 2002)." Hereford v. D.R. Horton, Inc., 13 So. 3d 375, 378 (Ala. 2009). III. Analysis Courts must enforce awards entered in arbitration proceedings conducted pursuant to the FAA unless the challenging party establishes that vacatur is appropriate based on one of the grounds enumerated in 9 U.S.C. § 10(a) of the FAA. Cavalier Mfg., Inc. v. Grant, [Ms. 1080284, Dec. 20, 2013] __ So. 3d __, __ (Ala. 2013). Section 10(a) provides: "(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration -- "(1) where the award was procured by corruption, fraud, or undue means; "(2) where there was evident partiality or corruption in the arbitrators, or either of them; "(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or 17 1121048 "(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." HealthSouth contends that the arbitration award in this case is due to be vacated for two general reasons falling under §§ 10(a)(3) and (4). First, HealthSouth argues that the arbitrators "exceeded their powers" because, HealthSouth says, they "ignored foundational rules of Alabama law repeatedly invoked by HealthSouth." HealthSouth's brief, at 22. Second, HealthSouth argues that the arbitrators "engaged in prejudicial misconduct when they made arbitrary procedural rulings and refused to consider relevant evidence unfavorable to E&Y." HealthSouth's brief, at 23. A. Whether the Arbitrators Exceeded Their Powers HealthSouth invokes § 10(a)(4) of the FAA and argues that the arbitrators exceeded their powers by "ignoring" Alabama law in critical respects. A party invoking § 10(a)(4) of the FAA has a heavy burden. The United States Supreme Court has recently stated: "A party seeking relief under [§ 10(a)(4)] bears a heavy burden. 'It is not enough ... to show that the [arbitrator] committed an error –- or even a serious error.' Stolt-Nielsen[ S.A. v. AnimalFeeds 18 1121048 International Corp., 559 U.S. 662, 671 (2010)]. Because the parties 'bargained for the arbitrator's construction of their agreement,' an arbitral decision 'even arguably construing or applying the contract' must stand, regardless of a court's view of its (de)merits. Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62 (2000) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960); Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987); internal quotation marks omitted). Only if 'the arbitrator act[s] outside the scope of his contractually delegated authority' –- issuing an award that 'simply reflect[s] [his] own notions of [economic] justice' rather than 'draw[ing] its essence from the contract' –- may a court overturn his determination. Eastern Associated Coal, 531 U.S. at 62 (quoting Misco, 484 U.S. at 38). So the sole question for us is whether the arbitrator (even arguably) interpreted the parties' contract, not whether he got its meaning right or wrong." Oxford Health Plans LLC v. Sutter, ___ U.S. ___, ___, 133 S. Ct. 2064, 2068 (2013). HealthSouth claims that the panel exceeded its authority by ignoring Alabama law in several key respects. HealthSouth's brief summarizes the particular areas of law it claims the panel ignored: "a. The Arbitrators ignored (i.e., never even mentioned) Alabama law clearly foreclosing arguments that immunize auditors from malpractice liability (e.g., Blumberg v. Touche Ross & Co., 514 So. 2d 922, 927 (Ala. 1987)) –- relying instead on contrary New York law. 19 1121048 "b. The Arbitrators ignored (i.e., never even mentioned) Alabama law forbidding arguments that render contracts illusory (e.g., Childersburg Bancorporation, Inc. v. People State Bank of Commerce, 962 So. 2d 248, 260 (Ala. Civ. App. 2006)) –- instead rendering E&Y's audit contracts meaningless. "c. The Arbitrators ignored Alabama law holding that imputation 'does not apply' when, as here, 'the facts do not warrant an expectation that the agent will make a disclosure to his principal.' National Union Fire Insurance Co. v. Lomax Johnson Agency, Inc., 496 So. 2d 737, 739 (Ala. 1986). "d. The Arbitrators ignored Alabama law holding that imputation does not apply to contractual relationships like the one between HealthSouth [Corporation] and E&Y, in which one party undertakes to protect the other from its employees' misconduct. National Union, 496 So. 2d at 740. "e. The Arbitrators ignored (i.e., never even mentioned) Alabama law reserving imputation- based defenses for 'innocent' defendants (e.g., Tatum v. Commercial Bank & Trust Co., 69 So. 508, 511-12 (Ala. 1915)) –- instead applying imputation in the face of undisputed evidence of E&Y's intentional misconduct." HealthSouth's brief, at 22-23. A review of the panel's 25-page decision and the record of the 3-day oral argument concerning E&Y's dispositive motion reveals HealthSouth's arguments to be mostly hollow. The panel's decision discussed each of the above topics under 20 1121048 Alabama law, distinguishing some of, but not all, the cases cited by HealthSouth. Nevertheless, although the panel's decision did not directly address each authority cited by HealthSouth, HealthSouth's assertion that the panel's discussion of Alabama law was no more than "prophylactic" cover for its decision to "consciously ignore" Alabama law in favor of "foreign authorities" is without basis. HealthSouth simply contends that the panel's award was in error because it disregarded binding Alabama precedent. In this respect, HealthSouth's argument must be viewed as an argument that the panel "manifestly disregarded" Alabama law. Whether true or not, this Court has held that "manifest disregard of the law" is not a valid basis for vacating an arbitration award. Hereford, 13 So. 3d at 381 ("[M]anifest disregard of the law is no longer an independent and proper basis under the Federal Arbitration Act for vacating, modifying, or correcting an arbitrator's award."); Cavalier, __ So. 3d at __ ("We decline [the] invitation to give further life to the concept of manifest disregard of the law."). This case is nearly indistinguishable from Cavalier Manufacturing, Inc. v. Gant, supra. In that case, a mobile- 21 1121048 home manufacturer sought to set aside an arbitration award in favor of the purchaser of a mobile home. The manufacturer, like HealthSouth here, argued that the arbitrator had ignored Alabama law in numerous respects. We rejected that argument, holding that "manifest disregard of the law" was not a basis for setting aside an arbitration award: "Cavalier seeks to establish that the relevant legal principles were well defined and were called to the arbitrator's attention; yet, Cavalier argues, the arbitrator nevertheless chose to ignore those identified principles. This approach is essentially consistent with those cases in which this Court has discussed manifest disregard of the law as a basis for vacating an arbitration award. ... "Of course, in Hereford[ v. D.R. Horton, Inc., 13 So. 3d 375 (Ala. 2009)], this Court held that manifest disregard of the law was no longer a valid basis for vacating an arbitration award under the FAA, stating: "'Under the Supreme Court's decision in Hall Street Associates[, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008)], ... manifest disregard of the law is no longer an independent and proper basis under the Federal Arbitration Act for vacating, modifying, or correcting an arbitrator's award. In light of the fact that the Federal Arbitration Act is federal law, and in light of the Supremacy Clause of the Constitution of the United States, Art. VI, we hereby overrule our earlier statement in Birmingham News [Co. v. Horn, 902 So. 2d 27, 50 (Ala. 2004),] that manifest disregard of the law is a ground for 22 1121048 vacating, modifying, or correcting an arbitrator's award under the Federal Arbitration Act, and we also overrule any such language in our other cases construing federal arbitration law.' "13 So. 3d at 380-81. ... "Post-Hereford, this Court has consistently indicated that courts must enforce awards entered in arbitration proceedings conducted pursuant to the FAA unless the challenging party establishes that vacatur is appropriate based on one of the ... grounds enumerated in § 10(a) of the FAA .... Cavalier now asks this Court to use ... the ... manifest-disregard-of-the-law test ... as a mechanism to determine whether vacatur is appropriate based on a § 10(a) ground. Thus, Cavalier argues, if there is evidence indicating that the arbitrator exhibited a manifest disregard of the law, the resulting award is necessarily the product of corruption, fraud, undue means, partiality, misconduct, misbehavior, and/or the arbitrator's exceeding his or her powers, and the award must accordingly be vacated. "We decline Cavalier's invitation to give further life to the concept of manifest disregard of the law. The Supreme Court of the United States has made it clear, and this Court has recognized, that under the FAA the § 10 grounds are the exclusive avenue for seeking vacatur of an arbitration award. As the United States Court of Appeals for the Fifth Circuit stated in Citigroup Global markets, Inc. v. Bacon, 562 F.3d 349, 358 (5th Cir. 2009), the effect of Hall Street Associates is essentially that the phrase 'manifest disregard of the law,' 'as a term of legal art, is no longer useful in actions to vacate arbitration awards.' We agree ...." 23 1121048 __ So. 3d at ___ (footnote omitted). See also Gower v. Turquoise Props. Gulf, Inc., [Ms. 1120045, Dec. 20, 2013] __ So. 3d __, ___ (Ala. 2013) ("The fact that the arbitrator appears to have misapplied the law in denying Gower's claims, however, does not authorize this Court to vacate the arbitration award under 9 U.S.C. § 10. Federal authorities are abundantly clear that an arbitrator does not exceed his or her powers when the arbitrator misapplies the law."). HealthSouth attempts to distinguish Cavalier by arguing that the mobile-home manufacturer in Cavalier made only a "manifest-disregard-of-the-law" argument and "failed to tether its argument to FAA § 10 or cases interpreting it." HealthSouth's reply brief, at 12 n.3. Further, HealthSouth contends that our holdings in Cavalier and Gower were unremarkable in that those cases concerned only "garden- variety" claims that the arbitrator misapplied the law, where here, HealthSouth contends, the panel "ignored Alabama law." HealthSouth's reply brief, at 9. HealthSouth's arguments are unpersuasive. HealthSouth's arguments are exactly the same as the arguments raised by the mobile-home manufacturer in Cavalier. See __ So. 3d at ___ ("Cavalier seeks to establish 24 1121048 that the relevant legal principles were well defined and were called to the arbitrator's attention; yet, Cavalier argues, the arbitrator nevertheless chose to ignore those identified principles."). There is no substantive distinction between HealthSouth's argument that the panel "willfully ignored" the law and the argument that an arbitrator "manifestly disregarded" the law. Thus, we do not question whether the panel "disregarded" or "ignored" the law. "[T]he sole question ... is whether the arbitrator (even arguably) interpreted the parties' contract, not whether he got its meaning right or wrong." Oxford Health, ___ U.S. at ___, 133 S. Ct. at 2068. Nevertheless, HealthSouth contends that the panel exceeded its authority under § 10, because, it says, the panel was duty-bound to apply Alabama law. HealthSouth argues that when the panel ignored Alabama precedent, it exceeded its authority under the arbitration agreement. In support of this argument, HealthSouth cites Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010). In Stolt-Nielsen, the plaintiff brought a putative class action against various shipping companies, alleging illegal price-fixing and 25 1121048 asserting antitrust claims. The dispute was referred to arbitration pursuant to an arbitration agreement. As a threshold matter, however, the panel of arbitrators was required to determine whether the arbitration clause permitted the class-action claims to proceed in arbitration. The parties stipulated that they had never reached an agreement on class arbitration. After hearing argument and evidence, including testimony from shipping companies' experts regarding arbitration customs and usage in the maritime trade, the arbitrators concluded that the arbitration clause allowed for class arbitration. On appeal, the United States Supreme Court held that the decision of the arbitrators ordering class proceedings was due to be vacated. The Supreme Court held that because the parties had never agreed to arbitrate class- action claims, the arbitrators had no contractual basis to order class-action arbitration. In effect, the Court stated, the arbitrators had merely imposed their own idea of sound policy, without a contractual basis. Accordingly, the Court held that the arbitrators had exceeded the authority granted to them by the parties' arbitration agreement. 26 1121048 HealthSouth contends that Stolt-Nielsen is on all fours with this case. HealthSouth's reliance on Stolt-Nielsen, however, is unavailing, particularly in light of the Supreme Court's recent decision in Oxford Health Plans LLC, supra. In Oxford Health, a physician plaintiff filed a proposed class- action lawsuit against Oxford Health Plans, alleging that Oxford failed to promptly pay him and other physicians who had entered into employment contracts with Oxford. The suit was referred to arbitration, and the parties agreed that the arbitrator should decide whether the arbitration clause in their contract authorized class arbitration. The arbitrator found that the arbitration clause unambiguously evinced an intention to allow class arbitration. Citing Stolt-Nielsen, Oxford sought to have the arbitrator's decision set aside on the ground that the arbitrator failed to properly interpret the arbitration agreement. The Supreme Court rejected Oxford's reliance on Stolt-Nielsen: "But Oxford misreads Stolt-Nielsen: We overturned the arbitral decision there because it lacked any contractual basis for ordering class procedures, not because it lacked, in Oxford's terminology, a 'sufficient' one. The parties in Stolt-Nielsen had entered into an unusual stipulation that they had never reached an agreement on class arbitration. ... In that circumstance, we 27 1121048 noted, the panel's decision was not –- indeed, could not have been –- 'based on a determination regarding the parties' intent.' [559 U.S. at 673 n.4] ('Th[e] stipulation left no room for an inquiry regarding the parties' intent'). Nor, we continued, did the panel attempt to ascertain whether federal or state law established a 'default rule' to take effect absent an agreement. ... Instead, 'the panel simply imposed its own conception of sound policy' when it ordered class proceedings. Id., at 675. But 'the task of an arbitrator,' we stated, 'is to interpret and enforce a contract, not to make public policy.' Id., at 672. In 'impos[ing] its own policy choice,' the panel 'thus exceeded its powers.' Id., at 677. "The contrast with this case is stark. In Stolt-Nielsen, the arbitrators did not construe the parties' contract, and did not identify any agreement authorizing class proceedings. So in setting aside the arbitrators' decision, we found not that they had misinterpreted the contract, but that they had abandoned their interpretive role. Here the arbitrator did construe the contract (focusing, per usual, on its language), and did find an agreement to permit class arbitration. So to overturn his decision, we would have to rely on a finding that he misapprehended the parties' intent. But § 10(a)(4) bars that course: It permits courts to vacate an arbitral decision only when the arbitrator strayed from his delegated task of interpreting a contract, not when he performed that task poorly. Stolt-Nielsen and this case thus fall on opposite sides of the line that § 10(a)(4) draws to delimit judicial review of arbitral decisions." ___ U.S. at ___, 133 S.Ct. at 2069-70. Accordingly, the Court held that the arbitrators did not exceed their powers. Much as was the case in Oxford Health, HealthSouth's reliance on Stolt-Nielsen is misplaced. The arbitration 28 1121048 agreement in this case required the panel to apply Alabama law in resolving the claims brought by HealthSouth against E&Y. The panel has arguably, and in apparent good faith, done so. Whether the panel correctly applied Alabama law is not a question properly before this Court. As the United States Supreme Court concluded in Oxford Health: "[C]onvincing a court of an arbitrator's error –- even his grave error –- is not enough. So long as the arbitrator was 'arguably construing' the contract –- which this one was –- a court may not correct his mistakes under § 10(a)(4). ... The potential for those mistakes is the price of agreeing to arbitration. As we have held before, we hold again: 'It is the arbitrator's construction [of the contract] which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.' ... The arbitrator's construction holds, however good, bad, or ugly." ___ U.S. at ___, 133 S. Ct. at 2070-71. In this case, HealthSouth obviously disagrees with the panel's interpretation of Alabama law. Nevertheless, HealthSouth bargained for the arbitrators' interpretation of Alabama law, and HealthSouth's argument that the panel "ignored" or disregarded key aspects of Alabama must be rejected. 29 1121048 Next, HealthSouth argues the panel exceeded its powers by granting E&Y relief on its affirmative defenses despite what HealthSouth characterizes as "the arbitration agreement's plain language, which strictly limits the Arbitrators' remedial authority." HealthSouth's brief, at 60. The arbitration agreement in question provides that the arbitrators "may not award non-monetary or equitable relief of any sort." HealthSouth contends that E&Y's affirmative 13 The agreement, in full, provides: 13 "The arbitration will be conducted before a panel of three arbitrators, regardless of the size of the dispute, to be selected as provided in the [American Arbitration Association] Rules. Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. No potential arbitrator may serve on the panel unless he or she has agreed in writing to abide and be bound by these procedures. "The arbitrators may not award non-monetary or equitable relief of any sort. They shall have no power to award punitive damages or any other damages not measured by the prevailing party's actual damages, and the parties expressly waive their right to obtain such damages in arbitration or in any other forum. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitrators have power to 30 1121048 defenses are fundamentally equitable in nature and, therefore, that the panel violated the language of the arbitration agreement, and thus exceeded its authority, when it granted E&Y's dispositive motion based upon those affirmative defenses. A critical problem with HealthSouth's argument that the panel was not authorized to rule on E&Y's affirmative defenses is that HealthSouth failed to raise this argument before the panel entered its award. The first time HealthSouth raised this particular argument was in a footnote to its 70-page brief to the circuit court in support of its motion to vacate the panel's award. Indeed, not only did HealthSouth make no objection to the panel concerning the arbitrability of E&Y's affirmative defenses, but HealthSouth itself submitted the same affirmative defenses to E&Y's counterclaim. In R.P. Industries, Inc. v. S & M Equipment Co., 896 So. 2d 460 (Ala. 2004), this Court held that a party who failed to raise an objection to an arbitration panel's ability to award attorney fees before the panel entered its award, and who itself had make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction." 31 1121048 requested an attorney-fee award, had waived its objection that the panel exceeded its powers in making such an award. Likewise, HealthSouth's failure to timely object to the submission to the panel of E&Y's "equitable" affirmative defenses resulted in a waiver of that issue. Consequently, the panel did not exceed its power by granting relief based on E&Y's affirmative defenses. The circuit court's denial of HealthSouth's motion to set aside the panel's award on the basis that the panel "exceeded [its] powers" is due to be affirmed. B. Whether the Arbitrators Were Guilty of Misconduct Next, HealthSouth contends that the panel's award is due to be vacated on the ground that the panel engaged in "misconduct" that materially prejudiced HealthSouth. In order to establish "misconduct" under § 10(a)(3), HealthSouth must demonstrate that the arbitration proceedings were fundamentally unfair. "Courts have interpreted section 10(a)(3) to mean that except where fundamental fairness is violated, arbitration determinations will not be opened up to evidentiary review. In making evidentiary determinations, an arbitrator 'need not follow all the niceties observed by the ... courts.' Bell Aerospace Co. Div. of Textron v. Local 516, 500 F.2d 921, 923 (2d Cir. 1974). However, although not 32 1121048 required to hear all the evidence proffered by a party, an arbitrator 'must give each of the parties to the dispute an adequate opportunity to present its evidence and argument.' Hoteles Condado Beach v. Union De Tronquistas Local 901, 763 F.2d 34, 39 (1st Cir. 1985). ... '[C]ourts do not superintend arbitration proceedings. Our review is restricted to determining whether the procedure was fundamentally unfair.' See Teamsters, Local Union 657 v. Stanley Structures, Inc., 735 F.2d 903, 906 (5th Cir. 1984); accord Concourse Beauty School, Inc. v. Polakov, 685 F. Supp. 1311, 1318 (S.D.N.Y. 1988) ('The misconduct must amount to a denial of fundamental fairness of the arbitration proceeding in order to warrant vacating the award.' ...)." Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997). First, HealthSouth claims that the panel's decision even to entertain E&Y's dispositive motion constituted misconduct. In light of the record before us, the panel's decision to allow E&Y to file a dispositive motion at the close of HealthSouth's case-in-chief was not fundamentally unfair. The panel undoubtedly had the authority to accept E&Y's motion. See Birmingham News Co. v. Horn, 901 So. 2d 27, 55 (Ala. 2004) ("'"'Procedural questions' which grow out of the dispute and bear on its final disposition" are presumably not for the judge, but for an arbitrator, to decide.'" (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002))). 33 1121048 HealthSouth was aware of the affirmative defenses raised by E&Y from the outset of the proceeding. E&Y sought leave to file the motion more than five months before HealthSouth rested its case-in-chief, and the panel gave HealthSouth the opportunity to add additional witnesses to its case-in-chief, so that E&Y's motion would be heard only "after HealthSouth has had a full opportunity to present all its relevant evidence." Allowing E&Y to submit a dispositive motion at the close of HealthSouth's case-in-chief does not constitute "misconduct," and HealthSouth cites no authority indicating otherwise. Finally, HealthSouth contends that the panel committed misconduct by unfairly refusing to consider relevant testimony –- namely, the testimony of Wayne Dunn, the senior manager assigned by E&Y to the HealthSouth Corporation audits. Dunn was called as part of E&Y's case-in-chief, which began after HealthSouth rested, and during the time the panel provided for briefing on E&Y's dispositive motion. Dunn's testimony is important, according the HealthSouth, because, HealthSouth says, it showed that E&Y was not "innocent." This showing was important, argues HealthSouth, because E&Y's imputation-based 34 1121048 affirmative defenses are, under Alabama law, reserved for "innocent" defendants. Thus, HealthSouth continues, E&Y could not impute the fraud of HealthSouth Corporation's officers, directors, and employees to the company. Accordingly, HealthSouth contends, Dunn's testimony was important to refuting E&Y's motion and the panel's refusal to consider his testimony constitutes "misconduct." There are number of reasons why this argument is unconvincing. First, as E&Y points out, it is unclear whether the panel considered Dunn's testimony. Although the panel stated that the "record" for the purpose of E&Y's motion would be the evidence presented during HealthSouth's case-in-chief, the panel heard Dunn's testimony and mentioned it during oral argument on the motion. Second, the panel, interpreting Alabama law, rejected HealthSouth's legal argument that E&Y could raise its imputation-based defenses only if E&Y were deemed "innocent." Once it rejected this legal argument, the panel had no reason to consider the factual testimony of Dunn. Third, HealthSouth's entire case-in-chief was calculated to prove its claim that E&Y had failed to properly perform its job –- that E&Y was not innocent. Thus, Dunn's testimony was 35 1121048 arguably cumulative. Fourth, viewing E&Y's motion as akin to a Rule 50, Ala. R. Civ. P., motion for a judgment as a matter of law presented at the close of a plaintiff's case, the panel had no obligation to consider testimony offered after HealthSouth had rested its case. Indeed, E&Y could have chosen to put on no case at all. Finally, HealthSouth had the opportunity to call Dunn as a witness in its case-in-chief and chose not to. Based on the record before us, HealthSouth has not established "misconduct" on the part of the panel. HealthSouth was provided a full and fair opportunity to present its case and to oppose E&Y's dispositive motion. HealthSouth was provided unlimited time to present its case and was permitted to call any relevant witness. Over the course of 81 days of live testimony HealthSouth presented 14 live witness, 61 witnesses by video designation, and thousands of pages of exhibits. The proceedings were, by all the 14 evidence before us, "fundamentally fair." Accordingly, the E&Y notes that HealthSouth's exhibits included hundreds 14 of pages of Dunn's deposition testimony, although these exhibits are apparently not in the record on appeal. 36 1121048 circuit court properly denied HealthSouth's motion to vacate the arbitration award on misconduct grounds. IV. Conclusion HealthSouth has failed to show that the arbitration panel exceeded its powers or engaged in misconduct. Accordingly, the order of the circuit court entering judgment on the arbitration award is due to be affirmed. AFFIRMED. Stuart, Bolin, Wise, and Bryan, JJ., concur. Moore, C.J., and Parker, Murdock, and Shaw, JJ., concur in the result. 37 1121048 MURDOCK, Justice (concurring in the result). The main opinion disclaims agreement with the understanding and application of various affirmative defenses upon which the arbitrators based their ruling in favor of Ernst & Young, LLP ("E&Y"). See, e.g., ___ So. 3d at ___ n.5. This disclaimer is made for good reason. I believe the arbitrators misunderstood and misapplied critical legal principles regarding the imputation of an agent's knowledge or actions to a principal. Without the erroneous imputations made by the arbitrators, the affirmative defenses upon which the arbitrators based their ruling would not have been available in this case. Nonetheless, principles regarding the limited judicial review of arbitration awards under the Federal Arbitration Act ("the FAA") appear to prevent this Court from rectifying the arbitrators' error. A. E&Y entered into a contract with and assumed a duty to HealthSouth Corporation, as a legal entity separate from HealthSouth's officers, directors, and employees, to audit HealthSouth's financial statements and, in this regard, to use due care to discover and report any material misstatements or 38 1121048 fraud by HealthSouth's officers, directors, and employees. For the arbitrators to hold that, even if an auditor fails to meet its required standard of care to discover and report such misstatements and fraud, the auditor can invoke such affirmative defenses as contributory negligence, the so-called "Hinkle rule," and the doctrine of in pari delicto because HealthSouth officers, directors, and employees committed fraud is to make illusory the very obligation undertaken by the auditor, the obligation to use due care to discover and report that very fraud. In so holding, the arbitrators overread and placed far too much on § 8-2-7 and § 8-2-8, Ala. Code 1975, and relied upon cases involving circumstances distinguishable from the circumstances presented here. The arbitrators concluded that "the plain language" of § 8-2-7 required that the wrongful conduct of HealthSouth's officers, directors, and agents "must ... be imputed to HealthSouth." Section 8-2-7 states: "Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal." 39 1121048 The arbitrators further relied upon § 8-2-8, which states: "As against a principal, both principal and agent are deemed to have notice of whatever either has notice of and ought in good faith and the exercise of ordinary care and diligence to communicate to the other." The arbitrators have read § 8-2-7 and § 8-2-8 too broadly. What is at issue in the present case is not the issue addressed in those statutes, i.e., whether a third party may hold a principal liable for the actions of the principal's agent (as, for example, where the third party is the victim of a tort committed by the agent in the line and scope of the agent's employment). What is at issue in the present case 15 The cases the arbitrators cite in support of their 15 understanding of imputation are either (1) third-party victim cases, see Todd v. Modern Woodmen of America, 620 So. 2d 591 (Ala. 1993)(insured suing insurer alleging fraud committed by agent); Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala. 1989)(same); Alfa Mut. Ins. Co. v. Roush, 723 So. 2d 1250 (Ala. 1998)(insured suing insurer based on agent's theft of premiums and insurer's failure to supervise); and Reynolds v. Crown Pontiac, Inc., 753 So. 2d 522 (Ala. Civ. App. 1999)(customer's suing automobile dealership alleging fraud by dealership's employees), or (2) otherwise distinguishable from the present case. White-Spunner Constr., Inc. v. Construction Completion Co., 103 So. 3d 781 (Ala. 2012)(plurality opinion)(not based on imputation as to defendant, but on fact that defendant could not establish the elements of his contract claim, which arose out of an illegal contract with a third party, and an illegal contract cannot form the basis for a claim); Robinson v. Boohaker, Schillaci & Co., 767 So. 40 1121048 is whether a principal may hold a third party liable for a tort committed against the principal by the third party, notwithstanding, or perhaps in conjunction with, a breach of duty owed the principal by the principal's agent. As to that 2d 1092 (Ala. 2000)(involving claims/counterclaims between former employee and employer as to breach of agreement between them and holding that relief may be denied where claims are based on an illegal agreement in which both parties participated); J & M Bail Bonding Co. v. Hayes, 748 So. 2d 198 (Ala. 1999); and Stone v. Mellon Mortg. Co., 771 So. 2d 451 (Ala. 2000)(denying plaintiff's claim against a defendant in relation to a wrongful $15 fax fee charged in connection with a refinancing because the plaintiff's agent authorized the fee and his knowledge of it was imputed to the plaintiff; however, the case did not involve a specific duty assumed by the defendant as to whether plaintiff's agent might be engaged in such wrongful activity). The arbitrators also cite a case that, given the full context of this Court's holding, actually supports the conclusion that knowledge will not be imputed to a principal where the third party had participated in the wrong by the agent. See American Cent. Life Ins. Co. v. First Nat'l Bank, 206 Ala. 535, 90 So. 294 (1921)(cited by the arbitrators for the proposition that "when, in the course of his employment, an agent acquires knowledge or receives notice of any fact material to the business he is employed to transact, his principal is deemed to have notice of such fact." 206 Ala. at 536, 90 So. at 294). The Court went on to hold, however, that knowledge of an insurance agent would not be imputed to his insurance-company employer because "the allegation [by the insurance company as the plaintiff] is of actual fraud on the part of the assured, and in this fact we find a just and well-established differentiation from those cases in which it has been held that an insurance company will not be permitted to take advantage of an oversight or wrongful act of its own agent, unaffected by fraud, to avoid its policy." 206 Ala. at 536, 90 So. at 294. 41 1121048 issue, the law is well settled that such actions are viable under the appropriate circumstances; the agent's wrongful conduct or knowledge is not always imputed to the principal so as to preclude the principal from recovering against a third party. For example, in Ex parte R.A. Brown & Co., 240 Ala. 157, 198 So. 138 (1940), this Court concluded that a defendant real-estate broker may be held liable by a corporation where the broker conspired with officers and agents of that corporation to perpetrate a fraud upon the corporation and its innocent shareholders. 240 Ala. at 158-59, 198 So. at 139. Specifically, this Court noted: "The suit is by a corporate entity to redress a wrong done it as such. The fact that its principal officers are alleged to be the chief perpetrators of the wrong does not deprive the corporation from maintaining an action against them and all others who participated in it or who are responsible for it. This power to maintain a suit at law is emphasized by the fact that some of the stockholders are supposed to be innocent of any wrong, and are those on whom the burden of it would most heavily fall." 240 Ala. at 159, 198 So. at 139 (emphasis added). See also Restatement (Third) of Agency § 5.04 cmt. c (2006) ("A principal should not be held to assume the risk that an agent 42 1121048 may act wrongfully in dealing with a third party who colludes with the agent in action that is adverse to the principal. That is, the third party should not benefit from imputing the agent's knowledge to the principal when the third party itself acted wrongfully or otherwise in bad faith." (emphasis added)); Restatement (Third) of Agency § 5.04 cmt. b 16 ("[N]otice of material facts known to an agent is imputed to the principal when the agent deals with a third party who reasonably believes the agent to be authorized so to act for the principal. However, this section does not protect a third party who knows or has reason to know that an agent acts adversely to the principal." (emphasis added)). Comment c to § 5.04 of the Restatement provides illustrations that directly address the issue of fraud in the context of a corporate audit: "4. A, the chief financial officer of P Corporation, withholds material financial information from T, P Corporation's auditor. T does not independently discover the information and certifies materially inaccurate financial statements for P Corporation. Relying reasonably on P Corporation's financial statements, which HealthSouth's claims included claims that E&Y "aided and 16 abetted" the fraud committed by HealthSouth's agents and that E&Y engaged in a conspiracy with HealthSouth's agents. 43 1121048 A furnishes to S, and acting in good faith, S enters into a transaction with P Corporation. S suffers loss when the true facts about P Corporation's financial condition become evident. P Corporation is subject to liability to S for the loss suffered by S. A's knowledge that P Corporation's financial statements, as certified by T, do not reflect P Corporation's true financial condition is imputed to P Corporation. S dealt with P Corporation in good faith. A is subject to liability to P as stated in §§ 8.01, 8.08, and 8.09 and to S as stated in §§ 7.01 and 7.02. "5. Same facts as Illustration 4, except that T knows or has reason to know that A has withheld material information from T. P Corporation sues T, claiming that T is subject to liability to P for loss suffered by P Corporation due to its inaccurate financial statements. T may not assert, as a defense to P Corporation's claim, that A's knowledge of P Corporation's true financial condition is imputed to P Corporation. T has not dealt with P Corporation in good faith. "Illustrations 4 and 5 do not specify whether T's failure independently to discover the information withheld by A is the consequence of common-law negligence on T's part; whether T's failure is the consequence of a breach of an independent professional or legal obligation owed by T as an auditor; or whether T has violated other legal requirements applicable to auditors, such as requirements of independence, prohibitions on conflicts of interest, or prohibitions on improper influence of a chief financial officer on the conduct of an audit. These issues are not relevant to P Corporation's liability to S, the question in 44 1121048 Illustration 4. These issues are, however, relevant when the legal relations in question are those between P Corporation and T, as in Illustration 5. The nature of T's duties to P Corporation may subject T to liability to P Corporation, independently of whether A's knowledge is imputed to P Corporation. For further discussion, see § 5.03, Comment b." (Emphasis added.) The arbitrators attempted to distinguish illustration 5 on the ground that HealthSouth's agents did not act adversely to HealthSouth. In so doing, however, they apparently did not appreciate the above-quoted comment language following illustration 5, and they apparently did not review comment b to Restatement (Third) of Agency § 5.03 (2006), which states: "The nature of a principal's relationship or transaction with a third party may require performance by the third party under terms that provide no defense to the third party that is derived from imputation of an agent's knowledge. For example, if a principal makes a claim under a fidelity bond covering an employee's dishonesty, the issuer of the bond may not decline to pay on the basis that the employee's knowledge of the employee's own wrongdoing is imputed to the principal. "Imputation may provide the basis for a defense that may be asserted by third parties when sued by or on behalf of a principal. Defenses such as in pari delicto may bar a plaintiff from recovering from a defendant whose conduct was also seriously culpable. If a principal's agents fail to disclose or misstate material information to a third party 45 1121048 who provides services to the principal, the agents' conduct may result in flawed work by the service provider. The agents' conduct may provide a defense to the service provider, if sued by or on behalf of the principal, on the basis that the agents' knowledge, imputed to the principal, defeats a claim that the principal relied on the accuracy of work done by the service provider. Subject to § 5.04, the agents' knowledge is imputed to the principal as a matter of basic agency law." (Emphasis added.) Comment b to § 5.03 goes on to explain as follows, however: "A principal may retain a service provider on terms or for tasks that make imputation of agents' knowledge irrelevant to subsequent claims that the principal may assert against the service provider. For example, a principal may retain a service provider to assess the accuracy of its financial reporting or the adequacy of its internal financial controls or other internal processes, such as its processes for reporting and investigating complaints of harassment in the workplace. If the service provider fails to detect or report deficiencies, the principal's claim against the service provider should not be defeated by imputing to the principal its agents' knowledge of deficiencies in the processes under scrutiny." (Emphasis added.) The distinctions reflected in comment b are important to the present case. Indeed, it is the fact that E&Y was retained to assist HealthSouth with the discovery of possible wrongdoing by HealthSouth's own officers, directors, and employees that distinguishes the present case from cases such 46 1121048 as Ex parte HealthSouth Corp., 978 So. 2d 745 (Ala. 2007), one of the cases relied upon by the arbitrators in support of their imputation rationale. Unlike the taxing authorities that were the object of the fraudulent tax returns in Ex parte HealthSouth Corp. and that owed no duty to HealthSouth insofar as the accuracy of HealthSouth's tax submissions, E&Y had a duty to assist HealthSouth in discovering and reporting wrongful conduct by HealthSouth's own agents. If, then, the arbitrators erred, the next question is whether this Court is in a position to correct that error. B. Notwithstanding the error in the arbitrators' understanding of Alabama law, I reluctantly concur in the result reached in the main opinion. In so doing, and in order to explain my vote, I find it necessary to comment on certain aspects of the main opinion and to acknowledge certain aspects of United States Supreme Court precedent in this area that have generated no small amount of disagreement, and some confusion, among both federal and state courts. First, I decline to join in the analysis offered in Part III.A of the main opinion, including the manner in which it 47 1121048 attempts to use the Supreme Court's opinion in Oxford Health Plans LLC v. Sutter, ___ U.S. ___, 133 S. Ct. 2064 (2013). That opinion addresses only an error by arbitrators in construing a contract; I do not read it as addressing errors by arbitrators in their understanding of the law, as occurred here. I also specifically decline to join that portion of Part III.A of the main opinion that reframes HealthSouth's argument that the arbitrators exceeded their authority (9 U.S.C. § 10(a)(4)) as a "manifest-disregard-of-the-law" argument and then rejects it out of hand merely because it is a manifest- disregard-the-law argument. In so doing, the main opinion relies upon this Court's holdings in Hereford v. D.R. Horton, Inc., 13 So. 3d 375 (Ala. 2009), and Cavalier Mfg., Inc. v. Gant, [Ms. 1080284, Dec. 20, 2013] ___ So. 3d __, ___ (Ala. 2013). In Hereford, however, this Court stated merely that "manifest disregard of the law is no longer an independent and proper basis under the Federal Arbitration Act for vacating ... an arbitrator's award." 13 So. 3d at 381. (Our holding in Cavalier was based on our holding in Hereford and was to 48 1121048 similar effect. ___ So. 3d at ___.) We acknowledged that the United States Supreme Court itself had not foreclosed the possibility that "manifest disregard of the law" might be another way of contending that arbitrators had "exceeded their powers" within the contemplation of 9 U.S.C. § 10(a)(4). 13 So. 3d at 380 n.1. Accordingly, we concluded in Hereford, and reiterated in Cavalier, ___ So. 3d at ___, no more than that any challenge to an arbitration award along these lines must be framed in terms of one of the grounds for vacatur described in § 10(a) of the FAA. HealthSouth has done what we asked. It repeatedly contends in its brief that in willfully ignoring Alabama law the arbitrators' action "exceeds their power" within the meaning of § 10(a)(4). Yet, the main opinion rejects this argument without any legal analysis, other than, as noted, to reframe it as a "manifest-disregard-of-the-law" argument and then to conclude that, under Hereford and Cavalier, this "is not a valid basis for vacating an arbitration award." __ So. 3d at __. For my part, and notwithstanding my concurrence in Cavalier, further reflection has caused me to question whether 49 1121048 arbitrators who willfully ignore applicable state law are not, in fact, "exceeding their power," or acting "beyond their authority," within the contemplation of 9 U.S.C. § 10(a)(4). The United States Supreme Court, itself, in Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), held open the possibility that the term "manifest disregard" is one that continues to have some use. In describing its earlier decision in Wilko v. Swan, 346 U.S. 427 (1953), the Court stated: "Maybe the term 'manifest disregard' was meant to name a new ground for review, but maybe it merely referred to the § 10 grounds collectively, rather than adding to them. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 656 (1985) (Stevens, J., dissenting) ('Arbitration awards are only reviewable for manifest disregard of the law, 9 U.S.C. §§ 10, 207'); I/S Stavborg v. National Metal Converters, Inc., 500 F.2d 424, 431 (C.A.2 1974). Or, as some courts have thought, 'manifest disregard' may have been shorthand for § 10(a)(3) or § 10(a)(4), the paragraphs authorizing vacatur when the arbitrators were 'guilty of misconduct' or 'exceeded their powers.' See, e.g., Kyocera [Corp. v. Prudential- Bache Trade Servs., Inc., 341 F.3d 987 (9th Cir. 2003),] supra, at 997." Hall Street, 552 U.S. at 585. More recently, in its decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 50 1121048 U.S. 662, 672 n. 3 (2010), the United States Supreme Court specifically stated: "We do not decide whether '"manifest disregard"' survives our decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 585 (2008), as an independent ground for review or as a judicial gloss on the enumerated grounds for vacatur set forth in 9 U.S.C. § 10." See, e.g., Comedy Club, Inc. v. Improv W. Assocs., 553 F.3d 1277, 1290 (9th Cir. 2009); Coffee Beanery, Ltd. v. WW, L.L.C., 300 F. App'x 415, 419 (6th Cir. 2008)(not selected for publication in the Federal Reporter); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 548 F.3d 85, 94-95 (2d Cir. 2008)("[T]he Hall Street Court also speculated that 'the term "manifest disregard" ... merely referred to the § 10 grounds collectively, rather than adding to them' -- or as 'shorthand for § 10(a)(3) or § 10(a)(4).' Hall Street, [552 U.S. at 585.] It did not, we think, abrogate the 'manifest disregard' doctrine altogether."), reversed on other grounds, Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010). See also Cable Connection, Inc. v. DIRECTV, Inc., 44 Cal. 4th 1334, 1351, 190 P.3d 586, 597, 82 Cal. Rptr. 3d 229, 243 (2008) (noting that the language of §§ 10 and 11 refer to those provisions as "directed to 'United States court in and 51 1121048 for the district where the award was made'"). See generally Stephen Wills Murphy, Judicial Review of Arbitration Awards Under State Law 96 Va. L. Rev. 887, 912 n.102 and accompanying text (June 2010) (noting 18 jurisdictions that appear to a allow a state court to review an arbitration award for the arbitrators' "manifest disregard of the law"). If I were persuaded that the conduct of the arbitrators in this case did indeed rise to the level of a manifest disregard of the law, rather than ordinary legal error, a further examination of Hall Street, Stolt–Nielsen, and the other authorities cited above would be in order. For purposes of this case, however, I find it unnecessary to resolve my questions regarding the functionality of the "manifest- disregard" standard and particularly whether it equates to one or more § 10(a)(4) defenses under the FAA. For all that appears in the record, the arbitrators did attempt to discern and apply Alabama law. They erred, and their error had grave consequences. But HealthSouth and E&Y did contract to have their dispute resolved by arbitration, and I cannot conclude that the manner in which the arbitrators went about that task rose to the level of a knowing and manifest disregard of the 52 1121048 law or otherwise satisfied one of he defenses prescribed under §§ 10 and 11 of the FAA. I therefore find myself compelled 17 to concur in the result reached by the Court today. In Part IV of its opinion in Hall Street, the United 17 Supreme Court also offered the following: "In holding that §§ 10 and 11 provide exclusive regimes for the review provided by the statute, we do not purport to say that they exclude more searching review based on authority outside the statute as well. The FAA is not the only way into court for parties wanting review of arbitration awards: they may contemplate enforcement under state statutory or common law, for example, where judicial review of different scope is arguable. But here we speak only to the scope of the expeditious judicial review under §§ 9, 10, and 11, deciding nothing about other possible avenues for judicial enforcement of arbitration awards." 552 U.S. at 590. See also Cable Connection, Inc., 44 Cal. 4th at 1339, 1352, 190 P.3d at 589, 598, 82 Cal. Rptr. 3d at 233, 244 (relying upon the foregoing passage in Hall Street and holding that California law permits a "more searching review" than is contemplated by the expedited federal court review for which 9 U.S.C. §§ 10 and 11 provide, specifically, that California state law allows parties to contract for judicial review of "errors of law or legal reasoning"; further holding that "'[n]othing in the legislative reports and debates evidences a congressional intention that postaward and state court litigation rules be preempted so long as the basic policy upholding the enforceability of arbitration agreements remain[s] in full force and effect'"). We are not presented in this case with an argument that the arbitration agreement under consideration "contemplate[d] enforcement under state ... common law" or that a "judicial review of different scope" than is available under the FAA should be deemed to be afforded under such law. 53	June 13, 2014
62a1fccf-b151-4180-827c-7d74783d5c71	Laurel v. Prince	N/A	1121412	Alabama	Alabama Supreme Court	REL: 04/11/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 _________________________ 1121412 _________________________ Hector Laurel, M.D., et al. v. Tiffany Sisk Prince Appeal from Madison Circuit Court (CV-11-901089) WISE, Justice. Hector Laurel, M.D. ("Dr. Laurel"), Crissey Watkins, and 1 Comprehensive Anesthesia Services, P.C. ("CAS") (hereinafter In the complaint and other parts of the record, Watkins's 1 first name is also spelled "Chrissy." However, in her answer and affidavit, Watkins spelled her first name as "Crissey." We use that spelling. 1121412 collectively referred to as "the defendants"), sought a permissive appeal pursuant to Rule 5, Ala. R. App. P., from the Madison Circuit Court's order denying their motions for a summary judgment. We granted permission to appeal; we now reverse the trial court's order. Facts and Procedural History On August 17, 2009, the plaintiff, Tiffany Sisk Prince,2 underwent a laparoscopic cholecystectomy at The Madison Surgery Center. During the anesthetic induction of Prince, Watkins administered what she believed to be 4 milligrams of Zofran from a syringe that had a white label, handwritten on 3 which was the letter "Z." Watkins testified that that medication had been drawn into the syringe by Dr. Laurel, an anesthesiologist. After the medication was administered, and while Prince was moving from the preoperative stretcher to the operating-room stretcher, Prince became weak and was having trouble breathing. Watkins called for an anesthesiologist and At the time of the surgery, Prince's last name was Sisk. 2 Watkins testified that Zofran is administered as a 3 preemptive measure to prevent postoperative nausea and vomiting. 2 1121412 assisted Prince with a bag mask. Subsequently, Dr. Hoger,4 another anesthesiologist, came in and administered anesthesia medication to Prince. Watkins testified that Dr. Laurel came into the room sometime during the induction of Prince. When talking to Dr. Laurel, Watkins learned that the syringe with the white label actually contained Zemuron, a paralytic, and that the syringe had been used on a previous patient ("Patient A"). Watkins testified that, during Patient A's induction, she had disposed of a syringe of Zemuron because she had touched the cap. Subsequently, she said, Dr. Laurel had drawn another syringe of Zemuron for Patient A. According to Watkins, Dr. Laurel then put the Zemuron in Patient A's top IV port, which was near the IV bag. Watkins testified that needles cannot be used in IV ports; that the syringes are screwed into the port; and that the medicine is then pushed into the IV port. Watkins also testified that, as Dr. Laurel was leaving Patient A's room, he told her that Patient A needed Zofran and that it was on top of the cart. Watkins testified that she The record does not indicate Dr. Hoger's first name. 4 3 1121412 administered Zofran to Patient A and that she disposed of the syringe. Watkins testified that she believed at the time that the syringe she used on Prince contained Zofran because it contained 2 ccs of medication and because it had a white label with a "Z" handwritten on it. She testified that white labels were typically used for Zofran and that Zemuron was normally labeled with a red label because it is a paralytic. Watkins testified that she subsequently checked Patient A's medical records and that Patient A's medical history was negative for a history of HIV and hepatitis C. During the year following her surgery, Prince underwent routine testing for HIV and hepatitis C, and all of Prince's tests were negative. Prince did not pay for any of the testing. On August 16, 2011, Prince sued Dr. Laurel, Watkins, and CAS, alleging medical malpractice. The defendants filed 5 motions for a summary judgment, and Prince filed her response to the motions. On August 15, 2013, after conducting a The complaint also named Madison Surgery Center and Dr. 5 Peter A. Vevon as defendants. However, Dr. Vevon and Madison Surgery Center subsequently filed motions for a summary judgment, which the trial court granted. 4 1121412 hearing, the trial court entered orders denying the defendants' motions for a summary judgment. Watkins subsequently filed a "Motion to Reconsider or, Alternatively, Motion for Certification of Order for Appeal," which CAS later joined. Dr. Laurel also filed a motion to reconsider. The trial court entered orders denying the motions to reconsider. On August 23, 2013, it provided the certification necessary for an interlocutory appeal pursuant to Rule 5, Ala. R. App. P. The defendants then filed a petition for a permissive appeal in this Court, and this Court granted the petition. Standard of Review "'"This Court's review of a summary judgment [or the denial of a summary- judgment motion] is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the 5 1121412 burden then shifts to the nonmovant to produce 'substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala. 1989)."' "Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004))." Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009). "'In order to overcome a defendant's properly supported summary-judgment motion, the plaintiff bears the burden of presenting substantial evidence as to each disputed element of [its] claim.' Ex parte Harold L. Martin Distrib. Co., 769 So. 2d 313, 314 (Ala. 2000)." White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 11 (Ala. 2009). Discussion The trial court's certification for permissive appeal included the following controlling question of law: "Whether Alabama law permits recovery for fear of an injury that has not occurred, and where the expert testimony is undisputed that there is no medical basis to conclude that the Plaintiff has any risk of incurring such injury in the future." 6 1121412 Prince asserted medical-malpractice claims against the defendants. "'In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.' "§ 6–5–548(a)[, Ala. Code 1975]. ... In addition, to prove causation with respect to any of their claims, the plaintiffs must prove by substantial evidence that the acts or omissions of [of the health-care provider] 'probably caused' their injuries. Shanes v. Kiser, 729 So. 2d 319 (Ala. 1999); McAfee v. Baptist Med. Ctr., 641 So. 2d 265 (Ala. 1994)." Houston Cnty. Health Care Auth. v. Williams, 961 So. 2d 795, 810 (Ala. 2006). In her complaint, Prince alleged that "she has suffered extreme mental anguish, humiliation, embarrassment, and other injuries in that she was advised that she needed to have screening for HIV, hepatitis C or other infectious diseases, not only in the past, but for the future. Further, she was exposed to unknown pathogens as a consequence of the used syringe, and the needle attached thereto, and medication that remained in the syringe." 7 1121412 She also alleged that "the mental and emotional anguish associated with the screening even today for the pathogens associated, or could be associated with the administration impropriety of the medication continues today and will continue into the future." In her motion to reconsider, Watkins asserted: "As readily conceded by [Prince's] counsel in response to the Court's questions in oral argument, [Prince's] only claim for damages in this case is that of alleged fear and mental anxiety that she might one day acquire some type of viral infection as a proximate result of the administration of anesthetic medicine in question. Her sole claim is that she 'worries every day that something could happen ... that [she] could end up with a virus.' (Prince Dep. pp. 43-44) (Emphasis supplied.)" In support of their summary-judgment motions, Dr. Laurel and CAS attached Dr. Laurel's affidavit. In his affidavit, Dr. Laurel stated: "There is no medical basis to conclude that Mrs. Prince has any risk to develop an illness or infection, including hepatitis or HIV, as the result of the event forming the basis of this litigation." Prince did not present any evidence to establish that she had any risk of developing HIV, hepatitis C, or any other illness or infection as a result of the reuse of the previously used syringe and medication on her. Rather, in her brief to this 8 1121412 Court, she focuses solely on the fact that she was advised of the need for future testing for HIV and hepatitis C. 6 "[I]n a variety of tort cases, this Court has held that mere fear of a future injury or disease, without more, does not constitute a compensable mental or emotional injury. See Houston Health Care Auth. v. Williams, 961 So. 2d 795, 810–12 (Ala. 2006) (holding, in a case arising under the [Alabama Medical Liability Act], that alleged emotional distress consisting 'simply' of fear of possible future infection from known exposure to fungus in a contaminated breast implant, without more, did not constitute a compensable legal injury); Southern Bakeries, Inc. v. Knipp, 852 So. 2d 712, 717–18 (Ala. 2002) (holding, in an action alleging fraud and failure to warn of the presence of asbestos, that mere fear that exposure to asbestos could lead to asbestos-related disease, without more, did not constitute a compensable injury; this Court noted that the plaintiff 'ha[d] not sought any medical care for his alleged emotional distress and he did not plan to have any psychiatric or psychological treatment or any counseling for emotional distress or mental anguish'); and Pfizer, Inc. v. Farsian, 682 So. 2d 405, 407 (Ala. 1996) (holding, in a product-liability/personal-injury action against a heart-valve manufacturer, that the plaintiff's alleged emotional distress consisting merely of the fear that his artificial heart valve, which was working properly, could one day malfunction, 'is In her brief, Prince also asserts that she was "advised 6 of the risks associated with the anesthesia error." However, the record does not indicate that Prince presented any evidence indicating that she was actually advised of any risks associated with the use of the contaminated syringe. Rather, Dr. Laurel's notes indicate that Prince and her family were advised of the need for testing for HIV and hepatitis C to be performed on both Prince and Patient A. 9 1121412 not, without more, a legal injury sufficient to support [the plaintiff's] claim'). 'It is a basic principle of tort law that in negligence cases, the plaintiff must suffer actual injury; mere threat of future harm, not yet realized, is not enough.' Southern Bakeries, 852 So. 2d at 716 n.7 (citing W. Page Keeton et al., The Law of Torts § 30 at 165 (5th ed. 1984))." Crutcher v. Williams, 12 So. 3d 631, 650 (Ala. 2008). In Grantham v. Vanderzyl, 802 So. 2d 1077 (Ala. 2001), the plaintiff, Tammy Grantham, an operating-room nurse, assisted the defendant, Dr. Keith Vanderzyl, during an orthopedic surgical procedure. During the surgery, a foot pedal used to operate one of the surgical instruments was not working properly. Grantham asserted that, when she stooped to adjust the pedal, Dr. Vanderzyl took a surgical drape containing the patient's blood and surgical refuse and threw it at her. Dr. Vanderzyl claimed that the incident was an accident. Grantham filed a complaint against Dr. Vanderzyl in which she alleged assault and battery, the tort of outrage, and negligence or wantonness. The trial court entered a partial summary judgment in favor of Dr. Vanderzyl on the tort-of-outrage claim. In addressing Grantham's allegations that Dr. Vanderzyl's conduct was actionable in a tort-of- outrage claim, this Court stated: 10 1121412 "In order to present a cognizable claim under the narrowly construed tort of outrage, a plaintiff must prove that the defendant's conduct 1) was intentional or reckless; 2) was extreme and outrageous; and 3) caused emotional distress so severe that no reasonable person could be expected to endure it. See Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d 1041, 1043 (Ala. 1993). "Generalized apprehensions and fears do not rise to the level of the extreme, severe emotional distress required to support a claim alleging the tort of outrage. See Thomas, 624 So. 2d at 1045. ... "Grantham asserts that she suffered a threat to her life; that that threat caused her extreme emotional distress; and that that distress merits relief under a tort-of-outrage claim. However, there must be some basis in fact for her fear of developing a disease from exposure to the patient's blood. The mere fear of contracting a disease, without actual exposure to it, cannot be sufficient to cause the level of emotional distress necessary for this cause of action. In actuality, Grantham was never in danger of contracting a communicable disease as the result of the operating-room incident. Every blood test to which Grantham has submitted has returned a negative result. There is no evidence that the patient carried a communicable disease. Grantham even admits in her deposition testimony that she has no reason to believe she presently has any disease contracted as a result of her exposure to the patient's blood. The trial court correctly held that Grantham's allegations, even if true, do not state conduct rising to the level required to constitute the tort of outrage under Alabama law." 802 So. 2d at 1081. 11 1121412 Similarly, in this medical-malpractice case, there is no evidence indicating that Patient A had a communicable disease. In fact, the medical records indicate that Prince was advised of Patient A's negative test results. Additionally, the undisputed expert testimony established that there is no medical basis for concluding that Prince has a risk of developing any disease based on the use of the contaminated syringe. Finally, as was the case in Grantham, all of Prince's test results have been negative. "While fear is a real phenomenon and can be debilitating, based on the evidence presented in this case we conclude that [Prince has] not suffered any legally cognizable present injury. Opening the courts generally for compensation for fear of future disease would be a dramatic change in the law and could engender significant unforeseen and unforeseeable consequences; awarding such compensation is better left to the Legislature." Southern Bakeries, Inc. v. Knipp, 852 So. 2d 712, 718 (Ala. 2002)(footnote omitted). Alabama law, as set forth in Crutcher, Southern Bakeries, and Grantham, does not permit Prince to recover for fear of a future injury where she has not suffered any physical injury and where the undisputed expert medical testimony has established that there is no medical basis for concluding that she has a risk of developing 12 1121412 any disease in the future. Therefore, the trial court should have granted the defendants' motions for a summary judgment on that basis. Accordingly, we reverse the trial court's order denying the defendants' summary-judgment motions and remand the cause for the entry of an order consistent with this opinion. REVERSED AND REMANDED. Moore, C.J., and Stuart, Parker, and Shaw, JJ., concur. 13	April 11, 2014
c53cdd4c-6617-4413-9ea6-514ffed59c05	Southeast Construction, L.L.C. v. WAR Construction, Inc.	N/A	1120618	Alabama	Alabama Supreme Court	rel: 05/09/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1120618 ____________________ Southeast Construction, L.L.C. v. WAR Construction, Inc. Appeal from Tuscaloosa Circuit Court (CV-09-900101) BRYAN, Justice. Southeast Construction, L.L.C. ("SEC"), appeals from an order of the Tuscaloosa Circuit Court enforcing, pursuant to this Court's mandate in Southeast Construction, L.L.C. v. WAR Construction, Inc., 110 So. 3d 371 (2012) ("SEC I"), a previous judgment entered by that court based on an 1120618 arbitration award in favor of WAR Construction, Inc ("WAR"). We affirm the judgment in part, reverse it in part, and remand the cause for further proceedings. Facts and Procedural History This is the second time this case has been before this Court. The relevant facts, as set forth in SEC I, are as follows: "On July 12, 2007, SEC and WAR entered into a construction contract pursuant to which WAR, as the general contractor, agreed to build a condominium development in Tuscaloosa known as The Chimes Condominiums ('The Chimes') for SEC, as owner. Upon completion of the project, disputes arose between SEC and WAR concerning performance under the construction contract. Pursuant to the contract, those disputes were submitted to binding arbitration .... "On February 16, 2011, a three-arbitrator panel ruled in favor of both SEC and WAR on their respective claims against one another, resulting in a net award to WAR of $373,929. SEC filed a motion for modification of the award. The arbitration panel issued a modified award on March 16, 2011, in which it stated that the net award to WAR was to be paid by SEC "'upon [SEC's] receipt of reasonably appropriate and adequate releases of liens and claims against [SEC], its surety and the project involved in this proceeding from [WAR] and all of [WAR's] subcontractors/suppliers that filed a lien on the project; provided that, in lieu of a release from such subcontractor/supplier, 2 1120618 [WAR] may provide an adequate bond or other adequate security. This shall occur no later than May 13, 2011.' "Neither party filed an appeal of the award pursuant to Rule 71B, Ala. R. Civ. P., within 30 days of service of notice of the modified arbitration award. "On April 22, 2011, WAR filed in the Tuscaloosa Circuit Court a 'Motion for Clerk's Entry of Arbitration Award as Final Judgment' pursuant to Rule 71C, Ala. R. Civ. P. WAR attached a copy of the original arbitration award and the modified award to its motion. On April 25, 2011, SEC filed a response in opposition to WAR's motion in which it stated that WAR had not fulfilled its obligation of providing SEC with releases of liens and claims held by WAR and by subcontractors on The Chimes construction project. ".... "... [O]n May 9, 2011, following a hearing, the circuit court did enter an order based upon the arbitration award. That order states: "'1. The documents from the arbitrators dated February 16, 2011 and March 16, 2011 are the awards. The Clerk is directed to enter the two documents from the arbitrators as a judgment under Rule 71(C)(f). Since the arbitrators did not address the issues, circuit court costs should be taxed as paid. "'2. The court and clerk are available to enforce the award if it is capable of enforcement through non-discretionary, perfunctory, ministerial acts such as garnishment, execution or other writ as provided in Ala. Code [1975,] § 6–6–13. 3 1120618 "'3. Any issue regarding interpretation, modification, clarification or amendment of the awards should be presented to the arbitrators. "'4. If a certificate of judgment is requested under Ala. Code [1975,] § 6–9–210, the Clerk would need to determine whether such a request complies with the language of the arbitrators' awards. No certificate of judgment should be prepared unless it complies with the arbitrators' awards. "'The April 27 order is modified as noted above. All other claims are denied.' "On May 13, 2011, WAR filed what it styled as a 'Notice of WAR's Compliance with the Conditions of Judgment.' In the filing, WAR explained that it had supplied SEC with releases of all liens filed by subcontractors. As to its own lien, WAR ... represented that it 'does not want to jeopardize its security for the judgment without adequate assurance SEC is going to pay the judgment.' Thus, WAR attached copies of a signed satisfaction of the judgment and a signed release of WAR's lien to its filing with the circuit court. WAR proposed that SEC 'submit payment in full of the judgment' to WAR's attorney, the payment to be held in the attorney's trust account. After payment had been submitted, WAR's attorney would file the original signed satisfaction of the judgment with the circuit clerk, and he would file the original signed release of the lien in the Tuscaloosa Probate Court. WAR stated that its attorney would not release SEC's funds to WAR until the release and the satisfaction of the judgment had been filed. "SEC responded by filing a 'Notice of WAR's Noncompliance with Conditions of Judgment.' In that filing, SEC contended that WAR had not supplied SEC 4 1120618 with releases of claims by two subcontractors -– Premier Electric Service Company, Inc., or Laco Woodworks, Inc. It also noted that WAR had admitted that it still had not provided SEC with a release of its own lien. ".... "On June 7, 2011, SEC appealed from the circuit court's May 9, 2011, order, arguing that the circuit court erred in entering a judgment on the arbitration award before WAR had fulfilled its obligations under the award. Subsequently, WAR filed a cross-appeal, complaining that the circuit court had failed to take any nonministerial actions to enforce the judgment. ... [This Court] treat[ed] WAR's cross-appeal as a petition for a writ of mandamus." SEC I, 110 So. 3d at 372-75 (footnotes omitted). WAR also filed a motion to dismiss SEC's appeal, which was denied in November 2011. On November 9, 2012, this Court issued its decision in SEC I, addressing SEC's appeal of the circuit court's judgment of May 9, 2011 ("the May 9 judgment"), and WAR's petition for mandamus relief. We rejected SEC's argument that the May 9 judgment was not enforceable as a final judgment because WAR had not fulfilled its obligation to provide "'reasonably appropriate and adequate releases of liens and claims against [SEC]'" or to "'provide an adequate bond or other adequate security'" in lieu of those releases, 110 So. 3d at 372, and, 5 1120618 therefore, that its obligation to pay WAR had not yet arisen. SEC also argued that it was entitled to a judgment as a matter of law because the May 13, 2011, deadline for providing the releases had passed and, SEC argued, therefore, WAR could never comply with the award and SEC's obligation to pay had been extinguished. This Court affirmed the May 9 judgment, stating: "The final judgment the [circuit] court ordered the clerk to enter based upon the arbitrators' decision is one that adjudicates the rights and responsibilities of the parties. Accordingly, it is enforceable as a final judgment. In essence, it is a final judgment that requires certain acts of both parties. As such, it contemplates further enforcement, and perhaps interpretative acts, by the circuit court. This, however, does not make it a nonfinal judgment." SEC I, 110 So. 3d at 376-77. We went on to state: "WAR ... argues, with merit, as follows: "'To the extent that the circuit court is deterred by ambiguities in the arbitration award that constitutes its judgment, this Court has given straightforward direction. In [State Personnel Board v.] Akers, 797 So. 2d [422,] 424[-25] [(Ala. 2000)], this Court stated as follows: "'"Courts are to construe judgments as they construe 6 1120618 written contracts, applying the same rules of construction they apply to written contracts. See Hanson v. Hearn, 521 So. 2d 953, 954 (Ala. 1988). Whether a judgment is ambiguous is a question of law to be determined by the court. See Chapman v. Chapman, 634 So. 2d 1024, 1025 (Ala. Civ. App. 1994); Grizzell v. Grizzell, 583 So. 2d 1349, 1350 (Ala. Civ. App. 1991). If the terms of a judgment are not ambiguous, then they must be given their usual and ordinary meaning and their 'legal effect must be declared in the light of the literal meaning of the language used' in the judgment. Wise v. Watson, 286 Ala. 22, 27, 236 So. 2d 681, 686 (1970); see Moore v. Graham, 590 So. 2d 293, 295 (Ala. Civ. App. 1991). However, if a term in a trial court's judgment is ambiguous, then the trial court's interpretation of that term 'is accorded a heavy presumption of correctness and will not be disturbed unless it is palpably erroneous.' Chapman, 634 So. 2d at 1025."' "Given the nature of the award made by the arbitrators in this case and the nature of the resulting judgment the circuit court properly ordered the clerk to enter, it is apparent that the circuit court must take some additional responsibility for enforcing that award and the resulting judgment. To the extent WAR complains in its petition of the circuit court's reluctance to do so, we agree with WAR and, accordingly, order the 7 1120618 circuit court to take appropriate action to enforce the judgment it has entered based upon the arbitrators' award." SEC I, 110 So. 3d at 377-78. Justice Murdock concurred specially with the Court's decision, suggesting, "[b]y way of example, [that] the circuit court might well find it appropriate to coordinate the parties' fulfillment of the arbitration award and judgment entered on that award by requiring the parties to deposit releases or bonds and to make payment into the circuit court, with the provision that such documents and payment will be held by the court pending performance by the other party of its obligation under the judgment." 110 So. 3d at 378. After the writ of mandamus had been issued, the circuit court set the matter for a final hearing. WAR moved the circuit court to establish its lien and to enforce the May 9 judgment, requiring SEC to pay the money awarded by the arbitrators. SEC opposed that motion, arguing that by granting WAR's motion the circuit court would be modifying the arbitrators' award, which, SEC argued, required that releases be provided before it was obligated to pay WAR and that the deadline for WAR's fulfillment of its obligations under the award was "no later than May 13, 2011." SEC argued that it 8 1120618 was undisputed that WAR had not provided SEC with a release of its lien or a bond or security in place of the release by May 13, 2011. Thus, SEC argued, the circuit court should find that SEC's obligation to WAR under the award had expired. After the hearing, the circuit court entered a bench note requesting "that each side submit a position statement or brief (three pages or less excluding any exhibits or affidavits) and to include (but not necessarily limited to) the following topics: "1. What specific action should this court take to comply with the mandate [in SEC I]? "2. WAR contends that all subcontractor claims and liens have been released. SEC contends otherwise. The matter should be specifically addressed. "3. Does the arbitration decision require WAR to release -- give up -- security for payment before the judgment can be entered? If so, under what authority would this court change that decision even if it is something this court would not have required." The circuit court entered an additional order that day stating: "As an addendum to the earlier bench note, and to be more direct -- Since the very first pleadings, this court took the position that granting the relief requested by WAR would require the 9 1120618 arbitration decisions to be rewritten (perhaps to a more logical end result) but not simply interpreted. After re-reading the Supreme Court decision, however, compliance with the mandate does not appear possible without granting at least some of the relief. Again, with respect to question (l) in the earlier bench note, the parties should specifically inform this court how the Supreme Court mandate can be met." SEC responded to the circuit court's request, arguing that compliance with this Court's mandate in SEC I required that the judgment be enforced according to its terms and that the terms of the judgment had required WAR either to release its lien or to provide a bond, and to do so no later than May 13, 2011, before SEC was required to pay the money owed. SEC argued that WAR had not complied with those requirements by the deadline and, therefore, that the circuit court should find that WAR was not entitled to any relief and dismiss WAR's claims. WAR argued, among other things: "The arbitration award and this Court's judgment require payment upon receipt of releases or security. This language plainly contemplates an exchange. After the modified award was issued, WAR 1 notified SEC that it was prepared to release its lien in exchange for payment. SEC never agreed to an exchange and eventually made it plain it would not pay the arbitration award without judicial compulsion. Therefore, WAR has not been obligated to release its lien. To comply with the Supreme 10 1120618 Court's mandate this [c]ourt must do two things: 1) verify that WAR has provided the required releases or security, and 2) verify that payment with interest is made to WAR. Justice Murdock's concurrence [in SEC I] specifically recognizes that verification of payment is an essential element of enforcement of this [c]ourt's judgment. As is discussed below, all subcontractor liens and claims have been released. Therefore, the Supreme Court's mandate can be accomplished by a [c]ourt escrowed exchange of WAR's lien release for SEC's payment. WAR'S lien release is attached hereto and tendered to the [c]ourt to be held in escrow in exchange for payment of the [c]ourt's judgment. "________________ " To the extent the award is imperfect in form, 1 an exchange is plainly necessary to effect the intent of the award and promote justice between the parties. In its opinion, the Supreme Court expressly emphasized this [c]ourt's authority and obligation to correct imperfections not affecting the matter in controversy to effect the intent of the award and promote justice between the parties. [SEC I, 110 So. 3d at 374] n.3." WAR also argued that all the subcontractors' liens had been released, that the subcontractors' claims against WAR had been released, and that, because of a lack of privity, the arbitrators had no authority to require the release of claims directly between SEC and the subcontractors. WAR also argued that in SEC I the Supreme Court rejected SEC's argument that its obligation to pay had been excused because of the passage of the May 13, 2011, deadline. WAR argued: 11 1120618 "SEC's current argument to this court has already been rejected by the Supreme Court. In both its appeal and its response to WAR'S cross-appeal, SEC argued its obligation to pay the arbitration award never arose or was excused by the nonoccurrence of a condition precedent because prior to May 13, 2011, WAR did not release its lien or obtain claim releases from [two of the subcontractors]. The Supreme Court's mandate [in SEC I] rejected SEC's condition precedent argument. The Supreme Court accepted and affirmed WAR'S argument that it would be unreasonable and unfair to require WAR to release its security without being paid. That is now the law of this case." (Citing Honda Mfg. of Alabama, LLC v. Alford, 47 So. 3d 1283 (Ala. Civ. App. 2010).) On January 9, 2013, the circuit court entered an "Order Enforcing Arbitration Award Following Writ of Mandamus" ("the January 9 order"). The circuit court noted that it had a duty "'"'to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. ... The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate.'"'" (Quoting Ex parte Edwards, 727 So. 2d 792, 792 (Ala. 1998), quoting in turn Ex parte Alabama Power Co., 431 So. 2d 151, 155 (Ala. 1983), quoting in turn 5 Am. Jur. 2d Appeal & Error § 991 (1962).) The circuit court then stated: 12 1120618 "[WAR] initially attempted to file two arbitration awards as judgments, and moved this court to take certain action in response to those awards. ... ".... "Neither party appealed the arbitrators' awards. Instead, WAR filed motions with this court seeking to order certain exchanges of documents and funds. When initially presented, this court had questions about arbitration awards, including, but not limited to the following: "-- The language of the March 16 award obligates SEC to pay WAR 'upon receipt of reasonably appropriate and adequate releases of liens.' Did the arbitrators intend for the lien releases to be given to SEC in advance of the obligation to pay? Stated otherwise, did the arbitrators intend for WAR to give up its security in advance of payment? "-- Why was WAR required to obtain all lien releases by May 13, 2011? What was to happen if WAR failed to release its lien or post the required bond or other security for any subcontractors by that date? Would the obligation of SEC to pay then be extinguished? Was the interest award of 3.25% per annum to be held in abeyance pending this action? "This court stated that the parties should go back to the arbitrators and seek corrective or interpretive action in that forum .... The arbitrators declined to take any further action. This court then found that the awards had to be entered as written as judgments pursuant to Ala. R. Civ. P. 71C. But WAR had not given SEC a release of the liens as apparently contemplated by the awards. WAR instead sought to have this court order an 13 1120618 alternative procedure. The action sought by WAR seemed to require the awards to be rewritten -– perhaps to a more logical end -– but not simply interpreted or enforced by this court. As such, judicial relief did not appear to be available and the orders were not entered. ... [T]he arbitrators were given the opportunity to correct or modify their award to more clearly express their intent. They declined, and thus must have said exactly what they intended to say. "Both sides sought appellate review. ... "On November 27, [2013], after [the Supreme Court's decision in SEC I] became final, this court set a hearing for December 19. ... The December 19 hearing did not result in a consensus of opinion as to this court's next step, and the parties were ordered to file short briefs setting forth how this court should follow the Supreme Court mandate. The results have not been entirely satisfactory. WAR has made proposals on the manner in which the arbitrators' award can be implemented. SEC continues to assert that the awards are not subject to enforcement. "It is presumed that the issues were adequately and appropriately briefed to the Supreme Court. In other words, the arguments of SEC were apparently rejected and the arguments of WAR were accepted. My directive from that Court is not to determine if the judgment is valid or capable of being implemented, but instead, to 'enforce' it. After again reviewing the Supreme Court mandate, and applying the principles of Ex parte Edwards[, 727 So. 2d 792 (Ala. 1998),] which require strict adherence to the directive, the following is ordered: "1. Citing the language used by the arbitrators and after reviewing the responses of the parties, all liens and claims against SEC, its surety, and the 14 1120618 project from WAR's subcontractors/suppliers that filed a lien on the project appear to have been released and/or adequate security has been provided. ... WAR shall deliver to the circuit clerk of Tuscaloosa County the original release of its mechanic's lien and mechanic's lien release bond together with an executed satisfaction of judgment and any proposed orders required to be entered by this court extinguishing the bond or lien. The clerk will hold the release for delivery to SEC upon the payment of the judgment amount plus interest as provided herein. "2. To satisfy the judgment awarded by the arbitrators, SEC may deposit the sum of Three Hundred Seventy-Three Thousand Nine Hundred Twenty Nine Dollars and Zero Cents ($373,929.00) together with accumulated interest (at the rate ordered by the arbitrators) to the circuit clerk of Tuscaloosa County. It appears that WAR attempted to comply with what the Supreme Court has ordered this court to implement as of May 13, 2011 (the date of WAR's 'Notice of ... Compliance With Conditions of Judgment'), and therefore, the interest awarded by the arbitrators is applicable from May 13, 2011, to the date of payment to the clerk. Upon receipt and collection of such funds, the clerk shall simultaneously distribute the funds to WAR and shall deliver to SEC the release(s) referenced in (1). The clerk shall then file the satisfaction of judgment. "3. After WAR has tendered the documents referenced in (1) to the clerk, execution may proceed on the judgment through any available means under Alabama law if not satisfied by the deposit of the 15 1120618 funds referenced in (2). "4. Any further orders required to implement the foregoing will be rendered as necessary." SEC appealed the January 9 order to this Court, and this second appeal is now before this Court. Analysis SEC first argues that "the circuit court failed to enforce the arbitration award and judgment according to the literal language contained therein." SEC's brief, at 32. Specifically, SEC argues, "[t]his Court's mandate [in SEC I] was for the Circuit Court to 'take appropriate action to enforce the judgment.'" SEC's brief, at 32 (quoting SEC I, 110 So. 3d at 378). SEC argues that, because the judgment was unambiguous, "the only way the Circuit Court could give effect to the arbitrators' decision was to construe the arbitration award and judgment 'in the light of the literal meaning of the language used.'" SEC's brief, at 33 (quoting SEC I, 110 So. 3d at 377). SEC argues that, pursuant to the literal language of the judgment, its obligation to pay WAR was contingent upon WAR's providing by May 13, 2011, releases of or security for liens and claims against SEC filed by WAR and any of its 16 1120618 subcontractors who had filed liens against SEC. SEC argues that WAR's performance by May 13, 2011, was a condition precedent to SEC's obligation to pay, that that condition precedent was not met, and that, therefore, the circuit court "should have determined that SEC owed WAR nothing." SEC's brief, at 34. This is essentially the same argument made by SEC in SEC I. In its brief on appeal in that case, SEC argued: "The Circuit Court's entry of the arbitration award as a final judgment did not give effect to the arbitrators' decision. The arbitration award made [SEC's] obligation to pay contingent on WAR's performance of certain obligations which were conditions precedent to [SEC's] obligation. [SEC] had no obligation to perform under the arbitration award when the Circuit Court entered final judgment. Therefore, entry of the arbitration award as a final judgment was improper." SEC also argued: "As a result of WAR's failure to perform its obligations under the arbitration award on or before May 13, 2011, [SEC] has no obligation to pay WAR. Further, it is now impossible for WAR to satisfy the conditions precedent. WAR did not meet the May 13, 2011, deadline set in the arbitration award for full performance of its obligation. Accordingly, [SEC] shall never have any obligation under the arbitration award to pay WAR." (Citations omitted.) SEC asked this Court in SEC I to render a judgment as a matter of law in its favor on WAR's claims 17 1120618 against it. Although this Court did not make express findings in SEC I as to the existence or effect of the alleged condition precedent or the timeliness of WAR's compliance with the arbitration award, this Court declined to enter a judgment as a matter of law in SEC's favor and, instead, affirmed the May 9 judgment as final and enforceable. We stated: "[The May 9 judgment] ... is a final judgment that requires certain acts of both parties. As such, it contemplates further enforcement, and perhaps interpretative acts, by the circuit court. This, however, does not make it a nonfinal judgment." SEC I, 110 So. 3d at 376-77 (emphasis added). We went on to note: "Given the nature of the award made by the arbitrators in this case and the nature of the resulting judgment the circuit court properly ordered the clerk to enter, it is apparent that the circuit court must take some additional responsibility for enforcing that award and the resulting judgment. To the extent WAR complains in its petition of the circuit court's reluctance to do so, we agree with WAR and, accordingly, order the circuit court to take appropriate action to enforce the judgment it has entered based upon the arbitrators' award." SEC I, 110 So. 3d at 377-78 (emphasis added). By affirming the May 9 judgment as a final judgment that 18 1120618 "contemplate[d] further enforcement" and ordering the circuit court "to take appropriate action to enforce the judgment," this Court effectively rejected SEC's argument that it was entitled to a dismissal of WAR's claims based on WAR's failure to satisfy the alleged condition precedent by May 13, 2011. SEC did not apply for a rehearing. Thus, as the circuit court noted in the January 9 order, our rejection of those arguments in SEC I is now the law of the case, and SEC is not entitled to reconsideration of those issues in this second appeal. See Scrushy v. Tucker, 70 So. 3d 289, 303-04 (Ala. 2011) ("'Under the law of the case doctrine, "[a] party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal."'" (quoting Kortum v. Johnson, 786 N.W.2d 702, 705 (N.D. 2010), quoting in turn State ex rel. North Dakota Dep't of Labor v. Riemers, 779 N.W.2d 649 (N.D. 2010) (emphasis omitted))); see also Bagley v. Creekside Motors, Inc., 913 So. 2d 441, 445 (Ala. 2005) ("'"Under the doctrine of the 'law of the case,' whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct 19 1120618 on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case." "It is well established that on remand the issues decided by an appellate court become the 'law of the case,' and that the trial court must comply with the appellate court's mandate."'" (quoting Southern United Fire Ins. Co. v. Purma, 792 So. 2d 1092, 1094 (Ala. 2001) (internal citations omitted))). Thus, SEC has not demonstrated that the circuit court erred in determining that SEC's obligations under the May 9 judgment remain enforceable. SEC also argues that "[t]he circuit court modified the arbitration award and [the May 9] judgment to relieve WAR from its obligations to provide lien and claims releases." SEC's brief, at 43. SEC argues that "[t]he arbitration award provides that payment from [SEC] was not due unless and until WAR provided [SEC] with '[r]easonably appropriate and adequate releases of liens and claims' against [SEC]" and that "WAR has not released its own lien or claims, nor has it provided releases of claims against [SEC] from Heritage Masonry[, Inc. ('Heritage Masonry')] or Premier [Electric Service Company, Inc. ('Premier')]." SEC's brief, at 43. Heritage Masonry and 20 1120618 Premier were subcontractors on The Chimes project that had filed liens against SEC.1 With regard to WAR's lien and claims against SEC, SEC argues that "the [January 9] order reverses the parties' obligations under the arbitration award and judgment." SEC's brief, at 46. The January 9 order provides: "WAR shall deliver to the circuit clerk of Tuscaloosa County the original release of its mechanic's lien and mechanic's lien release bond together with an executed satisfaction of judgment and any proposed orders required to be entered by this court extinguishing the bond or lien. The clerk will hold the release for delivery to SEC upon the payment of the judgment amount plus interest as provided herein." Although there appears to be some merit to SEC's argument that the January 9 order changes the manner in which SEC and WAR were asked to fulfill their obligations under the arbitration award and the May 9 judgment, it does not relieve WAR of any of its obligations. WAR is still required to As noted in SEC I, SEC argued to the circuit court in its 1 "Notice of WAR's Noncompliance with Conditions of Judgment" that "WAR had not supplied SEC with releases of claims by two subcontractors –- [Premier] or Laco Woodworks, Inc." 110 So. 3d at 375. However, SEC has not renewed this argument on appeal as it relates to Laco but has, instead, argued that "WAR failed to submit any documentation showing that either [Heritage Masonry or Premier] had released its claims against [SEC]." SEC's brief, at 13. 21 1120618 provide "reasonably appropriate and adequate releases" of its liens and claims and the liens and claims of the relevant subcontractors before it can receive the money it is owed by SEC. The January 9 order effectuates the intent of the arbitration award that the liens and claims against SEC be released and that the money owed to WAR be paid. SEC has not demonstrated that the circuit court erred in this regard.2 SEC also argues that the circuit court erred in concluding that WAR had complied with the arbitration award and the May 9 judgment because, it argues, "there is no evidence that WAR obtained or provided to [SEC] any release of claims against [SEC] by Heritage Masonry or Premier." SEC's brief, at 35. SEC argues that both Heritage Masonry and Premier expressly reserved their claims against SEC. Therefore, SEC argues, those releases could not satisfy the "reasonably appropriate and adequate release of ... claims" SEC also argues that "[t]he circuit court modified the 2 substance of the arbitration award and judgment to relieve WAR from its obligation to provide releases by May 13, 2011." SEC's brief, at 47. However, as noted previously, this Court rejected in SEC I the argument that WAR's alleged failure to satisfy the alleged condition precedent before the May 13, 2011, deadline rendered the May 9 judgment unenforceable, and reconsideration of those claims in this appeal is barred by the law-of-the-case doctrine. See Scrushy, supra. 22 1120618 requirement of the arbitration award and the May 9 judgment. In May 2009, Premier executed a "Declaration to Cancel Lien," in which it "with[drew] and cancel[ed] its lien against the property of [SEC]." However, the declaration also provided that "Premier still asserts that the underlying debt for which the lien was recorded is still outstanding and due to be paid and reserves all its other rights and remedies it may have against [SEC] in order to collect this debt." In January 2012, Premier executed an "Acceptance of Final Payment, Release & Confidentiality Agreement," in which it acknowledged receipt from WAR of "full and final payment of all amounts due for Premier's work performed on The Chimes Condominium in Tuscaloosa, Alabama." The agreement also provided: "Premier warrants that there are no outstanding claims, obligations, encumbrances, or liens for labor, services, materials, equipment, taxes, or other items incurred in connection with its scope of work on The Chimes project." These documents, taken together, are sufficient to support the circuit court's finding that "all liens and claims against SEC, its surety, and the project" had been released by Premier. 23 1120618 In August 2009, Heritage Masonry executed a pro tanto release, in which Heritage Masonry released all of its claims against WAR. The release includes the following provision: "This release does not limit or restrict Heritage's claims or actions it has or may have against [SEC] or any individual member, officer or shareholder of [SEC]." Because of this language, the pro tanto release is not sufficient, by itself, to satisfy the requirement of a "reasonably appropriate or adequate release" of Heritage Masonry's claims against SEC. WAR has not directed this Court to any other document presented to the circuit court that addresses Heritage Masonry's claims against SEC, nor is there any indication that WAR provided security in lieu of that release. WAR argues that SEC's argument with regard to the Heritage Masonry release is "based on an unreasonable interpretation of the [arbitrators'] modified award. The modified award states that its purpose is to deal with SEC's request for relief with respect to liens filed by WAR and its subcontractors. The judgment's later reference to 'liens and claims' is simply a redundant phrase such as 'null and void,' 'release and discharge,' 'cease and desist,' or 'will, devise, and bequeath.' Redundancy is one of the hallmarks of American legal English. The plain intent of the modified award was to give SEC its project free of liens in exchange for payment. All 24 1120618 subcontractor liens have been released or bonded." WAR's brief, at 8-9 (footnote omitted). However, as this Court noted in SEC I, WAR has itself acknowledged that "'"[i]f the terms of a judgment are not ambiguous, then they must be given their usual and ordinary meaning and their 'legal effect must be declared in the light of the literal meaning of the language used' in the judgment."'" 110 So. 3d at 377 (quoting WAR's brief in SEC I, quoting in turn State Pers. Bd. v. Akers, 797 So. 2d 422, 424 (Ala. 2000), quoting in turn Wise v. Watson, 286 Ala. 22, 27, 236 So. 2d 681, 686 (1970)). The words "claims" and "liens" are distinct both in their "usual and ordinary meaning" and in terms of legal usage. Black's Law Dictionary defines a "claim" as "[t]he aggregate of operative facts giving rise to a right enforceable by a court" and "any right to payment or to an equitable remedy, even if contingent or provisional." Black's Law Dictionary 281-82 (9th ed. 2009). A "lien" is defined as "[a] legal right or interest that a creditor has in another's property, lasting usu. until a debt or duty that it secures is satisfied." Black's Law Dictionary 1006. Although the two terms might sometimes overlap, they are not 25 1120618 synonymous, and there is no indication that the arbitrators intended them to be so. WAR also argues that "[s]ince neither Heritage nor Premier are in privity with the WAR/SEC contract, WAR's releases protect SEC completely from any claim arising out of, i.e.[, p]assing through, or relating to[,] the WAR/SEC contract," WAR's brief, at 9, and that, "[u]nder Alabama law, the only claim a subcontractor can assert against an owner arising out of or related to the general construction contract is a mechanic's lien." WAR's brief, at 10. However, as noted in SEC's brief, subcontractors' claims against owners are not so limited in Alabama. See, e.g., Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So. 2d 496, 501 (1984) (recognizing that, even in the absence of privity of contract, negligence claims can, in some circumstances, be maintained by a subcontractor against an owner). WAR cites no relevant authority to the contrary.3 WAR relies on Severin v. United States, 99 Ct. Cl. 435 3 (1943), in support of its argument. However, Severin, which is persuasive authority at most, involved a limited waiver by the United States government of immunity from suit for breach- of-contract claims arising in a construction project. The court in Severin concluded that because "the Government ... ha[d] not consented to be sued except, so far as [is] relevant to this case, for breach of contract" and because the 26 1120618 Because Heritage Masonry expressly reserved in the pro tanto release "claims or actions [that] it ha[d] or may have against [SEC]" and because there is no indication that WAR provided any bond or security in lieu of a release, WAR has not yet fully complied with the requirements of the May 9 judgment. Thus, the circuit court erred in finding in the January 9 order that "all liens and claims against SEC ... from WAR's subcontractors/suppliers that filed a lien on the project ... ha[d] been released and/or adequate security ha[d] been provided." We hold further that the circuit court erred in finding that WAR had "attempt[ed] to comply with what the Supreme Court has ordered this court to implement as of May 13, 2011," and that it was entitled to have the interest owed under the arbitrators' award and the May 9 judgment calculated from that date. Therefore, we reverse the January 9 order as it relates to the above matters and remand the cause for further proceedings consistent with this opinion. In all government had no contract with the subcontractor, "it [was] not liable to, nor suable by him." 99 Ct. Cl. at 442. The United States Court of Claims decision does not indicate that, in all circumstances, a lack of privity prevents suit by a subcontractor against the owner of a project, and that case is inapposite here. 27 1120618 other respects, the order is affirmed. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. Stuart, Bolin, Parker, Main, and Wise, JJ., concur. Moore, C.J., and Murdock and Shaw, JJ., concur in part and dissent in part. 28 1120618 MURDOCK, Justice (concurring in part and dissenting in part). The main opinion acknowledges that the May 2009 "Declaration to Cancel Lien" executed by Premier Electric Service Company, Inc. ("Premier"), expressly states that the underlying debt for which the lien was recorded "is still outstanding" and that Premier "reserves all its other rights and remedies it may have against" Southeast Construction, L.L.C. ("SEC"), "in order to collect its debt." This language is not materially different in its import than that which is found lacking by the main opinion in a "pro tanto release" executed by Heritage Masonry, Inc. ("Heritage Masonry"), in which Heritage Masonry released all of its claims against WAR Construction, Inc. ("WAR"), while reserving its claims against SEC. Nonetheless, the main opinion concludes that WAR has satisfied its obligation of delivering to SEC a release of all liens and claims against SEC by Premier because of its delivery to SEC of a an instrument subsequently executed by Premier, namely an "Acceptance of Final Payment, Release, and Confidentiality Agreement" executed by Premier in January 2012. SEC argues in its brief to this Court that this latter document "does not address claims against [SEC]." I agree. 29 1120618 Specifically, unlike the main opinion, I cannot conclude that the latter document effects a release of "'all liens and claims'" that might be held by Premier "'against, SEC, its surety, and the project.'" ___ So. 3d at ___ (quoting the circuit court's January 9, 2013, order). In this document, Premier does acknowledge the receipt of $110,000 "as full and final payment of all amounts due for Premier's work." It appears, however, that this document, which was executed on behalf of WAR and Premier, was intended for the mutual benefit of those parties only. The express purpose of the document is to acknowledge the resolution of certain disputes between those two parties as indicated by the first two paragraphs of the document: "Premier Service Company, Inc. (Premier) hereby acknowledges receipt of payment from WAR Construction, Inc. (WAR) in the amount of One Hundred Ten Thousand Dollars and No Cents ($110,000) (WAR's Payment) which it accepts as full and final payment of all amounts due for Premier's work, performed The Chimes Condominium in Tuscaloosa, Alabama. "WAR and Premier acknowledge that WAR's payment is made to resolve disputes between WAR and Premier as to the amount due from WAR to Premier for extra work and the amount due from Premier to WAR for back charges, overcharges and allegedly defective work by Premier that were addressed during WAR Construction and Southeast Construction, LLC, American 30 1120618 Arbitration Association Case No. 30 110 Y 113 09 (the Arbitration). WAR acknowledges that this Release resolves and discharges all claims by WAR that were or could have been asserted against Premier arising out of the Arbitration and the Arbitration Award dated February 16, 2011, as modified on March l6, 2011." Thus, this agreement expressly states that its purpose is "to resolve disputes between WAR and Premier" as to certain "extra work" and certain "back charges, overcharges, and allegedly defective work." This document even goes on to provide that certain of its provisions will remain confidential as between WAR and Premier, its signatories. I cannot conclude that Premier intended by the provisions of the document to release any liens or claims it might have against SEC, SEC's surety, or the project. For that matter, I do not see any language in this document by which Premier releases any "lien" against any party or property. Based on the foregoing, I respectfully dissent to the extent that the main opinion concludes that WAR has provided SEC with a release executed by Premier, enforceable by SEC, of "'all liens and claims against SEC, its surety, and the project,'" ___ So. 3d at ___, that might be held by Premier. In all other respects, I concur. Moore, C.J., concurs. 31 1120618 SHAW, Justice (concurring in part and dissenting in part). I concur to reverse the judgment on the basis that the release regarding Heritage Masonry, Inc., does not comply with the requirements of the May 9 judgment. I dissent from the holding that the documents relating to Premier Service Company, Inc., are sufficient to release any claims Premier may have against SEC. As discussed by Justice Murdock, although the language in the documents broadly releases claims and obligations relating to the project, the actual parties to which the documents apply are narrowly described as Premier and WAR Construction, Inc. 32	May 9, 2014
713b5e84-630a-4674-bddb-ba8ecf4f8923	Grant et al. v. Breland Homes, LLC	N/A	1121405	Alabama	Alabama Supreme Court	Rel: 6/13/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121405 ____________________ Mike Grant et al. v. Breland Homes, LLC, and D.R. Horton, Inc. - Huntsville Appeal from Madison Circuit Court (CV-12-901656) BRYAN, Justice. Mike Grant, Barry Leake, Scott Schumacher, and Diane Schumacher (referred to collectively hereinafter as "the plaintiffs") appeal a summary judgment entered in favor of Breland Homes, LLC ("Breland"), and D.R. Horton, Inc.- 1121405 Huntsville ("Horton"). For the reasons set forth herein, we dismiss the plaintiffs' appeal. Facts and Procedural History The Reserve is a subdivision in Madison County that comprises four smaller communities or subdivisions. One of the subdivisions or communities within The Reserve is named Oak Grove. Each of the four plaintiffs owns a house in Oak Grove, and all four are members of The Reserve Subdivision Home Owners' Association ("the HOA"). Gulf Coast Development, LLC ("Gulf Coast"), is the original owner and developer of The Reserve. On or about May 12, 2005, a "Declaration of Protective Covenants for The Reserve Subdivision" ("the Declaration") was filed in the Madison Probate Court by Gulf Coast, the declarant. The Declaration provides, in part: "No exterior construction, addition, erection, or alteration shall be made unless and until plans ... have been submitted in writing to and approved by an Architectural Review Committee ('ARC') established by the Board [of Directors of the HOA]. ... "... The Architectural Review Committee shall be the sole arbiter of such plans and may withhold approval for any reason, including purely aesthetic considerations, and it shall be entitled to stop any construction in violation of these restrictions." 2 1121405 The Declaration also contains provisions that leave certain powers to Gulf Coast, as the declarant. For example, the Declaration provides that Gulf Coast may unilaterally amend the Declaration for any purpose, so long as Gulf Coast has the right to subject additional property to the Declaration and the amendment does not adversely affect the title of an owner of a lot in The Reserve. Further, the Declaration provides that Gulf Coast, so long as it has the option to subject additional property to the Declaration, may, "in the exercise of its discretion, permit deviations from the restrictions contained in this Declaration, the by-laws, the rules and regulations, the use restrictions, and the design guidelines." In August 2012, Horton purchased the assets of Breland, including lots 13 and 26 in Oak Grove. Pursuant to a licensing agreement, Horton acquired the right to use the trade name "Breland Homes." On September 14, 2012, Horton, doing business under that trade name, submitted an application for construction-design review to The Reserve Architectural Review Committee ("the ARC") concerning lot 13 in Oak Grove. On October 10, 2012, the chair of the ARC notified Horton that the plan submitted with its application "was not approved for 3 1121405 construction" because it was not aesthetically comparable to other houses in Oak Grove. The ARC informed Horton that it was recommending "an immediate cease construction order." Horton responded by stating that, given that the ARC had previously approved the same construction plan, Horton planned to proceed with the construction plan submitted. On October 12, 2012, the advisory board of directors of the HOA sent a letter demanding that Breland Homes cease further construction activity on lot 13 in Oak Grove. On or about October 9, 2012, Horton, doing business under the trade name "Breland Homes," submitted an application for construction-design review to the ARC regarding lot 26 in Oak Grove. On October 24, 2012, the advisory board of the HOA sent a letter to Horton demanding that it cease construction activity on lot 26 until the ARC approved its application. On November 2, 2012, the ARC notified Horton that it had not approved its construction application for lot 26 because, among other reasons, it was not aesthetically similar to other houses in Oak Grove. On November 5, 2012, Jeff Enfinger, the manager of Enfinger Steele Development, LLC, the controlling member of 4 1121405 Gulf Coast, informed the ARC and the HOA that the construction applications submitted by Horton complied with the covenants and restrictions in the Declaration and that the houses being built on lots 13 and 26 were "much bigger" than the restrictions required and approved the construction applications for lots 13 and 26. On November 13, 2012, the plaintiffs filed a complaint against Breland, Gulf Coast, and the HOA seeking a judgment declaring that Gulf Coast did not have power to "veto" the actions of the ARC, that Breland was in violation of the protective covenants in the Declaration, and that "the Board has the power to take action as it deems necessary to remedy such violations." On the same date, the plaintiffs filed a motion for a temporary restraining order and a preliminary injunction. The plaintiffs requested that the trial court enter an order pursuant to Rule 65(b), Ala. R. Civ. P., "enjoining and restraining ... Breland ... from continuing construction on Lots 13 and 26 in The Reserve Subdivision, Oak Grove Subdivision," and, after a hearing, "make the relief granted in this Court's temporary restraining order extend to a preliminary injunction and a permanent injunction." 5 1121405 On January 3, 2013, Gulf Coast filed an amendment to the Declaration in the Madison Probate Court. The amendment stated, among other things: "[T]he ARC shall have no authority to approve or disapprove the construction, alteration, addition, or erection of structures on Lots owned by Breland or Horton. The approval or disapproval of any such construction or improvements to be performed on Lots owned by Breland or Horton shall be exercised exclusively by [Gulf Coast] and the decisions of [Gulf Coast] with respect to Lots owned by Breland and Horton shall be final and binding on the Board [of Directors of the HOA], the ARC, and the Owners." On January 4, 2013, the plaintiffs filed an amended complaint adding Horton as a defendant in their declaratory- judgment action, and on January 14, 2013, the plaintiffs filed an amended motion for a temporary restraining order and a preliminary injunction against Horton. After conducting a hearing, the trial court, on February 7, 2013, entered the following order denying the plaintiffs' request for temporary injunctive relief: "The court finds that Defendant Gulf Coast Development Company, LLC, based upon the Declaration of Protective Covenants admitted as plaintiffs' Exhibit 1 allows for the Defendant Gulf Coast Development Company, LLC, to amend the Declaration for any purpose without the consent of the homeowners. Furthermore, the Declarant may permit deviations from the restrictions contained in the Declaration or by-laws. 6 1121405 "Therefore, based upon this threshold determination, the Court finds that the plaintiffs are not entitled to their claim for injunctive relief." The plaintiffs filed a third amended complaint on February 20, 2013. The plaintiffs sought a judgment declaring that Gulf Coast does not have the power to veto the actions of the ARC; that Breland and Horton were in violation of the protective covenants in the Declaration; that the HOA Board has the power to remedy such violations; that the actions of Gulf Coast were unconscionable and in violation of mutually beneficial protective covenants and restrictions; that the January 3, 2013, amendment to the Declaration is void; that Gulf Coast acted unreasonably by amending the Declaration; and that "the concerted scheme of [Gulf Coast], Breland, and Horton to file the ... amendment after the commencement of this declaratory judgment action constitutes a civil conspiracy." The plaintiffs further sought a permanent injunction enjoining "the defendants ... from the continued construction of homes in the subdivision without ARC oversight." On March 20, 2013, Breland and Horton filed a motion for a summary judgment, arguing that a summary judgment in their 7 1121405 favor was proper for primarily two reasons: (1) Gulf Coast, as the declarant in the Declaration, had the authority to grant a deviation from the restrictions contained in the Declaration, and (2) Gulf Coast had the power to amend the Declaration for any purpose. Thus, they argued, a summary judgment should be entered in their favor for the same reason the trial court denied the plaintiffs' request for temporary injunctive relief, i.e., that Gulf Coast acted within its authority either to grant a deviation from the restrictions in the Declaration or to amend the Declaration to remove Breland and Horton from ARC oversight and approval. Gulf Coast also filed a motion for a summary judgment adopting the arguments in Breland and Horton's summary-judgment motion. On the same date, the plaintiffs filed a motion for a summary judgment as to all claims pending against Breland, Horton, Gulf Coast, and the HOA. The trial court conducted a hearing on the pending summary-judgment motions, and, on July 23, 2013, the trial court entered an order stating: "[T]he court is of the opinion that there are no genuine issues of material fact and that the defendants are entitled to judgment as a matter of law as to the claims asserted by the plaintiffs. Furthermore, the court finds that the plaintiffs are not entitled to judgment as a matter of law 8 1121405 regarding their motion for summary judgment; therefore, the plaintiffs' motion for summary judgment is denied." The plaintiffs filed a motion for relief from judgment, purportedly pursuant to Rules 59(e) and 60(b)(6), Ala. R. Civ. P. Breland, Horton, and Gulf Coast filed a response to the plaintiffs' motion and moved the trial court to certify the summary judgment in their favor as final pursuant to Rule 54(b), Ala. R. Civ. P. On August 26, 2013, the trial court 1 entered an order denying the plaintiffs' motion for relief from judgment and certifying the summary judgment in favor of Breland and Horton only as final pursuant to Rule 54(b). Thereafter, the plaintiffs filed a notice of appeal naming Breland and Horton as the appellees. Discussion On appeal, the plaintiffs challenge the trial court's denial of their motion for relief from judgment without a hearing; the trial court's February 7, 2013, denial of their motion for injunctive relief; and the summary judgment entered in favor of Breland and Horton. However, we cannot consider The record demonstrates that the HOA was served with the 1 plaintiffs' complaint, that the HOA filed an answer to the plaintiffs' complaint, and that no judgment disposing of the claims against the HOA had been entered by the trial court. 9 1121405 the merits of those arguments because, we conclude, the trial court's Rule 54(b) certification was improper and, thus, the plaintiffs' appeal is due to be dismissed. See generally Fuller v. Birmingham-Jefferson Transit Auth., [Ms. 1090436, December 20, 2013] ___ So. 3d ___, ___ (Ala. 2013) (concluding that "the trial court's certification of finality under Rule 54(b) is ineffective, and, there being no final judgment, both the appeal and cross-appeal are dismissed for lack of jurisdiction"). "With respect to the finality of judgments adjudicating fewer than all claims in a case, Rule 54(b), Ala. R. Civ. P., provides: "'When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. ... [I]n the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and 10 1121405 the rights and liabilities of all the parties.' "'If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.' Baugus v. City of Florence, 968 So. 2d 529, 531 (Ala. 2007) (emphasis added). However, this Court will not consider an appeal from a judgment certified as final under Rule 54(b) if it determines that the trial court exceeded its discretion in concluding that there is 'no just reason for delay.' Rule 54(b); see also Scrushy v. Tucker, 955 So. 2d 988, 996 (Ala. 2006) ('Whether there was "no just reason for delay" is an inquiry committed to the sound discretion of the trial court, and, as to that issue, we must determine whether the trial court exceeded its discretion.'). "A trial court exceeds its discretion in determining that there is 'no just reason for delay' when 'the issues in the claim being certified and a claim that will remain pending in the trial court "'are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.'"' Schlarb v. Lee, 955 So. 2d 418, 419–20 (Ala. 2006) (quoting Clarke–Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So. 2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987)). See also Centennial Assocs., Ltd. v. Guthrie, 20 So. 3d 1277, 1281 (Ala. 2009) ('"It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties."' (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998)))." 11 1121405 Loachapoka Water Auth., Inc. v. Water Works Bd. of Auburn, 74 So. 3d 419, 422-23 (Ala. 2011). In Smith v. Slack Alost Development Services of Alabama, LLC, 32 So. 3d 556 (Ala. 2009), Slack Alost sued Tony Smith and Albert Weems, alleging breach of contract for failing to complete their condominium purchase. Smith & Weems Investments, LLC, was added as a party because it was the entity named in a standby letter of credit obtained as part of the contract for the purchase of a condominium unit. Slack Alost moved for a summary judgment against Weems, but not against Smith or Smith & Weems Investments. The trial court granted the motion and certified the summary judgment as final pursuant to Rule 54(b). Smith and Smith & Weems appealed. On appeal, this Court held: "In the instant case, it is apparent that at least some of the issues presented in the still pending claim against Smith are the same as the issues presented in the appeal now brought by Smith and Smith & Weems Investments. Weems and Smith are business partners accused of breaching the same real-estate contract, and ... Weems and Smith have both argued that Slack Alost never presented them with the original offering statement or the amended offering statement for the Bel Sole condominium development, in violation of § 35–8A–408. In Centennial Associates, Ltd.[ v. Guthrie, 20 So. 3d 1277 (Ala. 2009,] we stated that '"[i]t is uneconomical for an appellate court to review facts 12 1121405 on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties."' 20 So. 3d at 1281 (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998)). Repeated appellate review of the same underlying facts would be a probability in this case, and, in light of this Court's stated policy disfavoring appellate review in a piecemeal fashion, see Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala. 2004), we accordingly hold that the trial court exceeded its discretion in certifying the judgment entered against Weems as final pursuant to Rule 54(b)." 32 So. 3d at 562-63. In the present case, review of the nonfinal summary judgment in favor of Gulf Coast and of the summary judgment entered in favor of Horton and Breland that is before this Court on appeal requires resolution of the same threshold issue: whether Gulf Coast had authority to approve the construction applications for lots 13 and 26 in Oak Grove when the same applications had already been denied by the ARC. Horton, Breland, and Gulf Coast presented the same arguments in their summary-judgment motions and the same defenses to the plaintiffs' claims. Although the summary judgment in favor of Breland and Horton is before this Court on appeal, the summary judgment in favor of Gulf Coast is not. Because the threshold 13 1121405 issue in the judgment before this Court is identical to the threshold issue in a claim still pending before the trial court, we conclude that the claims are "'"'so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.'"'" Loachapoka Water Auth., 74 So. 3d at 423 (quoting Schlarb v. Lee, 955 So. 2d 418, 419-20 (Ala. 2006)). Further, as in Smith, supra, "[r]epeated appellate review of the same underlying facts would be a probability in this case." 32 So. 3d at 562. Thus, "in light of this Court's stated policy disfavoring appellate review in piecemeal fashion," id. at 562-63, we conclude that the trial court exceeded its discretion in determining that there was no just reason for delay and in certifying as final pursuant to Rule 54(b) the summary judgment in favor of Horton and Breland. Accordingly, the plaintiffs' appeal is dismissed. See Stephens v. Fines Recycling, Inc., 84 So. 3d 867, 879 (Ala. 2011) (holding that the trial court's Rule 54(b) certification was erroneous and concluding that, "[i]n the absence of a final judgment, this appeal is due to be dismissed"). APPEAL DISMISSED. Moore, C.J., and Bolin, Murdock, and Main, JJ., concur. 14	June 13, 2014
004ffb59-457b-4672-95d3-29576e9609c4	Crossfield v. Limestone County Commission	N/A	1130440	Alabama	Alabama Supreme Court	REL:09/26/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130440 ____________________ Sara Johnson Crossfield v. Limestone County Commission Appeal from Limestone Circuit Court (CV-13-0058) MOORE, Chief Justice. Sara Johnson Crossfield appeals from a summary judgment entered by the Limestone Circuit Court in favor of the Limestone County Commission ("the Commission") in Crossfield's 1130440 action to reverse the Commission's decision to vacate a portion of Dogwood Flats Road in Limestone County. We affirm. 1 I. Facts and Procedural History In early 2013, the Commission proposed to vacate a portion of Dogwood Flats Road pursuant to § 23-4-1 et seq., Ala. Code 1975 (which addresses vacating streets and highways). The relevant section of Dogwood Flats Road lies near Tanner and runs north and south for a distance of approximately 2,230 feet. In April 2013, the Commission advertised the proposed road vacation for four consecutive weeks in a local newspaper. The Commission notified the abutting property owners of that portion of Dogwood Flats Road proposed to be vacated and scheduled a public hearing pursuant to § 23-4-2, Ala. Code 1975. Crossfield's property does not abut the portion of Dogwood Flats Road proposed to be vacated; it abuts Dogwood Flats Road approximately 400 feet north of the portion of the road that the Commission proposed to vacate. The name of the road appears both as "Dogwood Flat Road" 1 and "Dogwood Flats Road" in the record and in the parties' briefs. We refer to the road as "Dogwood Flats Road." 2 1130440 On May 6, 2013, the Commission held a public hearing concerning the proposed road vacation. Crossfield attended the hearing and voiced her objections to the proposed road vacation pursuant to § 23-4-2(a) ("Any citizen alleging to be affected by the proposed vacation may submit a written objection to the governing body or may request an opportunity to be heard at the public hearing held as required herein."). After the hearing, the Commission adopted a resolution vacating the relevant portion of the road. The Commission found that the portion of the road sought to be vacated was no longer in use by the general public and that it was in the public interest to vacate that portion of Dogwood Flats Road. The Commission found that the vacation of the road would not deprive any owner of any right to convenient and reasonable means of ingress and egress. On June 5, 2013, Crossfield filed an appeal of the Commission's vacation of the road in the Limestone Circuit Court ("the trial court") pursuant to § 23-4-5, Ala. Code 1975 ("Any party affected by the vacation of a street, alley, or highway pursuant to this chapter may appeal within 30 days of the decision of the governing body vacating the street to the 3 1130440 circuit court of the county in which the lands are situated ...."). Crossfield alleged that she was a "party affected by the vacation of a portion of Dogwood Flat[s] Road" and asked the trial court to set aside the vacation of the road. Crossfield alleged, among other things, that the Commission had obstructed her access to Piney Creek, which lies to the east and south of Crossfield's property. On June 21, 2013, the Commission moved the trial court to dismiss Crossfield's appeal on the grounds that "Crossfield is not a person affected by the vacation and lacks standing to appeal the decision of the [Commission] to vacate the subject portion of Dogwood Flats Road." The Commission's motion to dismiss included copies of public records relevant to the vacation of the road and an affidavit from Richard Sanders, Limestone County's engineer who coordinates the Commission's vacation of county roads. Sanders's affidavit states: "[Crossfield] is not an owner of land abutting the portion of Dogwood Flats Road to be vacated. "The portion of Dogwood Flats Road the County vacated is approximately 400 feet south of property owned by [Crossfield]. "The [Commission] determined that the vacation of the subject portion of Dogwood Flats Road would not deprive any owner of any right to convenience 4 1130440 [sic] and reasonable means of ingress and egress, including [Crossfield]. ... "... Dogwood Flats Road is not accessed by a public thoroughfare from the south. Upon my knowledge and belief, prior to the vacation of the subject portion of Dogwood Flats Road, [Crossfield] did not use the vacated portion of Dogwood Flats Road for ingress and egress to and from her property. "Further, upon my knowledge and belief, neither [Crossfield] nor any other abutting landowners or the general public has been deprived of any convenient and reasonable ingress and egress to a nearby waterway. The vacated portion of Dogwood Flats Road was not being used by the general public to access any waterway or body of water." On September 23, 2013, the Commission moved the trial court to convert its motion to dismiss into a motion for a summary judgment, which motion the trial court granted. On October 8, 2013, Crossfield filed a response to the Commission's motion. On November 20, 2013, Crossfield filed an affidavit on her own behalf in opposition to the Commission's motion for a summary judgment. Crossfield's affidavit states, in pertinent part: "Roy (Crossfield) and I were both stunned when the [Commission] chose to close Dogwood Flat[s] Road and bar us with a chain and padlocks from the Piney Creek. I have read cases ... that state clearly that if a landowner is barred from a body of water that he does have the right for the vacation to be set aside. A landowner suffers a special injury if he is 5 1130440 denied convenient access to a nearby body of water. Williams v. Norton, 399 So. 2d 828 (Ala. 1981). McPhillips v. Brodbeck, 266 So. 2d 592 (Ala. 1972). Holz v. Lyles, 251 So. 2d 583 (Ala. 1971). We ask the good judge to set aside the vacation of Dogwood Flat[s] Road and reunite us again with our Piney Creek. ... "In my case, as the owner of Farm 8556, the vacation of Dogwood Flat[s] Road affects the value of my property, the safety of my property, the drainage of it, and the survival of it. There are many people who used the public way to visit the Piney Creek who are ardent supporters and cherish the Piney Creek, but no one cheers more loudly than the owner in the vicinity." 2 On November 25, 2013, the trial court held a hearing on the Commission's motion for a summary judgment at which testimony was presented. At the hearing, the Commission argued that Crossfield did not have standing to appeal the vacation of Dogwood Flats Road because she was not an abutting landowner. Crossfield argued that she had standing to appeal because the vacation of the road denied her convenient access to Piney Creek and because the value of her property would be diminished as a result of the back-up of water in the ditches along Dogwood Flats Road, which would no longer be maintained by the County. Crossfield's affidavit also recites events occurring in 2 2011 following a tornado and a flood. 6 1130440 On December 12, 2013, the trial court granted the Commission's motion for a summary judgment and dismissed Crossfield's appeal. The trial court's order states: "Upon a full and fair consideration of the matters pled and oral arguments made to the Court at said hearing, the Court finds there is no genuine issue as to any material fact and [the Commission] is entitled to the judgment of having [Crossfield's] appeal dismissed as a matter of law." On January 17, 2014, Crossfield filed her notice of appeal to this Court pursuant to § 23-4-5 ("From the judgment of the circuit court, an appeal may be taken within 42 days by either party to ... the Supreme Court ...."). II. Standard of Review Summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala. R. Civ. P. "'The standard of review applicable to a summary judgment is the same as the standard for granting the motion....' "'... The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the 7 1130440 nonmoving party must present "substantial evidence" creating a genuine issue of material fact--"evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved."'" Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 935 (Ala. 2006)(quoting Capital Alliance Ins. Co. v. Thorough- Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994))(internal citations omitted). "Questions of law are reviewed de novo." Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004). III. Discussion The issue before this Court is whether Crossfield was a "party affected by the vacation" of Dogwood Flats Road and thus has standing to contest the Commission's decision pursuant to § 23-4-5, which provides: "Any party affected by the vacation of a street, alley, or highway pursuant to this chapter may appeal within 30 days of the decision of the governing body vacating the street to the circuit court of the county in which the lands are situated, and upon such appeal, the proceeding shall be tried de novo, either party having the right to demand trial by jury .... From the judgment of the circuit court, an appeal may be taken within 42 days by either party to the Court of Civil Appeals or the Supreme Court in accordance with the Alabama Rules of Appellate Procedure." 8 1130440 (Emphasis added.) Section 23-4-2, Ala. Code 1975, provides that vacation of a road "shall not deprive other property owners of any right they may have to convenient and reasonable means of ingress and egress to and from their property, and if that right is not afforded by the remaining streets and alleys, another street or alley affording that right must be dedicated." (Emphasis added.) 3 The Commission maintains that Crossfield has not provided substantial evidence showing that she is an affected party with standing to appeal. According to the Commission, Crossfield is not an affected party because (1) she is not an abutting landowner and (2) she has not been denied access to a waterway. Crossfield maintains that she does not have to be an abutting landowner in order to appeal the vacation of the road. She asserts that she can bring an action to prevent the vacation of Dogwood Flats Road because, she says, she has a Crossfield correctly notes that vacation statutes are to 3 be strictly construed. See Bownes v. Winston Cnty., 481 So. 2d 362, 363 (Ala. 1985) ("There is a common law prohibition against the vacation of public ways. ... Therefore, the vacation statutes are in derogation of the common law prohibition against the vacation of public ways and must be strictly construed."). 9 1130440 special interest in the road and suffers "damages different in kind and degree from those suffered by the public." A. Ownership of abutting property is not a requirement for standing under § 23-4-5. Ownership of land abutting the portion of the road to be vacated is not a requirement for standing to appeal the government's decision to vacate the road. See Jackson v. Moody, 431 So. 2d 509, 513 (Ala. 1983)("[P]laintiffs do possess standing to contest the vacation, notwithstanding the fact that they are not abutting property owners."); Gwin v. Bristol & Iron Works, Inc., 366 So. 2d 692, 694 (Ala. 1978)("[I]t is no consequence that they were not abutting owners to that specific portion proposed to be closed ...."). Crossfield correctly asserted that she is not required to be an abutting landowner to the vacated portion of the road in order to have standing to appeal the Commission's decision under § 23-4-5. B. To have standing under § 23-4-5, an individual must assert a special injury closely connected to the vacation of the road. Section 23-4-5 does not define the phrase "party affected" used therein. However, § 23-4-2(b) protects "other property owners of any right they may have to convenient and 10 1130440 reasonable means of ingress and egress to and from their property." In addition, we have held that individuals who suffer "a special injury" from the vacation of a road have standing to contest the vacation. An individual suffers a special injury when he or she has suffered damage "different in kind and degree from [that] suffered by the public in general." Hall v. Polk, 363 So. 2d 300, 302 (Ala. 1978). For example, a special injury could be "an obstruction [that] forces the owner of land abutting on the obstructed road into a circuitous route to the outside world or denies convenient access to a waterway." Id. However, a claimed injury is too remote to support standing when there is a "lack of a close connection between the wrong and the injury." Moody, 431 So. 2d at 513. We have referred to the requirement of a close connection as the "rule of remoteness," id.; see also Gwin, 366 So. 2d at 694. In Hall v. Polk, we held that the petitioner, who lived directly east of a river, had standing when the roadway that was obstructed was the only "direct, convenient access" to the river from the petitioner's property. 363 So. 2d at 302. Although a more circuitous route to the river was available, 11 1130440 we held that the petitioner suffered a special injury because of his proximity to the river and the obstruction of convenient access. 363 So. 2d at 303. We also have held that property owners had standing as the result of a right derived from owning property in a subdivision. See Jackson v. Moody, 431 So. 2d 509, 513 (Ala. 1983)(holding that the interest in an access road to the dedicated beach area for those residing in the subdivision is not remote); Gwin, 366 So. 2d at 694 (holding that petitioners had standing because they purchased land in a subdivision as laid out by the subdivision map). Crossfield stated that the vacation of Dogwood Flats Road affects the value, safety, drainage, and survival of her property and that the vacation of the road bars her "with a chain and padlocks from the Piney Creek." However, Crossfield failed to provide substantial evidence demonstrating that the road vacation affected her legal rights, her convenient access to Piney Creek, or the value, safety, and drainage of her property. Unlike the petitioner in Hall, Crossfield has not shown that the portion of the road vacated is her only direct and convenient means of access to Piney Creek. Evidence of a chain and a padlock on one road does not show that there is no 12 1130440 other convenient way to get to Piney Creek. Crossfield has not demonstrated any other non-remote special injury, such as a property interest, as the petitioners in Gwin and Jackson did. Crossfield has not shown that she would suffer a specific injury different in kind and degree from that suffered by the general public and that passes muster under the rule of remoteness; therefore she is not an "affected" party pursuant to § 23-4-5. IV. Conclusion Crossfield's evidence, even when viewed in the light most favorable to her as the nonmovant, does not create a genuine issue of material fact that would preclude a summary judgment for the Commission. Therefore, the summary judgment in favor of the Commission is affirmed. AFFIRMED. Stuart, Bolin, Parker, and Main, JJ., concur. Murdock, Shaw, Wise, and Bryan, JJ., dissent. 13 1130440 MURDOCK, Justice (dissenting). I dissent. The Limestone County Commission's decision to vacate over 2,000 feet of Dogwood Flats Road may be due to be upheld on the merits, but I cannot agree that Sara Johnson Crossfield does not have standing to challenge that decision. As the main opinion notes, one who establishes that he or she has a "special injury" resulting from the vacation of a road has standing to challenge that vacation. The main opinion further observes that "[a]n individual suffers a special injury when he or she has suffered damage 'different in kind and degree from [that] suffered by the public in general.'" ___ So. 3d at ___ (quoting Hall v. Polk, 363 So. 2d 300, 302 (Ala. 1978)). Crossfield's home and property abut Dogwood Flats Road at a point only 400 feet north of the vacated section. That fact alone gives Crossfield an interest in the roadway different from that of the general public. Furthermore, the rendition of the facts provided by the main opinion makes it clear that the vacation of Dogwood Flats Road will deprive Crossfield of a relatively direct means of access to Piney Creek. Moreover, Crossfield testified by affidavit that the vacation of Dogwood 14 1130440 Flats Road will affect the value of her property, safety, and drainage. Thus, both Crossfield's allegations and the undisputed facts establish that she suffered the kind of "special injury" required to allow her to challenge the vacation of Dogwood Flats Road. Shaw, Wise, and Bryan, JJ., concur. 15	September 26, 2014
ca67e34a-bf4a-4e8f-b264-5a389ab2b0b3	Ex parte Linda Manning	N/A	1131152	Alabama	Alabama Supreme Court	REL: 12/05/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2014-2015 _________________________ 1131152 _________________________ Ex parte Linda Faye Manning PETITION FOR WRIT OF MANDAMUS (In re: Shannon Richardson v. Linda Faye Manning) (Macon Circuit Court, CV-14-900034) WISE, Justice. Linda Faye Manning, the defendant below, filed a petition for a writ of mandamus requesting that this Court direct the 1131152 Macon Circuit Court to vacate its order denying her motion to transfer this action to the Montgomery Circuit Court and to enter an order granting the motion. We grant the petition and issue the writ. Facts and Procedural History On February 28, 2014, Shannon Richardson filed a complaint in the Macon Circuit Court against Manning, stating claims of negligence and wantonness as a result of a motor- vehicle accident that occurred in Montgomery County on October 3, 2012. Richardson sustained injuries and was taken by ambulance to Baptist South Hospital in Montgomery after the accident. Law-enforcement personnel who responded to the accident worked in Montgomery County. At all material times, Richardson was a resident of Montgomery County, and Manning was a resident of Macon County. On March 25, 2014, Manning filed a motion to transfer the action to Montgomery County based on the doctrine of forum non conveniens, as codified in § 6-3-21.1, Ala. Code 1975. On April 1, 2014, Richardson filed a response in opposition to the motion to transfer. On June 4, 2014, the trial court denied the motion to transfer. This petition followed. 2 1131152 Standard of Review "A petition for a writ of mandamus is the appropriate 'method for obtaining review of a denial of a motion for a change of venue' pursuant to § 6–3–21.1. Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998). ... "'....' "'A party moving for a transfer under § 6–3–21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified "in the interest of justice."' Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 536, 539 (Ala. 2008). Although we review a ruling on a motion to transfer to determine whether the trial court exceeded its discretion in granting or denying the motion, id., where 'the convenience of the parties and witnesses or the interest of justice would be best served by a transfer, § 6–3–21.1, Ala. Code 1975, compels the trial court to transfer the action to the alternative forum.' Ex parte First Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 912 (Ala. 2008) (emphasis added)." Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 573 (Ala. 2011). Discussion Manning argues that the trial court exceeded its discretion in denying her motion to transfer the action from Macon County to Montgomery County. Specifically, she contends that Montgomery County has a strong connection to the case because all the material events that gave rise to Richardson's 3 1131152 claims occurred there. In contrast, Manning asserts that Macon County has, at best, only a tenuous connection to the case -- namely, the fact that she resides there. After noting that the court deciding the transfer issue must consider "the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county," Ex parte Smiths Water & Sewer Auth., 982 So. 2d 484, 490 (Ala. 2007), Manning asserts that the interest-of-justice prong of Alabama's forum non conveniens statute mandates a transfer to Montgomery County. Section 6-3-21.1, Ala. Code 1975, provides, in pertinent part: "With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein." (Emphasis added.) "Historically, the plaintiff has had the initial choice of venue under the system established by the legislature for determining venue. Before the 4 1131152 enactment of § 6–3–21.1 by the Alabama Legislature in 1987, a plaintiff's choice of venue could not be disturbed on the basis of convenience to the parties or the witnesses or in the interest of justice. With the adoption of § 6–3–21.1, trial courts now have 'the power and the duty to transfer a cause when "the interest of justice" requires a transfer.' Ex parte First Family Fin. Servs., Inc., 718 So. 2d 658, 660 (Ala. 1998) (emphasis added). In First Family, this Court noted that an argument that trial judges have almost unlimited discretion in determining whether a case should be transferred under § 6–3–21.1 'must be considered in light of the fact that the Legislature used the word "shall" instead of the word "may" in § 6–3–21.1.' 718 So. 2d at 660. This Court has further held that 'Alabama's forum non conveniens statute is compulsory.' Ex parte Sawyer, 892 So. 2d 898, 905 n.9 (Ala. 2004)." Ex parte Autauga Heating & Cooling, LLC, 58 So. 3d 745, 748-49 (Ala. 2010). "The 'interest of justice' prong of § 6–3–21.1 requires 'the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.' Ex parte National Sec. Ins. Co., 727 So. 2d [788,] 790 [(Ala. 1998)]. Therefore, 'in analyzing the interest-of-justice prong of § 6–3–21.1, this Court focuses on whether the "nexus" or "connection" between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action.' Ex parte First Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 911 (Ala. 2008). Additionally, this Court has held that 'litigation should be handled in the forum where the injury occurred.' Ex parte Fuller, 955 So. 2d 414, 416 (Ala. 2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider 'the burden of piling court services and 5 1131152 resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.' Ex parte Smiths Water & Sewer Auth., 982 So. 2d 484, 490 (Ala. 2007)." Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 536, 540 (Ala. 2008). The parties do not dispute that the complaint was filed in an appropriate venue, namely, Macon County. Likewise, they do not dispute that the action could properly have been filed in Montgomery County. However, they do dispute whether the 1 interest-of-justice prong of § 6-3-21.1 requires a transfer of this case from Macon County to Montgomery County. With regard to venue of actions against individuals, § 1 6-3-2, Ala. Code 1975, provides, in pertinent part: "(a) In proceedings of a legal nature against individuals: ".... "(3) All other personal actions [i.e., those not identified in subparagraphs (1) and (2)] if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred." 6 1131152 As Manning points out in her reply brief, this Court recently addressed a factually similar case and similar arguments in Ex parte Morton, [Ms. 1130302, August 29, 2014] ___ So. 3d ___ (Ala. 2014). In Ex parte Morton, Watkins, a resident of Jefferson County, filed a complaint in the Greene Circuit Court against Morton, a resident of Greene County, asserting claims that arose out of an automobile accident that had occurred in Jefferson County. After the accident, Watkins was treated at a hospital in Jefferson County and later received medical treatment at four health-care facilities located in Jefferson County. Morton filed a motion to transfer the case to Jefferson County based on the doctrine of forum non conveniens; the trial court denied that motion, and Morton petitioned this Court for a writ of mandamus. This Court granted Morton's petition and issued the writ, reasoning, in relevant part: "In reviewing this case under the interest-of-justice prong of § 6–3–21.1(a), we must 'determine whether "the interest of justice" overrides the deference due the plaintiff's choice of forum' in the present case. [Ex parte] J & W Enters., [LLC, [Ms. 1121423, March 28, 2014]] ___ So. 3d [___,] ___ [(Ala. 2014)]. We hold that it does. 7 1131152 "In Ex parte Wachovia [Bank, N.A., 77 So. 2d 570 (Ala. 2011)], this Court thoroughly discussed the application of the interest-of-justice prong of § 6–3–21.1(a) in several cases involving facts similar to those presented in this case: "'In its petition for the writ of mandamus, Wachovia relies solely on the interest-of-justice prong as a ground for transfer. "'"'[I]n analyzing the interest-of-justice prong of § 6–3–21.1, this Court focuses on whether the "nexus" or "connection" between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action.' Ex parte First Tennessee Bank Nat'l Ass'n, 994 So. 2d [906,] 911 [(Ala. 2008)].... Further, in examining whether it is in the interest of justice to transfer a case, we consider 'the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.' Ex parte Smiths Water & Sewer Auth., 982 So. 2d 484, 490 (Ala. 2007)." "'Ex parte Indiana Mills [& Mfg., Inc.], 10 So. 3d [536] at 540 [(Ala. 2008)]. Thus, the dispositive question is whether the nexus between this action and Macon County is "strong enough to warrant burdening" 8 1131152 Macon County with this action. For the following reasons, we hold that it is not. "'Lee County is the situs of all the alleged acts or omissions giving rise to the plaintiffs' claims. Any allegedly unauthorized withdrawals were made from a Wachovia branch in Lee County. Police investigation of the matter was conducted in Lee County. Lee County is Floyd's place of residence, as well as the location of Unique [Image Pro Car Care, Floyd's business]. Thus, Lee County is the place where all the injury alleged in the complaint occurred. Although it is not a talisman, the fact that the injury occurred in the proposed transferee county is often assigned considerable weight in an interest-of-justice analysis. See Ex parte Autauga Heating & Cooling, LLC, 58 So. 3d 745, 748 (Ala. 2010) ("'[T]his Court has held that "litigation should be handled in the forum where the injury occurred."'" (quoting Ex parte Indiana Mills, 10 So. 3d at 540)); Ex parte McKenzie Oil, Inc., 13 So. 3d 346, 349 (Ala. 2008) (same). "'In short, nothing material to this case transpired in Macon County. Macon County's sole material contact with this case is that the two individual defendants ... reside there. Recent cases decided under the interest-of-justice prong are dispositive. "'In Ex parte Autauga Heating & Cooling, LLC, for example, this Court issued a writ of mandamus directing the Montgomery Circuit Court -- in the interest of justice -- to transfer the action to Elmore County. 58 So. 3d at 747. That case arose out of an automobile accident 9 1131152 involving Lori Lee Wright, a resident of Elmore County, and Richard Alexander Rogers, a resident of Montgomery County. The vehicle being operated by Rogers at the time of the accident was owned by Autauga Heating & Cooling, LLC ("Autauga"), which had its principal place of business in Autauga County. The accident occurred in Elmore County, and Wright received treatment at the scene of the accident from emergency medical personnel who lived in Elmore County. 58 So. 3d at 749. When an action was brought against Rogers in the county of his residence, Rogers sought the removal of the action to Elmore County, the situs of the alleged acts or omissions and the place of the injury. "'This Court concluded that a transfer of the case was required. In so doing, we said: "'"Although we agree with Wright that the case has a connection with Montgomery County because Rogers is a resident of Montgomery County and [Autauga] may have some business connections there, ... the overall connection between Montgomery County and this case is weak and ... the connection between the case and Elmore County is strong. "'"... Besides the fact that Rogers is a resident of Montgomery County, there was no other evidence before the trial court indicating a connection between the case and Montgomery County. 10 1131152 "'".... "'"The accident underlying this action occurred in Elmore County, and the emergency personnel who responded to the accident were from Elmore County. The plaintiff herself is a resident of Elmore County. This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defendant does some business there." "'58 So. 3d at 750 (emphasis added). "'In so holding, this Court relied on and discussed Ex parte Indiana Mills & Manufacturing, Inc.: "'"This Court addressed similar facts in Ex parte Indiana Mills & Manufacturing, Inc., supra. In Indiana Mills, the decedent was driving a garbage truck in Lee County owned by his employer when the raised rear door of the truck struck an overhead railroad trestle, causing the truck to crash. The decedent was killed when he was ejected from the truck. His widow filed a complaint in Macon County against the manufacturers of the garbage truck and the seat belts in the truck and three employees of the decedent's employer. The 11 1131152 employer's principal place of business was in Tallapoosa County. The employer conducted business in Macon County, and one of the individual defendants lived in Macon County. The defendants moved the trial court to transfer the case to Lee County based on the doctrine of forum non conveniens. The trial court denied that motion, and the defendants petitioned this Court for mandamus relief. "'"This Court granted the defendants' mandamus petition and ordered the trial court to transfer the case from Macon County to Lee County based on the 'interest of justice' prong of § 6–3–21.1. In doing so, this Court noted that the accident occurred in Lee County, that the law-enforcement and emergency personnel who had responded to the accident were based out of Lee County, that the chief deputy coroner who investigated the decedent's death did his work in Lee County, and that the records and documents of the fire department that responded to the accident were located in Lee County. Comparing this to the fact that only one of the individual defendants resided in Macon County and that the employer conducted business there, there being no other relevant facts involving Macon County, this Court held that the nexus between Lee County and the 12 1131152 case was strong, that the nexus between Macon County and the case was weak, and that the trial court thus had exceeded its discretion in refusing to transfer the case to Lee County." "'Ex parte Autauga Heating & Cooling, 58 So. 3d at 750 (discussing Ex parte Indiana Mills) (emphasis added). "'In this case, as in Autauga Heating & Cooling and Indiana Mills, the injury occurred in the county to which the transfer is sought. Here, as in Autauga Heating & Cooling and Indiana Mills, no material act or omission occurred in the forum county. As in Indiana Mills, the official investigation of the incident was in the county to which the transfer was sought -- here, Lee County.' "77 So. 3d at 573–75. "As in Wachovia, Ex parte Autauga Heating & Cooling, LLC, 58 So. 3d 745 (Ala. 2010), and Ex parte Indiana Mills & Manufacturing, Inc., 10 So. 3d 536 (Ala. 2008), Watkins's injury occurred in the county to which transfer is sought -- Jefferson County; Watkins is also a resident of Jefferson County and received treatment in four separate medical facilities located in Jefferson County. Additionally, as in Wachovia and Indiana Mills, the official investigation of the incident was conducted in the county to which the transfer is sought. Furthermore, as in Wachovia, Autauga Heating & Cooling, and Indiana Mills, no material act or omission occurred in Greene County. "Watkins argues that Wachovia, Autauga Heating & Cooling, and Indiana Mills are distinguishable because each of those cases involved multiple 13 1131152 defendants residing in both the forum and transferee counties. Although the number and residency of the defendants may affect an interest-of-justice analysis under § 6–3–21.1(a), the fact that the above cases involved multiple defendants does not render them inapposite to the present case involving only one defendant. Considering the similarities between the above cases and the present one, that factual distinction in this case -- that Morton is the sole defendant -- is de minimis. See, e.g., Wachovia, 77 So. 3d at 575 ('As in [Autauga Heating & Cooling and Indiana Mills], the only material connection with the forum county is a defendant's residence. To be sure, in this case two defendants reside in the forum county, rather than one. Given the posture of this case, however, that distinction is inconsequential.'). "For the reasons explained above, Jefferson County has a significantly stronger connection to this case than does Greene County, which is connected to this case only by the fact that Morton resides there -- a connection this Court has characterized as 'weak.' See Autauga Heating & Cooling, 58 So. 3d at 750 ('This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defendant does some business there.'); Indiana Mills, 10 So. 3d at 542 ('We see no need for Macon County, with its weak connection with this case, to be burdened with an action that arose in Lee County simply because one of several defendants resides there. Instead, Lee County clearly has a strong connection with this case. See Ex parte Verbena United Methodist Church, 953 So. 2d 395, 400 (Ala. 2006) (holding that the "weak nexus" with the county in which an action was filed did not "justify burdening" that county with the trial of that action; thus, the doctrine of forum non conveniens required the case be transferred to a county that 14 1131152 had "a much stronger nexus").'). Accordingly, the interest of justice overrides Watkins's choice of forum. Therefore, Morton has a clear legal right to the relief she seeks." Ex parte Morton, ___ So. 3d at ___ (footnote omitted). Based on the reasoning in Ex parte Morton and the cases cited therein, Manning has established that Montgomery County has a stronger connection to the claims in this case than has Macon County. The accident occurred in Montgomery County; law-enforcement personnel who responded to the accident worked in Montgomery County; Richardson was taken to a hospital in Montgomery County after the accident; and Richardson was a resident of Montgomery County. In contrast, Macon County's 2 only connection to the case was the fact that Manning is a resident of Macon County. Because Macon County has only a very weak overall connection to the claims and Montgomery County has a much stronger connection to the claims, the In her petition, Manning cites additional "facts" that 2 allegedly support a transfer to Montgomery County. However, because those "facts" were "contained in 'statements of counsel in motions, briefs, and arguments,' [they] cannot be considered 'evidentiary material' and thus will not be considered by this Court." Autauga Heating & Cooling, 58 So. 3d at 749-50. 15 1131152 interest-of-justice prong of the forum non conveniens statute requires that the action be transferred to Montgomery County. Conclusion For the above-stated reasons, we conclude that the trial court exceeded its discretion in denying Manning's motion for a change of venue based on the interest-of-justice prong of the forum non conveniens statute. Accordingly, we grant Manning's petition for the writ of mandamus and direct the trial court, in the interest of justice, to enter an order transferring the case from the Macon Circuit Court to the Montgomery Circuit Court. PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Parker, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., and Murdock, J., dissent. 16	December 5, 2014
26496b72-deb0-4410-a96e-d6edad883ce3	Douglas H. Cooner v. Alabama State Bar	N/A	1130082	Alabama	Alabama Supreme Court	REL:05/09/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 _________________________ 1130082 _________________________ Douglas H. Cooner v. Alabama State Bar Appeal from the Disciplinary Board of the Alabama State Bar (ASB-02-150) SHAW, Justice. APPEAL DISMISSED. Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. Shaw, J., concurs specially. Moore, C.J., dissents. 1130082 SHAW, Justice (concurring specially). Douglas H. Cooner was disbarred by the Disciplinary Board ("the Board") of the Alabama State Bar ("the Bar"). We reversed the Board's original decision, holding that its order did not satisfy the requirements of Rule 4.2, Ala. R. Disc. P., because it did not include findings of fact as to each allegation of misconduct, and we directed the Board to issue a new order. Cooner v. Alabama State Bar, 59 So. 3d 29, 39 (Ala. 2010). We further stated: "When the Board issues its new order, Cooner will have an opportunity to challenge the judgment" through a postjudgment motion. 59 So. 3d at 41. The Board issued a new order of disbarment, but Cooner did not file a postjudgment motion. We twice more remanded the Board's order for the entry of a more specific order and ultimately affirmed, without an opinion, the Board's order of disbarment. Cooner v. Alabama State Bar, [Ms. 1111340, Aug. 23, 2013] ___ So. 3d ___ (Ala. 2013) (on return to second remand). After this Court had affirmed the Board's order, Cooner filed with the Board a "Motion for New Trial, to Alter, Amend or Vacate, or Alternatively to Open the Disciplinary Board's 2 1130082 Order." The Board, citing this Court's affirmance of Cooner's disbarment, subsequently entered an order purporting to deny Cooner's motion. Cooner purports to appeal from that order. The Board has moved to dismiss the appeal. The Board is essentially the "trial court" of the disbarment proceedings. Assuming that the Board had the authority to hear a postjudgment motion to alter, amend, or vacate its order of disbarment, see Rule 3(b), Ala. R. Disc. P., and Rule 59, Ala. R. Civ. P., it would not have the authority to consider a postjudgment motion filed more than 30 days after it entered its final decision. See generally George v. Sims, 888 So. 2d 1224, 1227 (Ala. 2004) ("Generally, a trial court has no jurisdiction to modify or amend a final order more than 30 days after the judgment has been entered ...."); Cornelius v. Green, 477 So. 2d 1363, 1365 (Ala. 1985) (holding that the trial court had no jurisdiction to modify its final order more than 30 days after its final judgment); Dickerson v. Dickerson, 885 So. 2d 160, 166 (Ala. Civ. App. 2003) (holding that, absent a timely postjudgment motion, the trial court has no jurisdiction to alter, amend, or vacate a final judgment); and Superior Sec. Serv., Inc. v. Azalea City 3 1130082 Fed. Credit Union, 651 So. 2d 28, 29 (Ala. Civ. App. 1994) ("It is well settled that after 30 days elapse following the entry of a judgment, the trial court no longer has authority to correct or amend its judgment, except for clerical errors."). Any ruling by the Board on the motion would thus be a nullity. Ex parte Siderius, [Ms. 1120509, November 27, 2013] ___ So. 3d ___, ___ (Ala. 2013) ("'A judgment issued by a trial court without jurisdiction is a nullity.'" (quoting Ex parte Punturo, 928 So. 2d 1030, 1034 (Ala. 2002))). "[A] nullity ... will not support an appeal." Harden v. Laney, 118 So. 3d 186, 187 (Ala. 2013). Additionally, even if the motion had been properly before the Board, the Board had no authority to alter, amend, or vacate its order, because this Court had affirmed it: "The issues decided by an appellate court become the law of the case ... and the trial court is not free to reconsider those issues." Ex parte S.T.S., 806 So. 2d 336, 341 (Ala. 2001). See also Schramm v. Spottswood, 109 So. 3d 154, 162 (Ala. 2012) ("[T]he Spottswoods' motion is an attempt to advance a new argument in order to revisit an issue already decided by 4 1130082 the trial court ..., which decision was affirmed by the Court of Civil Appeals .... This they cannot do."). Cooner had the opportunity to challenge the findings of the Board by filing a timely application for rehearing of our affirmance. He did not do this. I do not believe that the Board had authority to rule on Cooner's motion much less to grant it, and any such ruling would not support an appeal. Therefore, I concur to dismiss the appeal. 5 1130082 MOORE, Chief Justice (dissenting). Because the Alabama Rules of Appellate Procedure do not provide for supplemental briefing on return to remand, I believe that this Court should accommodate Douglas H. Cooner's attempt to challenge the merits of this Court's decision affirming his disbarment on return to third remand. I. Facts and Procedural History In 2010 the Disciplinary Board of the Alabama State Bar ("the Board") ordered that Cooner be disbarred from the practice of law. On appeal of the disbarment this Court remanded the case three times for the Board to make adequate factual findings and conclusions of law. After the third 1 remand for fuller findings, this Court on August 23, 2013, affirmed, without an opinion, the order of disbarment. Cooner On Cooner's original appeal, this Court reversed the 1 Board's order and remanded for fuller findings and specifically left open the option for Cooner to seek postjudgment relief pursuant to Rule 3(b), Ala. R. Disc. P., and Rule 59, Ala. R. Civ. P. Cooner v. Alabama State Bar, 59 So. 3d 29, 41 (Ala. 2010). In its decision on appeal following the first reversal and remand, this Court again remanded with instructions to the Board to make a return within 30 days. Cooner v. Alabama State Bar, [Ms. 1111340, March 15, 2013] ___ So. 3d ___ (Ala. 2013). On Cooner's appeal from that remand, this Court again remanded for fuller findings and ordered a return within 30 days. Cooner v. Alabama State Bar, [Ms. 1111340, May 24, 2013] ___ So. 3d ___ (Ala. 2013) (opinion on return to remand). 6 1130082 v. Alabama State Bar, [Ms. 1111340, Aug. 23, 2013] ___ So. 3d ___ (Ala. 2013) (on return to second remand). Cooner did not apply for a rehearing. This Court issued its certificate of judgment on September 10, 2013. On October 16, the clerk of the Supreme Court informed the State Bar that Cooner was disbarred as of September 10. Meanwhile on September 6, 2013, two weeks after this Court affirmed Cooner's disbarment and four days before the certificate of judgment issued, Cooner filed with the Board a Rule 59, Ala. R. Civ. P., motion for postjudgment relief. On October 15, the Board denied the motion as "not authorized or allowed" and, in any event, nonmeritorious. On October 18, Cooner moved this Court in case no. 1111340 to set aside its September 10, 2013, judgment and allow him to appeal the denial of his Rule 59 motion. On October 24, before this Court ruled on his motion to set aside the judgment, Cooner appealed the Board's denial of his Rule 59 motion. The Board moved to strike the appeal as an improper attempt to reopen this Court's final judgment. On December 20, this Court denied Cooner's motion to reopen the judgment of September 10. II. Standard of Review 7 1130082 Whether an appeal is legally permissible is a question of law. "Questions of law are reviewed de novo." Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004). III. Analysis Cooner argues that the Board entered proper findings only on the third remand and that he has not had an opportunity to address those findings on the merits before this Court. The Board argues that Cooner could have filed an application for rehearing to seek review of those findings. Alternatively, the Board argues that Cooner could have moved to supplement his original brief to include argument about the findings made by the Board on third remand. While both these contentions are true, I cannot fault Cooner for improvising a procedure to address the new findings made on remand. He indeed could have moved this Court for leave to file an updated brief after each remand; he could also have applied for a rehearing after this Court finally disposed of the case. These suggested remedies, however, are both irregular procedures for addressing error below in the first instance. A. Rehearing 8 1130082 Rule 40, Ala. R. App. P. ("Applications for Rehearing"), allows "[a] party who has not prevailed" to file an application for rehearing. Surely Cooner should be able to address alleged errors in the decision below before this Court issues its opinion. By having to resort to a rehearing to place his arguments before this Court, Cooner is at a distinct disadvantage. He now has to convince the Court that it was wrong, rather than having to demonstrate only that the tribunal below was wrong. The opportunity to submit a rehearing brief after the fact cannot compare to an opportunity -- not provided in the appellate rules -- to challenge the findings on return to remand prior to this Court's making its decision on those findings. Presenting "[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented," Rule 28(a)(10), Ala. R. App. P., as the general appellate rule for filing briefs on appeal provides, seems somehow a less daunting task than stating "with particularity the points of law or the facts the applicant believes the court overlooked or misapprehended." Rule 40(b), Ala. R. App. P. The field of play is unfairly tilted against a party to an appeal when the 9 1130082 opportunity to present objections to the ruling below arises only after this Court has affirmed that ruling. B. Motion to Supplement A party to an appeal facing newly filed findings on return to remand should not be relegated to moving this Court for leave to file a supplemental brief, a procedure not mentioned in the appellate rules. See Johnson v. State, [Ms. CR–05–1805, Sept. 28, 2007] ___ So. 3d ___ (Ala. Crim. App. 2007) (granting a motion of the parties to file new briefs on return to remand). The necessity of seeking leave of court to file a supplementary brief when the findings below have changed dilutes the statutory right to appeal. Just as the right to file a brief on appeal is absolute, so the right to file a brief on return to remand, when the findings have materially changed, should not require special permission or be subject to discretionary denial. Additionally, having to resort to a special motion not provided for in the appellate rules is more likely to cause counsel, through no fault of counsel's own and to the detriment of the client, to overlook the possibility of moving for supplementary briefing on return to remand. 10 1130082 C. Cooner's Remedy Cooner sought to fill the lacuna in the appellate rules by moving this Court to vacate its judgment and allow him to file a Rule 59 postjudgment motion before the Board to address the merits of the Board's findings approved on the third return to remand. Although this novel tactic failed, he filed the motion anyway. He now appeals its denial. I cannot fault Cooner for attempting to invent a remedy to a problem that inheres in the lack of any provision in the appellate rules for supplemental briefing on return to remand. The burden should not be on a party to an appeal to invent a procedural work-around to fill a gap in the appellate rules. Ordinarily, when this Court or one of the other appellate courts remands a case and does not ask for a return, the parties may appeal any judgment entered on remand by filing a new notice of appeal. Upon the filing of a return to remand, however, jurisdiction automatically returns to this Court. The parties do not have to initiate a new appeal. The downside of this procedure, however, is that the appellate rules do not provide for supplemental briefing to address new findings made 11 1130082 on remand. Therein arises Cooner's puzzlement and his understandable attempt to improvise a solution. IV. Conclusion For the reasons stated above, I would not dismiss Cooner's appeal. Instead, I would ex mero motu vacate this Court's judgment of September 10, 2013, and invoke Rule 2(b), Ala. R. App. P., to suspend the rules and grant the parties the opportunity to submit briefs to this Court on the merits of the Board's order on return to third remand. As a logical 2 consequence, I would also stay Cooner's disbarment pending the resolution of the reinstated appeal. The Court may want to consider amending the Alabama 2 R1ules of Appellate Procedure to provide for supplemental briefing on return to remand. 12	May 9, 2014
dcce7284-aad1-4c89-a5be-a9484fdfb2a0	Alfa Life Insurance Corporation v. Colza	N/A	1111415	Alabama	Alabama Supreme Court	REL: 05/09/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1111415 ____________________ Alfa Life Insurance Corporation and Brandon Morris v. Kimberly Colza Appeal from Jefferson Circuit Court (CV-11-901278) STUART, Justice.1 Alfa Life Insurance Corporation ("Alfa") and Brandon Morris, an agent for Alfa, appeal a judgment entered against This case was assigned to Justice Stuart on November 13, 1 2013. 1111415 them following a jury verdict for Kimberly Colza, the widow of Dante Colza. We reverse the judgment and render a judgment for Alfa and Morris. I. On September 2, 2010, Morris met with Dante to assist him in completing an application for a life-insurance policy in the amount of $150,000. Kimberly and Justin Morton, an employee of Dante's, were also present at the meeting. The application process for an Alfa life-insurance policy consists of three parts: the applicant's completion of an application agreement, the applicant's answering various health questions before a medical examiner, and the medical examiner's report. Morris testified that he asked Dante the questions in the application agreement and then typed the answers on the application form on his laptop computer. Although the evidence is disputed as to whether Morris asked Dante question 16(g) -- whether Dante had had a moving traffic violation, a driver's license suspended, or an accident in the prior three years -- it is undisputed that Morris entered a checkmark in the "No" box by that question. The evidence indicated that 2 1111415 Dante applied for the Preferred Tobacco premium rate. Dante 2 named Kimberly as the beneficiary under the policy. Disputed evidence was presented as to whether Dante himself signed the application agreement. At the close of the meeting, Morris provided Dante and Kimberly with a hard-copy document entitled "Applicant's Copy of Notices – Authorization – Agreement - Receipt Signed Electronically" (hereinafter referred to as "the application agreement"). The relevant portion of the application agreement stated: "I understand and agree with the Company that: "1. Any policy issued as a result of this Application shall constitute a single and entire contract of insurance. ... Only the President, a Vice President, the Secretary or Actuary of the Company may waive or vary a contract provision or any of the Company's rights or requirements and such waiver must be in writing. Only the Company's Underwriters have any authority to accept or approve the insurance applied [for] or to pass upon insurability. At the time Dante applied for insurance, Alfa provided 2 four published premium rates: Preferred Non-Tobacco, Standard Non-Tobacco, Preferred Tobacco, and Standard Tobacco. During the application process, Dante admitted to the recent past use of tobacco. Based on the information provided to him, Morris selected the Preferred Tobacco premium rate for Dante. 3 1111415 "2. To the best of my knowledge and belief all of the statements and answers on the Application are true, complete, and correctly stated, and I understand the statements and answers are submitted to the Company as the basis for any policy issued, and if incorrect can be cause for cancellation or loss of coverage. "3. Unless the policy becomes effective at an earlier date due to full and complete fulfillment of the conditions in the Conditional Receipt, any insurance issued by the Company will not become effective until this Application has been approved and accepted by the Underwriting Department of the Company, and the policy issued has been delivered to the owner of the policy personally and payment to the Company of the full first premium during the lifetime and continued insurability of the Proposed Insured has been made. "4. I authorize the Company to amend this Application by a notation in the space set aside for 'Home Office Endorsements' to correct apparent errors or omissions and to conform the Application to any policy that may be issued by the Company. Acceptance of the policy issued based on this Application will be acceptance of its terms and ratification by me of any changes specified in the section marked 'Home Office Endorsements.' Any change in plan or amount of insurance or added benefits must be agreed to in writing." The application agreement completed by Dante referenced another document entitled "Conditional Receipt," which stated in relevant part: "1. CONDITIONS TO COVERAGE: NO INSURANCE WILL BECOME EFFECTIVE BEFORE THE DELIVERY AND ACCEPTANCE OF A POLICY OF INSURANCE UNLESS AND UNTIL EACH AND 4 1111415 EVERY ONE OF THE FOLLOWING CONDITIONS IF [sic] FULFILLED EXACTLY: "a) The amount of the premium deposit made with the application must be at least equal to the amount of the full first premium for the mode of payment selected in the application and for the plan and the amount of insurance applied for. "(b) All medical examinations, tests, x-rays and electrocardiograms required by the Underwriting Department of the Company must be completed and received at its Home Office in Montgomery, Alabama, within sixty (60) days from the date of completion of Part 1 of the application. ... "(c) The Company's Underwriting Department at its Home Office must be satisfied that on the Effective Date, as defined below, the Proposed Insured(s) ... was insurable at a risk acceptable to the Company under its rules, limits and standards for the amount applied for at the Company's standard published rates corresponding to the age of such person, without any modification either as to plan, amount, riders, supplemental agreements, and/or rate of premium. "(d) On the Effective Date, as defined below, the state of health and all factors affecting the insurability of the Proposed Insured ... must be as stated in the application. "2. EFFECTIVE DATE: When every one of the conditions contained in paragraph 1 have been fulfilled exactly and completely, then insurance, as provided by the terms and conditions of the policy applied for and in use by the Company on the 5 1111415 Effective Date, but for an amount not exceeding that specified in paragraph 3, will become effective as of the Effective Date. 'Effective Date,' means the latest of (a) the date of completion of the application PART 1; (b) the date of completion of all medical examinations, tests, x-rays, and electrocardiograms required by the Company; or (c) the Date of Issue, if any requested in the application. "3. LIMITS OF COVERAGE: The total amount of life insurance, including accidental death benefits, which may become effective prior to delivery and acceptance of a policy of insurance shall not exceed $100,000. "4. RETURN OF THE DEPOSIT: If any one or more of the conditions in paragraph 1 have not been fulfilled exactly and completely there shall be no liability on the part of the Company except to return the premium deposit in exchange for this receipt. If the application is not accepted and approved by the Company within sixty (60) days from the date of this receipt, then no policy will be issued. "5. OFFER OF MODIFIED POLICY: If all of the conditions in paragraph 1 have not been fulfilled completely and exactly but the Company does accept and approve the application upon a modification as to plan, amount, premium rate and/or disallowance of any supplementary benefit applied for, the policy offered shall take effect as of the date which the Company offers to issue said policy, provided that the owner accepts delivery of the policy by paying the full first premium or balance thereof, and if required by the Company signs an Amendment of Application therefor, during the lifetime and continued insurability of the Proposed Insured ... according to the Company's standards, within sixty (60) days from the issue date of the policy. 6 1111415 "6. NO AGENT, GENERAL OR SPECIAL, OR ANY OTHER PERSON IS AUTHORIZED BY THE COMPANY TO WAIVE OR MODIFY IN ANY WAY ANY OF THE CONDITIONS OR PROVISIONS CONTAINED IN THIS CONDITIONAL RECEIPT." (Capitalization in original.) Conflicting evidence was presented at trial as to whether Morris provided Dante and Kimberly with a hard copy of the conditional receipt; however, Kimberly acknowledges that she received an identical conditional receipt when she applied for her own life- insurance policy approximately two weeks before Dante applied for his. At the close of the meeting, Kimberly wrote a check payable to Alfa for $103.70, the monthly Preferred Tobacco premium rate. Kimberly testified at trial that Morris informed them that Dante would be covered as soon as they gave Morris the check. Morris submitted Dante's application to Alfa on September 3, 2010. Dante was examined by the medical examiner on October 15, 2010. During the examination, Dante informed the medical 3 examiner that his family had a history of heart disease and that he had had moving traffic violations within the past five The record indicates that Dante's work schedule prevented 3 him from having the medical examination sooner. 7 1111415 years. On October 16, 2013, the day after he had his medical 4 examination, Dante was killed in an accident. Two days later, Alfa received the medical examiner's report, which indicated that Dante's family had a history of heart disease, that Dante's cholesterol was above 255, and that Dante had had moving traffic violations in the past five years. 5 In light of Dante's high cholesterol level and his family history of heart disease, the Alfa underwriters determined that Dante was not eligible for the Preferred Tobacco rate for which he had applied; rather, the proper classification for Dante would have been the Standard Tobacco rate, which had a higher premium. Additionally, in light of Dante's moving- vehicle violations, Dante was a greater risk to insure and a "rate-up" of $2.50 per $1,000 worth of coverage was required. The testimony at trial indicated that the new rate for the Although the question on the application asked about 4 moving traffic violations in the prior three years, Dante apparently provided the medical examiner with his history of moving traffic violations for the prior five years. Alfa obtained a copy of Dante's motor-vehicle report, 5 which confirmed that Dante had had two traffic violations in the last three years. 8 1111415 Standard Tobacco premium and the rate-up would have resulted in a monthly premium of $182.55 per month. On October 25, 2010, Alfa notified Kimberly by letter that no life-insurance coverage was available for Dante's death "because no policy was issued and the conditions of coverage under the conditional receipt were not met." On April 13, 2011, Kimberly sued Alfa seeking to recover under the terms of the conditional receipt. She alleged, among other claims, that Alfa had breached the contract and had acted in bad faith when it refused to pay life-insurance benefits on Dante's death. Kimberly also sued Morris, alleging, among other claims, that he had negligently failed to procure insurance coverage for Dante. After a trial, the jury found that Alfa had breached the contract and had in bad faith refused to pay the insurance benefits due pursuant to that contract and that Morris had negligently failed to procure insurance for Dante. The trial court entered a judgment in the amount of $440,674.94 against Alfa and in the amount of $100,000 against Morris. Alfa and Morris submitted motions for judgments as a matter of law at the close of the 9 1111415 evidence and after the entry of the judgment. The trial court denied the motions. Alfa and Morris appeal. II. "When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d 3 (Ala. 1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So. 2d 1350 (Ala. 1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So. 2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So. 2d 1126 (Ala. 1992)." Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So. 2d 1143, 1152 (Ala. 2003). 10 1111415 III. Alfa contends that the trial court erred in denying its motions for a judgment as a matter of law because, it says, there was no written or oral contract between Alfa and Dante that obligated Alfa to pay life-insurance benefits to Kimberly. Specifically, Alfa maintains that because the conditions of the application agreement and the conditional receipt were not satisfied, a contract did not exist between Alfa and Dante obligating Alfa to pay Kimberly life-insurance proceeds when Dante died. Alfa did not receive the report of Dante's medical examination until two days after he died; thus, review of his application had not been completed at the time of his death, and the life-insurance policy for which he had applied had not been issued. Accordingly, Kimberly's only possible contractual recourse against Alfa is pursuant to the conditional receipt. The conditional receipt stated that "no insurance will become effective before the delivery and acceptance of a policy of insurance unless and until each and every one of the following conditions i[s] fulfilled exactly." 11 1111415 The evidence indicated that Dante did not fulfill the following conditions: "(c) The Company's Underwriting Department at its Home Office must be satisfied that on the Effective Date, as defined below, the Proposed Insured(s) ... was insurable at a risk acceptable to the Company under its rules, limits and standards for the amount applied for at the Company's standard published rates corresponding to the age of such person, without any modification either as to plan, amount, riders, supplemental agreements, and/or rate of premium. "(d) On the Effective Date, as defined below, the state of health and all factors affecting the insurability of the Proposed Insured ... must be as stated in the application." The evidence established that, because of Dante's driving history and other factors, the Alfa underwriters determined that Dante was not "insurable ... for the amount applied for ... without any modification ... as to ... [the] rate of premium." Additionally, because the application did not indicate that Dante had been issued moving traffic violations in the previous three years, "all factors affecting the insurability [of Dante]" were not as stated in the application. Hence, Dante's failure to satisfy the conditions set forth in the plain, unambiguous language of the 12 1111415 conditional receipt precluded coverage under the conditional receipt. Kimberly's argument that Alfa breached an oral contract created by the representations made by Morris is also unpersuasive. Kimberly maintains that Morris's statement immediately after they completed Dante's application indicating that Dante would be "immediately covered" upon payment of the premium established an oral contract that bound Alfa. However, the conditional receipt provided that "no agent, general or special, or any other person is authorized by the company to waive or modify in any way any of the conditions or provisions contained in this conditional receipt." This language negates any claim that Morris, as an agent for Alfa, had actual or apparent authority to immediately bind Alfa. Equally unpersuasive is Kimberly's contention that, because, she alleges, the conditional receipt was not delivered to Dante, an issue still exists as to whether Morris had the apparent authority to bind Alfa. However, there is no dispute that Dante received a copy of the application agreement. Paragraph 1 of the application agreement states 13 1111415 that "[o]nly the President, a Vice President, the Secretary or Actuary of the Company may waive or vary a contract provision" and "[o]nly the Company's Underwriters have any authority to accept or approve the insurance applied [for] or to pass upon insurability." Thus, the application agreement clearly establishes that Morris, an agent for Alfa, did not have apparent authority to immediately bind Alfa. Because the record unequivocally establishes that Dante had not satisfied the terms and conditions set forth in the conditional receipt and, consequently, that no contract existed requiring Alfa to pay insurance proceeds to Kimberly upon Dante's death, Alfa was entitled to a judgment as a matter of law on this claim. Moreover, because there was no written or oral contract between Alfa and Dante, Alfa is entitled to a judgment as a matter of law on Kimberly's bad-faith-failure-to-pay claim. See State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 304 (Ala. 1999) (recognizing that "'the plaintiff in a "bad faith refusal" case has the burden of proving: (a) an insurance contract between the parties and a breach thereof by the defendant ....'" (quoting National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala. 1982))). See also Aplin v. 14 1111415 American Sec. Ins. Co., 568 So. 2d 757, 758 (Ala. 1990) (stating that "proof of the existence of an insurance contract between the parties is a threshold requirement in a bad faith claim"). IV. Morris contends that the trial court also erred in denying his motions for a judgment as a matter of law on Kimberly's negligent-procurement claim because, he argues, (1) the evidence did not establish that his alleged negligent failure to procure immediate insurance coverage for Dante proximately caused Kimberley's alleged injury and (2) regardless of whether he was negligent, the evidence established that Dante and Kimberly were contributorily negligent as a matter of law, thus barring any recovery based upon his alleged negligence. In Kanellis v. Pacific Indemnity Co., 917 So. 2d 149, 155 (Ala. Civ. App. 2005), the Court of Civil Appeals set forth the elements a plaintiff asserting a negligent-procurement claim is required to establish: "Like any negligence claim, a claim in tort alleging a negligent failure of an insurance agent to fulfill a voluntary undertaking to procure insurance ... requires demonstration of the classic elements of a negligence theory, i.e., '(1) duty, (2) breach of duty, (3) proximate cause, and (4) 15 1111415 injury.' Albert v. Hsu, 620 So. 2d 895, 897 (Ala. 2002). Under Alabama law, however, contributory negligence is a complete defense to a claim based on negligence. Mitchell v. Torrence Cablevision USA, Inc., 806 So. 2d 1254, 1257 (Ala. Civ. App. 2000)." The gravamen of Kimberly's negligent-procurement claim is that Morris undertook a duty to procure immediate life- insurance coverage for Dante, that he breached that duty, and that his breach caused the resulting injury, that is, a lack of any life-insurance proceeds for Kimberly following Dante's death before the completed policy could be issued. However, Morris argues that even if he did commit some errors in the process of completing Dante's application and in calculating the premium due, those errors did not proximately cause any injury because it is undisputed that only the underwriting department at Alfa could calculate the rate-up required for Dante based on his driving record. Thus, he argues, even if he had properly calculated Dante's premium using the Standard Tobacco rate and initially submitted correct information regarding Dante's driving history, no coverage would have existed on Dante's life at the time of his death because the underwriting department had not yet calculated that required 16 1111415 rate-up and presented it to the Colzas for their acceptance or refusal. Regardless of any possible merit in this argument, however, it was not presented to the trial court until after judgment was entered on the jury's verdict; accordingly, it was waived. Alfa and Morris did not assert the argument that they were entitled to a judgment as a matter of law due to a lack of evidence establishing proximate causation in their combined motions seeking a judgment as a matter of law filed at the close of Kimberly's case or at the close of all the evidence. As this Court stated in Scott & Scott, Inc. v. City of Mountain Brook, 844 So. 2d 577, 597 (Ala. 2002), "postjudgment motions are not the proper vehicle for raising new issues." Rather, the purpose of a renewed motion for a judgment as a matter of law is to "'permit[] the trial court to revisit its earlier ruling denying'" a prejudgment motion for a judgment as a matter of law. Cherokee Elec. Coop. v. Cochran, 706 So. 2d 1188, 1191 (Ala. 1997) (quoting Alabama Power Co. v. Williams, 570 So. 2d 589, 591 (Ala. 1990)). Clearly, a trial court may not "revisit" a decision to reject an argument if that argument was not previously asserted. 17 1111415 Accordingly, we express no opinion on the merit of Morris's causation argument because that argument was previously waived. However, Morris did properly assert in motions filed at the close of Kimberly's case, at the close of all the evidence, and postjudgment his argument that Kimberly and Dante's contributory negligence entitled him to a judgment as a matter of law on her negligent-procurement claim; thus, that argument is before us. With regard to establishing contributory negligence as a matter of law, this Court has stated: "The question of contributory negligence is normally one for the jury. However, where the facts are such that all reasonable persons must reach the same conclusion, contributory negligence may be found as a matter of law. Brown [v. Piggly-Wiggly Stores, 454 So. 2d 1370, 1372 (Ala. 1984)]; see also Carroll v. Deaton, Inc., 555 So. 2d 140, 141 (Ala. 1989). "To establish contributory negligence as a matter of law, a defendant seeking a [judgment as a matter of law] must show that the plaintiff put himself in danger's way and that the plaintiff had a conscious appreciation of the danger at the moment the incident occurred. See H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18 (Ala. 2002); see also Hicks v. Commercial Union Ins. Co., 652 So. 2d 211, 219 (Ala. 1994). The proof required for establishing contributory negligence as a matter of law should be distinguished from an instruction given to a jury when determining whether a plaintiff has been guilty 18 1111415 of contributory negligence. A jury determining whether a plaintiff has been guilty of contributory negligence must decide only whether the plaintiff failed to exercise reasonable care. We protect against the inappropriate use of a summary judgment to establish contributory negligence as a matter of law by requiring the defendant on such a motion to establish by undisputed evidence a plaintiff's conscious appreciation of danger. See H.R.H. Metals, supra." Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839, 860-61 (Ala. 2002). Morris argues that the documents received by Kimberly made clear that no immediate coverage on Dante's life would exist prior to the issuance of a completed life-insurance policy unless certain terms and conditions set forth in the conditional receipt were satisfied. As discussed in Part III of this opinion, those terms and conditions were not met –– among other things, Dante's application did not reveal that he had been cited for moving traffic violations in the past three years. Dante and Kimberly are charged with knowledge of the language in the application agreement and the conditional receipt requiring that all conditions must be satisfied before the insurance was effective; thus, Morris argues, they were contributorily negligent inasmuch as those documents clearly apprised them that they were not guaranteed the immediate 19 1111415 coverage on Dante's life they allegedly sought and Morris is alleged to have negligently failed to procure. In support of his argument, Morris cites Kanellis, in which the Court of Civil Appeals held that an insurance agency and its agent were entitled to a judgment as a matter of law on the plaintiffs' negligent-procurement claim because the insurance policy issued to the plaintiffs clearly stated the extent of the coverage provided by the issued policy and the plaintiffs should have therefore been aware that the policy did not provide the coverage they subsequently alleged that the insurance agent failed to procure. 917 So. 2d at 154-55. Thus, the Court of Civil Appeals reasoned, a finding of contributory negligence as a matter of law was warranted for the following reason: "[I]n light of the clear language of the [insurance] policy issued to the Kanellises, the record is susceptible only to the conclusion that, as a matter of law, the Kanellises '"put [themselves] in danger's way"' and had a '"conscious appreciation of the danger"' of suffering a monetary loss [if the event the Kanellises allege they sought insurance to protect themselves from occurred]." 917 So. 2d at 155. Applying Kanellis to the facts of this case, Morris argues that the application agreement and the conditional receipt apprised the Colzas that there was no 20 1111415 guarantee of immediate coverage based on Dante's application for coverage and that they accordingly should have had a conscious appreciation of the danger they faced if Dante died before a completed policy issued. In response, Kimberly argues that this Court has never held that contributory negligence is a defense to a negligent- procurement claim and that Kanellis is inapposite. A review of our caselaw confirms Kimberly's assertion that this Court has not previously reached a holding equivalent to the one reached by the Court of Civil Appeals in Kanellis, that is, that a plaintiff's failure to read his or her insurance documents may constitute contributory negligence as a matter of law, barring a negligent-procurement claim against an agent. To the contrary, this Court specifically rejected such a claim in Hickox v. Stover, 551 So. 2d 259 (Ala. 1989). However, part of our holding in Hickox was subsequently overruled, and a review of its rationale is accordingly appropriate. See Hillcrest Ctr., Inc. v. Rone, 711 So. 2d 901, 905 n. 2 (Ala. 1997) ("In Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala. 1997), this Court overruled 21 1111415 Hickox v. Stover, 551 So. 2d 259 (Ala. 1989), and readopted the 'reasonable reliance' standard of review."). In Hickox, an insured brought several claims, including a negligent-procurement claim, against an insurance agent and the agencies that employed the agent after it was determined that the policy the agent sold the insured would cover only one-third of a claimed $300,000 loss because of a co-insurance penalty in the policy. 551 So. 2d at 260-61. The trial court held that the claim was barred by the insured's contributory negligence, stating: "'[The agent's] letter of April 4, 1983, and the receipt of the ... policy in July of 1983 were enough, as a matter of law, to constitute notice to the [insured] that the coverage under the new policy was not the same as under [the insured's replaced] policy. The [insured] took no action to alleviate the potential problems in coverage under the [new] policy. Since the [insured] failed to take reasonable steps to correct the potential problems under the new policy, which the ordinary prudent person would have taken under the circumstances, the negligent conduct of the [insured] was a proximate contributing cause of its injury. The [insured] was, as a matter of law, contributorily negligent. Count four of the complaint for negligence must therefore be dismissed as to [the defendants].'" 22 1111415 Hickox, 551 So. 2d at 263-64 (quoting order of the trial court). The insured subsequently appealed that judgment to 6 this Court, which reversed the judgment of the trial court, stating: "The [insured] argues on appeal that the question of whether [its manager] and, through [its manager], the [insured] was contributorily negligent for failing to take some action or to investigate further so as to learn that [its new] policies differed from the [replaced] policy in an unfavorable way is a question of fact that precludes summary judgment on the contributory negligence issue. We have held that '[t]he burden of proving contributory negligence and that it proximately caused the injury is on the defendant, and [that] a determination of the existence of contributory negligence is for the jury where there is a scintilla of evidence to the contrary.' Hatton v. Chem–Haulers, Inc., 393 So. 2d 950, 954 (Ala. 1981) (citing Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119 (Ala. 1978)). We hold that the defendants have failed to carry their burden of proving that, as a matter of law, [the insured's manager] and the [insured] were guilty of contributory negligence. [The insured's manager] presented testimony indicating that he did not understand the letter from [the agent] or the policy endorsements. Moreover, neither the April 4 letter nor the receipt of the policy, as shown above, triggered a conclusion that the plaintiffs' claim for negligence is barred as matter of law." The trial court also held that the insured's negligent- 6 procurement claim was time-barred; the Hickox Court reversed that holding. There is no dispute that Kimberly's negligent- procurement claim was timely, and we accordingly do not address that aspect of Hickox. 23 1111415 551 So. 2d at 265. Thus, the Hickox Court effectively held 7 that the defendants had not established contributory negligence as a matter of law because the insured had submitted evidence that its manager did not understand a letter from the selling agent and the terms of the actual insurance policy –– which explained the extent of the insurance coverage actually procured by the agent for the insured and revealed that that coverage was not equivalent to the coverage the insured alleges he charged the agent to procure. However, when Hickox was overruled by Foremost Insurance Co., this Court held that, with regard to a fraud claim, a "trial court can enter a judgment as a matter of law in a fraud case where the undisputed evidence indicates that the party or parties claiming fraud Of course, the "scintilla rule" applied in Hickox has 7 been abolished in favor of the substantial-evidence rule; accordingly, once a defendant establishes that a plaintiff's contributory negligence proximately caused his or her injury, contributory negligence becomes a jury issue only if there is substantial evidence to the contrary. See generally Crutcher v. Williams, 12 So. 3d 631, 652 (Ala. 2008) (recognizing that § 12-21-12, Ala. Code 1975, abolished the scintilla rule and stating that, "[t]o defeat a motion for a judgment as a matter of law, the 'nonmovant must have presented substantial evidence' (quoting Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So. 2d 1143, 1152 (Ala. 2003) (emphasis added in Crutcher))). 24 1111415 in a particular transaction were fully capable of reading and understanding their documents, but nonetheless made a deliberate decision to ignore written contract terms." 693 So. 2d at 421. The Foremost Court also recognized a plaintiff's "general duty ... to read the documents received in connection with a particular transaction," along with a duty to inquire and investigate. Id. In Ex parte Caver, 742 So. 2d 168, 172 (Ala. 1999), we subsequently summarized the effect of Foremost by noting that "Foremost ended the era of 'ostrichism'" that had begun with Hickox. We have since applied Foremost in numerous cases to justify a judgment as a matter of law when plaintiffs have ignored clear written terms in documents provided them in association with a transaction. AmerUs Life Insurance Co. v. Smith, 5 So. 3d 1200, 1215-16 (Ala. 2008), is typical of these cases. We stated in AmerUs Life: "In light of the language of the documents surrounding the insureds' purchase of the life-insurance policies at issue in this case and the conflict between [the agent's] alleged misrepresentations and the documents presented to [the insured], it cannot be said that [the insured] reasonably relied on [the agent's] representations. As this Court stated in Torres [v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala. 1983)]: '[T]he right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure 25 1111415 of precaution to safeguard their interests.' 438 So. 2d at 759. The insureds here took no precautions to safeguard their interests. If nothing else, the language in the policies and the cost-benefit statement should have provoked inquiry or a simple investigation of the facts by [the insured]. Instead, based upon the record before us, we must conclude that Smith 'blindly trust[ed]' [the agent and 'close[d] [his] eyes where ordinary diligence require[d] [him] to see.' Munroe v. Pritchett, 16 Ala. 785, 789 (1849). Moreover, the testimony of [the agent that subsequently acquired responsibility for the selling agent's policies] that 'there were things in the wording [of the policies] and the way things were laid out that allowed the individual to come up with the wrong assumption' does not resolve the issue whether, as a matter of law, a reasonable person, upon reading the entire policy and the cost-benefit statement, would be put on inquiry as to the consistency of those documents with the previous representations by [the first agent]. Of course, if so, that person is then charged with knowledge of all of the information that the inquiry would have produced. Redman v. Federal Home Mortgage Corp., 765 So. 2d 630, 634–35 (Ala. 1999); Baxter v. Ft. Payne Co., 182 Ala. 249, 252–53, 62 So. 42, 43 (1913). We conclude that no reasonable person could read the policies and the cost-benefit statement and not be put on inquiry as to the existence of inconsistencies, thereby making reliance on [the agent's] representations unreasonable as a matter of law. Because the insureds failed to present substantial evidence indicating that [the insured's] reliance on [the agent's representations was reasonable, [the defendant] is entitled to a [judgment as a matter of law]." As evidenced by this case and by Foremost's other progeny, we have essentially held that it is almost never 26 1111415 reasonable for an individual to ignore the contents of documents given him or her in association with a transaction. 8 Although the Foremost line of cases deals primarily with fraud claims, there is no reason this principle should not apply to other claims as well. The documents in this case clearly apprised the Colzas that Dante was not guaranteed immediate coverage upon submitting his application for life insurance to Morris. By not reading the documents, they took a risk and put themselves in danger's way. We do not think it unreasonable to conclude as a matter of law that, in this day and age, any adult of sound mind capable of executing a contract necessarily has a conscious appreciation of the risk associated with ignoring documents containing essential terms and conditions related to the transaction that is the subject In Potter v. First Real Estate Co., 844 So. 2d 540, 548- 8 51 (Ala. 2002), we noted that the general rule may be avoided when there have been misrepresentations regarding the contents of a document and there are special circumstances, a special relationship between the parties, or the plaintiff suffers from a disability rendering him or her unable to discern the contents of the document. The evidence in the record in this case, however, indicates that both of the Colzas were literate, and there is no evidence of special circumstances, a special relationship, or a disability that would implicate Potter. 27 1111415 of the contract. Thus, we agree with the rationale of the 9 Court of Civil Appeals in Kanellis and hold that, because the Colzas "'"put [themselves] in danger's way"' and had a '"conscious appreciation of the danger"' of suffering a monetary loss," Kanellis, 917 So. 2d at 155, in the event Dante died before the conditions for immediate coverage were met, any negligent-procurement claim is barred by the doctrine of contributory negligence. Indeed, it would seem more unreasonable to allow 9 plaintiffs to prevail on negligent-procurement claims in spite of their failure to read documents that put them on notice of the extent of their insurance coverage when that same failure to read already bars a fraud or breach-of-contract claim based on the same essential facts. See, e.g., Locklear Dodge City, Inc. v. Kimbrell, 703 So. 2d 303, 306 (Ala. 1997) ("[The plaintiff] is capable of reading; she simply chose not to read this contract because her husband was ill and because she trusted [the defendant]. In light of these factors, it is understandable that [she] might choose not to read the contract before signing it. She took a risk. However, [she] should not be excused from her contractual responsibilities because she took that risk. To hold otherwise would turn the concept of 'sanctity of contract' upside down."). See also Nance v. Southerland, 79 So. 3d 612, 619 (Ala. Civ. App. 2010) (recognizing that "a party capable of reading and understanding English given the opportunity to review an insurance application cannot avoid the legal consequences of signing that document, indicating his or her assent to its terms on the basis that he or she did not read it"). Nothing in the evidence established that Dante requested to review the application and that Morris denied him that opportunity. 28 1111415 We further note that other courts have similarly held that a plaintiff's contributory negligence can, as a matter of law, bar a recovery on a negligent-procurement claim when the plaintiff failed to read documents that would have notified him or her regarding the extent of the insurance coverage that the defendant agent actually procured for him or her. For example, in General Insurance of Roanoke, Inc. v. Page, 250 Va. 409, 464 S.E.2d 343 (1995), an insured asserted a negligent-procurement claim against his insurer and the agent who sold him a policy covering his business property and equipment after incurring a loss in a fire and discovering the insurance policy sold him by the agent did not cover approximately $16,000 of that loss. In holding that the defendants were entitled to a judgment as a matter of law as a result of the insured's negligence in failing to read his insurance policy, the Supreme Court of Virginia stated: "The agent contends on appeal, as it did at trial, that [the insured's] failure to read the insurance policy constituted negligence, as a matter of law, and that such negligence proximately caused his losses and precluded recovery against it. While we previously have not decided the precise issue presented in the present case, we have held that one who signs an application for life insurance without reading the application or having someone read it to him is chargeable with notice of the application's 29 1111415 contents and is bound thereby. Peoples Life Ins. Co. v. Parker, 179 Va. 662, 667, 20 S.E.2d 485, 487 (1942); Royal Insurance Co. v. Poole, 148 Va. 363, 376-77, 138 S.E. 487, 491 (1927). We also have held that the failure of a grantor to read a deed will not relieve him of obligations contained therein. Carter v. Carter, 223 Va. 505, 509, 291 S.E.2d 218, 221 (1982). See Metro Realty v. Woolard, 223 Va. 92, 99, 286 S.E.2d 197, 200 (1982) (absent fraud, one who has capacity to understand written document and signs it without reading it or having it read to him is bound thereby). While the decisions cited are contract cases, we think the same rule should apply in negligence actions. "In the present case, [the agent] handed [the insured] the insurance policy that stated plainly on its face that the building was insured for $20,000 and the personal property of others on the premises was insured for $15,000. [The insured], however, never so much as looked at the insurance policy, but simply placed it in a desk drawer. "[The insured] testified that he has reading difficulties. [The insured] had a duty, nonetheless, to have his wife, who occasionally helped with business matters, or someone else read the policy to him if he could not read it. We conclude, therefore, that [the insured's] failure to read the policy or to have someone read it to him constitutes negligence as a matter of law that bars a recovery against the agent." 250 Va. at 411-12, 464 S.E.2d at 344-45 (footnote omitted; emphasis added). See also Dahlke v. John F. Zimmer Ins. Agency, Inc., 252 Neb. 596, 600, 567 N.W.2d 548, 551 (1997) (affirming a judgment as a matter of law entered in favor of the defendant insurance agency and agent on the plaintiff's 30 1111415 negligent-procurement claim because "[the plaintiff's] failure to read the policy provisions insulates the insurance agent from liability"), and Keown v. Holman, 268 S.C. 468, 471, 234 S.E.2d 868, 869 (1977) (reversing a judgment entered on a jury verdict in favor of the plaintiff on his negligence claim against an insurance agent who failed to automatically renew a policy upon its expiration because the "plaintiff was contributorily negligent in not reading his policy [and] defendant's motion for a directed verdict should have been granted on this ground"). Some jurisdictions, however, have instead taken the position that an insured's failure to read an insurance policy might amount to contributory negligence barring a negligent- procurement claim but that such failure does not constitute contributory negligence as a matter of law. The Supreme Court of Montana explained this view in Fillinger v. Northwestern Agency, Inc., of Great Falls, 283 Mont. 71, 78-79, 938 P.2d 1347, 1352 (1997): "Under similar circumstances involving the relationship between the insured and their agent, several jurisdictions have held that while the insured's failure to read the policy may amount to contributory negligence, it does not operate as a bar to relief as a matter of law. Fiorentino [v. 31 1111415 Travelers Ins. Co.], [(E.D. Pa. 1978)] 448 F.Supp. 1364; Floral Consultants, Ltd. v. Hanover Ins. Co. (1984), 128 Ill. App. 3d 173, 83 Ill. Dec. 401, 470 N.E.2d 527; Kirk v. R. Stanford Webb Agency, Inc. (1985), 75 N.C. App. 148, 330 S.E.2d 262; Martini v. Beaverton Ins. Agency, Inc. (1992), 314 Or. 200, 838 P.2d 1061, 1067. We are persuaded by the reasoning of this line of authority that an insured does not have an absolute duty to read their policy, but their failure to do so may amount to contributory negligence. "The Oregon Supreme Court succinctly explained its adoption of this view in Martini by explaining that: "'Insureds and insurance policies are not all alike. Insureds range from unsophisticated individuals who know nothing about insurance, to experienced business persons knowledgeable about insurance, to large corporations with batteries of lawyers. The relevant provisions of the policy may be simple (the address of the insured premises, for example) or complex. A jury should be allowed to consider two questions: Under the relevant circumstances, was it unreasonable in the light of foreseeable risks for the insured not to read the policy? If so, did the insured's unreasonable failure to read the policy contribute to the insured's damages?' "Martini, 838 P.2d at 1067. The court in Fiorentino explained how the reliance upon one's agent affects the duty to read: "'When the insured informs the agent of his insurance needs and the agent's conduct permits a reasonable inference that he was highly skilled in this area, the 32 1111415 insured's reliance on the agent to obtain the coverage that he has represented that he will obtain is justifiable. The insured does not have an absolute duty to read the policy, but rather only the duty to act reasonably under the circumstances. The circumstances vary with the facts of each case, and depend on the relationship between the agent and the insured.' "Fiorentino, 448 F. Supp. at 1369." It appears from this excerpt that those courts that have adopted the view that an insured's failure to read insurance documents does not constitute contributory negligence as a matter of law view an insured's duty to read such documents less strictly than do Alabama courts. For example, the Fiorentino court states that an insured is "justifi[ed]" in relying on an agent to procure the requested coverage if "the agent's conduct permits reasonable inference that [the agent] was highly skilled in this area," 448 F. Supp. at 1369. We have taken a decidedly stricter view. See, e.g., Maloof v. John Hancock Life Ins. Co., 60 So. 3d 263, 271 (Ala. 2010) (noting that this Court has "repeatedly" stated that it is not reasonable "for [an] insured to rely on an insurance agent's representations about an insurance policy when those representations are contradicted by language in the insurance 33 1111415 policy itself"). In light of our caselaw emphasizing the strict duty of a party to read the documents he or she is provided in connection with a transaction –– a duty that is limited only by the extremely narrow grounds set forth in Potter v. First Real Estate Co., 844 So. 2d 540 (Ala. 2002), see note 8 supra, which are inapplicable in this case –– we accordingly align ourselves with those courts, such as Page, that authorize a judgment as a matter of law in favor of an agent on a negligent-procurement claim when documents available to the insured clearly indicate that the insurance in fact procured for the insured is not what the insured subsequently claims he or she requested the agent to procure, as opposed to those courts, such as Fillinger, that would nevertheless hold that contributory negligence is an issue for the jury to decide. We have previously applied these principles in contract and fraud cases, and, as the Supreme Court of Virginia stated in Page, "we think the same rule should apply in negligence actions." 250 Va. at 412, 464 S.E.2d at 345. Morris properly moved the trial court to enter a judgment as a matter of law in his favor on Kimberly's negligent- 34 1111415 procurement claim based on Kimberly and Dante's contributory negligence. That motion should have been granted, and the judgment subsequently entered on the jury's verdict in favor of Kimberly is accordingly due to be reversed. V. Kimberly sued Alfa and Morris asserting claims of breach of contract, bad-faith failure to pay, and negligent procurement after Alfa denied her claim for life-insurance benefits following Dante's death after he had completed an application for a life-insurance policy but before that policy was issued. Following a jury trial, the jury returned a verdict in favor of Kimberly and against Alfa on her breach- of-contract and bad-faith-failure-to-pay claims and in favor of Kimberly and against Morris on her negligent-procurement claim. However, for the reasons discussed above, Alfa and Morris were entitled to a judgment as a matter of law on those claims, and the trial court erred by submitting the claims to the jury for consideration. Accordingly, we reverse the judgment in favor of Kimberly and render a judgment as a matter of law in favor of Alfa and Morris. Because of this 35 1111415 Court's resolution of the issues, we pretermit discussion of all other matters raised in the briefs of the parties. REVERSED AND JUDGMENT RENDERED. Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs in part and dissents in part. Moore, C.J., dissents. 36 1111415 MURDOCK, Justice (concurring in part and dissenting in part). I agree with the main opinion's conclusion that the trial court should have entered a judgment as a matter of law in favor of Alfa Life Insurance Corporation ("Alfa"). I therefore concur in reversing the trial court's judgment against Alfa. As to the judgment entered by the trial court against Brandon Morris on the claim of negligent procurement of an insurance policy, Morris does not challenge the premise of that judgment -- that he owed a duty to the plaintiff to complete Dante's application for insurance in a reasonably prudent manner. Further, the main opinion, correctly in my view, concludes that the question whether Morris's allegedly negligent acts or omissions in preparing that application were the cause of Alfa's eventual denial of coverage is not properly before us. As the main opinion therefore indicates, that leaves only the question of contributory negligence by Dante and Kimberly Colza for our consideration insofar as the judgment against Morris is concerned. Morris's contributory-negligence defense in this case is based on the notion that, to the extent the insurance 37 1111415 application he submitted on behalf of Dante contained errors or omissions, those errors were at least in part a function of negligently incomplete answers by Dante to questions posed to him by Morris during the application process. The only aspect of the application specifically singled out in this regard by the main opinion is the omission of any information on the application regarding Dante's moving traffic violations: "among other things, Dante's application did not reveal that he had been cited for moving traffic violations in the past three years." ___ So. 3d at ___. Clearly, however, there was conflicting testimony constituting substantial evidence that Morris did not ask Dante during the application process if he had had any moving traffic violations. A judgment as a matter of law therefore cannot properly be based on this fact. The only "other things" to which the main opinion might be alluding are the fact that Dante ultimately was determined to be ineligible for the "preferred" rate policy requested on the application, in part because of a history of heart disease in Dante's family and because Dante's cholesterol level was high. As to the former, however, Morris conceded that Dante did tell him of the history of heart disease (Morris further 38 1111415 testified that this information was in fact indicated on the application) but that he, Morris, thereafter made a mistake in checking the "box" indicating that the application was being made for a "preferred" rate policy and in obtaining an initial premium corresponding to a preferred-rate policy. Moreover, there is no evidence indicating that Dante knew about a high- cholesterol condition that he failed to disclose. In short, genuine issues existed as to material facts relating to the contributory-negligence defense asserted by Morris. Furthermore, precedents not challenged in this case hold that the standard for removing the question of contributory negligence from a jury is even higher than the genuine-issue-of-material-fact standard for removing ordinary questions of negligence from the jury. As the main opinion itself acknowledges: "'We protect against the inappropriate use of a summary judgment to establish contributory negligence as a matter of law by requiring the defendant on such a motion to establish by undisputed evidence a plaintiff's conscious appreciation of danger.'" ___ So. 3d at ___ (quoting Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839, 861 (Ala. 2002)). 39 1111415 For the foregoing reasons, I am compelled to dissent from the main opinion's reversal of the trial court's judgment against Morris. I feel obligated to comment on one further matter, however -- the main opinion's attempt to buttress its analysis as to the contributory-negligence defense by discussing the "reasonable reliance" standard from Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala. 1997). Foremost concerned the type of reliance a plaintiff must demonstrate in advancing a claim of fraud or suppression. The Foremost Court stated that "the trial court can enter a judgment as a matter of law in a fraud case where the undisputed evidence indicates that the party or parties claiming fraud in a particular transaction were fully capable of reading and understanding their documents, but nonetheless made a deliberate decision to ignore written contract terms." 693 So. 2d at 421. Thus, the "reasonable reliance " standard addresses (a) an element of a claim of (b) fraud or suppression. I do not see how it is apposite to (a) an affirmative defense of contributory negligence asserted in response to a claim of (b) negligent procurement. Again, I respectfully must dissent as to the reversal of the judgment against Morris. 40 1111415 MOORE, Chief Justice (dissenting). I respectfully dissent because I believe the evidence of the alleged breach of contract by Alfa Life Insurance Corporation ("Alfa") for temporary life-insurance coverage and of the alleged negligence of Brandon Morris was sufficient to allow the jury to resolve the facts in favor of Kimberly Colza ("Kimberly"). For the reasons stated below, I also believe the jury verdict on the negligent-procurement claim against Morris is consistent with the verdict on the breach-of-contract claim. A. Breach of Contract A conditional receipt was included with the application for life insurance filed by Dante Colza ("Dante"). The conditional receipt states: "The total amount of life insurance, including accidental death benefits, which may become effective prior to delivery and acceptance of a policy of insurance shall not exceed $100,000." (Emphasis added.) Although Alfa argues that no contract existed because Dante died before his insurance application had been processed and accepted, this portion of the conditional receipt suggests 41 1111415 that Dante was insured for $100,000 even prior to Alfa's acceptance of the policy. Many courts have held that such conditional receipts afford applicants temporary insurance coverage until the insurance company determines whether the conditions have been satisfied and the applicant receives permanent coverage.10 "Under this view, temporary insurance is in effect from its date pending satisfaction of the condition." 1A Couch on Insurance § 13:12, Conditions Subsequent (3d ed. rev. 2010). "Consistent with this view, requirements of applicant 'good health' or 'insurability' do not delay the effect of temporary insurance but give the insurer the right to terminate coverage if it determines that the insured was not in good health at Duggan v. Massachusetts Mut. Life Ins. Co., 736 F. Supp. 10 1072, 1075 (D. Kan. 1990); Anderson v. Country Life Ins. Co., 180 Ariz. 625, 886 P.2d 1381 (Ct. App. 1994); Farmers New World Life Ins. Co v. Crites, 29 Colo. App. 394, 487 P.2d 608 (1971); Dunford v. United of Omaha, 506 P.2d 1355, 1357-58 (Idaho 1973); Kaiser v. National Farmers Union Life Ins. Co., 167 Ind. App. 619, 627-28, 339 N.E.2d 599, 604 (1976); Denny v. Washington Nat'l Ins. Co., 14 Mich. App. 469, 165 N.W.2d 600 (1968); Glarner v. Time Ins. Co. of America, 465 N.W.2d 591, 595-98 (Minn. Ct. App. 1991); Damm v. National Ins. Co. of America, 200 N.W.2d 616, 619-20 (N.D. 1972); Steelnack v. Knights Life Ins. Co. of America, 423 Pa. 205, 206-07, 223 A.2d 734, 735 (1966); and Long v. United Benefit Life Ins. Co., 29 Utah 2d 204, 507 P.2d 375 (1973). 42 1111415 the time of the application." Id. Dante's temporary coverage of $100,000 took effect pursuant to the terms of the conditional receipt but was subject to later termination by Alfa if all the conditions for coverage were not met. Therefore, the question whether Alfa breached the terms of the conditional receipt was properly submitted to the jury. Alfa could be held liable for this breach of contract even if all conditions precedent for permanent coverage had not been met and permanent coverage never became effective. If Alfa could be held liable for breach of contract, then it could be held liable for bad-faith failure to pay, which claim was also properly submitted to the jury. B. Negligence Alfa and Morris argue that, as a matter of law, no contract existed because, they say, the conditions in the application agreement and the conditional receipt were never met. Kimberly alleges that it was Morris's negligence that prevented the conditions from being met, i.e., that if Morris had not negligently handled the application agreement, the conditions would have been met and Dante would have been insured under the "Standard Tobacco" rate when he died. In 43 1111415 addition, there is no evidence indicating that Dante ever saw a hard copy of the application agreement, so he could not have been negligent for failing to read it. "'[W]hen an insurance agent or broker, with a view to compensation, undertakes to procure insurance for a client, and unjustifiably or negligently fails to do so, he becomes liable for any damage resulting therefrom.'" Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So. 2d 1060, 1065 (Ala. 1978) (quoting Timmerman Ins. Agency, Inc. v. Miller, 229 So. 2d 475, 477 (Ala. 1969)(emphasis added)). The evidence indicating that Morris negligently handled the application agreement includes Kimberly's testimony that Morris did not ask Dante question 16(g) regarding traffic violations; that Morris never provided Dante with a hard copy of the application; that Morris showed Dante only the 11 signature line on the electronic-signature pad but did not show Dante the actual agreement; and that Morris informed Kimberly and Dante that Dante would be covered as soon as they Morris likewise testified that he gave Dante a hard copy 11 of the conditional receipt and a hard copy of the legal terms of the application agreement, but there is no evidence indicating that Morris or Alfa provided Dante with a hard copy of the application agreement itself. 44 1111415 provided Morris with a check for the premium applicable to Alfa's "Preferred Tobacco" rate. Morris, who questioned the Colzas as they ate their dinner, allegedly told Dante that Morris would complete any unfinished portions of the application after the meeting when Morris returned to the office. Morris himself testified that Alfa never informed him that he was required to show potential customers the terms of the application agreement before obtaining their signatures on the electronic-signature pad and also that it was not his practice to allow potential customers to read the application agreement before they proffered their signature. On the application, the signature alleged to be Dante's is dated September 3, 2010, even though the meeting between Morris and Dante occurred on September 2, 2010. Justin Morton, an employee of Dante's who was present during the meeting with Morris, testified that he did not remember Dante signing the electronic-signature pad. The only evidence indicating that the signature was Dante's was Dante's daughter's opinion that it looked like her father's handwriting. Although these facts are disputed, they are immaterial to whether Kimberly may 45 1111415 recover for Alfa's failure or refusal to provide temporary coverage under the conditional receipt. Allen Foster, Alfa's vice president in Life Underwriting, testified that the failure to select "Standard Tobacco" instead of "Preferred Tobacco" was Morris's fault. Although Foster also testified that Morris could not have known about Dante's cholesterol level, his family history of heart problems, and his driving history when Morris filled out the application, Morris could have known about these issues if he had asked about them. Furthermore, it was the jury's prerogative to consider whether Dante's frank admission to the doctor conducting the medical examination for Alfa about his health and driving history suggests that he was honest about his health and driving history and that he would have discussed them freely with Morris and Alfa had Morris, in fact, asked about them. The majority opinion appears to disregard the above evidence and to treat the evidence of the Colzas' alleged contributory negligence as mandating a judgment as a matter of law in favor of Morris. If anything, the facts here give rise to genuine disputes that a jury should have, and did, 46 1111415 consider, and the jury was instructed as to contributory 12 negligence. By reversing the trial court's judgment on the ground of contributory negligence and rendering a judgment as a matter of law in favor of Morris, the majority is, in essence, declaring that our understanding of the facts on appeal is superior to the understanding of the jury, which rendered its verdict only after hearing all the evidence and sitting through nine days of trial. Conclusion In light of the foregoing, I would affirm the judgment in favor of Kimberly and against Alfa and Morris, but I would remand the case for a recalculation of damages. It appears that if Alfa breached the terms of the conditional receipt, then it did so by failing to pay the $100,000 in temporary coverage, and that if Morris negligently failed to procure insurance, it was because his handling of the application resulted in a denial of the permanent $150,000 coverage for which Dante would have qualified but for Morris's actions. I note in particular the claim that neither Dante nor 12 Kimberly had a chance to review the application agreement before Dante allegedly signed only the signature page on an electronic-signature pad, as well as Morris's testimony that he did not allow clients to view the terms of the application that appeared on the electronic-signature pad. 47 1111415 Finally, if Alfa breached the terms of the conditional receipt, then it could be found liable for bad-faith failure to pay. 48	May 9, 2014
4c3eaa8d-b68d-40ad-b95d-d01b613476f8	Central Shelby LTD. v. Shelby County Board of Equalization	N/A	1130017	Alabama	Alabama Supreme Court	REL:04/11/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 _________________________ 1130017 _________________________ Ex parte Shelby County Board of Equalization PETITION FOR WRIT OF MANDAMUS (In re: Central Shelby LTD. v. Shelby County Board of Equalization) (Shelby Circuit Court, CV-13-900699) SHAW, Justice. The Shelby County Board of Equalization ("the Board") petitions this Court for a writ of mandamus, or, in the 1130017 alternative, a writ of prohibition, directing the Shelby Circuit Court to dismiss as untimely an appeal filed by Central Shelby LTD. ("Central Shelby") challenging a final ad valorem tax assessment issued by the Board. We grant the petition for the writ of mandamus and issue the writ. Facts and Procedural History In response to Central Shelby's objection to the Board's 2013 assessed value of real property owned by Central Shelby, the Board, on May 29, 2013, entered a final ad valorem assessment. On June 18, 2013, Central Shelby, pursuant to §§ 40-3-24 and -25, Ala. Code 1975, electronically filed, in the Shelby Circuit Court, its notice of appeal from that decision. On July 3, 2013, the clerk of the Shelby Circuit Court mailed a copy of the notice of appeal to the Board, which received the notice on July 8, 2013. Thereafter, the Board moved to dismiss the appeal on the ground that Central Shelby had not filed with the secretary of the Board its notice of appeal within 30 days of the final assessment as, the Board contended, § 40-3-25 requires. The trial court, without stating the findings on which its decision was based, denied the Board's motion. In response, the Board filed the present 2 1130017 petition alleging that, as a result of the alleged untimely notice to it of Central Shelby's appeal, the trial court lacked subject-matter jurisdiction over the underlying appeal. We subsequently ordered answers and briefs. Standard of Review "The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus." Ex parte Liberty Nat'l Life Ins. Co., 888 So. 2d 478, 480 (Ala. 2003). A writ of mandamus will be issued where there is "'"(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."' "Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003)(quoting Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991)). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So. 2d 244, 249 (Ala. 2004)." Ex parte Sealy, L.L.C., 904 So. 2d 1230, 1232 (Ala. 2004). Discussion Section 40-3-25 provides, in pertinent part: "All appeals from the rulings of the board of equalization fixing value of property shall be taken within 30 days after the final decision of said 3 1130017 board fixing the assessed valuation as provided in this chapter. The taxpayer shall file notice of said appeal with the secretary of the board of equalization and with the clerk of the circuit court and shall file bond to be filed with and approved by the clerk of the circuit court, conditioned to pay all costs ...." (Emphasis added.) The Board maintains that, pursuant to § 40–3–25, a taxpayer, in order to timely challenge a final tax assessment, must file a notice of appeal with both the secretary of the Board and the clerk of the circuit court within 30 days of the final assessment being challenged. No notice of appeal was filed by Central Shelby with the secretary of the Board; although the Board received a copy of the notice from the Shelby Circuit Court clerk, that notice was not mailed to or received by the Board until after the 30-day period had elapsed. On the other hand, Central Shelby counters that its timely filing of its notice of appeal with the circuit clerk was sufficient to invoke the trial court's subject-matter jurisdiction even though the Board indisputably did not receive "notice" of Central Shelby's appeal within 30 days of the date of the final assessment. It further contends that because the statutory requirement of "notice" to the Board 4 1130017 appears in a separate sentence, the 30-day time frame for taking the appeal does not apply to the notice to the Board. This Court has stated that, in applying a Code section: "'"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect."' "Blue Cross & Blue Shield v. Nielsen, 714 So. 2d 293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)); see also Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n, 589 So. 2d 687, 689 (Ala. 1991); Coastal States Gas Transmission Co. v. Alabama Pub. Serv. Comm'n, 524 So. 2d 357, 360 (Ala. 1988); Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219, 1223 (Ala. 1984); Dumas Bros. Mfg. Co. v. Southern Guar. Ins. Co., 431 So. 2d 534, 536 (Ala. 1983); Town of Loxley v. Rosinton Water, Sewer, & Fire Protection Auth., Inc., 376 So. 2d 705, 708 (Ala. 1979). It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997)." 5 1130017 DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275–76 (Ala. 1998). The initial sentence of § 40-3-25 clearly establishes a 30-day time frame for appealing the Board's final assessment to the circuit court. The sentence that follows provides that, in order to perfect the appeal, the requisite notice of appeal must be filed with both the Board and with the circuit clerk. In light of the plain language of the Code section, this Court finds persuasive the Board's reliance on the analysis of the Court of Civil Appeals in State v. Crenshaw, 47 Ala. App. 3, 249 So. 2d 617 (1970), in which, in considering the identical language of the predecessor statute to § 40-3-25, that court explained: "[A] taxpayer may perfect an appeal from a final assessment of the Board so long as he files, within thirty days, a notice of appeal with the Secretary of the Board and Clerk of the Circuit Court, a bond for costs, and, either files a supersedeas bond, or pays the taxes based on the prior year's assessment. Such a construction would require that all of these procedures would have to be complied with at the same time for the appeal to be perfected." 47 Ala. App. at 5, 249 So. 2d at 619. See, e.g., Ex parte State Dep't of Revenue, 102 So. 3d 396, 398-99 (Ala. Civ. App. 2012) (interpreting a similar provision in § 40-2A-9(g), Ala. 6 1130017 Code 1975, as "requir[ing] the party appealing from [an administrative law judge's] order to file a notice of appeal with both the [Alabama Department of Revenue's Administrative Law Division] and the circuit court within 30 days of the entry of the ... order"); State Dep't of Revenue v. Welding Eng'g & Supply Co., 452 So. 2d 1340, 1342 (Ala. Civ. App. 1984) (concluding that former § 40-2-22, Ala. Code 1975, which provided for taxpayer appeals from assessments by the department of revenue, "clearly provides that a timely filing of a notice of appeal with the secretary of the department is one of the prerequisites which must be met by a taxpayer in order to perfect an appeal to the circuit court from the department's final tax assessments," that such filing "is a jurisdictional requirement, and [that] there must be compliance with it before a circuit court has jurisdiction over the subject matter," and stating that, "if such a notice of appeal is not filed with the secretary of the department within thirty days from the entry of the final tax assessment, the taxpayer's appeal to the circuit court should be dismissed"). 7 1130017 Central Shelby argues that it properly invoked the trial court's jurisdiction by taking the underlying appeal to the appropriate circuit court within 30 days of the challenged final assessment. But that is not what § 40-3-25 or the foregoing authorities require. Central Shelby faults the circuit clerk for her alleged untimely mailing of the notice of appeal to the secretary of the Board. However, the Code section clearly charges the appealing taxpayer with the responsibility of filing the notice of appeal with the secretary of the Board. "The right of appeal in tax proceedings is a right conferred by statute and must be exercised in the mode and within the time prescribed by the statute." Denson v. First Nat'l Bank, 276 Ala. 146, 148, 159 So. 2d 849, 850 (1964). See also Canoe Creek Corp. v. Calhoun Cnty. Bd. of Equalization, 668 So. 2d 826, 827-28 (Ala. Civ. App. 1995) (finding, where the appeal bond required by § 40-3-25 was not filed within the 30-day period, that the appeal of a final tax assessment to the circuit court was not perfected); Welding Eng'g, 452 So. 2d at 1342-43 ("When the legislature has prescribed the means and method of perfecting an appeal from 8 1130017 a tax assessment to the circuit court, that procedure must be followed."); Coughlin v. State, 455 So. 2d 17, 18 (Ala. Civ. App. 1983), aff'd, 455 So. 2d 18 (Ala. 1984) ("The rule is that the right to appeal in a tax proceeding is a right conferred by statute and must be exercised in the manner and within the time required by the statute."); State v. Colonial Refrigerated Transp., Inc., 48 Ala. App. 46, 50, 261 So. 2d 767, 770 (Ala. Civ. App. 1971) (same). Here, § 40-3-25 plainly prescribes that a notice of appeal from a final assessment of the Board must be filed with both the circuit court and the secretary of the Board within 30 days; clearly, both did not occur in this case. As a result of Central Shelby's failure to comply with the provisions of § 40-3-25, its appeal was not perfected and the trial court's jurisdiction was never invoked. Therefore, the appeal was due to be dismissed as the Board requested. Because the trial court did not acquire jurisdiction over the appeal, we grant the Board's petition and direct the trial court (1) to vacate its order denying the Board's motion to dismiss and (2) to dismiss Central Shelby's appeal as untimely filed. PETITION GRANTED; WRIT ISSUED. Stuart, Parker, Main, and Wise, JJ., concur. 9	April 11, 2014
82dc4c1a-4470-4f0f-ba33-9d1634f0746e	Nationwide Retirement Solutions, Inc. v. PEBCO,Inc.	N/A	1120806	Alabama	Alabama Supreme Court	REL:03/28/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1120806 ____________________ Nationwide Retirement Solutions, Inc. v. PEBCO, Inc. Appeal from Jefferson Circuit Court (CV-07-4052) MOORE, Chief Justice. Nationwide Retirement Solutions, Inc. ("NRS"), appeals from a judgment of the Jefferson Circuit Court awarding PEBCO, Inc., $1,074,027.50 in attorney fees and $29,132.01 in expenses. We reverse and remand. 1120806 I. Facts and Procedural History In November 2007, participants in the State of Alabama Public Employees Deferred Compensation Plan ("the Plan") filed a class action against Nationwide Life Insurance Company ("NL"), NRS, the Alabama State Employees Association ("ASEA"), and PEBCO, Inc., alleging breach of fiduciary duty, 1 conversion, and breach of contract in the administration of the Plan. On November 4, 2010, the parties filed a 2 "Stipulation of Settlement," which the trial court approved in its final order entered on April 27, 2011. Pursuant to the settlement, NL and NRS (hereinafter sometimes referred to collectively as "Nationwide") paid $15.5 million to the participants in the Plan and $2.9 million in attorney fees to settle class claims against all defendants, including ASEA and PEBCO. In its findings of fact, the trial court stated: "ASEA 3 is being permitted to retain more than $12 million in PEBCO ("Public Employees Benefits Corporation") is a 1 wholly owned for-profit subsidiary of ASEA. In their amended class-action complaint filed on December 2 2, 2008, the plaintiffs substituted a wantonness count for the conversion count. AON Investment Consulting, Inc., a consultant to 3 Nationwide, paid $500,000 into the settlement, making the total reimbursement to the participants $16 million. 2 1120806 sponsorship payments that it allegedly received unlawfully, and ASEA is receiving full release from any liability." The settlement also barred all future claims by ASEA and PEBCO against Nationwide except for indemnification for attorney fees and costs based on a 2004 administrative- services agreement ("the agreement"). The agreement, which provided for "an annual sponsorship fee to PEBCO of at least $1.2 million," contained an indemnification clause: "NRS agrees to indemnify and hold harmless ASEA and PEBCO, their respective managers, officers, directors, employees, agents and attorneys for an action taken against any of them arising as a result of NRS's failure to perform its duties under this Agreement." Nationwide refused to pay PEBCO's costs of 4 litigating the class action as part of its settlement payment. PEBCO in turn refused to surrender its claim for fees and costs in exchange for Nationwide's shouldering the complete financial burden of the settlement. NL was not a party to the agreement, a fact the trial 4 court later recognized by dismissing NL from this action. At times, however, in discussing the agreement, the trial court referred to Nationwide (the collective term it used for NL and NRS) as a party to the agreement or, after NL's dismissal, to NRS as "Nationwide." 3 1120806 A day before the parties filed their "Stipulation of Settlement," Nationwide moved for an order barring ASEA and PEBCO from filing any indemnification claims. The trial court granted the order except for claims for attorney fees and costs. "[I]n light of Nationwide's substantial contributions to the settlement," the court wrote in an order dated February 11, 2011, "it is fair and reasonable that ASEA and PEBCO be barred from pursuing any claims against Nationwide for reimbursement, indemnification, or contribution other than claims for attorney fees and costs ...." The trial court then stated that if ASEA and PEBCO filed a cross-claim for fees and costs within 30 days, it would sever that claim for separate adjudication. See Rule 21, Ala. R. Civ. P. ("Any claim against a party may be severed and proceeded with separately."). The trial court's ruling expressly disclaimed any opinion on the merits of the potential cross-claim. "The Court does not reach the issue of whether the settlement in any way bars or defeats any such claim by ASEA and PEBCO. Nor does the Court make any decision with respect to the actual merits, defenses or viability of any such claim, if filed." 4 1120806 On March 21, 2011, a month before entering its final order in the class action, the trial court ordered severance of ASEA and PEBCO's claim for fees and directed the clerk of the Jefferson Circuit Court to docket that claim as "a separate and independent action," with ASEA and PEBCO as plaintiffs and NL and NRS as defendants. The court also directed ASEA and PEBCO to pay the filing fee. See Opinion of the Clerk No. 45, 526 So. 2d 584, 586 n.1 (Ala. 1988) ("In order to effectuate a 'true' severance, judges should explicitly direct the clerk to docket a new civil action and should explain how the new case should be styled."). In its final order in the class action, the court noted that the merits of the attorney-fees cross-claim "will be determined in the severed case with Case No. CV-2007-004052.01." On December 3, 2011, the trial court issued an order in relation to the severed cross-claim. After noting that NL and NRS "have never conceded that ASEA and PEBCO are entitled to indemnification," the court stated without elaboration that it "is satisfied that there should be indemnification." Because NL was "not a party to the contract creating indemnification," i.e., the agreement, the court dismissed NL from the case, 5 1120806 stating that "[i]ndemnification should be by NRS to ASEA and PEBCO." By this ruling, the trial court found that the indemnification clause in the agreement required that NRS pay the fees and costs incurred by ASEA and PEBCO in defending the class action. On April 8, 2012, the court set the matter for trial on June 19, 2012, on the issue of "indemnification of attorneys' fees incurred by counsel for PEBCO, Inc., and the Alabama State Employees Association directly related to the underlying class action." A month after the two-day hearing, the court dismissed ASEA as a party, leaving PEBCO as the sole plaintiff. On February 15, 2013, the trial court issued an order on "the appropriate amount of indemnification." Noting that NRS "has contended, and still contends, that indemnification is improper based on the language of the agreement and the attending facts," the trial court stated that it "has held hearings on that issue and by prior order has ruled that indemnification is appropriate. The instant action was filed to enforce indemnification." The court ordered NRS to pay PEBCO $863,988.50 in attorney fees and $15,297.54 in expenses for the class-action litigation, and $210,039 in attorney fees 6 1120806 and $13,834.47 in expenses for litigating the severed cross- claim. NRS timely filed a notice of appeal to this Court. II. Standard of Review When the trial court hears oral testimony, the ore tenus rule requires deference to its findings of fact. "The ore tenus rule affords a presumption of correctness to a trial court's findings of fact based on ore tenus evidence, and the judgment based on those findings will not be disturbed unless those findings are clearly erroneous and against the great weight of the evidence." Allsopp v. Bolding, 86 So. 3d 952, 958 (Ala. 2011). Conclusions of law, however, are reviewed de novo. "The ore tenus rule does not cloak a trial court's conclusions of law or the application of the law to the facts with a presumption of correctness." Id. III. Analysis The indemnification clause in the agreement states that NRS would "hold harmless" PEBCO "for an action taken against [it] arising as a result of NRS's failure to perform its duties under this Agreement." (Emphasis added.) Without question the class action that named PEBCO as a defendant was "an action taken against" it. The dispositive question, 7 1120806 therefore, is whether the class action arose "as a result of NRS's failure to perform its duties" under the agreement. The complaint of the participants in the Plan alleged breach of fiduciary duty, wantonness, and breach of contract in the administration of the Plan -- all related to the sponsorship payments mandated by the agreement. Thus, the class action arose because of NRS's fulfillment of its contractual duty to make sponsorship payments to PEBCO. As the court stated in its findings of fact: "These legal claims rest on factual allegations that Nationwide made improper sponsorship payments to ASEA and PEBCO to maintain Nationwide's position as contract and service provider for the ... Plan, and that these sponsorship payments injured Plan participants because they resulted in higher fees and lower returns than would have been the case without the payments." PEBCO argues that by fulfilling its contractual obligation to make millions of dollars in sponsorship payments to PEBCO, NRS breached the following portion of the agreement: "NRS hereby agrees to utilize its best efforts and to provide appropriate personnel to include NRS legal counsel, where necessary: "To assist ASEA and PEBCO in the preparation of a Deferred Compensation Plan and its attendant agreements together with appropriate requests for rulings so that all such documents meet the requirements, 8 1120806 in the opinion of the Attorney General of the State of Alabama, of House Bill 91, the Internal Revenue Service, the Securities and Exchange Commission, and Alabama's Statutes and Constitution." (Emphasis added.) This section of the agreement does not impose responsibility upon NRS for the ultimate legal sufficiency of the Plan documents. Instead it requires only that NRS "utilize its best efforts" "[t]o assist ASEA and PEBCO" in preparing the Plan documents for the purpose of meeting legal requirements. By its plain meaning, this section does not impose on NRS responsibility for the legal sufficiency of the Plan documents but, instead, imposes a duty only to assist in the creation of those documents, using its best efforts. An agreement to make a good-faith effort to assist another is not the equivalent of a guarantee of results.5 Furthermore, as stated above, the class action did not arise out of an improper preparation of the Plan documents but from the sponsorship payments mandated by the agreement. PEBCO A best-efforts contract is one "in which a party 5 undertakes to use best efforts to fulfill the promises made rather than to achieve a specific result .... Although the obligor must use best efforts, the risk of failure lies with the obligee." Black's Law Dictionary 366-67 (9th ed. 2009). 9 1120806 does not allege that NRS failed to assist it in preparing the relevant Plan documents or the requests for rulings on those documents. Indeed, the agreement, including its provision for sponsorship payments, was a separate document from the funding agreement for the Plan. The funding agreement was disclosed to regulators, but the agreement was not. PEBCO cannot complain that NRS failed to subject the agreement to the scrutiny of regulators when, with PEBCO's assent, that agreement was unknown to the regulators.6 One might argue that PEBCO is not entitled to 6 reimbursement for its own wrongdoing. "A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party." Hinkle v. Railway Express Agency, 242 Ala. 374, 378, 6 So. 2d 417, 421 (1942). The purpose of the Hinkle rule is to ensure that "'those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.'" Oden v. Pepsi Cola Bottling Co., 621 So. 2d 953, 955 (Ala. 1993) (quoting Bonnier v. Chicago, B. & Q. R.R., 351 Ill. App. 34, 51, 113 N.E.2d 615, 622 (1953)). In the settlement of the class action neither NRS nor PEBCO was found to have acted illegally. As the trial court stated: "There has been no adjudication, finding of fact, or other determination by any court that the sponsorship payments, or any other act or omission by any of the Defendants with respect to the ... Plan, was unlawful or otherwise improper. Defendants have steadfastly denied any wrongdoing and the Parties to the proposed Settlement have agreed that nothing in the Stipulation of Settlement shall be construed to be an admission of wrongdoing." 10 1120806 Finally, Alabama does not permit a party to be indemnified for defending against claims premised on its own allegedly wrongful actions. In Jack Smith Enterprises v. Northside Packing Co., 569 So. 2d 745 (Ala. Civ. App. 1990), the Court of Civil Appeals noted that "there is considerable authority holding that an indemnitee is precluded from recovering attorney fees where the indemnitee has been required to defend accusations which encompass his own separate wrongful acts." 569 So. 2d at 746. The Court of Civil Appeals then concluded that "indemnification, including attorney fees, is allowed where one is defending claims predicated solely upon another defendant's negligence; however, where one is defending for his own benefit, an award of attorney fees will not be allowed." 569 So. 2d at 746. This Court subsequently adopted that reasoning. Stone Bldg. Co. v. Star Elec. Contractors, Inc., 796 So. 2d 1076, 1092 (Ala. 2000).7 Because the merits of the class action are not at issue in this cross-claim seeking indemnification by one defendant against another, and because NRS has not argued that indemnity should be denied on grounds of illegality, we do not further examine this question. A party may be entitled to indemnification for its own 7 negligence if the contract expressly so provides. However, the 11 1120806 The class-action claims unquestionably encompassed PEBCO's own allegedly wrongful acts. PEBCO defended those acts for its own benefit. Therefore, it may not now seek indemnification for its costs of defense in the class action. Further, as to the attorney fees and expenses PEBCO incurred litigating its claim for indemnification in the severed action, this Court has stated that indemnification for attorney fees "'does not extend to services rendered in establishing the right of indemnity.'" Stone Bldg., 796 So. 2d at 1091 (quoting Jack Smith Enters., 569 So. 2d at 746). Thus, PEBCO is not entitled to "fees on fees" for litigating in the severed action its claim for indemnification of fees in the class action. See also Southeast Envtl. Infrastructure, L.L.C. v. Rivers, 12 So. 3d 32, 52-53 (Ala. 2008) (following Stone in denying fees for establishing the right to indemnification). 8 IV. Conclusion indemnity provision in the agreement contains no such language. See Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932, 945-46 (Ala. 1983). Although the agreement does contain a provision expressly 8 stating that the prevailing party in an action alleging breach of the agreement "shall be entitled to recover its litigation expenses, including a reasonable attorney's fee," PEBCO is no longer the prevailing party. 12 1120806 PEBCO was a defendant in the class action not "as a result of NRS's failure to perform its duties under [the] Agreement" but precisely because NRS did perform its duty to make the allegedly wrongful sponsorship payments to PEBCO. Because NRS did not fail to perform those duties under the agreement that ultimately gave rise to the class action, it did not, as a matter of law, breach the indemnification clause in the agreement. Insofar as PEBCO argues that NRS had a contractual obligation to steer it away from any legal pitfalls, the agreement states only that NRS shall use its "best efforts" to "assist" PEBCO in that effort. Finally, as a matter of law, Alabama does not permit a party to seek indemnification for defending against its own allegedly wrongful acts. We reverse the judgment of the trial court that awarded attorney fees and expenses to PEBCO for the costs it incurred in defending against the class action and in litigating its entitlement to fees in the severed cross-claim action. We remand this case for the entry of a judgment consistent with this opinion. REVERSED AND REMANDED. Stuart, Bolin, Parker, and Wise, JJ., concur. Murdock and Shaw, JJ., concur in the result. 13 1120806 SHAW, Justice (concurring in the result). Nationwide Retirement Solutions, Inc. ("NRS"), entered into agreements with PEBCO, Inc. ("PEBCO"), and the Alabama State Employees Association ("ASEA") to administer a "Deferred Compensation Plan" ("the Plan"). In connection with this arrangement, NRS and PEBCO entered into an "Administrative Services Agreement" ("the agreement") under which NRS made "sponsorship payments" to PEBCO. NRS, PEBCO, and ASEA were ultimately sued in the "Coker litigation" by the participants in the Plan, who challenged the propriety of the sponsorship payments. The three ultimately settled that litigation. PEBCO now claims that NRS must, under the terms of an indemnification clause in the agreement, indemnify PEBCO for its attorney fees accumulated in the course of the Coker litigation. The indemnification clause at issue states: "NRS agrees to indemnify and hold harmless ASEA and PEBCO ... for an action taken against any of them arising as a result of NRS's failure to perform its duties under this Agreement." The particular contractual duty under the agreement that NRS 14 1120806 allegedly failed to perform, found in section 7 of that document, is stated as follows: "NRS hereby agrees to utilize its best efforts and to provide appropriate personnel to include NRS legal counsel, where necessary: "To assist ASEA and PEBCO in the preparation of a Deferred Compensation Plan and its attendant agreements together with appropriate requests for rulings so that all such documents meet the requirements, in the opinion of the Attorney General of the State of Alabama, of House Bill 91, the Internal Revenue Service, the Securities and Exchange Commission, and Alabama's statutes and Constitution." (Emphasis added.) On appeal, PEBCO argues that the above language imposes a broad duty on NRS "to create a plan that complied with Alabama law in a manner that did not expose ASEA and PEBCO and their officials to any legal liability." PEBCO's brief, at 20. PEBCO appears to allege that the fact that the Coker litigation occurred indicates that this duty was breached. I see no support in section 7 for the broad duty proposed by PEBCO. Instead, NRS agreed to use its "best efforts" to "assist" PEBCO in preparing and gaining approval of the Plan and the agreement. The existence of the Coker litigation itself does not demonstrate that NRS failed to meet its duty. 15 1120806 If NRS used its "best efforts" to "assist" PEBCO in both preparing the Plan (and the agreement) and in requesting "rulings" to ensure that the Plan (and the agreement) met the necessary "requirements," then it did not breach its duty even if the Coker litigation resulted. Conversely, if NRS failed to provide its "best efforts" to "assist" PEBCO, then it would have breached its duty even if the Coker litigation had not occurred (or if PEBCO, ASEA, and NRS had been successful in that litigation). In other words, the proper focus is not on the fact that the Coker litigation resulted, but whether NRS breached its specified duty. As noted in the main opinion, the trial court held in a December 3, 2011, order that NRS was liable under the agreement to indemnify PEBCO. There is no explanation as to how the above language of the agreement required such indemnification under the facts of this case. NRS claims that "the record is completely void of any evidence that NRS failed to utilize its best efforts or that it failed to assist ASEA and PEBCO in the manner required by Section 7." NRS's brief, at 25. I see nothing in the arguments before us on appeal 16 1120806 establishing that NRS breached its duty under section 7 of the agreement. I thus concur in the result. 9 Indeed, there is some evidence in the record indicating 9 that the agreement was, at the direction of PEBCO, ASEA, or their agents, not submitted to the scrutiny of regulatory entities. If this is true, then no "assistance" was required of NRS. 17	March 28, 2014
f6983234-d2c7-48c5-8854-e4ebc7e21a27	Ex parte Sherman Fitzgerald Tate. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Sherman Fitzgerald Tate v. State of Alabama) (Mobile Circuit Court: CC-10-5319; CC-11-171; Criminal Appeals : CR-12-0862). Writ Denied. No Opinion.	N/A	1130685	Alabama	Alabama Supreme Court	REL: 06/06/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130685 ____________________ Ex parte Sherman Fitzgerald Tate PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Sherman Fitzgerald Tate v. State of Alabama) (Mobile Circuit Court, CC-10-5319 and CC-11-171; Court of Criminal Appeals, CR-12-0862) STUART, Justice. WRIT DENIED. NO OPINION. 1130685 Bolin, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Parker and Murdock, JJ., dissent. 2 1130685 MOORE, Chief Justice (dissenting). I respectfully dissent. The defendant, Sherman Fitzgerald Tate, was accused of engaging in deviate sexual intercourse with two 15-year-old students while he was employed as a mentor with the Youth Advocate Program at Pointe Academy in Mobile. I believe Tate should have been permitted to offer in his defense evidence of the existence of the two victims' "romantic relationship" with each other, evidence I believe could be relevant to the victims' alleged bias against Tate or their collusion but that is not necessarily barred by Rule 412, Ala. R. Evid., the rape-shield rule. According to the facts before this Court, between December 2009 and April 2010, when the events in this case allegedly took place, Tate knew that the two victims, K.R. and T.E., were bisexual and apparently conveyed this information to the mother of one of the victims. Tate had also commented that the victims were "talking together," which, we are told, is "a euphemism [meaning] that they were involved in a relationship." Trial counsel stated that this homosexual relationship "would be in the middle of the time frame when they are claiming he was doing something to them." Trial 3 1130685 counsel also presented K.R.'s witness interview in which "she stated that she had had a dating relationship with T.E., the other state's witness, ... in the timeframe while she was a student at Pointe Academy." Trial counsel stated several times that he did not intend to cross-examine the victims regarding their possible sexual activities unrelated to the alleged instances with Tate. Based on trial counsel's proffer, the trial court found that "going beyond to know when each other, [sic] being friends is more prejudicial than probative. ... I think the reference is still more prejudicial than probative." Petition at 6-7. In its unpublished memorandum, the Court of Criminal Appeals held: "Tate's theory that T.E. and K.R. were previously engaged in a sexual relationship with one another, giving them both motive and the opportunity to concoct the false sodomy allegations against him, was, at best, speculative and would have confused the jury by diverting its attention to issues that were not germane to this trial." The relevant version of Rule 412 renders inadmissible "evidence relating to the past sexual behavior of the complaining witness." Rule 412(b), Ala. R. Evid. The rule bars "'[e]vidence of particular acts of unchastity on the part of 4 1130685 the victim with a third person.'" McGilberry v. State, 516 So. 2d 907, 914 (Ala. Crim. App. 1987) (emphasis added) (construing § 12-21-23, Ala. Code 1975 (the rape-shield statute), superseded by Rule 412 effective January 1, 1996). Tate's proposed cross-examination was confined to the existence of the two victims' romantic relationship with one another; it was not exploring the specifics of their past sexual behavior. In addition, Tate's proposed cross- examination did not focus on the victims' sexual behaviors with third persons, but with one another. Rule 412 does not bar cross-examination regarding a victim's romantic relationship or even sexual behavior with another complaining victim. Cross-examination regarding the victims' romantic relationship with one another does not become inadmissible just because the jury might infer from that testimony that the victims had engaged in homosexual acts. I believe Tate has presented this Court with a cognizable conflict between the decision of the Court of Criminal Appeals and the decision in Olden v. Kentucky, 488 U.S. 227 (1988). I believe that "'[a] reasonable jury might have received a significantly different impression of [the witness'] 5 1130685 credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination.'"•Olden, 488 U.S. at 232 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). The trial court's finding that evidence indicating that the victims were "friends" was more prejudicial than probative cannot "justify exclusion of cross-examination with such strong potential to demonstrate the falsity of [the victims'] testimony." Id. Tate's trial counsel made a sufficient proffer that Tate knew that the victims were involved in a romantic relationship with one another at the time they accused Tate of sodomy. Tate's knowledge of the victims' romantic relationship, coupled with the fact that Tate informed the mother of one of the victims of that relationship, would make the proposed cross-examination relevant to show that the victims had possibly fabricated the charges against Tate. I believe that 1 Sister states have likewise made this distinction in 1 applying their rape-shield rules. See, e.g., Miskelley v. State, 480 So. 2d 1104 (Miss. 1985) (trial court erred in restricting cross-examination of witness in murder trial as to her dating relationship with victim and sexual relationship with defendant, where prosecution's theory was that defendant killed victim because of his jealousy of victim's relationship with witness; such cross-examination was relevant to witness's interest, bias, motive, hostility, and credibility); 6 1130685 we should resolve this material question of first impression, and I therefore dissent from denying the writ. Commonwealth v. Joyce, 382 Mass. 222, 227, 415 N.E.2d 181, 185 (1981) ("We do not believe that the prohibition in the rape-shield statute sweeps so broadly as to render inadmissible evidence of specific instances of a complainant's sexual conduct in situations when that evidence is relevant to show the complainant's bias."); Richardson v. State, 276 Ga. 639, 640, 581 S.E.2d 528, 529 (2003) ("Evidence merely that the victim has or had a romantic relationship with another man does not reflect on her character for sexual behavior. Therefore, so long as Richardson confined his questioning to the non-sexual nature of the victim's former relationships, the statute would not be a basis for curtailing his cross-examination of her."); People v. Golden, 140 P.3d 1, 5-6 (Colo. Ct. App. 2005) ("While we recognize that a 'committed romantic relationship' between adults may be generally understood to have a sexual component, the initial questions did not, standing alone, inquire into that component or any sexual conduct. ... Here, the [rape-shield] statute would not have been violated had defendant been allowed to inquire into the victim's prior inconsistent statements acknowledging a committed romantic relationship. The victim would not have been subjected to a fishing expedition into her past sexual conduct. Rather, the inquiry would have called into question her credibility and her possible motive in telling her roommates that she had been sexually assaulted."); and Kaplan v. State, 451 So. 2d 1386, 1387 (Fla. Dist. Ct. App. 1984) ("We recognize, however, that the defendant's right to full and fair cross-examination, guaranteed by the Sixth Amendment, may limit the [rape-shield] statute's application when evidence of the victim's prior sexual conduct is relevant to show bias or motive to lie."). 7	June 6, 2014
6a9c4a2a-3a09-4b4a-8caa-49d017054eaa	Brechbill v. State Farm Fire & Casualty Co.	N/A	1121010	Alabama	Alabama Supreme Court	REL:05/02/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121010 ____________________ Ex parte Lambert Law Firm, LLC PETITION FOR WRIT OF MANDAMUS (In re: Shawn Brechbill v. State Farm Fire and Casualty Company) (Morgan Circuit Court, CV-10-900034) PER CURIAM. Lambert Law Firm, LLC ("Lambert"), petitions for a writ of mandamus directing the Morgan Circuit Court to set aside an 1121010 order awarding to the respondent, Shawn Brechbill, a portion of certain funds filed with the Morgan Circuit Court clerk. We grant the petition and issue the writ. Facts and Procedural History Brechbill, who was represented by the law firm of Morris, Conchin & King, sued State Farm Fire and Casualty Company ("State Farm") seeking damages for breach of contract and bad- faith failure to pay an insurance claim. The law firm filed the initial complaint, prepared various pleadings, conducted discovery, engaged experts, and filed a response to a motion for a summary judgment filed by State Farm. Later, the law firm withdrew its representation of Brechbill. The trial court held a hearing and issued an order stating that the law firm would have a lien under Ala. Code 1975, § 34-3-61, against any settlement or judgment that became payable to Brechbill arising from his claims against State Farm. Ultimately, the law firm's interest in the lien was assigned to Gary Conchin, a partner in the law firm. Brechbill hired Lambert to continue the litigation. A copy of the fee agreement between the two, found in the materials before us, stated that Brechbill would pay Lambert 2 1121010 a $5,000 retainer, would be billed for attorneys' time at $200 an hour plus expenses, and that $30,000 must be paid before trial, $7,000 of which would be paid toward Conchin's bill. Brechbill ultimately received a judgment against State Farm on his breach-of-contract and bad-faith claims. At some point after the judgment was entered, Lambert withdrew from further representation of Brechbill, and the trial court entered an order granting Lambert a lien on any recovery Brechbill might be awarded. State Farm elected to appeal the verdict on the bad-faith claim, but paid to the circuit clerk one-half of the amount of the verdict in satisfaction of the 1 verdict on the breach-of-contract claim. While State Farm's appeal was pending, both Conchin and Lambert moved to "condemn" the funds held by the circuit clerk. Brechbill also moved the trial court to release the 2 funds to him. The trial court held a hearing on May 24, 2013, and subsequently issued an order on May 30, 2013, holding that According to the trial court, this sum amounted to 1 $161,496.64. On September 27, 2013, this Court reversed the judgment 2 on Brechbill's bad-faith claim and remanded the case. State Farm Fire & Cas. Co. v. Brechbill, [Ms. 1111117, Sept. 27, 2013] ___ So. 3d ___ (Ala. 2013). 3 1121010 the amount owed to Conchin and Lambert was "sharply disputed" and deferred ruling on the attorneys' motions until the conclusion of State Farm's appeal. The trial court stated that, after the appeal was final, a hearing would be set to receive testimony and evidence regarding their respective claims to the proceeds. In the meantime, the trial court awarded a portion of the funds to satisfy a claim by a court- reporting service against Brechbill and Lambert and released 3 to Brechbill one-half of the total that had been paid by State Farm. Lambert petitions this Court for mandamus review. Standard of Review "Mandamus is appropriate "'"where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."'" Ex parte Brookwood Med. Ctr., 994 So. 2d 264, 268 (Ala. 2008) (quoting Ex parte Perfection Siding, Inc., 882 So. 2d 307, The trial court ordered that $4,568.79 be paid to the 3 court-reporting service, which had apparently filed an action against Brechbill and Lambert seeking payment of the fee. 4 1121010 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)). Analysis In its petition, Lambert asserts that, under Ala. Code 1975, § 34-3-61, it had a lien on the funds that had been deposited with the circuit clerk. Section 34-3-61 states, in pertinent part: "(a) Attorneys-at-law shall have a lien on all papers and money of their clients in their possession for services rendered to them, in reference thereto, and may retain such papers until the claims are satisfied, and may apply such money to the satisfaction of the claims. "(b) Upon actions and judgments for money, they shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy the action or judgment, until the lien or claim of the attorney for his or her fees is fully satisfied; and attorneys-at-law shall have the same right and power over action or judgment to enforce their liens as their clients had or may have for the amount due thereon to them." As has been noted by the Court of Civil Appeals: "The purpose of § 34-3-61 is 'to protect the attorney from loss of his investment in time, effort, and learning, and the loss of funds used in serving the interest of the client.'" Harlow v. Sloss Indus. Corp., 813 So. 2d 879, 887 (Ala. Civ. App. 2001) 5 1121010 (quoting Triplett v. Elliott, 590 So. 2d 908, 910 (Ala. 1991)). "'In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature.' DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998). "'"The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says."' "Ex parte University of South Alabama, 761 So. 2d 240, 243 (Ala. 1999), quoting Ex parte State Dep't of Revenue, 683 So. 2d 980, 983 (Ala. 1996) (citations omitted)." Bassie v. Obstetrics & Gynecology Assocs. of Northwest Alabama, P.C., 828 So. 2d 280, 283 (Ala. 2002). In its petition, Lambert contends that, because its lien and Conchin's lien come first in priority--i.e., those liens are "superior to all liens but tax liens"--the value of their claims must be first determined before any funds can be 6 1121010 disbursed to Brechbill, lest the remaining funds be insufficient to cover the claimed fees. Lambert argues: "Whatever amount is owed to Conchin and [Lambert], the plain meaning of [§ 34-3-61] is that these attorney [liens] come first in priority. To leave the amount undetermined[ ] with not enough proceeds 4 left in court to satisfy the face value of said liens is wholly against the plain meaning and purpose of the statute." Although the trial court indicated it would set a hearing at a later date to determine the amount of the attorney liens at issue, Lambert contends that by "distribut[ing] 50% of the existing funds ... to Brechbill" without first determining the amount of the liens, Lambert (and Conchin) were "stripped of their ability to maintain their lien." In its answer to Lambert's petition, the trial court "acknowledges that it did not provide a full blown evidentiary hearing to the parties on May 24, 2013, and that it has an obligation to do so before it makes a final ruling on the claims for attorney fees and reimbursement of expenses." The trial court explains that it was unaware of a dispute between Lambert asserts in its petition that it and Conchin 4 claimed liens in the amount of $51,304.30 and $60,690, respectively. Lambert states: "The amount remaining of roughly $80,000.00 is not enough to cover the liens that remain should they be proven valid." 7 1121010 Brechbill and his former attorneys over the fees and "had allotted too little time for a hotly contested attorney fee trial on that day." Further, the trial court had concerns that State Farm's appeal was still pending at that time and had further concerns as to the clarity of the Lambert fee agreement. Given the above, the trial court clearly acted within its discretion in refusing, at the time of the hearing, to determine the amount of the liens at issue. However, given the mandatory nature of § 34-3-61, the priority of the two liens in this case, and the limited funds to which the liens attached, the trial court must first determine the amount of the fees owed to ensure that any preliminary disbursement would not divest the fund of money in which, by law, another party would have a priority in interest. Thus, to ensure the interests granted by § 34-3-61 are protected, the trial court must determine what part of the claimed fees are owed to Conchin and Lambert and thus the amount of the resulting liens before releasing any funds to Brechbill. We hold that 5 We express no opinion as to the actual amount of fees 5 owed or regarding Brechbill's argument that the claimed attorney fees are unreasonable. 8 1121010 Lambert has demonstrated a clear legal right to relief, and we therefore direct the trial court to vacate its May 30, 2013, order and to hold further proceedings consistent with this opinion. PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 9	May 2, 2014
d6ea8275-92f3-4e14-9297-ee78e7542553	Ex parte Devin Darnell Thompson. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Devin Darnell Thompson v. State of Alabama)	N/A	1120304	Alabama	Alabama Supreme Court	REL: 04182014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1120304 ____________________ Ex parte Devin Darnell Thompson PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Devin Darnell Thompson v. State of Alabama) (Fayette Circuit Court, CC-03-62; Court of Criminal Appeals, CR-05-0073) MURDOCK, Justice. The petition for the writ of certiorari is denied. 1120304 In denying 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 Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT DENIED. Moore, C.J., and Stuart, Bolin, Parker, and Bryan, JJ., concur. Main and Wise, JJ., recuse themselves.* *Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case. 2	April 18, 2014
2854ecb7-c8e9-4791-bc05-8767cc21a8a6	Hicks v. Alabama	N/A	1110620	Alabama	Alabama Supreme Court	Rel: 04/18/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1110620 ____________________ Ex parte Sarah Janie Hicks PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Sarah Janie Hicks v. State of Alabama) (Coffee Circuit Court, CC-09-268; Court of Criminal Appeals, CR-09-0642) PARKER, Justice. 1110620 Sarah Janie Hicks petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals' judgment affirming her conviction, following a guilty plea, for chemical endangerment of a child for exposing her unborn child to a controlled substance, in violation of Alabama's chemical- endangerment statute, § 26-15-3.2(a)(1), Ala. Code 1975. We granted her petition, and we now affirm the judgment of the Court of Criminal Appeals and hold that the use of the word "child" in the chemical-endangerment statute includes all children, born and unborn, and furthers Alabama's policy of protecting life from the earliest stages of development. I. Facts and Procedural History The Court of Criminal Appeals set forth the relevant facts and procedural history in its unpublished memorandum in Hicks v. State, [No. CR–09–0642, Nov. 4, 2011] ___ So. 3d ___ (Ala. Crim. App. 2011), as follows: "Hicks appeals from her conviction, following a guilty plea, for chemical endangerment of a child, a violation of § 26-15-3.2(a)(1), Ala. Code 1975. Hicks was sentenced to three years' imprisonment; the sentence was suspended and Hicks was placed on supervised probation for one year. Court costs and fees were assessed. "Section 26-15-3.2, Ala. Code 1975, provides: 2 1110620 "'(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following: "'(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260.' "The indictment charged: "'The Grand Jury of said County charges that before the finding of this indictment that, Sarah Janie Hicks; whose name is to the Grand Jury otherwise unknown, did knowingly, recklessly, or intentionally cause or permit a child, to-wit; [J.D.], a better description of which is to the Grand Jury otherwise unknown, to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260 of the Code of Alabama, 1975, to-wit: Cocaine, in violation of Section 26-[15-3.2](a)(1), Against the Peace and Dignity of the State of Alabama.' "Concisely, the State charged that Hicks ingested cocaine while pregnant with J.D. and that that resulted in J.D. testing positive for the presence of cocaine in his body at the time of his birth. Documents in the record suggest that, since his birth, J.D. is 'doing fine.' Hicks filed a pretrial motion to dismiss the indictment in which she asserted: 1) that the plain language of § 26-15-3.2(a)(1) reflects that the legislature 3 1110620 intended for the statute to apply to a child and not to a fetus, i.e., an unborn child and that, therefore, her conduct in ingesting cocaine while pregnant did not constitute the offense of the chemical endangerment of a child; 2) that Hicks was denied due process because, although the statute as written is not vague, the statute, as applied to Hicks's conduct, is impermissibly vague because the statute provides no notice that it encompasses exposing a fetus, i.e, an unborn child, to a controlled substance; 3) that the State has violated the doctrine of separation of powers because it is the duty of the legislature and not a district attorney to proscribe criminal offenses, and the legislature recently declined to criminalize prenatal conduct that harms a fetus, i.e., an unborn child; and 4) that Hicks is being denied equal protection because the State is seeking to punish, as a class, women who abuse drugs while pregnant, whereas, a man may father a child while abusing drugs and not be prosecuted under the statute. "On November 19, 2009, a hearing was conducted at which Hicks and the State presented arguments addressing the assertions in Hicks's motion to dismiss. At the conclusion of arguments, the trial court asserted that the motion to dismiss seemed 'based on factual arguments' and questioned whether the assertions in the motion would 'be more applicable for a motion for a judgment of acquittal at the end of the State's case.' The trial court asked the parties to explain '[h]ow does this Court reach out and dismiss an indictment that is a valid indictment?' Hicks argued that 'it's a question of law, not a question of fact whether a child includes the term "fetus"' and 'there's no crime that's been committed based on the set of circumstances alleged in that indictment.' The State responded that, as the trial court stated, 'if the indictment is valid, it then becomes ... a question of fact; and, therefore, it cannot be dismissed on a motion to dismiss the indictment when the indictment is 4 1110620 correct on its face and is a valid indictment.' After the hearing, on November 30, 2009, the trial court entered a written order denying the motion to dismiss stating: 'Upon consideration of the pleadings and arguments presented at hearing, it is ordered that the Motion to Dismiss the Indictment filed by [Hicks] is denied.' "On December 7, 2009, Hicks filed a Motion to Declare the Statute Unconstitutional that presented arguments similar to those in her motion to dismiss. It does not appear that the trial court ruled on this motion. "On January 11, 2010, before entering a guilty plea, Hicks expressly reserved the right to appeal the issues presented in her motion to dismiss. Then, pursuant to a plea agreement, Hicks pleaded guilty to the chemical endangerment of a child as charged in the indictment. She was sentenced to three years' imprisonment; the sentence was suspended, and Hicks was placed on supervised probation for one year." (References to the record omitted.) The Court of Criminal Appeals, relying on its opinion in Ankrom v. State, [Ms. CR-09-1148, August 26, 2011] ___ So. 3d ___ (Ala. Crim. App. 2011), affirmed the trial court's judgment, stating: "Hicks contends on appeal, as she did in the trial court, that the plain language of the statute is clear and unambiguous, and 'the statute [(§ 26-15-3.2(a)(1))] does not mention unborn children or fetuses.' (Hicks's brief, at p. 11.) Thus, Hicks argues, the term 'child' in § 26-15-3.2 should not be construed to include an unborn child or fetus. Hicks argues that the settled rules of statutory 5 1110620 construction require this Court to construe the term 'child' as not including an unborn child or fetus. Specifically, she argues: (1) that the rule of lenity requires criminal statutes to be strictly construed in favor of the accused; (2) that the legislative history of the statute and the Alabama Legislature's failure to amend § 26-15-3.2 to specifically state that the statute applies to a fetus shows that the legislature did not intend for the statute to apply to the prenatal exposure of unborn children to controlled substances; and (3) that the majority of our sister states have refused to allow women to be prosecuted criminally for conduct occurring during pregnancy. Hicks also presented constitutional challenges to § 26-15-3.2: (1) the State's application of the statute is violative of the separation-of-powers doctrine; and (2) as applied to her, the statute is void for vagueness and violative of due process. "Recently, in Ankrom v. State, [Ms. CR-09-1148, August 26, 2011] ___ So. 3d ___ (Ala. Crim. App. 2011), a case involving virtually identical facts as the facts in this case, this Court held that the plain language of § 26-15-3.2 was clear and unambiguous and that the plain meaning of the term 'child' in § 26-15-3.2 included an unborn child or viable fetus. Ankrom v. State, ___ So. 3d at ___ ('[T]he plain meaning of the term "child," as found in § 26-15-3.2, Ala. Code 1975, includes a viable fetus.'). This Court also noted that because the plain language of the statute was clear and no statutory construction was necessary, the rule of lenity was inapplicable, the fact that subsequent attempts to amend § 26-15-3.2 to include an unborn child within the definition of 'child' did not pass the legislature was irrelevant, and holdings from courts in other jurisdictions were either distinguishable from the facts in Ankrom or unpersuasive. 6 1110620 "Applying the holding in Ankrom to this case, Hick's argument that the plain meaning of the term 'child' in § 26-15-3.2 does not include an unborn child or fetus must fail, given that it has already been rejected by this Court. Moreover, because this Court found no ambiguity in the statute, Hicks's constitutional challenges fail. "Based on the foregoing, the judgment of the trial court is affirmed." On February 24, 2012, Hicks petitioned this Court for a writ of certiorari. On April 6, 2012, we granted her petition; we now affirm the judgment of the Court of Criminal Appeals. II. Standard of Review "We review questions of statutory construction and interpretation de novo, giving no deference to the trial court's conclusions." Pitts v. Gangi, 896 So. 2d 433, 434 (Ala. 2004) (citing Greene v. Thompson, 554 So. 2d 376 (Ala. 1989)). III. Discussion Hicks was convicted of violating § 26–15–3.2, Ala. Code 1975 ("the chemical-endangerment statute"), by causing her unborn child to be exposed to, to ingest or inhale, or to have contact with a controlled substance. The chemical- endangerment statute provides: 7 1110620 "(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following: "(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A–12–260. A violation under this subdivision is a Class C felony. "(2) Violates subdivision (1) and a child suffers serious physical injury by exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia. A violation under this subdivision is a Class B felony. "(3) Violates subdivision (1) and the exposure, ingestion, inhalation, or contact results in the death of the child. A violation under this subdivision is a Class A felony. "(b) The court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment. "(c) It is an affirmative defense to a violation of this section that the controlled substance was provided by lawful prescription for the child, and that it was administered to the child in accordance with the prescription instructions provided with the controlled substance." 8 1110620 The facts of Hicks's case are undisputed; the only issue before this Court is whether the chemical-endangerment statute applies to Hicks's conduct. After the parties submitted their briefs in this case, this Court released its opinion in Ex parte Ankrom, [Ms. 1110176, Jan. 11, 2013] ___ So. 3d ___ (Ala. 2013), a case involving facts virtually identical to the facts in this case, in which it addressed the same issue. In Ankrom, as will be discussed in greater detail below, this Court held that the plain meaning of the word "child," as that word is used in the chemical-endangerment statute, includes an unborn child. Accordingly, for the reasons given below, we hold that chemical-endangerment statute also applies to Hicks's conduct. Hicks raises three main arguments on appeal. First, Hicks argues that the legislature did not intend for the word "child" in the chemical-endangerment statute to apply to an unborn child. Next, Hicks argues that applying the chemical- endangerment statute to protect unborn children is bad public policy. Finally, Hicks argues that she was denied due process of law. Each of Hicks's arguments is addressed below. A. Legislative Intent 9 1110620 Hicks argues that the legislature did not intend for the word "child" in the chemical-endangerment statute to include an unborn child. First, Hicks argues that, under the rules of statutory interpretation, the word "child" in the chemical- endangerment statute cannot include an unborn child because the word "child" is not defined in the statute. Hicks argues that the statute is, therefore, unconstitutionally ambiguous and should be declared void for vagueness. Hicks's brief, at 1 pp. 6-7. In the alternative, Hicks argues that, if this Court does not find that the chemical-endangerment statute is impermissibly and unconstitutionally vague, then the Court must follow the rule of lenity and construe the statute in her favor. In Ankrom, this Court applied the rules of statutory construction to interpret the chemical-endangerment statute: "In [Ex parte] Bertram, [884 So. 2d 889 (Ala. 2003),] this Court stated: "'"A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. We discuss Hicks's constitutional arguments in Part III.C 1 of this opinion. 10 1110620 "'"Penal statutes are to reach no further in meaning than their words. "'"One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. "'"No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused."' "884 So. 2d at 891 (quoting Clements v. State, 370 So. 2d 723, 725 (Ala. 1979) (citations omitted; emphasis added in Bertram)). "In ascertaining the legislature's intent in enacting a statute, this Court will first attempt to assign plain meaning to the language used by the legislature. As the Court of Criminal Appeals explained in Walker v. State, 428 So. 2d 139, 141 (Ala. Crim. App. 1982), '[a]lthough penal statutes are to be strictly construed, courts are not required to abandon common sense. Absent any indication to the contrary, the words must be given their ordinary and normal meaning.' (Citations omitted.) Similarly, this Court has held that '[t]he fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. If possible, the intent of the legislature should be gathered from the language of the statute itself.' Volkswagen of America, Inc. v. Dillard, 579 So. 2d 1301, 1305 (Ala. 1991). "We look first for that intent in the words of the statute. As this Court stated in Ex parte Pfizer, Inc., 746 So. 2d 960, 964 (Ala. 1999): 11 1110620 "'"When the language of a statute is plain and unambiguous, as in this case, courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning -- they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature." Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997). Justice Houston wrote the following for this Court in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270 (Ala. 1998): "'"In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said: "'"'"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room f o r j u d i c i a l construction and the clearly expressed i n t e n t o f t h e legislature must be given effect."' "'"Blue Cross & Blue Shield v. Nielsen, 714 So. 2d 293, 296 12 1110620 (Ala. 1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)); see also Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n, 589 So. 2d 687, 689 (Ala. 1991); Coastal States Gas Transmission Co. v. Alabama Pub. Serv. Comm'n, 524 So. 2d 357, 360 (Ala. 1988); Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219, 1223 (Ala. 1984); Dumas Brothers Mfg. Co. v. Southern Guar. Ins. Co., 431 So. 2d 534, 536 (Ala. 1983); Town of Loxley v. Rosinton Water, Sewer & Fire Protection Auth., Inc., 376 So. 2d 705, 708 (Ala. 1979). It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997)."' "Thus, only when language in a statute is ambiguous will this Court engage in statutory construction. As we stated in Ex parte Pratt, 815 So. 2d 532, 535 (Ala. 2001), '[p]rinciples of statutory construction 13 1110620 instruct this Court to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.' "As the Court of Criminal Appeals explained in Ankrom[ v. State, [Ms. CR-09-1148, Aug. 26, 2011] ___ So. 3d ___ (Ala. Crim. App. 2011)], the rule of construction referenced in Bertram applies only where the language of the statute in question is ambiguous; the issue in these cases is whether the plain, ordinary, and normal meaning of the word 'child' includes an unborn child." Ankrom, ___ So. 3d at ___. This Court concluded in Ankrom that "the plain meaning of the word 'child' is broad enough to encompass all children –- born and unborn –- including [the] unborn children in the cases before us. As the Court of Criminal Appeals said in Ankrom: "'Likewise, in the present case, we do not see any reason to hold that a viable[ ] 2 fetus is not included in the term "child," as that term is used in § 26-15-3.2, Ala. Code 1975. Not only have the courts of this State interpreted the term "child" to include a viable fetus in other contexts, the dictionary definition of the term "child" explicitly includes an unborn person or a fetus. In everyday usage, there is nothing extraordinary about using the term "child" to include a viable fetus. For example, it is not uncommon for someone This Court expressly rejected the Court of Criminal 2 Appeals' limitation of the statute to only unborn children who are viable at the time of their exposure to a controlled substance. See Ankrom, ___ So. 3d at ___. 14 1110620 to state that a mother is pregnant with her first "child." Unless the legislature specifically states otherwise, the term "child" is simply a more general term that encompasses the more specific term "viable fetus." If the legislature desires to proscribe conduct against only a "viable fetus," it is necessary to use that specific term. However, if the legislature desires to proscribe conduct against a viable fetus and all other persons under a certain age, the term "child" is sufficient to convey that meaning. In fact, proscribing conduct against a "child" and a "viable fetus" would be redundant. "'The term "child" in § 26-15-3.2, Ala. Code 1975, is unambiguous; thus, this Court must interpret the plain language of the statute to mean exactly what it says and not engage in judicial construction of the language in the statute. Also, because the statute is unambiguous, the rule of lenity does not apply. We do not see any rational basis for concluding that the plain and ordinary meaning of the term "child" does not include a viable fetus.' "We find this reasoning persuasive and agree with the Court of Criminal Appeals that the plain meaning of the word 'child' in the chemical-endangerment statute includes unborn children." Ankrom, ___ So. 3d at ___. As thoroughly explained in Ankrom, the use of the word "child" in the chemical-endangerment statute is clear and unambiguous; thus, we reject Hicks's argument that the rule of lenity should apply to our interpretation of the statute. 15 1110620 Next, Hicks argues that the legislature's intended definition of the word "child" as that term is used in the chemical-endangerment statute can be discerned from the legislature's use of the word in the surrounding chapters of the Alabama Code, which define the word "child" as "[a] person under the age of 18 years," § 26-14-1(3), Ala. Code 1975, and 3 as "[a] person who has not yet reached his or her eighteenth birthday," § 26-16-91(2), Ala. Code 1975. Hicks argues that 4 the placement of the chemical-endangerment statute in the title and chapter of the Alabama Code in which it was placed is meaningful and that "the legislature is presumed to know the definition of child in the preceding and subsequent chapters." Hicks's brief, at p. 8. Hicks also argues that the legislature's intended definition of the word "child" in the chemical-endangerment statute is evidenced by Alabama's partial-birth-abortion statute, § 26-23-3, Ala. Code 1975, which refers to an unborn child as "a human fetus" as opposed to "a child." Hicks also argues that the legislature's intent is further demonstrated in the definition section of the Chapter 14 is titled "Reporting of Child Abuse or 3 Neglect." Chapter 16 is titled "Child Abuse and Neglect." 4 16 1110620 "Woman's Right to Know Act," § 26-23A-1 et seq., Ala. Code 1975, which defines "unborn child" as "the offspring of any human person from conception until birth." § 26-23A-3(10), Ala. Code 1975. Additionally, Hicks argues that the legislature's intent to exclude unborn children from the definition of the word "child" in the chemical-endangerment statute is evidenced by the fact that § 13A-6-1(d), Ala. Code 1975, forbids the prosecution under "Article 1 or Article 2 ... of ... any woman with respect to her unborn child," while at the same time defining "person" as "including an unborn child in utero at any stage of development, regardless of viability." § 13A-6-1(a)(3), Ala. Code 1975. This Court addressed arguments similar to those raised by Hicks in Ankrom, as follows: "A review of the statutes cited by the petitioners and of the context of the chemical- endangerment statute provides no conclusive evidence as to how this Court should interpret the word 'child' as that term is used in the chemical- endangerment statute. The statutory definitions of the word 'child' cited ... are not conclusive because both set a maximum age for childhood without setting a minimum age. Similarly, [the argument] that 'the examples put forth ... show that the legislature uses the explicit term "unborn child" to refer to the unborn, rather than rely on the ... ambiguous term "child,"' ... fails to note that the legislature's decision to use the more restrictive 17 1110620 words 'fetus' and 'unborn child' was appropriate in those other statutes because those statutes applied only to protect unborn children. In sum, nothing in 6 the statutes cited ... contradicts the plain meaning of the word 'child' in the chemical-endangerment statute to include an unborn child or requires this Court to interpret the word 'child' as excluding unborn children. "____________________ " Using the word 'fetus' or 'unborn child' in 6 place of the word 'child' would not have been appropriate in the chemical-endangerment statute because that statute also protects children after they have been born." Ankrom, ___ So. 3d at ___ (citations omitted). As this Court held in Ankrom, the statutory definitions of the word "child" in other chapters of the Code do not limit "child" to only a child who has been born but simply set a maximum age at which the person is no longer regarded as a "child" under a particular statutory scheme. Also, the references to a "human fetus" or "unborn child" in the partial-birth-abortion statute and the Woman's Right to Know Act both deal exclusively with unborn children. Thus, it would be inappropriate to use the word "child" because that would, nonsensically in that context, include children who have already been born. Because both born and unborn children can be exposed to controlled substances, we have no reason to doubt that the legislature 18 1110620 intended for the chemical-endangerment statute to be using the plain meaning of the word "child" and thereby protecting all children. Hicks also argues that a majority of other jurisdictions have refused to define the word "child" as including an unborn child and that the Court of Criminal Appeals erred by following the minority view espoused by the South Carolina Supreme Court in Whitner v. State, 492 S.E.2d 777 (1997). This Court addressed this argument in Ankrom, as follows: "[A]lthough, as the petitioners correctly state, a majority of jurisdictions have held that unborn children are not afforded protection from the use of a controlled substance by their mothers, they nonetheless fail to convince this Court that the decisions of those courts are persuasive and should be followed by this Court. See Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) ('[T]he State has legitimate interests from the outset of the pregnancy in protecting ... the life of the fetus that may become a child.' (quoted with approval in Hamilton v. Scott, 97 So. 3d 728, 740 (Ala. 2012) (Parker, J., concurring specially, joined by Stuart, Bolin, and Wise, JJ.)))." ___ So. 3d at ___. As set forth in Ankrom, the State has a legitimate interest in protecting the life of children from the earliest stages of their development and has done so by enacting the chemical-endangerment statute. The fact that other states have failed to do so does not persuade us to look 19 1110620 beyond the plain meaning of the word "child" as that word is used in the chemical-endangerment statute. Hicks also argues that legislative intent can be discerned by the failure of several proposed amendments to the chemical-endangerment statute that would have specifically defined the word "child" to include unborn children. This Court addressed this argument in Ankrom, as follows: "Interpreting a statute based on later attempts to amend that statute is problematic. As the United States Supreme Court stated in Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 650 (1990): "'[S]ubsequent legislative history is a "hazardous basis for inferring the intent of an earlier" Congress. It is a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns, as it does here, a proposal that does not become law. Congressional inaction lacks "persuasive significance" because "several equally tenable inferences" may be drawn from such inaction, "including the inference that the existing legislation already incorporated the offered change."' "(Citations omitted.) "In this case, it is possible to conclude ... that the legislature understood the original chemical-endangerment statute to protect only children who were already born. It is also possible to conclude ... that the legislature understood the original chemical-endangerment statute to protect 20 1110620 all children -- born and unborn -- and that proposals to amend the statute were unnecessary attempts to clarify the legislature's original intent. This Court cannot determine the intentions of the legislature apart from the language in the chemical-endangerment statute that is now before us; ... the plain meaning of that statutory language is to include within its protection unborn children. See LTV Corp., supra; Becton v. Rhone-Poulenc, Inc., 706 So. 2d 1134, 1139 (Ala. 1997) ('"'[S]ubsequent legislative history' is not helpful as a guide to understanding a law."' (quoting Covalt v. Carey Canada Inc., 860 F.2d 1434, 1438 (7th Cir. 1988), citing in turn Pierce v. Underwood, 487 U.S. 552, 565 (1988)))." Ankrom, ___ So. 3d at ___. Because the legislature could have failed to pass the proposed amendments for a plethora of reasons, Hicks's argument that the legislature's inaction in that regard should influence our interpretation of the chemical-endangerment statute is unpersuasive. B. Public Policy Hicks argues that the overwhelming majority of medical and public-health organizations agree that, as a matter of public policy, prosecuting women for drug use during pregnancy does not protect human life. Hicks's brief, at p. 17. In Ankrom, this Court rejected the notion that public- policy arguments should play a role in this Court's interpretation of a statute: 21 1110620 "Although the briefs of the petitioners and of several amici curiae recite numerous potential public-policy implications of this Court's decision in these cases, policy cannot be the determining factor in our decision; public-policy arguments should be directed to the legislature, not to this Court. As we stated in Boles v. Parris, 952 So. 2d 364, 367 (Ala. 2006): '[I]t is well established that the legislature, and not this Court, has the exclusive domain to formulate public policy in Alabama.' "This is not because policy is unimportant but because policy arguments are ill-suited to judicial resolution. See M & Assocs., Inc. v. City of Irondale, 723 So. 2d 592, 599 (Ala. 1998) ('"There are reasonable policy arguments on both sides of this issue; however, the Legislature is the body that must choose between such conflicting policy considerations."' (quoting City of Tuscaloosa v. Tuscaloosa Vending Co., 545 So. 2d 13, 14 (Ala. 1989))). For this reason, although we recognize that the public policy of this State is relevant to the application of this statute, we decline to address the petitioners' public-policy arguments; we leave those matters for resolution by the legislature. As we stated in Marsh v. Green, 782 So. 2d 223, 231 (Ala. 2000), '[t]hese concerns deal with the wisdom of legislative policy rather than constitutional issues. Matters of public policy are for the Legislature and, whether wise or unwise, legislative policies are of no concern to the courts.' See also Cavalier Mfg., Inc. v. Jackson, 823 So. 2d 1237, 1248 (Ala. 2001), overruled on other grounds, Ex parte Thicklin, 824 So. 2d 723 (Ala. 2002) ('The Legislature is endowed with the exclusive domain to formulate public policy in Alabama, a domain upon which the judiciary shall not trod.'). We therefore refrain from considering the policy issues raised by the petitioners or amici curiae, limiting ourselves to interpreting the text of the chemical-endangerment statute." 22 1110620 Ankrom, ___ So. 3d at ___. For the reasons set forth in Ankrom, we refrain from considering Hick's public-policy arguments. C. Constitutional Arguments Hicks argues that the application of the chemical- endangerment statute is unconstitutional as applied to her because, she says, the statute is vague and, therefore, did not provide her with adequate notice of what conduct was prohibited, in violation of her due-process rights. Hicks's brief, at p. 24. Hicks argues that a vague statute is one that fails to give adequate "'"'notice of the required conduct to one who would avoid its penalties.'"'" Vaughn v. State, 880 So. 2d 1178, 1194 (Ala. Crim. App. 2003) (quoting McCall v. State, 565 So. 2d 1163, 1165 (Ala. Crim. App. 1990), quoting in turn Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952)). Hicks also argues that "[m]en of common intelligence cannot be required to guess at the meaning of [an] enactment." Winters v. New York, 333 U.S. 507, 515 (1948). To support her arguments, Hicks cites Kolender v. Lawson, 461 U.S. 352, 357 (1983), in which the United States Supreme Court stated that "the void-for-vagueness doctrine 23 1110620 requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Hicks argues that the chemical-endangerment statute is facially vague because it does not define the word "child," leaving her unaware that it includes unborn children. Hicks also argues that the prosecution of women under similar circumstances, as well as news reports of such prosecutions, did not provide her with adequate notice that her conduct was criminal. Hicks, therefore, argues that she was not afforded constitutionally adequate notice that her conduct would violate the chemical- endangerment statute. Hicks's brief, at pp. 24-25. In Vaughn v. State, supra, the Court of Criminal Appeals explained the doctrine of vagueness: "'"The doctrine of vagueness ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, see United States v. National Dairy Products 24 1110620 Corporation, 372 U.S. 29, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963). "'"Void for vagueness simply m e a n s t h a t c r i m i n a l responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 811, 98 L. Ed. 989, 996 (1954). A vague statute does not give adequate 'notice of the required conduct to one who would avoid its penalties,' Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S. Ct. 329, 330, 96 L. Ed. 367, 371 (195[2]), is not 'sufficiently focused to forewarn of both its reach and coverage,' United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S. Ct. at 598, 9 L. Ed. 2d at 566, and 'may trap the innocent by not providing fair warning,' Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222, 227-28 (1972). "'"As the United States Supreme Court observed in Winters v. New York, 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed. 840 (1948): "'"'There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the 25 1110620 e n a c t m e n t . T h e vagueness may be from uncertainty in regard to persons within the scope of the act, or in r e g a r d t o t h e applicable tests to ascertain guilt.' "'"333 U.S. at 515-16, 68 S. Ct. at 670, 92 [L. Ed. at] 849-50 [citations omitted]." "'McCrary v. State, 429 So. 2d 1121, 1123-24 (Ala. Cr. App. 1982), cert. denied, 464 U.S. 913, 104 S.Ct. 273, 78 L. Ed. 2d 254 (1983).' "McCall v. State, 565 So. 2d 1163, 1165 (Ala. Crim. App. 1990). "'"'As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.' Kolender v. Lawson, 461 U.S. 352 [357], 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903 (1983) (citations omitted). A statute challenged for vagueness must therefore be scrutinized to determine whether it provides both fair notice to the public that certain conduct is proscribed and minimal guidelines to aid officials in the enforcement of that proscription. See Kolender, supra; Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)."' 26 1110620 "Timmons v. City of Montgomery, 641 So. 2d 1263, 1264 (Ala. Crim. App. 1993), quoting McCorkle v. State, 446 So. 2d 684, 685 (Ala. Crim. App. 1983). However, "'"'[t]his prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for "[i]n most English words and phrases there lurk uncertainties." Robinson v. United States, 324 U.S. 282, 286, 65 S. Ct. 666, 668, 89 L. Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid.'"' "Sterling v. State, 701 So. 2d 71, 73 (Ala. Crim. App. 1997), quoting Culbreath v. State, 667 So. 2d 156, 158 (Ala. Crim. App. 1995), abrogated on other grounds by Hayes v. State, 717 So. 2d 30 (Ala. Crim. App. 1997), quoting in turn, Rose v. Locke, 423 U.S. 48, 49-50, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975). "'"Mere difficulty of ascertaining its meaning or the fact that it is susceptible of different interpretations will not render a statute or ordinance too vague or uncertain to be enforced."' Scott & Scott, Inc. v. City of Mountain Brook, 844 So. 2d 577, 589 (Ala. 2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So. 2d 271, 275 (1963). The judicial power to declare a statute void for vagueness 'should be exercised only when a statute is so incomplete, so irreconcilably conflicting, or so vague or indefinite, that it cannot be executed, and the court is unable, by the application of known and accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended.' 27 1110620 Jansen v. State ex rel. Downing, 273 Ala. 166, 170, 137 So. 2d 47, 50 (1962)." Vaughn v. State, 880 So. 2d at 1194-96. Therefore, to survive scrutiny under the void-for-vagueness doctrine, the chemical- endangerment statute must provide fair notice to the public of what conduct is prohibited in a manner that does not encourage arbitrary and discriminatory enforcement. As discussed above, by its plain meaning, the chemical- endangerment statute unambiguously protects all children, born and unborn, from exposure to controlled substances. A person is presumed to know the law and is expected to conform his conduct to it. See § 13A-2-6(b), Ala. Code 1975 ("A person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief that it does not, as a matter of law, constitute an offense ...."); Ex parte Tuscaloosa Cnty., 770 So. 2d 602, 605 (Ala. 2000) ("Mistake of law, however, is not a defense to a crime."); White v. Birmingham Post Co., 235 Ala. 278, 279, 178 So. 449, 450 (1938) ("All persons are presumed to know the law."); Gordon v. State, 52 Ala. 308, 310 (1875) ("Ignorance of the law is never an excuse, whether a party is charged civilly or criminally."). Accordingly, because the chemical-endangerment 28 1110620 statute is unambiguous, it provides "fair notice to the public that certain conduct is proscribed." Timmons v. City of Montgomery, 641 So. 2d 1263, 1264 (Ala. Crim. App. 1993) (quoting McCorkle v. State, 446 So. 2d 684, 685 (Ala. Crim. App. 1983)). Hicks has presented no evidence indicating that the chemical-endangerment statute "encourage[s] arbitrary and discriminatory enforcement." Kolender, 461 U.S. at 361. Therefore, Hicks has not demonstrated that the chemical- endangerment statute is unconstitutionally vague. IV. Conclusion Consistent with this Court's opinion in Ankrom, by its plain meaning, the word "child" in the chemical-endangerment statute includes an unborn child, and, therefore, the statute furthers the State's interest in protecting the life of children from the earliest stages of their development. See § 26-22-1(a), Ala. Code 1975 ("The public policy of the State of Alabama is to protect life, born, and unborn."); see also Ankrom, ___ So. 3d at ___ (Parker, J., concurring specially) (explaining that the application of the chemical-endangerment statute to protect the life of unborn children "is consistent 29 1110620 with many statutes and decisions throughout our nation that recognize unborn children as persons with legally enforceable rights in many areas of the law"). Accordingly, we affirm the judgment of the Court of Criminal Appeals. AFFIRMED. Stuart, Bolin, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Parker, J., concur specially. Shaw, J., concurs in the result. Murdock, J., dissents. 30 1110620 MOORE, Chief Justice (concurring specially). I concur with the main opinion and with Justice Parker's specially concurring opinion, which rightly notes that "[b]ecause an unborn child has an inalienable right to life from its earliest stages of development, it is entitled ... to a life free from the harmful effects of chemicals at all stages of development." ___ So. 3d at ___. I write separately to emphasize that the inalienable right to life is a gift of God that civil government must secure for all persons--born and unborn. I. Our Creator, Not Government, Gives to All People "Unalienable" Natural Rights. According to our Nation's charter, the Declaration of Independence, the United States was founded upon the "self-evident" truth that "all Men are created equal, [and] that they are endowed by their Creator with certain unalienable Rights." Declaration of Independence, ¶ 2 (1776). Denominated in the United States Code Annotated as one of the "Organic Laws of the United States of America," the Declaration acknowledges as "self-evident" the truth that all human beings are endowed with inherent dignity and the right to life as a direct result of having been created by God. When 31 1110620 it was signed by our Founding Fathers in 1776, the Declaration returned to first principles of God, His law, and human rights and government. As Thomas Jefferson explained, "[t]he object of the Declaration of Independence" was "[n]ot to find out new principles, or new arguments, never before thought of ... but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent .... [I]t was intended to be an expression of the American mind."5 Thomas Jefferson, Letter to Henry Lee, May 8, 1825, in VIII The Writings of Thomas Jefferson 407 (H.A. Washington ed., 1854). The American mind of the founding era had been nurtured Jefferson further explained: 5 "Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, [the Declaration] was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, [etc.]. The historical documents which you mention as in your possession, ought all to be found, and I am persuaded you will find, to be corroborative of the facts and principles advanced in that Declaration." Letter to Henry Lee, May 8, 1825, VIII Writings at 407. 32 1110620 in its views of law and life by the most influential legal treatise of the time, Sir William Blackstone's Commentaries on the Laws of England (1765). See, e.g., District of Columbia v. Heller, 554 U.S. 570, 593-94 (2008) (recognizing Blackstone's work as "'the preeminent authority on English law for the founding generation'" (quoting Alden v. Maine, 527 U.S. 706, 715 (1999))). Blackstone recognized that God's law was superior to all other laws: "This law of nature, being co-eval [beginning at the same time] with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this ...." 1 William Blackstone, Commentaries at 41 (emphasis added). See also id. at 42 ("Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."). Like Jefferson, Alexander Hamilton defended American independence based on the "law of nature" and emphasized that divine law was the source of our human rights: "[T]he Deity, from the relations we stand in to Himself and to each other, has constituted an eternal and immutable law, which is indispensably 33 1110620 obligatory upon all mankind, prior to any human institution whatever. "This is what is called the law of nature .... "Upon this law depend the natural rights of mankind ...." Alexander Hamilton, "The Farmer Refuted," in 2 The Works of Alexander Hamilton 43 (John C. Hamilton ed., 1850) (emphasis added). According to Blackstone, God, not governments and legislatures, gives persons these inherent natural rights: "Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable." 1 Commentaries at 54 (emphasis added). Government, in fact, has no "power to abridge or destroy" natural rights God directly bestows to mankind, id., and, indeed, no power to contravene what God declares right or wrong: "The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore st[y]led mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only ... in subordination to the great lawgiver, transcribing and publishing his precepts." 34 1110620 Id. Therefore, as stated by James Wilson, one of the first Justices on the United States Supreme Court: "Human law must rest its authority ultimately upon the authority of that law which is divine." James Wilson, "Of the General Principles of Law and Obligation," in 1 The Works of the Honourable James Wilson, L.L.D., 104–05 (Bird Wilson ed., 1804) (hereinafter "Works of James Wilson"). II. The Right to Life is an "Unalienable" Gift of God. The first right listed in the Declaration as among our unalienable rights is the right to "Life." Blackstone wrote that "[l]ife is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb." 1 Commentaries at 125. See also id. at 126 (stating 6 Blackstone's reference to the point in time when the 6 unborn child "is able to stir" or when "a woman is quick with child," 1 Commentaries at 125, acknowledges the notice sufficient for criminal intent to form under the common law, but should not be read as a definitive statement about when life begins in fact. Indeed, Blackstone (in footnote "o," id.) quoted a relevant passage from Henry de Bracton's classic work, On the Laws and Customs of England, namely, "If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the foetus is already formed or quickened, especially if it is quickened, he commits homicide." II Bracton, On the Laws and Customs of England 341 (S.E. Thorne trans., 1968) (emphasis added), cited in Charles I. Lugosi, When Abortion Was A Crime: A Historical 35 1110620 that an infant "in the mother's womb, [was] supposed in law to be born" for various legal purposes and rights, e.g., legacy and guardianship). As the gift of God, this right to life is 7 not subject to violation by another's unilateral choice: "This natural life being, as was before observed, the immediate donation of the great creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself Perspective, 83 U. Det. Mercy L. Rev. 51, 53 (2006). Modern medicine and prenatal technology, of course, have given us a clearer and much earlier view into when a "foetus is already formed" or when a woman is pregnant and has notice thereof. As this Court first noted in 1973: "'"Medical authority has recognized long since that the child is in existence from the moment of conception ...."'" Mack v. Carmack, 79 So. 3d 597, 602 (Ala. 2011) (quoting Wolfe v. Isbell, 291 Ala. 327, 330, 280 So. 2d 758, 760 (1973), quoting, in turn, Prosser, Law of Torts 336 (4th ed. 1971)). God's creation of man and woman "in His own image," 7 Genesis 1:27 (King James), together with the divine command, "Thou shalt not kill," provides the baseline for the right to life. See Exodus 20:13 (King James). Exodus 21 provides express protection for the unborn: where fighting men "hurt a woman with child, so that her fruit depart from her ... [a]nd if any mischief follow, then thou shalt give life for life." Exodus 21:22-23; see id. (requiring that if "no mischief follow" then the offender must pay a fine). Both testaments attest to the sanctity and personhood of unborn life. See, e.g., Psalm 139:13-15 ("For you formed my inward parts; you knitted me together in my mother's womb. I praise you, for I am fearfully and wonderfully made. Wonderful are your works; my soul knows it very well. My frame was not hidden from you, when I was being made in secret, intricately woven in the depths of the earth."); Luke 1:44 (Elizabeth declaring that "the babe leaped in my womb for joy"). 36 1110620 nor by any other of his fellow creatures, merely upon their own authority." Id. at 129 (emphasis added). Even the United States Supreme Court has recognized that "'[t]he right to life and to personal security is not only sacred in the estimation of the common law, but it is inalienable.'" Washington v. Glucksberg, 521 U.S. 702, 715 (1997) (quoting Martin v. Commonwealth, 184 Va. 1009, 1018-19, 37 S.E.2d 43, 47 (1946)). III. All Governments Must Secure God-Given Rights. Although not the source of our rights, governments are instituted in order to "secure these rights" given by God, the Declaration continues, and are fashioned by the people "in such form, as to them shall seem most likely to effect their Safety and Happiness." Thomas Jefferson identified "the first and only legitimate object of good government" to be "[t]he care of human life and happiness, and not their destruction." Thomas Jefferson, Letter to the Republican Citizens of Washington County, Maryland, Assembled at Hagerstown on the 6th Instant, March 31, 1809, in VIII Writings at 165. But what if a government, its positive laws, and "settled" judicial opinions become destructive of these ends, violating the people's preexistent rights to life, liberty, and the pursuit 37 1110620 of happiness? We have an illustrative example in the preceding century: the trials at Nuremberg, Germany. IV. Nuremberg: The Law of Nature Applied Internationally. When Germany was defeated in World War II, German officers were tried for "war crimes" and "crimes against humanity" in Nuremberg from 1945-46 before an International Military Tribunal formed by France, Great Britain, the United States, and the Soviet Union. See Indictments, Nurnberg 8 Military Tribunals 3 (Office of Military Gov't for Germany (US), Nuremberg 1946). The German defendants contended that they were only following orders and the laws of their country and that prosecuting them for crimes not previously specified as crimes in their own country constituted an improper ex post facto application. "Motion Adopted By All Defense Counsel," Nov. 19, 1945, 1 Trial of the Major War Criminals before the International Military Tribunal 169 (International Military Tribunal, Nuremberg 1947) In his opening statement, however, The crimes against humanity prosecuted at Nuremberg 8 included promoting abortion and even compelling abortion in an attempt to exterminate Poles, Slavs, and others the Nazis considered racially inferior. See Jeffrey C. Tuomala, Nuremberg and the Crime of Abortion, 42 U. Tol. L. Rev. 283 (2011). For example, the Germans were prosecuted at Nuremberg for preventing Poland's courts from enforcing its statute criminalizing abortion. Id. at 376-77. 38 1110620 lead prosecutor Robert Jackson (then an Associate Justice on the United States Supreme Court) argued that "even rulers are, as Lord Chief Justice Coke said to King James, 'under God and the law.'" Robert Jackson, "Opening Statement," Nov. 21, 1945, in 2 Trial, supra, at 143. Likewise, British prosecutor Sir Hartley Shawcross declared no immunity "for those who obey orders which–-whether legal or not in the country where they are issued--are manifestly contrary to the very law of nature from which international law has grown." Hartley Shawcross, "Closing Arguments," July 26, 1946, in 19 Trial, supra, at 466. The Nuremberg Court rejected the arguments of the German defendants, noting that "so far from it being unjust to punish [them], it would be unjust if [their] wrong[s] were allowed to go unpunished." Judgment, "The Law of the Charter," in 1 Trial, supra, at 219. Although the Nuremberg defendants were following orders and the laws of their own officials and country, they were guilty of violating a higher law to which all nations are equally subject: the laws of nature and of nature's God. As Justice James Wilson explained: 39 1110620 "The law of nature, when applied to states or political societies, receives a new name, that of the law of nations. ... ".... "... Though the law ... receives a new appellation; it retains, unimpaired, its qualities and its power. The law of nations as well as the law of nature is of obligation indispensable: the law of nations, as well as the law of nature, is of origin divine." Works of James Wilson at 145-47. The law of nations "depends entirely upon the rules of natural law" such that, even in the construction of compacts and treaties between nations, "we have no other rule to resort to, but the law of nature[,] being the only one to which both communities are equally subject." 1 Commentaries at 43. See also 2 Samuel Pufendorf, Of the Law of Nature and Nations 150 (1729) (agreeing with Thomas Hobbes that "what ... we call the Law of nature, the same we term the Law of Nations, when we apply it to whole States, Nations, or People"). From local to international, all law "flows from the same divine source: it is the law of God." Works of James Wilson at 104. The law of nature and of nature's God therefore binds all nations, states, and all government officials–-from Great Britain to Germany to 40 1110620 Alabama–-regardless of positive laws or orders to the contrary. V. Alabama Recognizes the Right to Life is "Inalienable." As this Court has recognized, the unalienable right to life is duly secured under Alabama law: "[T]he Declaration of Rights in the Alabama Constitution ... states that 'all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.' Ala. Const. 1901, § 1 (emphasis added). These words, borrowed from the Declaration of Independence ..., affirm that each person has a God- given right to life." Hamilton v. Scott, 97 So. 3d 728, 734 n.4 (Ala. 2012). Alabama statutory law provides that "[t]he public policy of the State of Alabama is to protect life, born, and unborn." § 26-22-1(a), Ala. Code 1975. In 2006, the Alabama Legislature amended the homicide statute to define "person" to include "an unborn child in utero at any stage of development, regardless of viability," § 13A-6-1(a)(3), Ala. Code 1975, "'thus recogniz[ing] under that statute that, when an "unborn child" is killed, a "person" is killed.'" Hamilton, 97 So. 3d at 739 (Parker, J., concurring specially) (quoting Ziade v. Koch, 952 So. 2d 1072, 1082 (Ala. 2006) (See, J., concurring 41 1110620 specially)). This Court in Ex parte Ankrom, [Ms. 1110176, 9 Jan. 11, 2013] ___ So. 3d ___ (Ala. 2013), and again today, merely applies equally to born and unborn children the statute prohibiting the chemical endangerment of any child in Alabama, a protection commensurate with the constitutional and statutory protections Alabama gives to all unborn life. VI. States Have an Affirmative Duty to Protect Unborn Human Life Under the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not "deny to any person within its Although I was not on the Court when Hamilton was 9 decided, I fully agree with the decision in that case and with Justice Parker's special concurrence describing the invalidity of Roe v. Wade, 410 U.S. 113 (1973), at its inception (or rather, judicial creation) and its complete irrelevance outside the abortion context. I would go further and state that the judicially created "right" to abortion identified in Roe has no basis in the text or even the spirit of the Constitution and is therefore an illegitimate opinion of mere men and not law. See id., 410 U.S. at 174 (Rehnquist, J., dissenting) (describing Roe as finding "within the Scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment"); Doe v. Bolton, 410 U.S. 179, 221 (1973) (White, J., dissenting) (finding "nothing in the language or history of the Constitution to support the Court's judgments .... fashion[ing] and announc[ing] a new constitutional right"). Roe and its progeny therefore have no applicability in any case, in any context, and, like the German laws nullified at Nuremberg, should be jettisoned from federal and state jurisprudence. 42 1110620 jurisdiction the equal protection of the laws." U.S. Const. amend. XIV (emphasis added). "[T]he framers [of the Fourteenth Amendment] attempted to create a legal bridge between their understanding of the Declaration of Independence, with its grand declarations of equality and rights endowed by a Creator God, and constitutional jurisprudence." The Heritage Guide to the Constitution 400 (Edwin Meese III et al. eds., 2005). The Equal Protection Clause expressly applies to "any person" within a state's jurisdiction. By contrast, the Privileges and Immunities Clause applies to "citizens," namely, "[a]ll persons born or naturalized in the United States ...." U.S. Const. amend XIV, § 1 (emphasis added). This definitional distinction necessarily implies that personhood–-and therefore the protection of the Equal Protection Clause–-is not dependent, as is citizenship, upon being born or naturalized. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) ("The fourteenth amendment to the constitution is not confined to the protection of citizens."). "The Fourteenth Amendment extends its protection to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the 43 1110620 laws." Civil Rights Cases, 109 U.S. 3, 31 (1883) (emphasis added). Unborn children are a class of persons entitled to equal protection of the laws. A plain reading of the Equal Protection Clause, therefore, indicates that states have an affirmative constitutional duty to protect unborn persons within their jurisdiction to the same degree as born persons. "The purpose 10 of the equal protection clause of the Fourteenth Amendment is to secure every person within the state's jurisdiction against This principle was violated by the United States Supreme 10 Court in 1973 in Roe v. Wade, 410 U.S. 113 (1973). The Court in Roe, ignoring the broad sense of "person" in the Fourteenth Amendment, cited other "postnatal" uses of "person" in other corners of the Constitution, and then referred to its own historical review of 19th Century abortion laws–-all of which "persuade[d]" the Court to believe "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." 410 U.S. at 158. Yet even in the midst of this constitutional misdirection, the Roe Court conceded that if the unborn child's "personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment." Id. at 156-57. Thus, the very opinion in which the "right" to abortion was judicially created also left open the possibility that if an unborn child's personhood is established, he or she must be equally protected under law. See id. at 157 n.54 (noting Texas's dilemma in arguing for fetal personhood because the state did not equally protect born and unborn life: "Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists."). Although personhood amendments and statutes have been proposed in many states (including Alabama), and voted on in a few, none have become law. 44 1110620 intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 352 (1918) (quoted in Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Any state's discriminatory failure to provide legal protection equally to born and unborn persons under, for instance, its statutes prohibiting homicide, assault, or chemical endangerment violates, therefore, the Equal Protection Clause of the United States Constitution. See Dobbins v. City of Los Angeles, 195 U.S. 223, 237 (1904) (stating that where a state's police powers "amount to a denial to persons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void"). Therefore, the State of Alabama's application of its chemical-endangerment statute, § 26-15- 3.2(a)(1), Ala. Code 1975, equally to protect born and unborn children is entirely consistent with its constitutional duty under the Equal Protection Clause. VII. Conclusion. Under the Equal Protection Clause of the Fourteenth Amendment, states have an obligation to provide to unborn 45 1110620 children at any stage of their development the same legal protection from injury and death they provide to persons already born. Because a human life with a full genetic endowment comes into existence at the moment of conception, the self-evident truth that "all men are created equal and are endowed by their Creator with certain unalienable rights" encompasses the moment of conception. Legal recognition of the unborn as members of the human family derives ultimately from the laws of nature and of nature's God, Who created human life in His image and protected it with the commandment: "Thou shalt not kill." Therefore, the interpretation of the word "child" in Alabama's chemical-endangerment statute, § 26-15- 3.2, Ala. Code 1975, to include all human beings from the moment of conception is fully consistent with these first principles regarding life and law. 46 1110620 PARKER, Justice (concurring specially). This case presents an opportunity for this Court to continue a line of decisions affirming Alabama's recognition of the sanctity of life from the earliest stages of development. We have done so in three recent cases; we do 11 so again today by holding that the word "child" as used in Alabama's chemical-endangerment statute, § 26-15-3.2(a)(1), Ala. Code 1975, unambiguously includes an unborn child. "Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 844 (1992)(plurality opinion). A plurality of United States Supreme Court Justices stated this truism in their misguided effort to stabilize our nation's abortion jurisprudence by reaffirming "the essential holding of Roe v. Wade[, 410 U.S. 113 (1973)]." Casey, 505 U.S. at 846. 12 Ex parte Ankrom, [Ms. 1110176, Jan. 11, 2013] ___ So. 3d 11 ___ (Ala. 2013); Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012); and Mack v. Carmack, 79 So. 3d 597 (Ala. 2011). In Casey, the Court held that the "essential holding of 12 Roe v. Wade" included the following three parts: "First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion 47 1110620 However, as discussed below, by affirming the rejection in Roe v. Wade, 410 U.S. 113 (1973), of an unborn child's inalienable right to life, Casey did anything but dispel the shroud of doubt hovering over our nation's abortion jurisprudence. Rather, Casey has resulted in a jurisprudential quagmire of arbitrary and inconsistent decisions addressing the recognition of an unborn child's right to life. This legal conundrum has been described as follows: "While logic may not be the life of the law in all circumstances, should logic and law be at swords' point? One does not have to be an Aristotelian to recognize the law of non- contradiction. This principle states that it is impossible for a thing to be and not to be at the same time and in the same respect. When it comes to the personhood of the unborn, the law of logic is today sorely challenged by the collision course of fetal rights laws and abortion laws." or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each." Casey, 505 U.S. at 846. 48 1110620 Roger J. Magnuson & Joshua M. Lederman, Aristotle, Abortion, and Fetal Rights, 33 Wm. Mitchell L. Rev. 767, 769 (2007)(footnotes omitted). In contrast to the reasoning of Roe and Casey, Alabama's reliance upon objective principles has led this Court to consistently recognize the inalienable right to life inherently possessed by every human being and to dispel the shroud of doubt cast by the United States Supreme Court's violation of the law of noncontradiction. This sound foundation allows Alabama to provide refuge to liberty –- the purported objective of the plurality opinion in Casey. Liberty will continue to find no refuge in abortion jurisprudence until courts refuse to violate the law of noncontradiction and, like Alabama, recognize an unborn child's inalienable right to life at every point in time and in every respect. I. Alabama recognizes an unborn child's inalienable right to life "The public policy of the State of Alabama is to protect life, born, and unborn." § 26-22-1(a), Ala. Code 1975. This inalienable right is a proper subject of protection by our 49 1110620 laws at all times and in every respect. The Declaration of Independence, one of our nation's organic laws, recognized that governments are "instituted among men" to protect this sacred right. Accordingly, protecting the inalienable right 13 to life is a proper subject of state action. We have 14 affirmed Alabama's policy of protecting life at every stage of development in our recent decisions in Mack v. Carmack, 79 So. 3d 597 (Ala. 2011), Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012), Ex parte Ankrom, [Ms. 1110176, January 11, 2013] ___ The Declaration of Independence set forth this basic 13 function of government, as follows: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...." Declaration of Independence ¶ 2 (U.S. 1776). The preamble to the United States Constitution 14 recognized that the new constitution did not create inalienable rights but rather was "ordain[ed] and establish[ed]" to "secure the Blessings of Liberty" to every person. U.S. Const. pmbl. Likewise, the preamble to the Alabama Constitution states: "We, the people of the State of Alabama, in order to ... secure the blessings of liberty to ourselves and our posterity, invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution and form of government for the State of Alabama." Ala. Const. 1901 pmbl. 50 1110620 So. 3d ___ (Ala. 2013), and in our decision today, by consistently recognizing that an unborn child is a human being from the earliest stage of development and thus possesses the same right to life as a born person. In Mack, a wrongful-death case, this Court held that § 15 6-5-391(a), Ala. Code 1975, and § 6-5-410(a), Ala. Code 16 1975, "permit[] an action for the death of a previable 17 Mack contains an exhaustive history of wrongful-death 15 actions brought on behalf of unborn children in Alabama. Section 6-5-391(a) provides: 16 "When the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either, the father, or the mother as specified in Section 6-5-390, or, if the father and mother are both dead or if they decline to commence the action, or fail to do so, within six months from the death of the minor, the personal representative of the minor may commence an action." Section 6-5-410(a) provides, in relevant part, as 17 follows: "A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama where provided for in subsection (e), and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or her or their servants or agents, whereby the death of the testator or intestate was caused, provided the testator or intestate could have commenced an action for the wrongful act, omission, 51 1110620 fetus." Mack, 79 So. 3d at 611. Our decision in Hamilton affirmed this holding. In Ankrom, this Court held that the chemical-endangerment statute at issue in the present case, § 26-15-3.2, Ala. Code 1975, protects unborn children from exposure to controlled substances. Today, this Court reaffirms Ankrom. This Court's decisions consistently recognize that an unborn child's right to life vests at the earliest stage of development. Although Alabama's ban on postviability abortions, § 26-22-3(a), Ala. Code 1975, is 18 or negligence if it had not caused death." Section 26-22-3 provides, in relevant part: 18 "(a) Prohibition. Except as provided in subsection (b), no person shall intentionally, knowingly, or recklessly perform or induce an abortion when the unborn child is viable. "(b) Exceptions. "(1) It shall not be a violation of subsection (a) if an abortion is performed by a physician and that physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman. No abortion shall be deemed authorized under this paragraph if performed on the basis of a claim or a diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible impairment 52 1110620 constrained by the United States Supreme Court's viability limitation for abortion set forth in Roe and its progeny, this Court has consistently affirmed Alabama's recognition of the right to life of all unborn children. In my special concurrence in Hamilton, 97 So. 3d at 737-47 (Parker, J., concurring specially, joined by Stuart, Bolin, and Wise, JJ.), I explained why the viability standard is arbitrary and 19 of a major bodily function. "(2) It shall not be a violation of subsection (a) if the abortion is performed by a physician and that physician reasonably believes ... that the unborn child is not viable." The arbitrary nature of the viability standard was 19 explained by United States Supreme Court Justice Scalia, as follows: "The arbitrariness of the viability line is confirmed by the Court's inability to offer any justification for it beyond the conclusory assertion that it is only at that point that the unborn child's life 'can in reason and all fairness' be thought to override the interests of the mother. Ante, at 870. Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves." 53 1110620 should be abandoned altogether. As I noted in Hamilton, I am not alone.20 Casey, 505 U.S. at 990 n. 5 (Scalia, J., concurring in the judgment in part and dissenting in part, joined by Rehnquist, C.J., and White and Thomas, JJ.). In Hamilton, I noted: 20 "Numerous scholars have criticized the viability rule of Roe. Today, 'there is broad academic 16 agreement that Roe failed to provide an adequate explanation for the viability rule.' Randy Beck, Gonzales, Casey, and the Viability Rule, 103 Nw. U.L. Rev. 249, 268–69 (2009). "____________________ " Randy Beck, Self–Conscious Dicta: The Origins 16 of Roe v. Wade's Trimester Framework, 51 Am. J. Legal Hist. 505, 516–26 (2011); Randy Beck, Gonzales, Casey, and the Viability Rule, 103 Nw. U.L. Rev. 249, 268–70 (2009); Paul Benjamin Linton, Planned Parenthood v. Casey : The Flight From Reason in the Supreme Court, 13 St. Louis U. Pub. L. Rev. 15, 38–40 (1993); Mark Tushnet, Two Notes on the Jurisprudence of Privacy, 8 Const. Com. 75, 83 (1991) ('[U]sing the line of viability to distinguish the time when abortion is permitted from the time after viability when it is prohibited (as Roe v. Wade does), is entirely perverse.'); John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924–25 (1973); and Mark J. Beutler, Abortion and the Viability Standard –- Toward a More Reasoned Determination of the State's Countervailing Interest in Protecting Prenatal Life, 21 Seton Hall L. Rev. 347, 359 (1991) ('It is difficult to understand why viability should be relevant to, much less control, the measure of a state's interest in protecting prenatal life.'). See generally Douglas E. Ruston, The Tortious Loss of a 54 1110620 My special concurrence in Hamilton was not the first time members of this Court have criticized the viability standard. In Mack, this Court expressed its recognition of the separate and distinct existence of unborn children by quoting Wolfe v. Isbell, 291 Ala. 327, 280 So. 2d 758 (1973): "'"[M]edical authority has recognized ... that the child is in existence from the moment of conception ...."'" Mack, 79 So. 3d at 602 (quoting Wolfe, 291 Ala. at 330, 280 So. 2d at 760, quoting in turn Prosser, Law of Torts, p. 336 (4th ed. 1971)). In Wolfe, this Court criticized the viability distinction, as follows: "[T]he more recent authorities emphasize that there is no valid medical basis for a distinction based on viability .... These proceed on the premise that the fetus is just as much an independent being prior to viability as it is afterwards, and that from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother." Nonviable Fetus: A Miscarriage Leads to a Miscarriage of Justice, 61 S.C. L. Rev. 915 (2010); Justin Curtis, Including Victims Without a Voice: Amending Indiana's Child Wrongful Death Statute, 43 Val. U.L. Rev. 1211 (2009); and Sarah J. Loquist, The Wrongful Death of a Fetus: Erasing the Barrier Between Viability and Nonviability, 36 Washburn L.J. 259 (1997); see also the sources cited by Justice Maddox in his dissent in Gentry v. Gilmore, 613 So. 2d [1241] at 1248–49 [(Ala. 1993)]." Hamilton, 97 So. 3d at 742. 55 1110620 Wolfe, 291 Ala. at 330-31, 280 So. 2d at 761. Forty years later, this Court again held that there is no valid basis for the viability standard by expressly rejecting the Court of Criminal Appeals' application of the chemical-endangerment statute solely to a viable unborn child. See Ankrom, ___ So. 3d at ___. Today, we affirm this Court's holding in Ankrom. Alabama's recognition of an unborn child's right to life at all stages of development is distinct from the vague standard delineated in Casey of "the State's 'important and legitimate interest in protecting the potentiality of human life.'" Casey, 505 U.S. at 871 (quoting Roe, 410 U.S. at 162). Although subtle, the distinction is nonetheless 21 profound. As explained above, Alabama recognizes that, from the child's earliest stage of development, the existence of an unborn child is separate from that of its mother's. Accordingly, Alabama has an interest not only in promoting a sustainable society and a culture that appreciates life, but also in "secur[ing] the blessings of liberty" by protecting See Martin Wishnatsky, The Supreme Court's Use of the 21 Term "Potential Life": Verbal Engineering and the Abortion Holocaust, 6 Liberty U.L. Rev. 327 (2012) (analyzing the United States Supreme Court's use of the term "potential life"). 56 1110620 the right to life inherent in the new life itself. Ala. Const. 1901 pmbl. Consistent protection of an unborn child's right to life at every point in time and in every respect is essential to the duty of the judiciary because, as stated above, "[l]iberty finds no refuge in a jurisprudence of doubt." Casey, 505 U.S. at 844. Ironically, by affirming "the essential holding of Roe v. Wade," the plurality in Casey cast a shroud of doubt over our nation's jurisprudence by suppressing an unborn child's inalienable right to life. II. Examples of a jurisprudence of doubt Despite Casey's reaffirmation of the unsupported "essential holding of Roe v. Wade," asserted in the vain hope 22 of stabilizing abortion jurisprudence, we have seen just the opposite since Casey was decided. In court opinions 23 See Hamilton, 97 So. 3d at 742-47 (Parker, J., 22 concurring specially), for a discussion of why the viability standard delineated in Roe was, and remains, unsupportable. Chief Justice Rehnquist criticized the authors of the 23 plurality and concurring opinions in Casey for their blind application of stare decisis: "Of course, what might be called the basic facts which gave rise to Roe have remained the same —- women become pregnant, there is a point somewhere, depending on medical technology, where a fetus 57 1110620 subsequent to Casey, unborn children are contradictorily treated as human beings at one particular point in time and in one particular respect while at the same point in time, but in another respect, are discarded as mere tissue or "products of conception." See, e.g., Carhart v. Stenberg, 192 F.3d 1142, 1146 (8th Cir. 1999), aff'd, 530 U.S. 914 (2000) (describing one method of second-trimester abortion as "remov[ing] the fetus and other products of conception"). The particular status afforded unborn children often depends entirely upon a subjective perception of them in a particular context or from a particular vantage point, rather than upon objective factors that would dispel the shroud of doubt that Casey's affirmation becomes viable, and women give birth to children. But this is only to say that the same facts which gave rise to Roe will continue to give rise to similar cases. It is not a reason, in and of itself, why those cases must be decided in the same incorrect manner as was the first case to deal with the question. And surely there is no requirement, in considering whether to depart from stare decisis in a constitutional case, that a decision be more wrong now than it was at the time it was rendered. If that were true, the most outlandish constitutional decision could survive forever, based simply on the fact that it was no more outlandish later than it was when originally rendered." Casey, 505 U.S. at 955-56 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part, joined by White, Scalia, and Thomas, JJ.). 58 1110620 of Roe cast over our nation's abortion jurisprudence. Two examples demonstrating the violation of the law of noncontradiction in our nation's abortion jurisprudence follow.24 A. Partial-birth-abortion cases One of the most puzzling instances of the doubtful jurisprudence resulting from Casey's affirmation of Roe is the violation of the law of noncontradiction that is exposed by a comparison of the United States Supreme Court's "partial- birth-abortion" cases of Stenberg v. Carhart, 530 U.S. 914 (2000), and Gonzales v. Carhart, 550 U.S. 124 (2007). In Stenberg, the Court struck down a Nebraska statute because it interpreted the statute to ban the two most common late-term abortion procedures. In Gonzales, the Court upheld a federal statute that banned only one of the two "equally gruesome" In addition to the examples demonstrating the violation 24 of the law of noncontradiction that are discussed in this writing, which is limited to the context of abortion, my special concurrence in Ankrom, ___ So. 3d at ___ (Parker, J., concurring specially), illustrates how unborn children are recognized as persons in five additional areas of law –- property law, criminal law, tort law, guardianship law, and health-care law –- despite Roe's rejection of the unborn child's right to life. These provide additional examples of our abortion jurisprudence's violation of the law of noncontradiction. See also Roger J. Magnuson & Joshua M. Lederman, Aristotle, Abortion, and Fetal Rights, supra. 59 1110620 procedures. Stenberg, 530 U.S. at 946 (Stevens, J., concurring). As discussed below, an unborn child at a particular stage of gestation is treated as a child in Gonzales while referred to merely as "potential life" in Stenberg. This clearly violates the law of noncontradiction. In Stenberg, an abortion provider challenged the constitutionality of a Nebraska statute providing as follows: "'No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.' Neb. Rev. Stat. Ann. § 28–328(1) (Supp. 1999). "The statute defines 'partial birth abortion' as: "'an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.' § 28–326(9). "It further defines 'partially delivers vaginally a living unborn child before killing the unborn child' to mean "'deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will 60 1110620 kill the unborn child and does kill the unborn child.' Ibid." Stenberg, 530 U.S. at 921-22. Justice Kennedy described the two abortion procedures prohibited by the statute and explained the legal challenge to the statute in his dissent: "The person challenging Nebraska's law is Dr. Leroy Carhart, a physician who received his medical degree from Hahnemann Hospital and University in 1973. Dr. Carhart performs the procedures in a clinic in Nebraska and will also travel to Ohio to perform abortions there. Dr. Carhart has no specialty certifications in a field related to childbirth or abortion and lacks admitting privileges at any hospital. He performs abortions throughout pregnancy, including when he is unsure whether the fetus is viable. In contrast to the physicians who provided expert testimony in this case (who are board certified instructors at leading medical education institutions and members of the American Board of Obstetricians and Gynecologists), Dr. Carhart performs the partial birth abortion procedure (D & X[ ]) that Nebraska seeks to ban. He 25 also performs the other method of abortion at issue in the case, the D & E.[ ] 26 "As described by Dr. Carhart, the D & E procedure requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina. "D & X" is a common abbreviation for a procedure known 25 as "dilation and extraction." "D & E" is a common abbreviation for a procedure known 26 as "dilation and evacuation." 61 1110620 Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body. The traction between the uterus and vagina is essential to the procedure because attempting to abort a fetus without using that traction is described by Dr. Carhart as 'pulling the cat's tail' or 'drag[ging] a string across the floor, you'll just keep dragging it. It's not until something grabs the other end that you are going to develop traction.' The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off. Dr. Carhart agreed that '[w]hen you pull out a piece of the fetus, let's say, an arm or a leg and remove that, at the time just prior to removal of the portion of the fetus, ... the fetus [is] alive.' Dr. Carhart has observed fetal heartbeat via ultrasound with 'extensive parts of the fetus removed,' and testified that mere dismemberment of a limb does not always cause death because he knows of a physician who removed the arm of a fetus only to have the fetus go on to be born 'as a living child with one arm.' At the conclusion of a D & E abortion no intact fetus remains. In Dr. Carhart's words, the abortionist is left with 'a tray full of pieces.' "The other procedure implicated today is called 'partial birth abortion' or the D & X. The D & X can be used, as a general matter, after 19 weeks' gestation because the fetus has become so developed that it may survive intact partial delivery from the uterus into the vagina. In the D & X, the abortionist initiates the woman's natural delivery process by causing the cervix of the woman to be dilated, sometimes over a sequence of days. The fetus' arms and legs are delivered outside the uterus while the fetus is alive; witnesses to the procedure report seeing the body of the fetus moving 62 1110620 outside the woman's body. At this point, the abortion procedure has the appearance of a live birth. As stated by one group of physicians, '[a]s the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child.' With only the head of the fetus remaining in utero, the abortionist tears open the skull. According to Dr. Martin Haskell, a leading proponent of the procedure, the appropriate instrument to be used at this stage of the abortion is a pair of scissors. Witnesses report observing the portion of the fetus outside the woman react to the skull penetration. The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus' head smaller is given the clinically neutral term 'reduction procedure.' Brain death does not occur until after the skull invasion, and, according to Dr. Carhart, the heart of the fetus may continue to beat for minutes after the contents of the skull are vacuumed out. The abortionist next completes the delivery of a dead fetus, intact except for the damage to the head and the missing contents of the skull." Stenberg, 530 U.S. at 958-60 (Kennedy, J., dissenting, joined by Rehnquist, C.J.(citations omitted)).27 Justice Kennedy found the need to supplement the 27 majority's description of the procedures at issue in the case for the following reasons: "The Court's failure to accord any weight to Nebraska's interest in prohibiting partial-birth abortion is erroneous and undermines its discussion and holding. The Court's approach in this regard is revealed by its description of the abortion methods at issue, which the Court is correct to describe as 'clinically cold or callous.' The majority views the procedures from the perspective of the abortionist, 63 1110620 Although Nebraska argued that it intended to ban only the dilation and extraction ("D & X") procedure, the United States Supreme Court held that the wording of the statute could be interpreted to encompass the dilation and evacuation ("D & E") procedure as well. Therefore, the Court concluded that the Nebraska statute violated the United States Constitution: "In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D & E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision. We must consequently find the statute unconstitutional." rather than from the perspective of a society shocked when confronted with a new method of ending human life. Words invoked by the majority, such as 'transcervical procedures,' '[o]smotic dilators,' 'instrumental disarticulation,' and 'paracervical block,' may be accurate and are to some extent necessary; but for citizens who seek to know why laws on this subject have been enacted across the Nation, the words are insufficient. Repeated references to sources understandable only to a trained physician may obscure matters for persons not trained in medical terminology. Thus it seems necessary at the outset to set forth what may happen during an abortion." Stenberg, 530 U.S. at 957-58 (Kennedy, J., dissenting, joined by Rehnquist, C.J. (citations omitted)). 64 1110620 Stenberg, 530 U.S. at 945-46. Thus, the Nebraska statute that was enacted to "prohibit a method of abortion that millions find hard to distinguish from infanticide and that the Court hesitates even to describe" was held to be an undue burden and prohibited by Casey because the description in the statute of this horrendous procedure could be read to also apply to D & E procedures. Stenberg, 530 U.S. at 983 (Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.). Two of the Justices who formed the majority in Stenberg recognized in a special concurrence that abortions using the D & E procedure are as "equally gruesome" as those using the D & X procedure, yet they argued that the state has no legitimate interest in prohibiting only abortions performed by D & X in its attempt to establish an ethical line between abortion and infanticide.28 Justice Stevens noted that the statute would be 28 irrational for banning one method of abortion, but not the other: "Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of 'potential life' than the equally gruesome procedure Nebraska claims it still allows. ... For the notion that either of 65 1110620 The irony of the idea that a state has no legitimate interest in banning one, but not all, "brutal" or "gruesome" methods of killing unborn children was made evident seven 29 years later when the United States Supreme Court issued its opinion in Gonzales. The question presented to the Court in these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational." Stenberg, 530 U.S. at 946-47 (Stevens, J., concurring, joined by Ginsburg, J.). Justice Scalia articulated the irony of Stenberg's 29 creation of a Constitutional right to a brutal abortion in his dissent: "I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu[ v. United States, 323 U.S. 214 (1944),] and Dred Scott[ v. Sandford, 60 U.S. 393 (1856)]. The method of killing a human child —- one cannot even accurately say an entirely unborn human child —- proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. ... The notion that the Constitution of the United States, designed, among other things, 'to establish Justice, insure domestic Tranquility, ... and secure the Blessings of Liberty to ourselves and our Posterity,' prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd." Stenberg, 530 U.S. at 953 (Scalia, J., dissenting). 66 1110620 Gonzales was whether the federal Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 ("the Act"), was constitutional. Armed with the Court's dissection of the 30 Nebraska statute in Stenberg, Congress recognized that it must clearly articulate that the Act banned only abortions performed by D & X, as opposed to the piece-by-piece dismemberment of an unborn child during an abortion by D & E, to avoid having the Act overturned by the United States Supreme Court. Thus, the Act artfully defined "partial-birth abortion" as an abortion in which the person performing the abortion "'deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the Gonzales recites the history of the passage of the Act: 30 "In 1996, Congress ... acted to ban partial-birth abortion. President Clinton vetoed the congressional legislation, and the Senate failed to override the veto. Congress approved another bill banning the procedure in 1997, but President Clinton again vetoed it. In 2003, after this Court's decision in Stenberg, Congress passed the Act at issue here. H.R. Rep. No. 108–58, at 12–14. On November 5, 2003, President Bush signed the Act into law. It was to take effect the following day. 18 U.S.C. § 1531(a)." Gonzales, 550 U.S. at 140-41 (some citations omitted). 67 1110620 navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.'" Gonzales, 550 U.S. at 142 (quoting 18 U.S.C. § 1531(b)(1)(A)). The Court's majority opinion in Gonzales had a completely different tone than the majority opinion in Stenberg. 31 Writing for the majority, Justice Kennedy refrained from 31 using the term "potential life," except when quoting Casey, in reference to the unborn children who would be protected by the Act. Martin Wishnatsky notes the significance of the Court's change in tone: "[Gonzales], the Court's most recent major abortion case, addressed partial-birth abortion, this time upholding a state ban. Justice Kennedy's majority opinion, quoting Casey, twice mentioned 'the State's interest in potential life.' Justice Ginsburg, in dissent, mentioned it once. But more significant than fewer mentions of 'potential life' was Justice Kennedy's adoption of new terminology to describe life in the womb. Instead of 'potential life,' he used the phrase 'the life of the fetus that may become a child.' Is this an improvement? The infant in the womb is still subject to a dehumanizing medical term –- considered less than a child. Yet somehow the departure from 'potential life' with its heavy freight of association with abortion-on-demand seems a step in the right direction. But Justice Kennedy went further, noting that the State has a legitimate purpose 'to promote respect for life, including life of the unborn.' He spoke of the 'stage of the unborn child's development,' and, quoting Casey, 'profound respect for the life of the unborn.' He twice referred to 'fetal life' and also quoted a nurse's description of the puncturing of a child's skull that used the term 'baby' eight times. 68 1110620 Gonzales contained the following description of the type of procedure the Act intended to ban: "Here is ... [a] description from a nurse who witnessed the [prohibited] method performed on a 26 1/2-week fetus and who testified before the Senate Judiciary Committee: "'"Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms –- everything but the head. The doctor kept the head right inside the uterus .... "'"The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and "From 'potential life,' the Court has progressed to 'unborn life,' which is a significant step. Later, Justice Kennedy referred to 'the fast-developing brain of [an] unborn child, a child assuming the human form.' A child halfway out of the womb has certainly long since assumed 'the human form.' The Court's acknowledgment of the humanity of the unborn child is a labored form of intellectual birth, a 'rough beast' slouching towards Bethlehem to be born. Justice Ginsburg, in dissent, complained about the majority's new nomenclature. 'A fetus is described as an "unborn child,"' she objected, 'and as a "baby."' She has reason for concern. Once the 'potential life' misnomer is discarded, the Court's abortion jurisprudence may go with it." Martin Wishnatsky, The Supreme Court's Use of the Term "Potential Life": Verbal Engineering and the Abortion Holocaust, 6 Liberty U.L. Rev. 327, 342-43 (2012) (footnotes omitted). 69 1110620 the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. "'"The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp .... "'"He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used."'" Gonzales, 550 U.S. at 138-39 (quoting H.R. Rep. No. 108-58, p. 3 (2003)). Such a description is difficult to read; it shocks even the most callous conscience. Yet, this is the procedure several of the Justices who formed the majority in Stenberg found to be no more gruesome than the procedure they approved in Stenberg –- D & E. See Gonzales, 550 U.S. at 181-82 (Ginsburg, J., dissenting). In Gonzales, the Court held that the Act did not ban abortions by D & E or several other rarely used procedures. Therefore, the Court concluded that the Act was consistent with the guidelines of Casey because it did not unduly burden the ability to have an abortion.32 Justice Thomas wrote a short concurring opinion to 32 "reiterate [his] view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution" but that the he joined the Court's opinion 70 1110620 The United States Supreme Court's opinions in Stenberg and Gonzales cast a thick shroud of doubt over abortion jurisprudence. A reconciliation of the two opinions leads to a conclusion that a state is free "to draw a bright line that clearly distinguishes abortion and infanticide" by banning the killing of a completely intact infant mere seconds from being fully delivered so long as another, and perhaps equally gruesome, method of killing the child is permitted. Gonzales, 550 U.S. at 158. Justice Ginsburg's dissent in Gonzales notes the illogicality of banning only one method of abortion: "Today's ruling, the Court declares, advances 'a premise central to [Casey's] conclusion' -— i.e., the Government's 'legitimate and substantial interest in preserving and promoting fetal life.' ('[W]e must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.'). But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion. See Stenberg, 530 U.S., at 930. ... In short, the Court upholds a law that, while doing nothing to 'preserv[e] ... fetal life,' bars a woman from choosing intact D & E[, i.e., D & X,] although her doctor 'reasonably believes [that procedure] will best protect [her],' Stenberg, 530 U.S., at 946, (Stevens J., concurring). because it "accurately applies current jurisprudence." Gonzales, 550 U.S. at 169 (Thomas, J., concurring, joined by Scalia, J.). 71 1110620 "As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D & E procedure. But why not, one might ask. Nonintact D & E could equally be characterized as 'brutal,' involving as it does 'tear[ing] [a fetus] apart' and 'ripp[ing] off' its limbs. '[T]he notion that either of these two equally gruesome procedures ... is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.' Stenberg, 530 U.S., at 946–947, (Stevens, J., concurring). "Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant. But so, too, does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation, or a fetus delivered through medical induction or cesarean. Yet, the availability of those procedures –- along with D & E by dismemberment –- the Court says, saves the ban on intact D & E from a declaration of unconstitutionality." Gonzales, 550 U.S. at 181-82 (Ginsburg, J., dissenting). Although Justice Ginsburg was not arguing for a ban of all abortions, her analysis exposes a violation of the law of noncontradiction resulting from a joint reading of Stenberg and Gonzales. If an unborn child is nothing more than a piece of tissue, why should it be afforded any protection at all? On the other hand, if it does have an existence distinct from its mother's, why is it protected from having its life annihilated by one method but not all methods? The unborn 72 1110620 child cannot logically be a separate and distinct human for the purpose of one abortion procedure but not another. Protecting the unborn child's right to life at all stages of development would eliminate the contradictory reasoning of the Court's abortion decisions and dispel the shroud of doubt obscuring the unborn child's right to life. B. Botched abortions A second example of our abortion jurisprudence's violation of the law of noncontradiction is the effect that the current jurisprudence has on the prosecution of abortionists who either intentionally or negligently kill a born child after failing to kill it in the womb. This issue was thrust to the forefront of the abortion debate by the recent trial of Kermit Gosnell, a Philadelphia abortionist who was recently convicted of murdering three unwanted babies by snipping their spinal cords with scissors after they were born alive. Gosnell argued that the babies were killed in the 33 womb by an injection of the drug Digoxin and that they then had their spinal cords snipped for some other reason after Commonwealth of Pennsylvania v. Gosnell, (CP-51-CR- 33 0001667-2011) (Pa. Ct. of Common Pleas of Philadelphia Cnty. 2013). 73 1110620 they were stillborn. The prosecution contended that the babies were not killed in the womb but were born alive and were then murdered by cutting their spinal cords. Witnesses testified that some of the babies whined, moved their limbs, and shrugged their shoulders before being killed. That the location or method of killing was the decisive factor is an affront to logic. Consider a tragic hypothetical situation of two lifeless corpses lying side-by-side. One of the corpses belongs to a baby who was born alive and then killed by having its spinal cord snipped while the other baby was killed while in the womb by an injection of Digoxin. The fact that the two corpses may be virtually indistinguishable demonstrates the doubtfulness of our nation's abortion jurisprudence. Did one of the innocent babies have a right to life, while the other did not? If so, why? Both babies were distinct human beings with a genetic makeup completely separate from their mothers; both were completely dependent upon others for nourishment and care; both were intentionally killed. The only distinction between the two lifeless bodies is the subjective value, simply based upon the location and method of their demise, 74 1110620 that our jurisprudence of doubt affords them. It is morally indefensible to suggest that the actions taken against one child violates an inalienable right to life, while those against the other do not. Why should legal protection of an individual at a particular point in time depend entirely upon his or her subjective relationship to the killer? Such irrational protection defies logic. Recognition of a child's right to life from the earliest stages of its development would dispel the shroud of doubt from this area of jurisprudence and avoid unequal protection of the two children. Conclusion It is impossible for an unborn child to be a separate and distinct person at a particular point in time in one respect and not to be a separate and distinct person at the same point in time but in another respect. Because an unborn child has an inalienable right to life from its earliest stages of development, it is entitled not only to a life free from the harmful effects of chemicals at all stages of development but also to life itself at all stages of development. Treating an 75 1110620 unborn child as a separate and distinct person in only select respects defies logic and our deepest sense of morality. Courts do not have the luxury of hiding behind ipse dixit assertions. The United States Supreme Court has 34 attempted to do so by setting the line for state protection of unborn children at viability in the area of abortion. "It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution." Morrison v. Olson, 487 U.S. 654, 726 (1988) (Scalia, J., dissenting). To dispel the shroud of doubt shadowing our nation's abortion jurisprudence, courts must have the courage to allow the law of noncontradiction to dismantle the ipse dixit reasoning of Roe, Casey, and Stenberg and recognize a child's inalienable right to life at all stages of development. Until then, our grief is not for the Constitution alone; we also grieve for the millions of "[H]e himself said it." Black's Law Dictionary 743 (5th 34 ed. 1979). 76 1110620 children who have not been afforded equal value, love, and protection since Roe.35 It is estimated that as of January 2014 over 56 million 35 children have been killed before birth. See The State of Abortion In the United States 27 (National Right to Life Committee, Inc., January 2014)("On the basis of the most recent reports from the U.S. Centers for Disease Control (CDC) and the private research Guttmacher Institute, National Right to Life estimates that there have been more than 56 million abortions in America since 1973 ...."). 77 1110620 SHAW, Justice (concurring in the result). I concur in the result. I adhere to my writing in Ex parte Ankrom, [Ms. 1110176, January 11, 2013] ___ So. 3d ___ (Ala. 2013) (Shaw, J., concurring in part and concurring in the result), in which I explain that the word "child" in Ala. Code 1975, § 26-15-3.2, plainly and unambiguously refers to both born and unborn persons. 78 1110620 MURDOCK, Justice (dissenting). I concurred in this Court's decisions in Mack v. Carmack, 79 So. 3d 597 (Ala. 2011), and Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012). The proper outcome in the present case, however, is impacted by constitutional requirements of due process and related concerns regarding the construction and application of a criminal statute (e.g., a criminal statute must give clear notice of what is and is not illegal conduct). For the reasons stated in my dissenting opinion in Ex parte Ankrom,[Ms. 1110176, Jan. 11, 2013] ___ So. 3d ___ (Ala. 2013), I respectfully dissent in this case as well. 79	April 18, 2014
31277143-eba0-4c71-a02a-dd920432fab2	Alabama v. Greenetrack, Inc.	N/A	1101313, 1101384, 1110310, 1110158, 1130598	Alabama	Alabama Supreme Court	REL: 04/01/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1101313 ____________________ Ex parte State of Alabama PETITION FOR WRIT OF MANDAMUS (In re: State of Alabama v. Greenetrack, Inc.) ____________________ 1101384 ____________________ State of Alabama v. Greenetrack, Inc. ____________________ 1110158 ____________________ Ex parte State of Alabama PETITION FOR WRIT OF MANDAMUS (In re: State of Alabama v. Frontier Bingo, Inc., and Nova Gaming, LLC) ____________________ 1110310 ____________________ State of Alabama v. Frontier Bingo, Inc., and Nova Gaming, LLC (Proceedings from Greene Circuit Court) ________________ 1130598 _______________ Ex parte State of Alabama PETITION FOR WRIT OF MANDAMUS (Proceeding from Greene District Court; Court of Criminal Appeals, CR-13-0530) PER CURIAM. 1101313, 1101384, 1110158, 1110310, and 1130598 Before us are two appeals (case no. 1101384 and case no. 1110310) and two petitions for writs of mandamus (case no. 1101313 and case no. 1110158) filed by the State of Alabama, all challenging orders entered by a circuit judge in Greene County purporting to require State officials to return to private parties property seized by the State as contraband pursuant to search warrants previously issued by the Greene Circuit Court. Also before us is a petition for a writ of mandamus (case no. 1130598) filed by the State seeking relief from the refusal of a district judge in Greene County to issue warrants similar to the warrants involved in the first four cases based on evidentiary submissions similar to those provided by the State in those same four cases. The latter case appears to involve the same potential defendants and gaming establishments as the first four cases, as well as similar gambling devices alleged by the State to be illegal. Moreover, the district judge in case no. 1130598 relied upon the judgment of the trial judge in the former cases in refusing to issue the warrants in that case. Accordingly, we find it helpful to our discussion of the factual and procedural histories and the legal issues presented to 3 1101313, 1101384, 1110158, 1110310, and 1130598 consolidate our discussion of all of these cases in this opinion. The first four cases referenced above (hereinafter sometimes referred to as "the Rule 3.13 cases") are cases in which a specially appointed circuit judge for Greene County, Judge Houston L. Brown, initially issued warrants to the State for search and seizure operations at certain gaming establishments in Greene County, including, but not limited to, establishments owned or operated by Greenetrack, Inc. ("Greenetrack"), and Frontier Bingo, Inc. ("Frontier"). Several weeks later, however, in response to motions filed pursuant to Rule 3.13, Ala. R. Crim. P., Judge Brown decided that the warrants had been issued based on an incorrect understanding of applicable criminal law, specifically what was and was not prohibited under certain statutory and constitutional provisions pertaining to "gambling devices," "slot machines," and "bingo." Largely on the basis of his reconsideration of this legal question, Judge Brown ordered the State to return to the gaming establishments all the gaming machines, currency, and other property it had seized pursuant to the warrants. 4 1101313, 1101384, 1110158, 1110310, and 1130598 In case no. 1130598, Greene County District Judge Lillian Jones-Osborne was presented by State officials with applications for search warrants relating to gambling devices similar to those at issue in the Rule 3.13 cases and alleged by the State to be located at facilities owned or operated by Greenetrack and Frontier, and two additional facilities known as River's Edge Casino and Green Charity Casino. Judge Jones- Osborne refused to grant the State's applications for these warrants. Specifically, she referred to the order of Judge Brown in the Rule 3.13 cases and adopted Judge Brown's reasoning as the basis for her decision to deny the State's applications. I. Facts and Procedural History A. The Rule 3.13 Cases Amendment No. 743, Ala. Const. 1901 (now Local Amendments, Greene County, § 1, Ala. Const. 1901 (Off. Recomp.)), provides in part that "[b]ingo games for prizes or money may be operated by a nonprofit organization in Greene County." It defines "bingo" as "[t]hat specific kind of game commonly known as bingo in which prizes are awarded on the basis of designated numbers or symbols on a card or electronic 5 1101313, 1101384, 1110158, 1110310, and 1130598 marking machine conforming to numbers or symbols selected at random." Charity "bingo," as permitted by Amendment No. 743, stands as an exception to the general prohibition of gambling in the Alabama Constitution and specific statutes. See Ala. Const. 1901, Art. IV, § 65, and Ala. Code 1975, §§ 13A-12-20 and -27, making it a criminal offense to possess "gambling devices," including but not limited to "slot machines." See generally Barber v. Jefferson Cnty. Racing Ass'n, Inc., 960 So. 2d 599, 603 (Ala. 2006). In April 2011, a team of undercover officers supervised by Lt. Mike Reese of the Alabama Alcoholic Beverage Control Board investigated operations at Greenetrack's gaming facility in Greene County. Specifically, the officers examined the gaming machines at the facility to determine whether they were authorized under the charity-bingo exception of Amendment No. 743. The investigation included making a video disc of officers playing the machines that was entered as evidence in the hearing below pertaining to Greenetrack's property. The officers concluded that the machines did not qualify as "bingo" under the definition provided in Amendment No. 743. 6 1101313, 1101384, 1110158, 1110310, and 1130598 In May 2011, a team of undercover officers supervised by Lt. William Carson of the Alabama Alcoholic Beverage Control Board investigated operations at the Frontier gaming facility in Greene County. As with the Greenetrack investigation, the officers examined gaming machines at the facility, at least some of which were owned by Nova Gaming, LLC ("Nova"), to determine whether they were authorized under the charity-bingo exception of Amendment No. 743. This investigation also included making a video disc of officers playing the machines that was entered as evidence in the hearing below pertaining to Frontier and Nova's property. As in the Greenetrack investigation, the officers concluded that the games played on the machines did not qualify as "bingo" under the definition provided in Amendment No. 743. Prior to the foregoing events, on July 1, 2010, then Chief Justice Sue Bell Cobb entered an order appointing Jefferson Circuit Judge Houston L. Brown "to preside as circuit judge in all matters concerning" a case styled as State of Alabama v. 825 Electronic Gambling Devices, case no. CV-2010.20, in the circuit court of Greene County. Chief Deputy Attorney General Richard Allen testified in the hearing 7 1101313, 1101384, 1110158, 1110310, and 1130598 below pertaining to Greenetrack's property that because of the July 1, 2010, order he was not sure what judge had authority to rule on a search warrant pertaining to gaming devices in Greene County. Allen telephoned the Administrative Office of Courts to inquire about Judge Brown's authority in Greene County. On May 17, 2011, then Chief Justice Cobb entered an order appointing Judge Brown as a "special circuit judge" for the 17th Judicial Circuit "until further orders of this Court." On May 31, 2011, Lt. Reese and Lt. Carson applied to Judge Brown for warrants to search the Greenetrack and Frontier facilities and to seize gaming machines, records, and proceeds. The affidavits Lt. Reese and Lt. Carson filed in support of their applications for search warrants contained almost identical language and in general concluded that the machines at each facility were "illegal slot machines under Alabama law, in that they operate by the insertion of a PIN number which activates cash value credits purchased at a cashiers window, and operate with the aid of some physical act by the player, in such a manner that, depending upon elements of chance, they may eject something of value." 8 1101313, 1101384, 1110158, 1110310, and 1130598 More specifically, the affidavits contrasted what undercover officers observed at the facilities with regard to the machines with the six characteristics of "the game commonly or traditionally known as bingo" provided in Barber v. Cornerstone Community Outreach, Inc., 42 So. 3d 65, 86 (Ala. 2009). In this regard, Lt. Reese's affidavit repeated each of those six characteristics and then commented on whether the machines in question satisfied that characteristic: "(1) 'Each player uses one or more cards with spaces arranged in five columns and five rows, with an alphanumeric or similar designation assigned to each space.' "The undercover operations revealed that the predominant display on these machines is a slot machine type display involving a video representation of slot-style spinning reels. There is also a much smaller video depiction of a bingo card on each machine. There is no paper or printed card associated with play of any of the machines. The player is not required to use or interact with a video depiction of a card in any way in the play of the game, and physically cannot personally interact with any video representation of a bingo card once play is initiated. In fact, once cash value credits are inserted using a PIN number, the game can be played blindfolded or with the eyes closed by simply pressing the play button, and can be played without ever looking at or paying any attention to any electronic representation of a bingo card. I observed that players in the facility regularly and typically played the game without looking at any video representation of a bingo card at all. 9 1101313, 1101384, 1110158, 1110310, and 1130598 "(2) 'Alphanumeric or similar designations are randomly drawn and announced one by one.' "The undercover operations revealed that in terms of what the human eye can see, the numbers are neither drawn one by one nor are they announced one by one, as required by the Cornerstone opinion. Instead, on one touch machines the first press of the play button on these machines typically caused a video depiction of a large number (approximately thirty) balls to drop simultaneously. An entire game can be played in about three (3) to five (5) seconds on most machines, in one second on others. The three touch machines also [displayed] video depictions of the dropping of a large number of balls at a time. There was no announcer involved in the play of any of the machines. "(3) 'In order to play, each player must pay attention to the values announced; if one of the values matches a value on one or more of the player's cards, the player must physically act by marking his or her card accordingly.' "The undercover investigation revealed that these machines do not play a game in which 'a player must pay attention to the values announced.' In fact, it is not necessary for a player to pay any attention whatsoever to the values announced in order to play the game. Again, once cash credits are inserted by way of a PIN, the game can be played blindfolded or with the eyes closed by simply pressing the play button and can be played without any paper or printed bingo card and without ever looking at any video representation of a bingo card. "In fact, because the game is played so quickly, it is impossible for the human player to personally match numbers drawn to his or her video representation of a bingo card. In addition, the machines simply require the player to press the play button, after which the machine automatically 10 1101313, 1101384, 1110158, 1110310, and 1130598 determines what numbers match at computer speed, which is faster than the human eye can match and daub. The player is not required to recognize any matching numbers or daub them one by one, and in fact cannot daub the numbers one by one. "(4) 'A player can fail to pay proper attention or to properly mark his or her card, and thereby miss an opportunity to be declared a winner.' "The undercover operation revealed that on one touch machines at least, the game once started could not be slept and ended automatically without any player interaction. Furthermore, as to all of the machines, a player is neither required to nor able to recognize and daub matching numbers one by one, and therefore there is no opportunity to improperly mark (i.e., fail to 'properly mark') his or her video representation of a bingo card. "(5) 'A player must recognize that his or her card has a "bingo," i.e., a predetermined pattern of matching values, and in turn announce to the other players and the announcer that this is the case before any other player does so.' "The undercover operation revealed that the player is not required to recognize any numbers drawn on any of the machines, much less any bingo pattern on any physical card (or electronic representation of a card) in order to win. There is no announce, and the players are not required to announce bingo to other players to claim their prizes. Instead, the machine displays to the player whether or not the player has won anything. There is no way for a losing player to identify the player who won, or where that player is located, much less verify that player's 'bingo.' "(6) 'The game of bingo contemplates a group activity in which multiple players compete against each other to be the first to properly mark a card 11 1101313, 1101384, 1110158, 1110310, and 1130598 with the predetermined winning pattern and announce that fact.' "The undercover operation revealed that there is no meaningful interaction between players on any of the machines. The machines appear to require that at least two machines be activated, but there does not appear to be any requirements that players press buttons simultaneously or complete their games at the same time. Players do not have the opportunity to improperly mark a card. Players are not required to personally identify, recognize, announce, or even know any winning patterns in order to play the game. "Finally, the machines located at Greenetrack do not simply enable a player to mark his or her card electronically. Instead, the machines totally eliminate the requirements that a player personally recognize and identify matching numbers and take action to mark each matching number on his or her card accordingly as numbers are drawn and announced one by one, and in fact eliminate all elements of human skill and recognition featured in the traditional game of bingo. And rather than electronically marking a card, they eliminate the traditional paper or printed bingo card altogether, and only allow the player who chooses to ignore the larger slot machine display to see a small electronic simulation of a bingo card with which the player cannot interact at all during the computer simulated number draw, and a draw which is simulated at computer speed as described above. Once the player presses the play button on a one touch machine the player can do nothing to influence which individual numbers are or are not marked on any electronic simulation of a bingo card. On a three touch machine, the player can only fail to press the button the second and third time, but cannot influence which specific numbers the machine will automatically daub if the button is pressed the second and third time. Moreover, the machines accept cash value credits and dispense cash value 12 1101313, 1101384, 1110158, 1110310, and 1130598 credits by means of a PIN, which has nothing to do with card marking, but which makes the machines slot machines and illegal gambling devices in violation of Ala. Code § 13A-12-20, et seq." (Emphasis in original.) After considering the State's submissions, Judge Brown issued the search warrants. On June 1, 2011, the State executed the warrants at the Greenetrack and Frontier gaming facilities. The State seized approximately 376 gaming devices at the Greenetrack facility, business records, and $93,917.50 in proceeds. The State seized approximately 267 gaming devices at the Frontier facility, business records, and an unknown amount of proceeds. The property seized at the Frontier facility included gaming machines owned by Nova. On June 7, 2011, Greenetrack, Frontier, and other entities who are not parties to the cases before us filed a joint "Motion for Return of Seized Property" under Rule 3.13, Ala. R. Crim. P.. The motion was referred to Judge Brown. 1 Rule 3.13 provides: 1 "A person aggrieved by an unlawful search and seizure may move the court for the return of the property seized on the ground that he or she is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the 13 1101313, 1101384, 1110158, 1110310, and 1130598 On June 22, 2011, the State filed in the Greene Circuit Court two civil forfeiture actions as to the gaming machines, records, and proceeds seized through the warrants executed at the Greenetrack and Frontier facilities. The State filed amended complaints on June 24, 2011, and second amended complaints on July 6, 2011. The forfeiture actions were assigned to Judge Eddie Hardaway. On June 27, 2011, Nova filed a motion for return of property pursuant to Rule 3.13 on the basis of its claimed interest in the property seized under the warrant executed at the Frontier facility. On June 29, 2011, Frontier withdrew its motion for return of property based on the State's filing its forfeiture action. Nova likewise subsequently withdrew its motion for return of property as a result of the State's filing of a forfeiture complaint. Greenetrack did not 2 withdraw its motion for return of property. decision of the motion. If the motion is granted, the property shall be restored. If a motion of return of property is made or comes on for hearing after an indictment or information is filed, it shall be treated also as a motion to suppress evidence." The other entities who are not parties to the cases 2 before us also withdrew their motions for return of property. 14 1101313, 1101384, 1110158, 1110310, and 1130598 On July 6-7, 2011, Judge Brown held an evidentiary hearing on Greenetrack's motion for return of property. Judge Brown heard testimony from Richard Allen and Judge Hardaway pertaining to the process that led to Judge Brown's appointment. He also heard from Lt. Reese and Desmond Ladner, a gambling expert presented by the State, regarding their observations of the gaming machines at the Greenetrack facility. On August 3, 2011, Judge Brown entered an order requiring the State to "RETURN all of the property seized during the execution of the subject search warrant to GREENETRACK, Inc. Before the passage of Ten (10) days from the date of this Order." (Capitalization in original.) Among other things, Judge Brown reconsidered the meaning of the term "bingo" and reached the conclusion that there was not probable cause to believe that the machines at issue were not "bingo games" and therefore illegal gambling devices. In this regard, Judge Brown reasoned (a) that Lt. Reese has "misled the Court" as to the meaning of the term "bingo," and (b) that the term "bingo," as used in this Court's opinion in Cornerstone and in 15 1101313, 1101384, 1110158, 1110310, and 1130598 Amendment No. 743 should be understood as allowing "electronic bingo games" of the type described in the State's evidence: "[Lt.] Reese is operating under a mistaken interpretation of the law. At the outset, [Lt.] Reese misled the Court to believe that the games did not comply with the elements of a bingo game identified in Cornerstone. [Lt.] Reese further testified that bingo could only be played using paper cards and that no electronic bingo game could ever be anything other than a slot machine. This is clearly not the case under Amendment 743 or Cornerstone." Elsewhere, however, Judge Brown rejected the applicability of the Cornerstone criteria to the cases before him based on the "unique" wording of Amendment No. 743, a local amendment applicable to Greene County. He stated: "The only pertinent definition of 'bingo' in this matter is the definition found in Amendment 743. Amendment 743 defines 'bingo' and 'bingo equipment.' It is obvious from a plain reading of both definitions that bingo games may be played in an electronic format in Greene County, Alabama. Any other reading would be violative of the Amendment. Furthermore, ... Cornerstone is not binding precedent with regard to Amendment 743 ...." On August 5, 2011, Nova filed a renewed motion for return of property based on Judge Brown's order in the Greenetrack proceeding described above; Frontier likewise renewed its motion on August 30, 2011. The State filed motions to dismiss the motions of Nova and Frontier on the ground that the court 16 1101313, 1101384, 1110158, 1110310, and 1130598 in the civil forfeiture proceeding had jurisdiction over the subject property. Judge Brown denied the State's motions to dismiss. On September 13, 2011, Judge Brown held an evidentiary hearing on Frontier's and Nova's motions for return of property in which he heard testimony from an attorney for the State, the Greene County Sheriff, and Lt. Carson. On October 31, 2011, Judge Brown entered an order that relied upon the findings -- and except for changing dates and names tracked the language -- of his order in the Greenetrack action. The order required the State to return "all of the property seized during the execution of the subject Search Warrant to Frontier Bingo before the passage of ten (10) days from the date of this Order." The State appealed Judge Brown's order in the Greenetrack action on August 4, 2011 (case no. 1101384). The State also moved in the trial court for a motion to stay the order pending appeal, but the trial court denied the motion. The State then sought from this Court an emergency motion to stay the order. This Court granted a stay of the trial court's order. It ordered that the State's emergency motion would be 17 1101313, 1101384, 1110158, 1110310, and 1130598 treated as a petition for a writ of mandamus (case no. 1101313), and it consolidated the petition with the State's appeal of Judge Brown's order in the Greenetrack action. The State appealed the trial court's order in the Frontier and Nova action on November 7, 2011 (case no. 1110310). As in the Greenetrack case, the State moved in the trial court for a stay of its order in the Frontier and Nova action, but the trial court denied the motion. The State sought from this Court an emergency motion to stay the order. This Court granted the stay on November 10, 2011. It ordered that the State's emergency motion would be treated as a petition for a writ of mandamus (case no. 1110158), and it consolidated the petition with the State's appeal of the trial court's order in the Frontier and Nova action. B. The Denial-of-Warrant Case In its petition in case no. 1130598, the State takes note of our holding in Cornerstone and our reliance upon Cornerstone last year in Ex parte State, 121 So. 3d 337, 359 (Ala. 2013). The State also notes that, consistent with these holdings, judges have in recent months issued warrants to the State to seize so-called "electronic bingo machines" in 18 1101313, 1101384, 1110158, 1110310, and 1130598 Greene, Houston, Jefferson, and Lowndes Counties and judges in Jefferson and Houston Counties have issued various final rulings finding this sort of gambling illegal. Citing the sworn affidavits of two of its agents, the State posits that, "despite these ... elements, casinos are still openly operating in Greene County" and that, "indeed, gambling appears to be proliferating in Greene County" and that "the casinos' devices do not even attempt to satisfy the Cornerstone test." Against this asserted background, the State recounts the following procedural history and facts relating to this case: "A team of undercover officers conducted operations at four casinos in Greene County over December 2013 and January 2014: Greenetrack Casino (Exh. A), River's Edge Casino (Exh. B), Greene Charity Casino (Exh. C), and Frontier Bingo (Exh. D). See Exh. E (Aff. of Sisson); Exh. F (Aff. of Butler). They made videos of themselves playing the gambling devices at each casino and assembled detailed affidavits establishing probable cause ·to seize the machines at each casino and search for related contraband and evidence of illegal gambling. See Exhs. A, B, C, D .... "According to the facts recounted in the affidavits and portrayed on the video, the machines at these Greene County casinos are just as illegal as the machines at issue in Cornerstone. At the very least, the officers have established the same level of probable cause that compelled the Supreme Court to grant the writ in Ex parte State. 19 1101313, 1101384, 1110158, 1110310, and 1130598 "Although there are some differences between the four casinos, their gambling devices are the same in every way that matters. To begin play, the gambler establishes an account with the casino, funds it, and obtains a 'player's card' and/or personal identification number ('PIN') that allows him to access the account on the casino's machines. See Exh. A at 3 (PIN & card); Exh. B at 3 (PIN & card): Exh. C at 3 (PIN & card); Exh. D at 3 (PIN). The gambler then swipes his card and/or enters his PIN into a machine, wagers an amount of money, and begins to play. See id. "There are three basic kinds of machines being used at these facilities. The display on most of the machines is the kind 'typically associated with common slot machines' -- reels, lines and bars. Exh. D. at 3. See also Exh. A at 3 ('either three or five slot machine-type, vertically spinning reels'); Exh. B at 3 ('machines in the casino looked and operated like electronic slot machines'); Exh. C at 8 ('With the exception of the Keno game, every machine they played or observed involved the presence of three to five digitally spinning reels with three lines each'). At River's Edge casino, certain machines also purport to play video poker. Exh. B at 4-5. And, at River's Edge, Frontier, and Greene Charity casinos, certain machines purported to play keno, which is a lottery-style game. Exh. B at 5-6 (describing keno); Exh. C at 8; Exh. D at 7. Although most of these machines contain a small grid that fills with numbers like a bingo card, the experience of playing these machines is functionally indistinguishable from playing acknowledged slot machines, video poker machines, or keno machines and nothing like the 'bingo' game contemplated in Cornerstone. See Exhs. A, B, C, D. The gambler does not pay attention, listen to alphanumeric designations drawn one-by-one, and manually match them up to a bingo card. See Exhs. A, B, C, D. Instead, the gambler presses a button, watches 20 1101313, 1101384, 1110158, 1110310, and 1130598 slot-machine reels spin, sees various lines appear on the screen, and is told whether he or she has won -- all in a matter of a few seconds. Exh. A at 10 ('in every case, less than 3 seconds'); Exh. B at 4 ('2.5 seconds,' '2 seconds'); Exh. C at 4 ('less than two seconds'); Exh. D at 5 ('4 seconds'). On other machines, the gambler plays a simulated version of poker or keno. Exh. B at 4-6; Exh. C at 8; Exh. D at 7. "The officers visited each of the four casinos on either January 14 or January 15. Exh. A at 7; Exh. B at 7; Exh. C at 9; Exh. D at 8. The only circuit judge in Greene County, Judge Eddie Hardaway, has been removed from or has recused himself from cases having to do with gambling. See Exh. E [at] 12. "On January 16, 2014, state officers approached the district judge for Greene County, Judge Lillie Jones-Osborne, and presented her with applications for warrants to search the casinos and seize the illegal machines, computer servers, and other contraband there. See Exh. E ¶2-3. The officers presented the judge with four affidavits, one for each casino, each to be sworn before her under the Rules of Criminal Procedure, setting forth the facts described above, and proposed warrants describing the places to be searched and the items to be seized in detail. See Exh. E ¶3-17. The officers also presented the judge with the videos. See Exh. E ¶10. "Judge Jones-Osborne respectfully declined to issue the requested warrants. See Exh. E ¶12. The judge reviewed the affidavits but declined to view the videos. Exh. E ¶10. The judge did not assert that the State's evidence was insufficient. See id. at ¶12. Judge Jones-Osborne explained instead that she was declining to issue the warrants because of another judge's decision in 2011 to quash search 21 1101313, 1101384, 1110158, 1110310, and 1130598 warrants that he had issued to search and seize gambling devices in Greene County. See Exh. E ¶12. The officers had provided those orders to Judge Jones-Osborne for the purposes of full disclosure, and they are attached as attachments 4 and 6 to Exhibit A to this petition." According to an affidavit supplied by one of the State's agents, Judge Jones-Osborne declined to grant the State's request for the search warrants in this case because she "concluded that she had to rely on what Judge Brown ruled." In her "answer" to the petition for a writ of mandamus pending before this Court, Judge Jones-Osborne confirms that "she denied the State's search warrant based on a 17th Judicial Circuit order issued by Judge Houston Brown," referring to the order of Judge Brown discussed above. On January 21, 2014, the State filed its petition for a writ of mandamus with the Court of Criminal Appeals seeking an order requiring Judge Jones-Osborne to issue the warrants requested. Judge Jones-Osborne filed her answer to the petition on February 5, 2014. Pursuant to § 12-3-14, Ala. Code 1975, the case was transferred to this Court on March 7, 2014. 22 1101313, 1101384, 1110158, 1110310, and 1130598 II. Analysis A. The Rule 3.13 Cases As a preliminary matter, we are confronted with two related, threshold questions of appellate jurisdiction in relation to the Rule 3.13 cases: (1) whether the proper vehicles for appellate review are the two pending petitions for a writ of mandamus or the two pending appeals, and (2) whether these proceedings are civil or criminal in nature and, in turn, whether they fall within the appellate jurisdiction of this Court or of the Court of Criminal Appeals. At least under the circumstances presented in these cases, we conclude that appellate review is by way of appeal and that these appeals are within the appellate jurisdiction of this Court. Rule 3.13, Ala. R. Crim. P., was patterned after then Rule 41(e), now Rule 41(g), Fed. R. Crim. P. See Committee Comment to Rule 3.13, Ala. R. Crim. P. At the time the 3 Rule 41(g) of the Federal Rules of Criminal Procedure, 3 which is virtually identical to our Rule 3.13, reads as follows: "(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move 23 1101313, 1101384, 1110158, 1110310, and 1130598 Rule 3.13 motions were filed, no criminal cases were pending. The United States Supreme Court explained in Di Bella v. United States, 369 U.S. 121, 132 (1962), that, where a motion filed under then Rule 41(e) (now Rule 41(g)) is not intended as a motion in limine in a criminal proceeding but, instead, addresses solely the return of the property in question "and is in no way tied to a criminal prosecution in esse[ ] against 4 the movant," the proceeding "can be regarded as independent." See also, e.g., Mr. Lucky Messenger Serv., Inc. v. United States, 587 F.2d 15, 16 (7th Cir. 1978) (quoting Di Bella for the proposition that the denial of a motion for return of for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings." The provision in Rule 41(g) for the return of property was part of Rule 41(e). "In 2002, the motion-to-return provision was re-designated Rule 41(g). Courts recognize that case law interpreting former Rule 41(e) generally applies to current Rule 41(g)." 3A Fed. Prac. & Proc. Crim § 690, Motion to Return Property (4th ed. 2013). "In esse" is defined as "in being." Black's Law 4 Dictionary 840 (9th ed. 2009). 24 1101313, 1101384, 1110158, 1110310, and 1130598 property is a final appealable order "'if the motion is solely for return of property and is in no way tied to a criminal prosecution in Esse against the movant'"); Caracas Int'l Banking Corp. v. United States, 670 F. Supp. 2d 142, 146 (D. P.R. 2009) (explaining that "it is possible to pursue relief under Rule 41(g) through an independent action"). Compare Smith v. United States, 377 F.2d 739 (3d Cir. 1967) (holding that, for purposes of appealability, an order denying a petition tied to a prosecution against petitioners that was "in esse" was not "final," where petition sought return of property allegedly obtained in violation of petitioners' constitutional rights and sought to suppress its use in a criminal prosecution). Judge Brown entered orders requiring the State to return the subject property in both the Greenetrack matter and the Frontier/Nova matter; of necessity, therefore, he purported to adjudicate all issues in those matters to final determination. Judge Brown's orders thus amount to final judgments subject to appeal, not interlocutory orders subject to review by a petition for a writ of mandamus. 25 1101313, 1101384, 1110158, 1110310, and 1130598 Furthermore, at least where, as here, there is no criminal case pending, it is clear that the action generated by the filing of a motion under Rule 3.13 and the trial court's order adjudicating that motion are properly considered civil in nature and, accordingly, that jurisdiction over the appeal of the trial court's order would lie in this Court rather than in the Court of Criminal Appeals. In this regard, we note the case of State v. Cobb, 660 So. 2d 1014 (Ala. Civ. App. 1995), in which the plaintiff filed a Rule 3.13 motion when "[t]here was no pending criminal action, and the motion was docketed in the trial court as a civil action." 660 So. 2d at 1014. The Court of Civil Appeals did not question its jurisdiction over the appeal. More recently, in Jones v. State, 937 So. 2d 59 (Ala. 2006), this Court held that a "motion" seeking an order to require the State to return currency and firearms following both a successful forfeiture action against those items and a conviction on related criminal charges gave rise to a civil action from which an appeal would lie to the Court of Civil Appeals. See generally § 12-3-10, Ala. Code 1975 (assigning to the Court of Civil 26 1101313, 1101384, 1110158, 1110310, and 1130598 Appeals appellate jurisdiction over civil matters where the amount in controversy does not exceed $50,000). Federal authorities on this issue are, if anything, even more clear that a motion for return of property filed under the parallel federal Rule 41(g), at least when no criminal action is pending, gives rise to an independent action that is civil in nature. See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir. 2010) (en banc) ("[W]hen the motion [to return property] is made by a party against whom no criminal charges have been brought, such a motion is in fact a petition that the district court invoke its civil equitable jurisdiction."); United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005) ("A motion to return seized property under Fed. R. Crim. P. 41(g), is a motion in equity, in which courts will determine all the equitable considerations in order to make a fair and just decision."); United States v. Search of Music City Mktg., Inc., 212 F.3d 920, 923 (6th Cir. 2000) ("There is no criminal indictment or proceeding pending against Music City. Thus, Music City's Rule 41[(g)] motion for the return of its property was really in the nature of a civil proceeding invoking the court's 27 1101313, 1101384, 1110158, 1110310, and 1130598 equitable powers, rather than a criminal proceeding."); Pena v. United States, 122 F.3d 3, 5 (5th Cir. 1997) ("[R]ule 41[(g)] proceedings ... have always been considered to be civil actions."); Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992) ("[W]here no criminal proceedings against the movant are pending or have transpired, a motion for the return of property is 'treated as [a] civil equitable proceeding[] even if styled as being pursuant to Fed. R. Crim. P. 41[(g)].'" (quoting United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987))); United States v. Martinson, 809 F.2d at 1366-67 ("A district court has jurisdiction to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant. ... Such motions are treated as civil equitable proceedings even if styled as being pursuant to Fed. R. Crim. P. 41[(g)]."); and Mr. Lucky Messenger Serv., Inc., 587 F.2d at 16 ("The motion for return of property is not one tied to a criminal prosecution in esse against the movant until the criminal process shifts from the investigatory phase to the accusatory."). 28 1101313, 1101384, 1110158, 1110310, and 1130598 In addition, it should be kept in mind that the Rule 3.13 cases concern property seized as contraband that is the subject of pending forfeiture actions. The Rule 3.13 court, in an adversarial proceeding between the "defendants" and the State, effectively has decided the very legal and factual issues that are presented for adjudication in those forfeiture actions. Specifically, the Rule 3.13 judge necessarily has decided the purely legal question of what standard must be met in order for the property at issue to considered illegal and, in turn, necessarily has measured the evidence and facts of the case against that standard to determine that the property may be "lawfully possessed" (as it must be in order to qualify for relief under Rule 3.13). Such determinations have effectively adjudicated the civil forfeiture actions. Further still, the execution of Judge Brown's orders for the return of the property to those from whom it was seized would implicate the jurisdiction of the trial court in the in rem, civil forfeiture action. Based on all the foregoing, we are clear to the conclusion that the actions before us are civil in nature. Because, unlike the controversy in Jones v. State, supra, they 29 1101313, 1101384, 1110158, 1110310, and 1130598 each involve an amount in controversy in excess of $50,000, these appeals fall within the appellate jurisdiction of this Court. Compare § 12-2-7, Ala. Code 1975 (providing that the Supreme Court is "[t]o exercise appellate jurisdiction coextensive with the state, under such restrictions and regulations as are prescribed by law") with § 12-3-10 (providing that the Court of Civil Appeals has appellate jurisdiction over "all civil cases where the amount involved, exclusive of interest and costs, does not exceed $50,000"). Having determined that the appeals filed by the State are the appropriate mechanism for appellate review and that those appeals are within the appellate jurisdiction of this Court, we now turn our attention to the merit of those appeals. For the reasons set forth below, we conclude that the trial court lacked subject-matter jurisdiction to enter the judgments from which the appeals are taken. As noted, Rule 3.13 begins as follows: "A person aggrieved by an unlawful search and seizure may move the court for the return of the property seized on the ground that he or she is entitled to lawful possession of the property which was illegally seized." 30 1101313, 1101384, 1110158, 1110310, and 1130598 (Emphasis added.) As the federal courts have explained in applying the analogous federal rule, to succeed in obtaining a return of property under the rule, the movant must prove not only that the seizure of the property was illegal but also that the movant is entitled to "lawful possession" of the property. See, e.g., Shea v. Gabriel, 520 F.2d 879, 882 (1st Cir. 1975) ("[A]ppellant made no effort to show that he is entitled to lawful possession of the seized items. Rule 41[(g)] 'provides for a return of the property if (1) the person is entitled to lawful possession and (2) the seizure was illegal.' Advisory Comm. Note, 56 F.R.D. 143, 170 (1972). No showing was made or offered that the things seized were appellant's lawful property rather than components of an illegal gambling business." (emphasis added)); Matter of Ninety-One Thousand Dollars in United States Currency, 715 F. Supp. 423, 427 (D.R.I. 1989) ("The gravaman of the motion, however, is petitioner's dual assertion that the search and seizure procedures employed by law enforcement officials in a particular situation violated petitioner's Fourth and Fourteenth Amendment rights and deprived the complainant of property to which she was lawfully entitled." (emphasis 31 1101313, 1101384, 1110158, 1110310, and 1130598 added)). Thus, if property is held only for its evidentiary value and is not, itself, seized as an illegal thing, Rule 41(g) provides for its return in the event of a determination that its method of seizure was illegal and that ownership of the property is in the claimant rather than some other party. See United States v. Wilson, 540 F.2d 1100, 1103-04 (D.C. Cir. 1976); United States v. Palmer, 565 F.2d 1063, 1064 (9th Cir. 1977). On the other hand, contraband "is illegal to possess and therefore not susceptible of ownership." Farmer v. Florence Cnty. Sheriff's Office, 401 S.C. 606, 613, 738 S.E.2d 473, 477 (2013) (citing Mims Amusement Co. v. SLED, 366 S.C. 141, 621 S.E.2d 344 (2005)). "[A]lthough [Rule 41(g)] is ostensibly broad enough to reach any unlawful seizure, a movant has no right to the return of property that is contraband." Matter of Ninety-One Thousand Dollars in United States Currency, 715 F. Supp at 427. Indeed, as the Comment to Rule 41(g) itself notes, that rule is of no moment "in cases involving contraband which, even if seized illegally, is not to be returned." Comments to 1972 Amendments, Rule 41, Fed. R. 32 1101313, 1101384, 1110158, 1110310, and 1130598 Crim. P. The Committee Comments to Alabama's Rule 3.13 similarly explain: "Of course, if the property seized is contraband, it can be lawfully held even if the property is subject to the exclusionary rules and does not have to be returned." In light of the foregoing, federal courts have consistently held that, where a forfeiture action has been commenced, it is inappropriate for the trial court to take up the Rule 41(g) motion. The issues raised by such a motion -- the legality of the search and, in particular, the legality of the seized items -- must be examined and decided in the forfeiture proceeding, and the Rule 41(g) proceeding was intended to yield to it. "When property is retained pursuant to civil forfeiture, instead of for use as evidence, a Rule 41[(g)] motion is not available." United States v. Watkins, 120 F.3d 254, 255 (11th Cir. 1997) (emphasis added). See also United States v. Castro, 883 F.2d 1018, 1020 (11th Cir. 1989) (holding that federal Rule 41(g) could not be invoked because "Defendant's cars and boat are not being retained to be used as evidence against him"; rather, "these vehicles are being detained strictly pursuant to civil forfeiture provisions"). 33 1101313, 1101384, 1110158, 1110310, and 1130598 "Although it is possible to pursue relief under Rule 41(g) through an independent action, such an action is generally precluded by the existence of parallel civil forfeiture proceedings. See, e.g., Rosevita Charter Constr. Corp. v. United States, 787 F. Supp. 39, 43-44 (D. P.R. 1992). Several courts have held that a pending civil forfeiture action, rather than an independent Rule 41(g) motion, is the proper forum to address issues related to government seizure of property. See Rosevita Charter Constr. Corp., 787 F. Supp. at 43; De Almeida v. United States, 459 F.3d 377, 382 (2d Cir. 2006); [United States v.] Hernandez, 911 F.2d [981] at 983 [(5th Cir. 1990)]; United States v. Price, 914 F.2d 1507, 1511 (D.C. Cir. 1990); Shaw v. United States, 891 F.2d 602, 603 (6th Cir. 1989); United States v. Castro, 883 F.2d 1018, 1019 (11th Cir. 1989); United States v. U.S. Currency $83,310.78, 851 F.2d 1231, 1235 (9th Cir.1988)." Caracas Int'l Banking Corp. v. United States, 670 F. Supp. 2d 142, 146 (D.P.R. 2009) (emphasis added). "We have not previously reviewed the dismissal of a Rule 41(g) motion in favor of a pending criminal forfeiture proceeding; but we have upheld dismissal where the government had commenced a civil forfeiture proceeding. In In Re One 1987 Jeep Wrangler Automobile, we observed that where 'the claimant is afforded the opportunity to test the legality of the seizure in the forfeiture proceeding,' relegating the claimant to that proceeding would avoid problems inherent in parallel proceedings. 972 F.2d 472, 479 (2d. Cir. 1992). Other Circuits have similarly held that a pending administrative or civil forfeiture proceeding affords an adequate remedy at law and thereby justifies dismissal of the Rule 41(g) motion. See United States v. Price, 914 F.2d 1507, 1511 (D.C. Cir. 1990) (per curiam ) ('Accordingly, we now hold that once the Government initiates an administrative 34 1101313, 1101384, 1110158, 1110310, and 1130598 forfeiture proceeding and the property is not the subject of an ongoing criminal proceeding, the District Court has no jurisdiction to resolve the issue of return of property.'); Shaw v. United States, 891 F.2d 602, 603-04 (6th Cir. 1989) (explaining that Rule 41[(g)] is an equitable remedy, and '[u]nder standard equity doctrine, where there is an adequate remedy at law it must be pursued'); United States v. Castro, 883 F.2d 1018, 1019 (11th Cir. 1989) (per curiam) ('It is well-settled that the proper method for recovery of property which has been subject to civil forfeiture is not the filing of a Rule 41[(g)] Motion, but filing a claim in the civil forfeiture action.'); United States v. United States Currency $83,310.78, 851 F.2d 1231, 1233-35 (9th Cir. 1988); In re Harper, 835 F.2d 1273, 1274-75 (8th Cir. 1988) (district court did not abuse discretion in not exercising equitable jurisdiction under Rule 41[(g)] after government instituted forfeiture proceeding)." De Almeida v. United States, 459 F.3d 377, 382 (2d Cir. 2006) (emphasis added). See also, e.g., United States v. Real Prop. Commonly Known as 16899 S.W. Greenbrier, Lake Oswego, Clackamas Cnty., 774 F. Supp. 1267, 1274-75 (D. Or. 1991) (to like effect). As indicated, some federal decisions suggest that an order granting relief under Rule 41(g) must yield to a separate forfeiture action because, in relation to the forfeiture action, the Rule 41(g) action lacks equity based on the adequacy of other relief made available by the pendency of the forfeiture action; others indicate that the obstacle to 35 1101313, 1101384, 1110158, 1110310, and 1130598 consideration of a separate Rule 41(g) motion when a forfeiture action is pending is jurisdictional in nature. As to the latter, see also United States (DEA) v. One 1987 Jeep Wrangler Auto. VIN No. 2BCCL8132HBS12835, 972 F.2d 472, 479 (2d Cir. 1992), commenting on an administrative forfeiture process through which a claimant can trigger a judicial forfeiture proceeding and stating: "Under all of the above scenarios, the claimant is afforded the opportunity to test the legality of the seizure in the forfeiture proceeding. See In re Harper, 835 F.2d 1273, 1274 (8th Cir. 1988). Consequently, once the administrative process has begun, the district court loses subject matter jurisdiction to adjudicate the matter in a peripheral setting such as a Rule 41[(g)] motion. United States v. Price, 914 F.2d 1507 (D.C. Cir. 1990). ... To hold otherwise would be to ignore the jurisprudential particularities of actions in rem (as discussed above) and to thwart the DEA's grant of limited administrative autonomy. See 21 C.F.R. §§ 1316.77, 1316.78. Here, the administrative forum afforded the claimant the opportunity to raise all objections to the seizure and the lack of a judicial remedy deprived him of nothing. Thus, we find that the district court properly dismissed the action before it for lack of jurisdiction and therefore we affirm its holding." (Emphasis added.) See also, e.g., Application of Mayo, 810 F. Supp. 121, 122 (D. Vt. 1992) (noting that, "[u]nder Second Circuit precedent, upon proper commencement of the administrative process, a district court 'loses subject matter 36 1101313, 1101384, 1110158, 1110310, and 1130598 jurisdiction to adjudicate the matter in a peripheral setting such as a Rule 41[(g)] motion'"). The foregoing cases aid in framing the issue presented here. The case before us is not one in which a movant seeks the return of mere "evidence" retained by the State for use in support of the State's case. Instead, the subject property is held by the State on the ground that it is contraband and is subject to forfeiture as such. On this basis alone, we would be sympathetic to the view expressed in those federal cases discussed above that consider the issue in jurisdictional terms, especially when one considers that an adverse result for the State in a Rule 3.13 proceeding would deprive a forfeiture court of possession of the alleged contraband necessary for its jurisdiction. Although the discussion of the foregoing federal cases is therefore instructive, our holding today ultimately is grounded in our precedents. More specifically, our holding is informed by the principle that an "accused" may not employ independent judicial proceedings to preempt or thwart the executive branch's exercise of the discretion afforded it to 37 1101313, 1101384, 1110158, 1110310, and 1130598 pursue criminal prosecutions or forfeiture actions for the purpose of enforcing our criminal laws. We explained in Tyson v. Macon County Greyhound Park, Inc., 43 So. 3d 587, 589-90 (Ala. 2010), that the collateral civil action attempted in that case was not permissible because it would "interfere with the orderly functioning of the executive branch within its zone of discretion in violation of the separation-of-powers doctrine set forth at § 43 of the Alabama Constitution of 1901." See also Citizenship Trust v. Keddie-Hill 68 So. 3d 99, 106 (Ala. 2011) (to like effect and discussing Macon County Greyhound Park). Similarly, in Ex parte Rich, 80 So. 3d 219, 225 (Ala. 2011), we held that the Montgomery Circuit Court lacked subject- matter jurisdiction over a collateral proceeding that would interfere with "law enforcement's effort to enforce the criminal laws of the State of Alabama" through the filing of a forfeiture action pursuant to § 13A-12-30, Ala. Code 1975). 5 Like a criminal prosecution, a civil forfeiture action 5 is a mechanism available to the executive branch for the enforcement of criminal laws making the possession of certain property illegal. See, e.g., Macon County Greyhound Park, 43 So. 3d at 591 (noting that a forfeiture statute applicable to gambling devices, § 13A–12–30, Ala. Code 1975, is "a provision found in the Criminal Code," and disallowing an independent 38 1101313, 1101384, 1110158, 1110310, and 1130598 See also Redtop Mkt., Inc. v. State ex rel. Green, 66 So. 3d 204, 205-06 (Ala. 2010). Like the above-cited cases, these are not cases in which the property seized was seized merely as evidence of a crime (i.e., that otherwise is subject to being lawfully owned) and in which the gravamen of the motion is merely some faulty procedure followed by the State in seizing it. We may presume for present purposes that Rule 3.13 would have ample field for operation in such circumstances. 6 Instead, these are cases in which the State takes the position that the property seized is itself the illegal thing. In response, the accused has initiated an independent proceeding that, if allowed to proceed, would require the State, in advance of any criminal prosecution or civil forfeiture proceeding, to prove the same "case" it would prove in such proceedings. In this key respect, these cases are proceeding initiated by the defendant that would have preempted a potential forfeiture action by the State). In such a case, if the court were to agree as to the 6 deficiency in the procedures by which the property was seized, the property could be returned to its owner with presumably little or no prejudice to the State's prosecution of its case, given the fact that such property would, in that event, be subject to the exclusionary rule anyway. 39 1101313, 1101384, 1110158, 1110310, and 1130598 like the aforementioned seminal case of Macon County Greyhound Park, in which "[t]he gravamen of [VictoryLand's separate] complaint [was] VictoryLand's assertion that its activities are lawful and that it will suffer irreparable injury if the machines are seized." 43 So. 3d at 589. It is on this same gravamen -- the assertion that the property seized or to be seized is legal -- that the movants seek relief in these present cases. Indeed, the Rule 3.13 movants seek to rest upon the gravamen of the alleged lawfulness of the seized property as the basis for not just one, but both, of the elements necessary for relief under Rule 3.13. First, because of their interpretation of Amendment No. 743, the movants take the position that the machines at issue are games of "bingo" and that the property seized therefore meets the lawfully- possessed element of Rule 3.13. Moreover, it is on the basis of this same assertion as to the meaning of the term "bingo" that the movants contend that the search warrants were issued without probable cause that the targeted property was illegal and that, therefore, the unlawful-seizure element of Rule 3.13 also was satisfied. To decide these motions on their merits 40 1101313, 1101384, 1110158, 1110310, and 1130598 as postured, therefore, would require the trial court to put the State to trial on the very issues the State seeks to prosecute by its seizure of the property and an ensuing criminal prosecution or civil forfeiture action. The trial court no more has the subject-matter jurisdiction to do this in the present cases than did the trial court in Macon County Greyhound Park. Macon County Greyhound Park and its progeny are grounded in the separation-of-powers doctrine found in § 43 of the Alabama Constitution of 1901 and, specifically, the restriction this doctrine places on the ability of the judicial branch to invade the discretion and power vested in our executive branch with respect to the enforcement of Alabama's criminal laws. See Piggly Wiggly No. 208, Inc. v. Dutton, 601 So. 2d 907, 910–11 (Ala. 1992); Fitts v. McGhee, 172 U.S. 516, 531–32 (1899). Macon County Greyhound Park and 7 If, in the end, the executive branch is proven wrong in 7 its interpretation of the constitution or a statutory provision, then so be it. The role of making arrests and initiating prosecutions nonetheless lies in the first instance with the executive branch, and the mere fact that it might make an error of judgment as to such a matter is not a sufficient ground for concluding that it has acted beyond the power delegated to it. 41 1101313, 1101384, 1110158, 1110310, and 1130598 its progeny stand for the proposition that a party may not litigate in advance or by separate proceeding the question of the lawfulness of an activity or property subject to prosecution by law-enforcement authorities. "[I]nstead," as we said in Macon County Greyhound Park, "the party aggrieved by such enforcement shall make his case in the prosecution of the criminal action." 43 So. 3d at 589. Of course, the same is true if and when law-enforcement officials choose the alternative enforcement mechanism of a forfeiture action, as in Ex parte Rich, supra. In either case, the gravamen of the enforcement mechanism pursued by the executive branch is the illegality of the activity or item itself, and the accused is not free to preempt or to thwart that prosecution by asking the judicial branch to decide the same question in some separate proceeding. As we explained in Macon County Greyhound Park, such actions will not be entertained where their "'only effect would be to decide matters which properly should be decided in a criminal action.' 43 So. 3d at 589 (quoting 22A Am.Jur.2d Declaratory Judgments § 57 (2003)). We further made clear in Macon County Greyhound Park that the principle recognized in that case "'applies ... to 42 1101313, 1101384, 1110158, 1110310, and 1130598 prosecutions which are merely threatened or anticipated as well as to those which have already been commenced. The rule extends to ... searches and seizures in the course of investigation of crime....'" 43 So. 3d at 589 (quoting 43A C.J.S. Injunctions § 280 (2004)). Of particular relevance for both that case and the present case, Macon County Greyhound Park also stands for the proposition that it is not a ground for relief in a separate proceeding "'that the prosecuting officer has erroneously construed the statute on which the prosecution is based so as to include the act or acts which it is the purpose of the prosecution to punish.... "'... [T]he fact that the enforcement thereof would materially injure the complainant's business or property constitutes no ground for equitable interference, and is not sufficient reason for asking a court of equity to ascertain in advance whether the business as conducted is in violation of a penal statute....'" 43 So. 3d at 589 (quoting 43A C.J.S. Injunctions § 280 (footnote omitted)). In Tyson v. Jones, 60 So. 3d 831 (Ala. 2010), this Court distinguished the circumstances presented there from those presented in Macon County Greyhound Park and its progeny by noting that "[n]o attempt is made ..., as it was in Macon 43 1101313, 1101384, 1110158, 1110310, and 1130598 County Greyhound Park, to determine the legality of certain conduct or devices by means of some action other than a criminal prosecution or a forfeiture under Ala. Code 1975, § 13A–12–30." 60 So. 3d at 842 n.5. The same cannot be said here. The judgments entered by Judge Brown in the Rule 3.13 proceedings, if allowed to stand, will foreclose the ability of the State to prosecute either a criminal action or a civil forfeiture action. They will effectively adjudicate the very legal issue that would be the gravaman of such actions. Further, they will deprive the State of the very property it seeks to condemn in an in rem forfeiture action, returning to private hands property the State contends constitutes illegal gambling devices while simultaneously thwarting the efforts of executive-branch officials to adjudicate the question of that illegality in a civil forfeiture proceeding. Judge Brown was without jurisdiction to enter such judgments in response to the Rule 3.13 motions. B. The Denial-of-Warrant Case Before turning to the merits of Judge Jones-Osborne's refusal to issue a search warrant in case no. 1130598 and her 44 1101313, 1101384, 1110158, 1110310, and 1130598 adoption of Judge Brown's legal rationale in the Rule 3.13 proceedings as the basis for this refusal, we find it instructive to compare other aspects of the procedural posture of and issues raised in the State's request for that warrant with the procedural posture of and issues raised in the Rule 3.13 proceedings. Such a comparison is helpful because it is corroborative of the foregoing discussion of the lack of jurisdiction of our courts to adjudicate in the Rule 3.13 proceedings the issues raised there while simultaneously being explanatory of why we do have jurisdiction to assess, and possibly deny, the State's request for a search warrant. As in the case of a Rule 3.13 motion, in considering an application for a search warrant, the trial judge must decide the proper legal standard against which to measure the evidence presented. Ex parte State, 121 So. 3d 337, 355 (Ala. 2013). It does so, however, only for the purpose of deciding whether to issue the requested search warrant. Id. Likewise, it must evaluate the evidence, but, again, it does so only for the purpose of deciding whether it is "probable" that the facts will eventually be proven to meet that legal standard. Id. In other words, decisions as to the issuance of a warrant 45 1101313, 1101384, 1110158, 1110310, and 1130598 are not made in a context like independent Rule 3.13 adjudications where a judgment by the trial court that property is lawful and must be returned by the State to the opposing party gives rise to a final judgment that is binding on both parties. Moreover, search-warrant determinations are as a rule made in circumstances where they are mandated by competing constitutional concerns, see U.S. Const. Amend. 4, that constitute a circumscription of the powers otherwise vested in the executive branch to fulfill its law-enforcement function. That said, a decision to deny an application for a warrant cannot properly be made based on an incorrect legal standard. Id. That is what happened in this case. As noted, in the Rule 3.13 proceedings, Judge Brown was critical of the State agent who supplied the affidavit supporting the application for the search warrant for "misleading" him as to the proper legal standard to be applied. In regard to a request for a search warrant, however, the role of a witness is to give evidence regarding the facts; the role of the judge is to decide the law against which that evidence will be measured. If a mistaken 46 1101313, 1101384, 1110158, 1110310, and 1130598 understanding of law is used as a framework to assess the facts presented by a witness, the mistake is the court's, not the witness's. To the degree Judge Brown -- and by extension Judge Jones-Osborne -- ruled against the State based on a witness's understanding of what our law does and does not prohibit, such a ruling was based on an erroneous understanding of the judge's role in the warrant process. See id. Despite his criticism of a State agent for allegedly misleading him as to what the law was, it appears that Judge Brown ultimately did in fact make his own determination of that law, a determination upon which Judge Jones-Osborne in turn relied. She then concluded that the facts did not rise to the level necessary to meet that legal standard (or, more precisely, that the evidence did not establish a probability that the facts eventually to be proven would meet that standard). It is in the first of these two determinations that there was an error of law that must be corrected in case no. 1130598. Amendment No. 743, just like the amendment at issue in Cornerstone and bingo amendments applicable to other counties, 47 1101313, 1101384, 1110158, 1110310, and 1130598 speaks of and permits the playing of "bingo games" (provided that a number of other restrictions, including charitable purposes, are met). We identified in Cornerstone and we reaffirm today that the game of "bingo" as that term is used in local constitutional amendments throughout the State is that game "commonly or traditionally known as bingo," 42 So. 3d at 86, and that this game is characterized by at least the six elements we identified in Cornerstone. Id. There is, however, at least one notable difference between Amendment No. 743 and the comparable amendments in most other counties –- namely the fact that the "card" required for the playing of bingo may be "an electronic marking machine." It is on this difference that Judge Brown and Judge Jones-Osborne based their decisions as to the proper legal standard by which to measure the evidence presented by the State. We therefore must further examine this difference. In Cornerstone, we explained that, among other things, the game commonly or traditionally known as bingo involved "each player" utilizing a "card" with a certain pattern and 8 The game we described in Cornerstone contemplates a group 8 activity involving multiple players competing against each other. 42 So. 3d at 86. 48 1101313, 1101384, 1110158, 1110310, and 1130598 universe of alphanumeric or other designations and that each player must respond to the random drawings of these designations by an "announcer" by manually marking this card. 42 So. 3d at 86. Clearly, the "bingo" at issue in this case does not employ a "card" in the sense of a flat rectangular or square object made of paper, cardboard, or some similar material on which the required designations are printed. Obviously aware that no such "card" was used in the games in the present case, Judge Brown considered the provisions for "electronic marking machines" in Amendment No. 743 to allow bingo to be played in Greene County without the necessity of such a card. In this he was correct. The question, however, is whether the ability to employ an "electronic marking machine" obviates all the other criteria of bingo this Court has recognized. Clearly, it does not. By way of explanation, we reiterate and affirm our discussion of Amendment No. 743 in Cornerstone itself: "In contrast to the use of merely the term 'bingo games,' ... Amendment No. 743 ... legalizes in Greene County a form of bingo that would include an 'electronic marking machine' in lieu of a paper card. Even [Amendment No. 743], which is the only amendment in Alabama we have located that makes any reference to the use of electronic equipment of any form, contemplates a game in all material respects 49 1101313, 1101384, 1110158, 1110310, and 1130598 similar to the game of bingo described in § 45–8–150(1), [Ala. Code 1975,] and something that is materially different from the types of electronic gaming machines at issue here. Amendment No. 743 begins by saying that 'bingo' is '[t]hat specific kind of game commonly known as bingo.' The definition then explains that bingo is a game 'in which prizes are awarded on the basis of designated numbers or symbols on a card or electronic marking machine conforming to numbers or symbols selected at random.' Moreover, the equipment contemplated by Amendment No. 743 for use in a bingo game is entirely different than the equipment at issue here. Specifically, Amendment No. 743 defines 'equipment' for the game of bingo as follows: "'The receptacle and numbered objects drawn from it, the master board upon which such objects are placed as drawn, the cards or sheets bearing numbers or other designations to be covered and the objects used to cover them or electronic card marking machines, and the board or signs, however operated, used to announce or display the numbers or designations as they are drawn.'" Cornerstone, 42 So. 3d at 79-80. Clearly, the fact that an "electronic marking machine" can be substituted for a paper card under the terms of Amendment No. 743 does not eliminate the requirement that, in all other respects, the game of bingo permitted by that amendment be the game traditionally known as "bingo." Judge Jones-Osborne therefore erred in rejecting 50 1101313, 1101384, 1110158, 1110310, and 1130598 this traditional definition and in refusing to issue the requested search warrants as a result. 9 As we explained in Ex parte State: "Cases both within and without Alabama make clear that a court considering the issuance of a warrant acts outside its discretion when it denies the warrant based on an improper or erroneous legal ground. This Court long ago held that a writ of mandamus may be used to require the issuance of a warrant under such circumstances. "In Benners v. State ex rel. Heflin, 124 Ala. 97, 26 So. 942 (1899), this Court held that mandamus will lie to compel the issuance of an arrest warrant where the magistrate refused to issue the warrant based only upon the supposed invalidity of a statute. Benners is thus similar to the present case in that both involve a legal question as to Most of, if not all, the "bingo" amendments throughout 9 the State also contain specific restrictions on who may operate bingo games and the use and distribution of proceeds from those operations. Questions regarding compliance with such requirements are not before us in the present case. Nor does the fact that the machines at issue in both Judge Brown's order and Judge Jones-Osborne's action use "PIN" numbers change anything. The characteristics of inserting a PIN number and ejecting a ticket are similar to the characteristics of the machines described in Barber v. Jefferson County Racing Ass'n, 960 So. 2d 599 (Ala. 2006), which the Court concluded were characteristics indicative of slot machines. In reaching this conclusion, the Court stated that it looks at "the substance and not the semblance of things, so as to prevent evasions of the law." 960 So. 2d at 611. Judge Brown stated in his orders that he was "aware" of this Court's decision in Barber; it appears that he and Judge Jones-Osborne too readily discounted its significance. 51 1101313, 1101384, 1110158, 1110310, and 1130598 what conduct is prohibited under extant law. The Court in Benners explained the availability of mandamus as follows: "'Mandamus as a remedy is available in criminal as well as in civil cases. While it will not ordinarily in either case be used to direct a judicial officer how to act in the performance of discretionary judicial functions, it will lie to set in motion the performance of official duties, whether they be judicial or ministerial. So it lies to compel an inferior court to proceed with a criminal trial or proceeding of which the court has wrongfully declined jurisdiction and to compel an officer charged with the duty to take cognizance of a criminal charge preferred by affidavit, and thereon to issue his warrant of arrest .... The affidavit is regular in form, and full in substance. When made, it became the duty of the justice to issue his warrant of arrest, returnable as provided by the act of February 9, 1895 (Acts 1894–95, p. 498). "'There was no error in the judgment awarding the writ of mandamus, and it will be affirmed.' "124 Ala. at 101–02, 26 So. at 943–44 .... ".... "In Marshall v. Herndon, 161 Ky. 232, 170 S.W. 623 (1914), the Kentucky Supreme Court likewise considered a trial court's refusal to issue a warrant based on an improper legal ground. Similar to the error in Benners, the error in Marshall concerned whether the challenged conduct was prohibited by a viable criminal statute. As in the present case, there was no dispute as to the facts; 52 1101313, 1101384, 1110158, 1110310, and 1130598 the only question was the purely legal one –- whether there was in place a statute that made the suspect's conduct a crime. The Kentucky Supreme Court's analysis, which begins by noting a Kentucky statute similar to Rule 3.8 and Rule 3.9, Ala. R.Crim. P., is helpful: "'Section 31, Criminal Code, is as follows: "'"A magistrate shall issue a warrant for the arrest of a person charged with the commission of a public offense, when, from his personal knowledge, or from information given to him on oath, he shall be satisfied that there are reasonable grounds for believing the charge." "'This section makes it the imperative duty of the magistrate to issue a warrant whenever he shall be satisfied, from the information given him on oath, that there are reasonable grounds for believing the charge. The question before the magistrate at this time is not whether accused is guilty or should be convicted. Such matters as guilt and conviction are presented to him for judicial determination, when the accused is arrested and brought before him for trial. ... "'.... "'Since the pleadings show that there was a valid city ordinance on the subject, and it is admitted that the affidavit was sufficient, we think it was the duty of the magistrate to issue the warrant, and, upon refusal to act, he can be compelled to do so by mandamus, and on this state of facts 53 1101313, 1101384, 1110158, 1110310, and 1130598 the lower court erred in dismissing the petition.' "161 Ky. at 234, 170 S.W. at 624 .... "Likewise, in State v. Viatical Services, Inc., 741 So. 2d 560 (Fla. Dist. Ct. App. 1999), there was no dispute as to the applicable facts. The Florida District Court of Appeal held that the trial court had committed legal error in declining to issue the search warrant by improperly allowing other considerations to override the existence of probable cause. Treating a petition for a writ of mandamus as a petition for the writ of certiorari, the Florida appellate court ordered a trial court to issue a search warrant that had been denied: "'... [I]f the state shows a departure from the essential requirements of law, a writ should issue. What the trial court has done in effect is to suppress evidence prior to its seizure by a pre-seizure hearing. We frequently review suppression orders where the court has suppressed evidence in a post-seizure hearing. Review of such pretrial order is appealable. See Fla. R. App. P. 9.140(c)(1)(B). Because the state has no similar remedy from this pre-seizure hearing, we review it by certiorari.' "741 So. 2d at 562 .... "Finally, we find noteworthy the observations by one commentator based on his review of the cases: "'... [R]eviewing courts have ordered warrants to issue when a magistrate refused to do so on a ground that was extrinsic to probable cause, such as his belief that his term of office had expired, or that the 54 1101313, 1101384, 1110158, 1110310, and 1130598 statute allegedly violated was unconstitutional.' "Abraham S. Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U.L.Rev. 1173, 1196 (1987) (emphasis added). Cf. State ex rel. Umbreit v. Helms, 136 Wis. 432, 118 N.W. 158 (1908) (under its general supervisory powers, state supreme court had the power to compel a trial court to proceed with the trial in a criminal case after the lower court quashed a good complaint upon the purely legal ground that the acts complained of did not constitute an offense)." Ex parte State, 121 So. 3d at 352-55 (some original emphasis omitted; some emphasis added; footnotes omitted). We have reviewed the affidavits and the video evidence submitted by the State, and the circumstances presented allow for no reasonable conclusion other than that probable cause exists for the issuance of the search warrants requested. As we stated in Ex parte State: "The games depicted in the surveillance video and described in the affidavit ... in support of the application for the warrant do not reasonably resemble a game of 'bingo.' Without turning a blind eye to that which is depicted in the video and described in the affidavit, a 'man of reasonable caution' could reach no conclusion other than that there is a 'fair probability' that the machines in question are not the game of bingo and, instead, are slot machines or other gambling devices that are illegal under Alabama law. ".... 55 1101313, 1101384, 1110158, 1110310, and 1130598 "The Alabama Constitution and the Alabama Legislature decide the criminal law applicable in each of the 67 counties in this State. A circuit judge is not free to frustrate the enforcement of the criminal law by refusing to issue warrants necessary or appropriate to its enforcement in his or her circuit. To allow a judge to do so without the exercise and fulfillment by this Court of its supervisory jurisdiction and responsibility relative to lower courts (see Ala. Const. 1901, § 140; § 12–2–7, Ala. Code 1975) would be to allow that judge essentially to rewrite the law in the county he or she serves. This we cannot do." 121 So. 3d at 358-59 (emphasis added). Based on the foregoing, we agree with the State that Judge Jones-Osborne exceeded her discretion in denying the requested search warrants. The State was entitled to an order directing the judge to grant the warrant application and to issue the requested warrant, and this Court issued such an order on March 25, 2014. III. Conclusion In effect, Judge Brown was asked to adjudicate preemptively, within the confines of a motion filed under Rule 3.13, Ala. R. Crim. P., the lawfulness of property seized as contraband. He had no jurisdiction to do so. We therefore vacate the orders of the trial court in both the Greenetrack appeal (case no. 1101384) and the Frontier/Nova appeal (case 56 1101313, 1101384, 1110158, 1110310, and 1130598 no. 1110310) and dismiss those actions. We dismiss the appeals in those cases, and we dismiss the related petitions for writ of mandamus pending before us in case no. 1101313 and case no. 1110158. As to case no. 1130598, we have by separate order granted the State's petition for a writ of mandamus and have remanded this case to Judge Jones-Osborne for the immediate issuance of the warrants for which the State applied. 1101313 –- PETITION DISMISSED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. 1101384 –- JUDGMENT VACATED; CASE DISMISSED; APPEAL DISMISSED. Stuart, Parker, Murdock, Shaw, and Wise, JJ., concur. Bolin, Main, and Bryan, JJ., concur in the rationale in part and concur in the result. Moore, C.J., concurs in the result. 1110158 –- PETITION DISMISSED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. 57 1101313, 1101384, 1110158, 1110310, and 1130598 1110310 –- JUDGMENT VACATED; CASE DISMISSED; APPEAL DISMISSED. Stuart, Parker, Murdock, Shaw, and Wise, JJ., concur. Bolin, Main, and Bryan, JJ., concur in the rationale in part and concur in the result. Moore, C.J., concurs in the result. 1130598 –- PETITION GRANTED AND WRIT ISSUED BY ORDER DATED MARCH 25, 2014. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. 58 1101313, 1101384, 1110158, 1110310, and 1130598 MAIN, Justice (concurring in case no. 1101313, case no. 1110158, and case no. 1130598 and concurring in the rationale in part and concurring in the result in case no. 1101384 and case no. 1110310). I concur fully in the main opinion with the exception of the discussion concerning this Court's appellate jurisdiction over the two Rule 3.13 cases filed as appeals (case no. 1101384 and case no. 1110310). To determine whether this Court has appellate jurisdiction over the Rule 3.13 appeals, we must look to the applicable constitutional and statutory provisions. The Alabama Constitution provides that this Court "shall have such appellate jurisdiction as may be provided by law." Art. VI, § 140(c). Section 12-2-7, Ala. Code 1975, provides that this Court has authority to "exercise appellate jurisdiction coextensive with the state, under such restrictions and regulations as are prescribed by law." § 12- 2-7(1). The Alabama Constitution further provides that the Court of Criminal Appeals and the Court of Civil Appeals "shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court." Art. VI, § 141(a) and (b). With regard to the Court of Criminal Appeals' appellate jurisdiction, § 12-3- 9, Ala. Code 1975, provides that the "Court of Criminal 59 1101313, 1101384, 1110158, 1110310, and 1130598 Appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases." The matters underlying the Rule 3.13 appeals are not matters that can be considered "misdemeanors, ... habeas corpus [or] ... felonies." Accordingly, the Court of Criminal Appeals does not have exclusive appellate jurisdiction over the Rule 3.13 appeals, and this Court may properly exercise original appellate jurisdiction over them. Bolin, J., concurs. 60 1101313, 1101384, 1110158, 1110310, and 1130598 BRYAN, Justice (concurring in case no. 1101313, case no. 1110158, and case no. 1130598 and concurring in the rationale in part and concurring in the result in case no. 1101384 and case no. 1110310). I concur in all aspects of the main opinion, except the discussion of this Court's appellate jurisdiction over cases arising under Rule 3.13, Ala. R. Crim. P. As to that discussion, I agree with the ultimate holding –- that this Court has appellate jurisdiction. 61 1101313, 1101384, 1110158, 1110310, and 1130598 MOORE, Chief Justice (concurring in case no. 1101313, case no. 1110158, and case no. 1130598 and concurring in the result in case no. 1101384 and case no. 1110310). In my view the property at issue in this case was lawfully seized under the authority of a valid warrant. Because relief under Rule 3.13, Ala. R. Crim. P. ("Unlawfully Seized Property"), is not available to seek return of lawfully seized property, I concur in the result in case no. 1101384 and case no. 1110310. 10 I concur fully that probable cause exists to issue the search warrant in case no. 1130598, and I concur to dismiss the petitions for the writ of mandamus in case no. 1101313 and case no. 1110158. I find the separation-of-powers discussion relating to 10 Tyson v. Macon County Greyhound Park, Inc., 43 So. 3d 587 (Ala. 2010), not germane. Because the Rule 3.13 proceedings and the separate forfeiture actions are both judicial proceedings, no issue of interference with executive-branch prerogatives is present in the Rule 3.13 cases. 62	April 1, 2014
5879c622-4ea1-4fa4-8333-7b49408b33e6	Stephens v. Colley	N/A	1130609	Alabama	Alabama Supreme Court	REL: 08/15/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130609 ____________________ Franklin Leroy Stephens v. Hazel Colley Appeal from Pike Circuit Court (CV-13-900180) STUART, Justice. Franklin Leroy Stephens, the defendant below, appeals from an order of the Pike Circuit Court granting injunctive relief to the plaintiff below, Hazel Colley. We reverse and remand. 1130609 I. In late 2011, Sara Frances Dees was residing at Troy Health and Rehabilitation Center following the amputation of her second leg as a result of diabetes and related circulation issues. On approximately January 15, 2012, Stephens –– a nephew of both Dees and Colley –– checked Dees out of the rehabilitation center and moved her back into her house in Troy. Stephens and an unidentified female companion also moved into the house and began caring for Dees. Colley alleges that Stephens thereafter began restricting access to Dees, preventing Colley and Dees's friends from speaking with her on the telephone or visiting with her outside his or his female companion's presence. Colley, who lives in Opelika, alleges that she had previously had a close relationship with her sister and had stayed with her for weeks at a time to help with her medical needs; however, she alleges, once Stephens moved into Dees's house Stephens would no longer allow her to stay with Dees overnight. Over the course of 2012, Stephens's role in Dees's life continued to increase. In September 2012, Stephens scheduled two separate appointments for Dees with an attorney. At the 2 1130609 first of those appointments on September 26, 2012, Dees executed a durable power of attorney designating Stephens as Dees's attorney-in-fact. At a second appointment on September 28, 2012, Dees executed a new will naming Stephens as executor and primary heir of her estate. These newly executed documents replaced a previous durable power of attorney naming Colley as Dees's attorney-in-fact and a will naming Colley as executor and primary heir of Dees's estate, both of which Dees had executed in July 2011.1 Beginning in October 2012, Stephens also began taking Dees to the various financial institutions at which she had deposits and requesting that he either be added to all her accounts as a signatory or be named as the beneficiary on the accounts. The evidence in the record indicates that multiple bank employees involved in those requests were alarmed by Stephens's actions. For example, Kathryn Faircloth, a personal banker at Troy Bank and Trust, made the following statement in an affidavit submitted to the trial court: Dees had also executed a document naming Colley as her 1 health-care proxy in July 2011. There is no evidence indicating that this document was subsequently revoked or superseded by a later document. 3 1130609 "Mrs. Sara Dees has banked with Troy Bank and Trust for many years. In working with her on her banking needs, I met her sister, Hazel Colley, and have spoken with each of them often regarding Mrs. Dees checking accounts as well as several certificates of deposit. Mrs. Dees executed a power of attorney which named Mrs. Colley as her attorney- in-fact and supplied a copy of that to the bank. Mrs. Dees listed Hazel Colley as joint owner on her personal checking account and also as a pay-on-death beneficiary on certain certificates of deposit. Even when Mrs. Dees married Marion Dees, Hazel Colley remained on her checking account and some certificates of deposit as pay-on-death. Marion [2] was on the checking account for a period of time and then came off but Hazel remained on the checking account. "Mrs. Dees was brought to the bank by Leroy Stephens in 2012, who stated that he was to be added as beneficiary of every financial instrument held by Mrs. Dees at [Troy Bank and Trust]. This included all of her certificates of deposit and her checking account. Mrs. Dees's appearance was drastically different from how she appeared in our interactions through the years. She did not appear alert or fully aware of the changes stated by Stephens. This was very out of character for Mrs. Dees because she always listed her sister Mrs. Colley as beneficiary on all of her certificates of deposit, even when she was married to Marion Dees. Mr. Stephens was so adamant to make these changes to Mrs. Dees's accounts that he called me regularly wanting to know when the paperwork on all certificates of deposit The record indicates that Marion Dees died shortly after 2 Sara Dees, but it is otherwise silent regarding him and his relationship with Dees. It is not clear whether he lived with Sara Dees and Stephens throughout 2012 or whether he lived somewhere else. However, it appears that he was not involved in her life during this time, whether for health, personal, or other reasons. 4 1130609 and bank accounts would be completed and ready for Mrs. Dees's signature. "I grew concerned while making these changes because I noticed several large checks clearing out of her checking account. Each of the large checks were made payable to Leroy Stephens, most of them with the memo listed as 'bills.' Checks were also clearing her account for her bills in addition to these large checks made payable to Mr. Stephens. I immediately notified my supervisor of the large checks clearing her account that were abnormal from her typical usage. My supervisor then consulted the bank's security officer, who advised that absent any order from a judge that declared Mrs. Dees not competent, we could not refuse to add Stephens to her accounts or cash checks she signed made payable to Mr. Stephens." It appears that Stephens was thereafter successfully added as a signatory or beneficiary to all of Dees's accounts. On February 16, 2013, Dees passed away. Thereafter, Stephens began exercising control of those accounts on which he had been listed as the payable-on-death beneficiary. The value of those accounts appears to have exceeded $300,000 at that time. On February 22, 2013, Stephens submitted Dees's will to the Pike Probate Court and petitioned the probate court to name him executor of Dees's estate consistent with the terms of that will; on March 1, 2013, the probate court granted that petition. On March 8, 2013, Colley separately moved both the probate court and the Pike Circuit Court to 5 1130609 have the administration of Dees's estate removed to the circuit court. Colley simultaneously moved the circuit court to remove Stephens as the executor of Dees's estate pursuant to § 43-2-22(a), Ala. Code 1975, because Stephens had been convicted in 1990 of manslaughter. On April 17, 2013, the 3 circuit court granted Colley's motion and ordered the administration of Dees's estate removed to the circuit court. Following a hearing on April 24, 2013, the circuit court also granted Colley's motion to remove Stephens as executor of Dees's estate. Pursuant to the terms of Dees's will, Stephens's daughter, Sonya S. Bolling, was eventually named as successor executrix of Dees's estate. On August 26, 2013, Colley filed an amended complaint seeking to set aside the power of attorney and will executed by Dees in 2012, alleging that Dees was incompetent at the time those documents were executed and that Stephens had Section 43-2-22(a) provides, in pertinent part: 3 "No person must be deemed a fit person to serve as executor who is under the age of 19 years, or who has been convicted of an infamous crime, or who, from intemperance, improvidence or want of understanding, is incompetent to discharge the duties of the trust." 6 1130609 procured them via fraud, misrepresentation, and undue influence. On October 30, 2013, Colley initiated a new 4 action asserting multiple undue-influence and breach-of- fiduciary-duty claims against Stephens. Colley simultaneously moved the circuit court to exhume Dees's remains and to consolidate this new action with the already existing action; the circuit court granted the motion to consolidate the next day. Colley thereafter continued the discovery process, taking depositions and subpoenaing Dees's financial records. On February 19, 2014, after obtaining and reviewing those records, Colley moved the circuit court to enter a temporary restraining order barring Stephens from spending any further money that he had obtained from Dees's accounts or taking any action that would affect the title to Dees's house, in which Stephens continued to live after Dees's death. Colley also requested that Stephens be ordered to divulge where all assets formerly held by Dees were located and that Troy Bank and Trust and Wells Fargo be ordered to pay all funds in Dees's Colley's March 2013 motion to remove Dees's estate to the 4 circuit court appears to have been treated as a complaint initiating an action even though it did not formally assert any cause of action. 7 1130609 accounts, which were then held in Stephens's name, an amount totaling approximately $72,000, into the circuit court. Colley simultaneously moved the circuit court to enter a preliminary injunction extending the terms of the temporary restraining order until this litigation was resolved. The circuit court issued the requested temporary restraining order that same day and set a hearing on the motion for a preliminary injunction for February 24, 2014. Following the February 24 hearing, which consisted entirely of arguments by counsel, Colley, on February 26, submitted a supplemental motion for injunctive relief to the circuit court, along with various affidavits and other documentary evidence. On February 27, 2014, the circuit court entered an order granting Colley the injunctive relief she had sought, stating: "Having considered [Colley's] motion for injunctive relief, this court finds said motion well taken. Accordingly, it is ordered that all funds not previously frozen or transferred in accordance with the temporary restraining order issued on February 19, 2014, from Troy Bank and Trust in Troy, Alabama, Wells Fargo Advisors in Troy, Alabama, and Trustmark National Bank in Brewton, Alabama, in [5] Colley's initial application for injunctive relief filed 5 on February 19, 2014, identified only financial accounts held by Stephens at Troy Bank and Trust and Wells Fargo. At the 8 1130609 the name of Leroy Stephens be immediately paid to the Circuit Clerk of Pike County, Alabama, who is ordered to hold said funds until a final judgment is entered in the above styled case. "It is further ordered that neither the Estate of Sara Dees nor Leroy Stephens shall transfer title, rent, lease, or dispense of the real property located at ... Avenue, Troy, Alabama, and that the aforementioned property shall remain in the name of Sara Dees, pending a final judgment in this matter. "Defendant Franklin Leroy Stephens is barred from transferring, selling, or dispensing of any property received from Dees during her lifetime, and is further ordered to provide a complete accounting of assets obtained through the estate of Sara Frances Dees at the time of her death, including but not limited to: the 2010 Pontiac vehicle transferred to [Stephens] prior to Dees's death, all furnishings of Dees's home, all jewelry owned by Dees, and personal items of value. "A copy of this order shall be provided to all counsel of record and to the below listed banks." On March 7, 2014, Stephens filed a notice of appeal to this Court challenging the preliminary injunction entered by the circuit court.6 February 24, 2014, hearing, Colley advised the trial court of another account maintained by Stephens at Trustmark National Bank. Also on March 7, 2014, the trial court modified the terms 6 of the February 27 preliminary injunction to make it subject to Colley's posting a $2,500 security bond. 9 1130609 II. "When this Court reviews the grant or denial of a preliminary injunction, '"[w]e review the ... [c]ourt's legal rulings de novo and its ultimate decision to issue the preliminary injunction for [an excess] of discretion."' Holiday Isle, LLC v. Adkins, 12 So. 3d 1173, 1176 (Ala. 2008) (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006))." Monte Sano Research Corp. v. Kratos Defense & Sec. Solutions, Inc., 99 So. 3d 855, 861-62 (Ala. 2012). III. When reviewing a preliminary injunction, this Court must consider both whether the evidence in the record supports the issuance of the preliminary injunction and whether the form of the preliminary-injunction order itself complies with the requirements of Rule 65(d)(2), Ala. R. Civ. P. We review the evidence to determine whether the following elements set forth in Perley ex rel. Tapscan, Inc. v. Tapscan, Inc., 646 So. 2d 585, 587 (Ala. 1994), were established: "In order for a trial court to grant a preliminary injunction, the plaintiff must show all of the following: 1) that without the injunction the plaintiff would suffer immediate and irreparable injury; (2) that the plaintiff has no adequate remedy at law; (3) that the plaintiff has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship 10 1130609 imposed on the defendant by the injunction would not unreasonably outweigh the benefit accruing to the plaintiff." (Citing Martin v. First Fed. Sav. & Loan Ass'n of Andalusia, 559 So. 2d 1075 (Ala. 1990); Board of Dental Exam'rs of Alabama v. Franks, 507 So. 2d 517 (Ala. Civ. App. 1986), writ quashed, 507 So. 2d 521 (Ala. 1987)). Rule 65(d)(2) meanwhile sets forth the elements that every preliminary-injunction order must contain: "Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." On appeal, Stephens argues both that Colley failed to establish by competent evidence the four elements set forth in Perley and that the circuit court's preliminary-injunction order does not comply with Rule 65(d)(2). In this case, it is clear on its face that the circuit court's order does not comply with Rule 65(d)(2). Accordingly, we need not consider whether the evidence ultimately supports the issuance of the preliminary injunction because the order is due to be reversed 11 1130609 regardless of whether the evidence supports the issuance of the injunction. See Marathon Constr. & Demolition, LLC v. King Metal Recycling & Processing Corp., 129 So. 3d 272, 276 n. 3 (Ala. 2013) ("The defendants make other complaints about the trial court's November 28, 2012, order .... Because the trial court's failure to comply with the requirements of Rule 65 is dispositive, we need not reach the other arguments."). "Pursuant to Rule 65, it is mandatory that a preliminary-injunction order give reasons for the issuance of the injunction, that it be specific in its terms, and that it describe in reasonable detail the act or acts sought to be restrained." Monte Sano Research Corp., 99 So. 3d at 863. The February 27, 2014, order in this case is sufficiently specific in its terms and describes in reasonable detail the acts sought to be restrained; however, it contains no explanation of the reasons for its issuance. Instead, the order opens by stating that the court has "considered [Colley's] motion for injunctive relief [and] finds said motion well taken." Then the order immediately proceeds to detail the specific acts that it requires or prohibits. What 12 1130609 is missing from the order is any discussion of the reasons Colley's motion for injunctive relief was "well taken." In her brief to this Court, Colley acknowledges this flaw in the order but argues that the preliminary injunction is nevertheless due to be upheld: "While the order does not specifically state the reasons for granting the injunction, the order does state that 'having considered plaintiff's motion for injunctive relief, this court finds said motion well taken,' a clear sign that the trial court has considered all evidence and is granting [Colley's] motion for the reasons stated and evidence provided in [her] motion for injunctive relief and supplemental motion for injunctive relief, and the arguments raised at the motion for injunctive relief hearing." Colley's brief, at p. 23. However, accepting this argument would require us to ignore the clear language of Rule 65(d)(2), and we are not inclined to do so. "This Court has repeatedly held that the language of Rule 65(d)(2) is mandatory and requires that an order issuing a preliminary injunction state reasons for issuing the injunction and that it be specific in its terms." Butler v. Roome, 907 So. 2d 432, 434 (Ala. 2005). Moreover, we have repeatedly reaffirmed the mandatory nature of Rule 65(d)(2) in every case in which we have considered the issue. See, e.g., Marathon Constr. & 13 1130609 Demolition, 129 So. 3d at 279 (concluding that the trial court "exceeded the scope of its discretion in issuing the ... preliminary injunction because it did not comply with the requirements set forth in Rule 65"); Monte Sano Research Corp., 99 So. 3d at 863 ("[A]n examination of the trial court's order reveals that it violated Rule 65(d)(2), Ala. R. Civ. P., by failing to provide the reasons for the issuance of the injunction ...."); Walden v. ES Capital, LLC, 89 So. 3d 90, 111 (Ala. 2011) ("Because the reasons for the issuance of the injunction were clearly indicated on the face of the order and because those reasons were, as demonstrated by the present case, well founded, we reject [the appellant's] contentions that the trial court's order fails to satisfy the mandatory requirements of Rule 65(d)(2)."); and Hall v. Reynolds, 27 So. 3d 479, 481 (Ala. 2009) ("Although the trial court may have intended to grant injunctive relief by simply entering a judgment in favor of the [appellees], it did not do so, and it followed none of the mandatory requirements of Rule 65(d)(2), Ala. R. Civ. P."). In sum, the circuit court's failure to include in the preliminary-injunction order the reasons for granting Colley's motion for injunctive relief requires the 14 1130609 reversal of that order regardless of the fact that the circuit court presumably had its reasons for granting the order, though those reasons were not articulated in the order. IV. Following the entry of a preliminary injunction against him by the circuit court, Stephens appealed to this Court, arguing that the order entering the preliminary injunction was invalid because, he said, it failed to comply with Rule 65(d)(2) and was due to be reversed because, he alleged, it was not supported by competent evidence. Because the circuit court failed to state its reasons for entering the preliminary injunction in the order doing so, the order must be reversed for noncompliance with Rule 65(d)(2). This noncompliance obviates the need to consider Stephens's other argument that there was insufficient evidence before the circuit court to merit the entry of a preliminary injunction. We further note, however, that our holding in this regard should not be construed as precluding Colley from requesting that the circuit court again issue a preliminary injunction should she still deem such an injunction advisable. Any such injunction that might be entered, however, is subject to further review 15 1130609 to determine its compliance with Rule 65(d)(2), as well as to determine whether competent evidence exists to conclude that the elements set forth in Perley were established.7 REVERSED AND REMANDED. Moore, C.J., and Parker and Wise, JJ., concur. Shaw, J., concurs in the result. In other words, this case is distinguishable from 7 Bankruptcy Authorities, Inc. v. State, 620 So. 2d 626 (Ala. 1992), in which this Court, after reversing an order entering a preliminary injunction for failure to comply with Rule 65(d)(2), declined to consider in a subsequent appeal whether there was sufficient evidentiary support for a newly entered and Rule 65(d)(2)-compliant preliminary injunction because the appellant had not asserted a sufficiency-of-the-evidence argument in its initial appeal decided on Rule 65(d)(2) grounds. 16 1130609 SHAW, Justice (concurring in the result). The preliminary-injunction order in this case does not explicitly state the reasons for its issuance; instead, it can be read to incorporate, by reference, the reasons provided in Hazel Colley's motion for injunctive relief. Rule 65(d)(2), Ala. R. Civ. P., states that an "order granting an injunction shall set forth the reasons for its issuance ...." I am concerned that this language does not necessarily preclude incorporating those reasons from another document. Specifically, I note that Rule 65(d)(2) only explicitly forbids incorporation by reference of a description of the acts to be restrained: "[the order] shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained ...." On the other hand, the rule states that the "reasons for its issuance" are to be "set forth," but this requirement does not include a prohibition on referring to another document. Because there is an explicit prohibition on referring to other documents as to one component of the order (the act sought to be restrained), but not another (the reasons for its issuance), one could reasonably conclude that reference to 17 1130609 another document might be acceptable for the latter. Such a 8 distinction is reasonable: the party restrained by the injunction needs to know precisely what acts are or are not permitted; thus, the issuing court should independently state the restrictions to ensure that they are clear. However, a 9 party does not, necessarily, need the issuing court to independently describe the reasons for the injunction. An appellate court is more than able to review in the record any documents referred to that might provide the issuing court's reasons. Under this analysis, the trial court's order in the instant case is sufficient to comply with Rule 65(d)(2). The caselaw, however, is not on my side. See, e.g., Monte Sano Research Corp. v. Kratos Defense & Sec. Solutions, Inc., 99 So. 3d 855, 863 (Ala. 2012) ("[A]n examination of the trial court's order reveals that it violated Rule 65(d)(2), Ala. R. Civ. P., by failing to provide the reasons for the issuance of the injunction ...."); Butler v. Roome, 907 So. 2d Because Rule 65 is a rule of this Court, I do not believe 8 that separation-of-powers concerns require us to apply the plain-language rule of statutory construction. See also Rule 65(d)(1), which provides that the acts to 9 be restrained by a restraining order shall be "describe[d] in reasonable detail, and not by reference to the complaint or other document ...." 18 1130609 432, 435 (Ala. 2005) ("[T]he trial court's order in this case does not contain the reasons for its issuance ...."); and Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So. 2d 17, 20 (Ala. 1983) ("It is apparent the order does not comply with Rule 65(d)(2). There are no reasons given for the issuance of the preliminary injunction ...."). These precedents are not 10 challenged on appeal; therefore, stare decisis advises me to follow them. Moore v. Prudential Residential Servs. Ltd. P'ship, 849 So. 2d 914, 926 (Ala. 2002) ("Stare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so."), and Clay Kilgore Constr., Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala. 2006) (noting the absence of a specific request by the appellant to overrule existing authority and stating that, "[e]ven if we would be amenable to such a request, we are not As to this point, the decision in Marathon Construction 10 & Demolition, LLC v. King Metal Recycling & Processing Corp., 129 So. 3d 272 (Ala. 2013), cited in the main opinion, was joined by only four Justices: As to "that part of the discussion that addresses the lack of compliance with Rule 65(d)(2), Ala. R. Civ. P.," I expressed no opinion. 129 So. 3d at 280 (Shaw, J., concurring in part and concurring in the result). My concerns in Marathon were those I express now. 19 1130609 inclined to abandon precedent without a specific invitation to do so"). I therefore concur in the result. 20	August 15, 2014
c55e8692-1fea-4ff7-b872-aa5d77319775	Campbell et al. v. Taylor et al.	N/A	1110057, 1110104	Alabama	Alabama Supreme Court	REL:07/03/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 _________________________ 1110057 _________________________ Jewel Campbell et al. v. Ethel C. Taylor et al. _________________________ 1110104 _________________________ Gladys A. Campbell and Paula Buettner v. Jewel Campbell et al. Appeals from Baldwin Circuit Court (CV-09-900617) 1110057; 1110104 PER CURIAM. In case no. 1110057, Jewel Campbell, Acie A. Campbell, William J. Campbell, Jr., Roy J. Campbell, Eva Campbell, William C. Campbell, Kelly Calvert, and Amanda Givens ("the plaintiffs") appeal from a summary judgment in favor of Ethel C. Taylor, Paula Buettner, Gladys A. Campbell, Jason Bennett, and Mendi Bennett ("the defendants") in this dispute stemming 1 from a judgment entered in 2006 in the administration of an estate. In case no. 1110104, Paula Buettner and Gladys A. Campbell, two of the above defendants, cross-appeal from the denial of their motion to strike certain affidavits filed by the plaintiffs in opposition to the defendants' summary- judgment motion. For the reasons discussed below, we affirm the judgment in case no. 1110057; our holding in case no. 1110057 renders moot the cross-appeal, case no. 1110104. Facts and Procedural History These appeals involve a challenge to the disposition of the estate of A.V. Campbell, Sr. (hereinafter sometimes referred to as "the testator"), who died in 1977. He had at least four children: A.V. Campbell, Jr., William J. Campbell, The spelling of Mendi's name appears in the record both 1 as "Mindi" and as "Mendi." 2 1110057; 1110104 Sr., Ethel C. Taylor, and Archie Paul Campbell. His will was 2 admitted to probate in 1977; those proceedings languished in the probate court until 2005. During this time, A.V. Campbell, Jr., and Archie Paul Campbell died. Ethel was ultimately named the executrix of the estate. In 2005, Gladys A. Campbell, one of Archie Paul Campbell's descendants, filed a petition under Ala. Code 1975, § 12-11-41, to remove the probate proceedings to the Baldwin 3 Circuit Court ("the 2005 circuit court action"). She alleged, William J. Campbell, Sr., had predeceased his father, 2 dying in 1972. That Code section states: 3 "The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court." 3 1110057; 1110104 among other things, that Ethel, as the executrix, had failed to have the estate's property devised under the terms of the will. The case-action summary in the record for the 2005 circuit court action indicates that the following persons 4 were ultimately named parties to the 2005 circuit court action: Ethel, who is the testator's daughter and executrix; Paula Buettner, Gladys, and Barbara Campbell, relatives of Archie Paul Campbell; and Jewel Campbell, William J. Campbell, Jr., Amanda Givens, and Kelly Calvert, descendants of William J. Campbell, Sr. After several hearings, the circuit court, on November 28, 2006, issued a judgment that, among other things, distributed property according to the testator's will ("the 2006 judgment"). Specifically, certain property was awarded separately to (1) Ethel, (2) to Paula and Gladys, and (3) to "the heirs at law of William J. Campbell[, Sr.]." Jewel appealed from that judgment, and this Court affirmed the circuit court's judgment without issuing an opinion. Campbell We take judicial notice of the record in that action, 4 which came before this Court in a prior appeal discussed below. See Morrow v. Gibson, 827 So. 2d 756, 762 (Ala. 2002). 4 1110057; 1110104 v. Estate of Campbell (No. 1060567, Sept. 28, 2007), 22 So. 3d 531 (Ala. 2007) (table). On June 2, 2009, the underlying action was filed in the Baldwin Circuit Court ("the trial court"). The plaintiffs purport to be the heirs of William J. Campbell, Sr. Some of the plaintiffs participated in the 2005 circuit court action; others did not. This new action was described as a "complaint to set aside judicial decree" and was alleged to be filed "pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure as an independent action for the purpose of setting aside" the 2006 judgment. The plaintiffs contended that, as the heirs of William J. Campbell, Sr., they were also heirs of A.V. Campbell, Sr., and were thus entitled to certain ownership interests in the property distributed in the 2005 circuit court action. The plaintiffs further alleged that they had not all been "named as parties" in the 2005 circuit court action and that they "were not before the [circuit court] at the time of the final adjudication." They thus alleged that they were "not subject to" and "not bound by" the 2006 judgment, and they asked that it be set aside. Of the defendants in the underlying action, Ethel, Paula, and Gladys 5 1110057; 1110104 participated in the 2005 circuit court action; Jason Bennett and Mendi Bennett did not. After various motions and after granting a motion by the defendants to strike certain affidavit testimony filed by the plaintiffs, the trial court purported to enter a summary judgment in favor of Ethel. The plaintiffs appealed, and the Court of Civil Appeals dismissed the appeal as being from a nonfinal judgment, Campbell v. Taylor, 76 So. 3d 258 (Ala. Civ. App. 2011). The proceedings resumed in the trial court. Ethel again moved for a summary judgment. The remaining defendants also filed a motion for a summary judgment. The plaintiffs responded with their own filings in opposition, and the defendants moved to strike certain affidavit testimony supplied by the plaintiffs with their opposition. The trial court, without stating the findings on which its decision was based, ultimately granted the defendants' summary-judgment motions and denied their motions to strike. In case no. 1110057, the plaintiffs appeal the summary judgment in favor of the defendants. In case no. 1110104, Paula and Gladys cross-appeal from the trial court's denial of their motion to strike. 6 1110057; 1110104 Discussion The complaint in the underlying action sought, pursuant to Rule 60(b), Ala. R. Civ. P., to set aside the 2006 judgment as "void," in substance, seeking relief from the 2006 judgment under Rule 60(b)(4), Ala. R. Civ. P. ("[T]he court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... the judgment is void ...."). On appeal, as in the trial court, the plaintiffs contend that all the plaintiffs were "necessary parties" to the administration of the estate but that some of them did not receive notice of the 2005 circuit court action, were not served with pleadings filed in that action, and were not properly named as parties. Thus, the plaintiffs argue, the 2006 judgment is "void." "'The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield 7 1110057; 1110104 v. Winston Industries, Inc., 553 So. 2d 61 (Ala. 1989).' "Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala. 1991). In other words, if the underlying judgment is void because the trial court lacked subject-matter or personal jurisdiction or because the entry of the judgment violated the defendant's due-process rights, then the trial court has no discretion and must grant relief under Rule 60(b)(4)." Allsopp v. Bolding, 86 So. 3d 952, 957 (Ala. 2011). See also Bowen v. Bowen, 28 So. 3d 9, 14 (Ala. Civ. App. 2009) (holding that a Rule 60(b)(4) motion will be granted only when the prior judgment is void and not merely voidable). It is under this standard that we review the trial court's ruling; however, the plaintiffs on appeal do not explicitly present their arguments in terms of the framework of the above three grounds--a lack of subject-matter jurisdiction, a lack of personal jurisdiction over the parties, or a violation of due process. Instead, they cite caselaw holding generally that all heirs are proper and necessary parties in estate actions like the 2005 circuit court action. See Jacobs v. Murphy, 245 Ala. 260, 263, 16 So. 2d 859, 862 (1944) (noting in the administration of an estate removed from the probate court to the circuit court that "[i]n all suits in equity respecting the lands of decedent his heirs 8 1110057; 1110104 at law are necessary parties"); Irwin v. Irwin, 227 Ala. 140, 141, 148 So. 846, 847 (1933) (stating in the context of administration of an estate removed from the probate court to the circuit court that the heirs at law are "proper parties" and "necessary to a full and complete relief"); and Irwin v. J.S. Reeves & Co., 222 Ala. 647, 647-48, 133 So. 692, 692 (1931) (rejecting the argument that "the heirs of decedent [and] distributees of the estate" are not "proper parties" in an administration of an estate removed "into the equity court"); see also Cook v. Castleberry, 233 Ala. 650, 653, 173 So. 1, 3 (1937) (stating that the administrator of the estate of a deceased distributee is a "necessary party" to the administration of an estate in equity). The lack of necessary parties, the plaintiffs argue, rendered the 2006 judgment "void." This Court has long referred to a failure to join a "necessary" or "indispensable" party as a "jurisdictional defect." See Gilbert v. Nicholson, 845 So. 2d 785, 790 (Ala. 2002) ("The absence of an indispensable party is a jurisdictional defect that renders the proceeding void." (citing Davis v. Burnette, 341 So. 2d 118 (Ala. 1976))); Rogers v. Smith, 287 Ala. 118, 123, 248 So. 2d 713, 717 (1971) 9 1110057; 1110104 ("[T]he absence of necessary or indispensable parties ... is a jurisdictional defect ...."). See also J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala. 1981); Johnston v. White-Spunner, 342 So. 2d 754, 759 (Ala. 1977); and Burnett v. Munoz, 853 So. 2d 963 (Ala. Civ. App. 2002). But see Holland v. City of Alabaster, 566 So. 2d 224 (Ala. 1990) (addressing the issue of the absence of an indispensable party as one of error on the part of the trial court). This is so, even after the adoption in 1973 of Rule 19, Ala. R. Civ. P., which addresses the "Joinder of Persons Needed for Just Adjudication." Indeed, Rule 19 wholly fails to speak in terms of jurisdiction, and nothing in that rule indicates that if the court fails to address the necessity or indispensability of a particular party or does address, and errs with regard to the resolution of, Rule 19 concerns, any ensuing judgment is void. See Adams v. Boyles, 610 So. 2d 1156, 1157 n.1 (Ala. 1992) (reiterating "that failure to join even an indispensable party does not automatically compel dismissal"). Other decisions appear to refer to the joinder of necessary or indispensable parties as a statutory requirement for certain actions or as a requirement of "due process." See Holland v. Flinn, 239 Ala. 390, 392, 195 So. 265, 267 (1940) 10 1110057; 1110104 (stating that due process required the presence of certain parties so that those parties "have their day in court" and further noting that, although "[t]he Declaratory Judgment Act ... required necessary parties to be brought in," "the presence of necessary parties is jurisdictional"), and A.S. v. M.W., 100 So. 3d 1112, 1114 (Ala. Civ. App. 2012) (holding that a judgment adjudicating paternity was "void for failure to join ... an indispensable party" required by Ala. Code 1975, § 26–17–603). Other references to the lack of necessary or indispensable parties impacting "jurisdiction" refer to issues of personal jurisdiction. See Burnett v. Munoz, 853 So. 2d at 965 (holding that the failure to join a necessary party rendered the trial court without "jurisdiction" to affect the rights of that party); Holland v. City of Alabaster, 566 So. 2d at 228 (noting that the trial court "must have jurisdiction over the [omitted party] before proceeding to adjudicate any issues affecting that entity's interests"); Johnston v. White-Spunner, 342 So. 2d at 759 ("Rendering final judgment without jurisdiction over those indispensable parties renders that judgment void."); and Rogers v. Smith, 287 Ala. at 123, 248 So. 2d at 717 ("A judgment or decree is not binding on 11 1110057; 1110104 anyone unless the court rendering the same had jurisdiction of the parties and the subject matter of the cause."). Despite the language in prior decisions referring to the lack of a necessary or indispensable party as an issue of "jurisdiction," it is clear that the court in the 2005 circuit court action possessed subject-matter jurisdiction in that case. Specifically, a circuit court's subject-matter jurisdiction is derived from the Alabama Constitution and the Alabama Code. Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006). Here, § 12–11–41 clearly authorizes the circuit court to administer the estate in that case, which was properly removed to the circuit court from the probate court. The inclusion of a necessary or indispensable party is not what provides the court with jurisdiction, although, in some instances, the lack of a necessary or indispensable party may deprive the action, for purposes of justiciability, of the requisite adversity. See Stamps v. Jefferson Cnty. Bd. of Educ., 642 So. 2d 941 (Ala. 1994). The cases cited by the plaintiffs--Jacobs and Irwin, supra--do not hold otherwise. Specifically, those cases refer to the necessity of certain parties in an administration of an estate removed from the probate court as a requirement to 12 1110057; 1110104 exercise "jurisdiction" in equity. Jacobs states that the "heirs at law are necessary parties" in actions involving a decedent's lands, but this is for the purpose of properly exercising equitable powers: "'All persons interested in a suit in equity, and whose rights will be directly affected by the decree, must be made parties, unless they are too numerous, or some of them are beyond the reach of process, or not in being; and in every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all.'" Jacobs, 245 Ala. at 263, 16 So. 2d at 862 (quoting Culley v. Elford, 187 Ala. 165, 172, 65 So. 381, 383 (1914)). Irwin too notes the connection between the presence of necessary parties and the proper exercise of equitable powers, stating that the presence of "proper parties" is "necessary to a full and complete relief, according to the jurisdiction and rules in equity .... That is, having the right and assuming jurisdiction of the parties and properties, equity will grant full relief." 227 Ala. at 141, 148 So. at 847. As Justice Murdock noted in his special writing in Ex parte Green, 58 So. 3d 135, 154-57 (Ala. 2010), a court's authority to exercise equitable powers, sometimes referred to as "equity jurisdiction," is distinct from subject-matter jurisdiction. Thus the Court in Jacobs noted, in the quotation above, that 13 1110057; 1110104 while "[a]ll persons interested in a suit in equity ... must be made parties," some parties may be excepted when they "are too numerous, ... beyond the reach of process, or not in being." 245 Ala. at 263, 16 So. 2d at 862. There need only "be such parties before the court as to insure a fair trial of the issue in behalf of all." 245 Ala. at 263, 16 So. 2d at 862. All such parties are not required for the court to properly exercise equitable power; the presence of all parties is not a prerequisite to subject-matter jurisdiction. Given that § 12-11-41 provided the court in the 2005 circuit court action with subject-matter jurisdiction, the 2006 judgment is not void for lack of subject-matter jurisdiction. We thus turn to the issue whether the 2006 judgment is "void" for lack of personal jurisdiction. When a party is 5 not served or joined in an action and the trial court thus acquires no jurisdiction over it, the judgment is deemed "void" "for purpose[s] of Rule 60(b)(4)." Ex parte Wilson Lumber Co., 410 So. 2d 407, 409 (Ala. 1982). See also Ex There is no explicit argument before us that the 2006 5 judgment was "void" on the ground of lack of due process; therefore, we do not address that Rule 60(b)(4) ground. 14 1110057; 1110104 parte Pate, 673 So. 2d 427, 429 (Ala. 1995) ("If a court lacks jurisdiction of a particular person, or if it denied that person due process, then the court's judgment is void."), and Horizons 2000, Inc. v. Smith, 620 So. 2d 606, 607 (Ala. 1993) ("A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void."). First, we note that under certain circumstances the lack of personal jurisdiction is subject to waiver, i.e., "defects in personal jurisdiction ... can be waived," which distinguishes personal jurisdiction from subject-matter jurisdiction, which "'may not be waived; a court's lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.'" J.T. v. A.C., 892 So. 2d 928, 931 (Ala. Civ. App. 2004) (quoting C.J.L. v. M.W.B., 868 So. 2d 451, 453 (Ala. Civ. App. 2003)). See also Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So. 2d 45 (Ala. 2003) (holding that insufficient service of process may be waived); Hall v. Hall, 122 So. 3d 185, 190 (Ala. Civ. App. 2013) ("'A defense alleging a lack of personal jurisdiction because of insufficiency of service of process, however, can be waived if the defendant submits himself or herself to the 15 1110057; 1110104 jurisdiction of the trial court.'" (quoting Klaeser v. Milton, 47 So. 3d 817, 820 (Ala. Civ. App. 2010))); and Rule 12(h)(1), Ala. R. Civ. P. ("A defense of lack of jurisdiction over the person ... is waived ... if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof ...."). Second, the removal of the administration of an estate from the probate court to the circuit court is not a new action, but simply the continuation of the action in another forum: "'[W]hen the administration of an estate is removed from the probate court to the circuit court, the circuit court typically takes the proceeding where the probate court left off.' Ex parte Farley, 981 So. 2d 392, 396 (Ala. 2007); see also Estate of Autry v. McDonald, 332 So. 2d 377, 379 (Ala. 1976); Ex parte Stephens, 233 Ala. 167, 169, 170 So. 771, 773 (1936) ('When the circuit court, in the exercise of its unquestioned jurisdiction, reached out and brought before it for administration the estate ..., it took over that estate, and the proceedings had therein, just where they stood when the same were taken over. The order of removal did not serve to set aside or to annul what had been properly done theretofore in the probate court, but rather to "pick up the proceedings" where the probate court had left off....')." Sims v. Estate of West, 90 So. 3d 770, 772-73 (Ala. Civ. App. 2012). Thus, when the administration of an estate is removed 16 1110057; 1110104 to the circuit court, the circuit court "pick[s] up the proceedings where the probate court had left off." Sims, 90 So. 3d at 773 (internal quotation marks omitted). Further, this Court has explicitly held that notice to the parties of the removal under § 12-11-41 of the administration of an estate from the probate court to the circuit court is not required: "[Section] 12-11-41 neither expressly nor impliedly requires that any party receive notice of a petition for removal .... Since removal is a matter of right, notice is unnecessary." Ex parte Clayton, 514 So. 2d 1013, 1018 (Ala. 1987). Portions of the probate court record included in the 2005 circuit court action indicate that Jewel and William J. Campbell, Jr., both filed a "waiver of notice and consent to probate" in the probate proceeding. Additionally, the probate court, on April 22, 1977, appointed a guardian ad litem for Roy and Acie, who were minors at the time, and ordered that they and their mother be served with notice of the probate court proceeding. Another document indicates that the guardian ad litem subsequently appeared before the court in the proceedings and filed a pleading "deny[ing] each and every 17 1110057; 1110104 allegation contained in such proceedings and demand[ing] proof thereof." For all that appears, these four plaintiffs were parties to the probate court action; no notice to them was required when the action was transferred to the circuit court. Clayton, supra. Thus, a lack of personal jurisdiction as to 6 these parties has not been demonstrated. Kelly Calvert and Amanda Givens were not parties to the original probate court action. Both, however, were named as 7 parties in the 2005 circuit court action and both were represented by the same counsel who represented Jewel and William J. Campbell, Jr., although that counsel later withdrew from representing Amanda, who then proceeded pro se. No challenge to the circuit court's exercise of personal jurisdiction is found in the record of the 2005 circuit court action; any issue as to personal jurisdiction was therefore Further, both Jewel and William J. Campbell, Jr., 6 actually participated in the 2005 circuit court action: both were represented by counsel. Jewel even filed an appeal from the court's judgment. See Campbell v. Estate of Campbell, supra. Kelly and Amanda's mother, Janice Calvert, who died in 7 1987, was a party to that case and, like Jewel and William J. Campbell, Jr., filed a "waiver of notice and consent to probate" in that proceeding. 18 1110057; 1110104 waived. J.T., supra; Hall, supra; and Rule 12(h)(1), Ala. R. Civ. P. Eva and William C. Campbell were not yet born at the time of the initiation of the probate court proceedings. Their father, Dennie Rudolph Campbell, had been a party to those proceedings and had also filed a "waiver of notice and consent to probate." Dennie died in 1999. Nothing before us indicates what happened in the probate court regarding his interests after he died: it appears that no suggestion of death was filed and that no substitution of parties under Rule 25, Ala. R. Civ. P., occurred. 8 Eva and William C. Campbell claim to be heirs of A.V. Campbell, Sr., through Dennie and argue that they were thus necessary parties to the 2005 circuit court action; they therefore contend that their failure to be named as parties renders the 2006 judgment "void." Again, as we held above, the failure to join a necessary party did not render the 2006 Testimony in the record indicates that both Eva and 8 William C. Campbell were actually present at the courthouse during hearings conducted in the 2005 circuit court action; for all that appears, they had actual notice that the administration of the estate was proceeding in the circuit court. 19 1110057; 1110104 judgment void for lack of subject-matter jurisdiction. In their brief on appeal, the plaintiffs do not present a direct argument as to the issue of personal jurisdiction; instead, they rely on the argument that the lack of necessary parties itself rendered the judgment void. In support of that argument, they cite Maxwell v. State, 656 So. 2d 882 (Ala. Civ. App. 1995), and Mickens v. Calame, 497 So. 2d 505 (Ala. Civ. App. 1986). Maxwell stands for the general proposition that Rule 60(b)(4) relief is applicable when the court that entered the prior judgment "either lacked subject matter jurisdiction, lacked personal jurisdiction over one or more of the parties, or otherwise functioned in a manner which was not consistent with the principles of due process." 656 So. 2d at 884. Mickens stands for the proposition that a default judgment may be set aside as "void" under Rule 60(b)(4) where the summons and complaint "fail[ed] to conform" with Rule 4, Ala. R. Civ. P. 9 They further cite in their reply brief Johnston v. 9 White-Spunner, supra, and Rogers v. Smith, supra, both of which, as noted above, indicate that a judgment is "void" if the trial court did not have subject-matter or personal jurisdiction. 20 1110057; 1110104 Neither of these decisions addresses whether a probate court or, after removal of proceedings under § 12-11-41, a circuit court has personal jurisdiction over the heirs to the estate of one who was previously a proper party in the case. 10 And those cases do not demonstrate that the failure to join Eva and William C. Campbell in the 2005 circuit court action rendered the 2006 judgment "void" for purposes of Rule 60(b)(4). Rule 28(a)(10), Ala. R. App. P., requires that the parties present in their brief the legal authorities that support their position. "If they do not, the arguments are waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008). Given that the lack of personal jurisdiction is subject to waiver, see Rule 12(h)(1), and J.T., 892 So. 2d at 931, and that no authority is presented showing that the court in the 2005 circuit court action lacked personal jurisdiction, the plaintiffs have not demonstrated on appeal that their Rule 60(b)(4) motion was due to be granted for lack of personal jurisdiction over Eva and William C. Campbell. See Clements v. Clements, 990 So. 2d 383, 396 (Ala. Indeed, another case cited on appeal, Cook, supra, 10 suggests that the administrator of Dennie's estate was a necessary party. 21 1110057; 1110104 Civ. App. 2007) (holding that a personal-jurisdiction argument was "waived and this court will not consider it for the first time on appeal"), and Ex parte Phil Owens Used Cars, Inc., 4 So. 3d 418, 428-29 (Ala. 2008) (Murdock, J., concurring in the rationale in part and concurring in the result (citing Rule 28(a)(10) and concluding that a party had not on appeal sufficiently argued that personal jurisdiction did not exist)); cf. Pruitt v. Palm, 671 So. 2d 105 (Ala. Civ. App. 1995) (affirming the denial of a motion under Rule 60(b) challenging a judgment as void for lack of personal jurisdiction because the record was silent as to the facts and allegations supporting the appellant's arguments). For these reasons, the trial court's summary judgment denying the plaintiffs' Rule 60(b)(4) motion, case no. 1110057, is affirmed. Our holding in case no. 1110057 renders moot the challenge presented in the cross-appeal, case no. 1110104, and we dismiss that appeal. Conclusion The trial court's judgment in favor of the defendants denying the plaintiffs' Rule 60(b)(4) motion is affirmed; the cross-appeal is dismissed as moot. 22 1110057; 1110104 1110057 -- AFFIRMED. Moore, C.J., and Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur. Murdock, J., concurs in the rationale in part and concurs in the result. Main, J., concurs in the result. 1110104 -- APPEAL DISMISSED AS MOOT. Moore, C.J., and Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. 23 1110057; 1110104 MURDOCK, Justice (concurring in the rationale in part and concurring in the result in case no. 1110057 and concurring in case no. 1110104). I agree with the analysis of the main opinion in case no. 1110057 with respect to whether a judgment is "void" for lack of joinder of necessary or indispensable parties. I would add that Professors Wright and Miller also are in "agreement": "Because an objection to the failure to join a person who should be regarded as indispensable under Rule 19(b) may be raised as late as on an appeal from a final judgment or by the court on its own motion, the impression is created that a failure to join is jurisdictional, since ordinarily only jurisdictional defects are treated in this fashion. Thus, it is not surprising that cases can be found that speak of nonjoinder as ousting the court of jurisdiction. Since the indispensable-party doctrine is equitable both in its origin and nature, however, scholarly commentary as well as the vast majority of courts reject this 'jurisdictional' characterization." Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1611 (3d ed. 2001) (emphasis added). I do not agree with the rationale offered by the main opinion, however, for affirming the trial court's judgment as to some of the plaintiffs. The main opinion reasons that "this Court has explicitly held that notice to the parties of the removal under § 12-11-41[, Ala. Code 1975,] of the administration of an estate from the probate court to the 24 1110057; 1110104 circuit court is not required." ___ So. 3d at ___ (emphasis added; emphasis omitted). Be that as it may, the issue before us does not concern a lack of notice of the removal of the administration of the estate, but a lack of notice and an opportunity to participate in a particular proceeding initiated by a petition filed some 28 years after the estate proceedings were initiated. Specifically, the contention before us is that some of the plaintiffs did not receive notice or an opportunity to respond to a petition filed in 2006 or to participate in the proceedings that ensued from 11 that petition and that resulted in what the main opinion refers to as the 2006 judgment. I cannot agree that merely because Jewel Campbell, William J. Campbell, Jr., Acie A. Campbell, and Roy J. Campbell were not entitled to notice of the removal in 2005 of the administration of the estate of A.V. Campbell, Sr., from the probate court to the circuit court, they also were not entitled to notice of the 2006 The main opinion uses the term "2005 circuit court 11 action." The estate-administration proceedings were initiated in 1977 and were removed to the circuit court pursuant to a removal petition filed in June 2005. The dispute as to the ownership of certain land that was adjudicated in the 2006 judgment, however, was the subject of a specific petition seeking that adjudication filed on July 10, 2006. 25 1110057; 1110104 petition and an opportunity to participate in the proceedings ensuing therefrom. That said, as to Jewel Campbell and William J. Campbell, Jr., I would affirm the 2006 judgment (as does the main opinion), but I would do so on the different ground that both of those parties either received notice of the 2006 petition and the ensuing proceedings and/or did in fact participate in those proceedings in a manner sufficient to give rise to a waiver of any deficiency in his or her notice of the same. As to Acie and Roy, I also would affirm on a different ground than that stated in the main opinion. Elsewhere in the main opinion, it is stated that "the plaintiffs do not present a direct argument as to the issue of personal jurisdiction; instead, they rely on the argument that the lack of necessary parties itself rendered the judgment void." ___ So. 3d at ___. That is, we are not presented in this appeal with an argument differentiating among the plaintiffs for purposes of application of the principles of in personam jurisdiction (or, for that matter, the doctrine of res judicata) in relation to the 2006 judgment. As discussed, the argument that the judgment as a whole is void for failure to join necessary 26 1110057; 1110104 parties is without merit. I therefore concur in the result reached by the main opinion as to Acie and Roy in case no. 1110057. 27	July 3, 2014
476b9512-a2cd-4c13-a265-40d8607a5410	Ferguson v. Critopoulos	N/A	1130486	Alabama	Alabama Supreme Court	REL:09/19/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2014 ____________________ 1130486 ____________________ Edward S. Ferguson V v. Katina Helen Hawe Critopoulos Appeal from Mobile Probate Court (No. 12-2556) BOLIN, Justice. Edward S. Ferguson V (hereinafter referred to as "Tiger") appeals from the probate court's judgment awarding an omitted- spouse share of his stepfather's estate to Katina Helen Hawe Critopoulos. 1130486 Dimitrios Critopoulos (hereinafter "the decedent") died on July 15, 2012. The decedent had no children. His parents predeceased him, and he had no siblings. At the time of his death, the decedent was married to Katina. The couple had wed less than a year earlier on August 20, 2011. The decedent had a valid will at the time of his death, but the will, which was executed prior to their marriage, made no provision for Katina. The decedent's first wife, Dorothy Marie Hayes Critopoulos, had been married to the decedent for 35 years when she predeceased him in 2009. Dorothy had three children from a prior marriage: Crystal M. Hanawalt, Tiger, and Timothy D. Ferguson ("Tim"). Although the decedent did not adopt Crystal, Tiger, and Tim, it is undisputed that the three enjoyed a parent-child relationship with the decedent. Crystal, Tiger, and Tim were named as the residual legatees under the decedent's will. On December 18, 2012, Tiger filed a petition to probate the decedent's will in Mobile County. The executrix named in the decedent's will was Dorothy, and Crystal was named the successor. Crystal declined appointment. The general 2 1130486 administrator for Mobile County was then appointed to represent the decedent's estate. On April 9, 2013, Katina filed a petition for an omitted- spouse share of the decedent's estate pursuant to § 43-8-90, Ala. Code 1975. On May 29, 2013, Crystal, Tiger, and Tim filed a response to Katina's petition, in which they asserted that the decedent had provided for Katina outside the will and that, therefore, Katina was not entitled to an omitted-spouse share under § 43-8-90(a). The probate court held a bench trial, and on December 23, 2013, it entered the following order: "This cause came before the Court on October 16 and 17, 2013 on the Petition for Omitted Spouse Share filed by Katina Helen Hawe Critopoulos ('Katina') and the Answer and Response to Petition for Omitted Spouse's Share filed by Crystal M. Hanawalt ('Crystal') and Edward S. Ferguson, [V] ('Tiger').... "The Decedent, Dimitrios P. 'Jim' Critopoulos ('Decedent'), was born on November 1, 1952 in Greece. The Decedent died in Mobile County, Alabama, on July 15, 2012. The Decedent was 52 years old at the time of his death. By all accounts, the Decedent's death was not expected. At the time of his death the Decedent was employed by the United States Department of Labor - OSHA Division. "The Decedent had no children. The Decedent's parents predeceased the Decedent. The Decedent had no siblings. At the time of his death the Decedent 3 1130486 was married to Katina. They were married on August 20, 2011. Consequently, the Decedent and Katina were married to each other for approximately 9 months. "The Decedent was married for many years to Dorothy Marie Hayes Critopoulos ('Dorothy'). Dorothy died on July 28, 2009. Dorothy was also survived by three children, from a relationship preceding her relationship with the Decedent, namely: Crystal, Tiger, and Timothy D. Ferguson ('Tim'). Crystal, Tiger, and Tim are all living. It is undisputed that Crystal, Tiger, and Tim enjoyed a parent-child relationship with the Decedent both before Dorothy's death and after Dorothy's death. However, the Decedent's relationship with Tim was strained at the time of the Decedent's death. The Decedent did not adopt Crystal, Tiger, and Tim. "The Decedent owned two residences at the time of his death: (1) the residence located [on] Baratara Drive in Chickasaw ('Baratara Property'), and (2) the residence located [on] East Third Street in Chickasaw ('Third Street Property'). The Decedent and Katina resided in the Baratara Property at the time of the Decedent's death and Tim resided in the Third Street Property. "It is undisputed that the Decedent was contemplating the formulation and execution of a new last will and testament at the time of the Decedent's death. A new last will and testament was not finalized because of the Decedent's indecision about the Third Street Property and matters relating to Tim. It is also noteworthy that all of the parties agree that the Decedent was an intelligent person. "Katina returned to California after the Decedent's death. Katina currently resides in California. "Decedent's Last Will and Testament 4 1130486 "On September 27, 2002, the Decedent made and published his last will and testament ('Will'). The Will was admitted to probate by the Court on February 4, 2013. Frank H. Kruse, Esq. ('Kruse'), General Administrator for Mobile County, was appointed as the personal representative of the Decedent's estate. Letters of Administration on the Annexed Will were issued to Kruse on March 1, 2013. "The Will provides in pertinent part as follows: "'FOUR "'Provided that she survive me, I GIVE, DEVISE and BEQUEATH my residential homeplace, (including the contents and furnishings therein), all real property wheresoever situated, all motor vehicles (including any automobiles, trucks, boats, all terrain vehicles), and all cash assets (including but not limited to stocks, bonds, certificates of deposits, individual retirement accounts, thrift accounts, savings accounts, checking accounts, and cash on hand) to my wife, DOROTHY MARIE CRITOPOULOS. "'FIVE "In the event that my wife, DOROTHY MARIE CRITOPOULOS, shall not survive me, then to my stepchildren, namely, CRYSTAL MARIE COLLINS, EDWARD S. FERGUSON, [V], AND TIMOTHY D. FERGUSON, I give, devise and bequeath the following: my residential homeplace, (including the contents and furnishings therein), all real property wheresoever situated, all motor vehicles (including any automobiles, trucks, boats, all terrain vehicles), and all cash assets (including but not limited to stocks, bonds, certificates of deposits, individual 5 1130486 retirement accounts, thrift accounts, savings accounts, checking accounts, and cash on hand) in equal shares to share and share alike; if any of my stepchildren predecease me, their share shall go to their children per stirpes. "'In order for a designated beneficiary to be deemed to have survived me, said person must survive me by more than thirty (30) days.' "Decedent's Relationship With Katina "The Decedent first met Katina during Dorothy's lifetime. It is undisputed that, approximately 12 years prior to his death, the Decedent had a romantic extramarital relationship with Katina, while the Decedent was married to Dorothy. No testimony was presented as to whether Dorothy was aware of the Decedent's relationship with Katina. Tiger and Crystal didn't learn of the relationship until Katina moved to Mobile. "The Decedent and Katina had contact with each other following Dorothy's death. Katina came from California to Mobile, Alabama, with all of her personal belongings in her suitcase. The Decedent purchased Katina's airline ticket to travel from California to Mobile. According to Bryan Robert Smith-Angel ('Smith'), the Decedent's best friend, Katina told the Decedent that Katina would not come to Mobile unless they got married. "The Decedent considered having a prenuptial contract with Katina and deliberately chose not to pursue such. The Decedent and Katina married on August 20, 2011. During the marriage the Decedent purchased a motor vehicle for Katina. The Decedent also paid the apartment rental for Katina's daughter, who resided in California after Katina moved to Mobile. 6 1130486 "Decedent's Estate "As noted earlier, the Decedent was gainfully employed in the United States Civil Service at the time of the Decedent's death. At the time of his death, the Decedent owned the following property with the indicated estimated value: "Property Estimated Value "Baratara Property $l52,500.00 "Third Street Property 80,500.00 "'Greek Bonds' held by HSBC unknown1 "U.S. Savings Bonds 16,700.00 "Regions Bank account 89,342.81 "Money Concepts Account 45,000.00 plus2 "E-Trade Account transferred to estate account (Regions) "Thrift Savings Plan Approximately $422,170.003 "Household items, furniture $6,280.004 and furnishings at Baratara Property "Fine jewelry $4,671.00 "Watches $687.00 "Firearms $4,000.005 7 1130486 "2007 Chevrolet Tahoe $23,500.00 [sport-utility vehicle] "Excluding the value of the Thrift Savings Plan and the Money Concepts Account, the value of the Decedent's estate at the time of the Decedent's death was approximately $378,200. Of said amount, $233,000 is attributed to the estimated value of two residences. The real estate market in the Mobile area has been and remains depressed. The real estate holdings comprise 61.6 percent of the Decedent's total estate. "Additionally, the Decedent had the following life insurance policies: "Policy Estimated Value "FEGLl (administered approx. $ 542,200.006 by MetLife) "Army Aviation Center FCU $2,061.78 7 "ASC $100,000.00 8 "Finally, the Decedent maintained a 'trust account' for one of Crystal's daughters, which had approximately $8,000 at the time of the Decedent's death. "Katina's Separate Estate at Time of Marriage "At the time of Katina's marriage to the Decedent, Katina had no savings and was 'working paycheck to paycheck.' Further, Katina owned no real estate. Several months before the Decedent died, Katina worked. Katina had a separate checking account. "What Katina Has Received as a Result of the Death of the Decedent 8 1130486 "At the time of the Decedent's death, the Decedent and Katina had a joint checking account with rights of survivorship. Katina also had a separate checking account. Katina received the funds in these checking accounts. The Decedent executed the appropriate documentation prior to his death to facilitate Katina receiving: (1) a share ($211,084.85) of the Decedent's 'Thrift Savings Plan' benefits; (2) fifty (50%) share ($271,101.02) of the Decedent's life insurance benefits (through the 'FEGLI' program administered by MetLife); (3) $75,517.98 of lump sum death benefits (reduced approximately $ 15,000.00 for anticipated federal taxes); and (4) $ 2,061.78 of life insurance through the Army Aviation Center Federal Credit Union. Katina also received $3,325.59 from the United States Government (the Decedent's employer) for unpaid compensation due the Decedent. Finally, Katina receives a monthly stipend of $532.37 as the Decedent's surviving spouse. The lump sum payments to Katina total $548,091.22. "What Dorothy's Children Have Received as a Result of the Death of the Decedent "Crystal and Tiger each received 25 percent shares of the Decedent's Thrift Savings Plan and life insurance benefits (through the 'FEGLI' program administered by MetLife). Tiger and Crystal were also the death beneficiaries of the Money Concepts Account. Tiger, Crystal, and Tim were the named beneficiaries of the ASC insurance policy. Tiger testified that Tiger had received the policy assets as a result of the Decedent's death: "Thrift Savings - $105,542.42 "FEGLI (MetLife) - $135,550.51 "Money Concepts - $45,000.00 "ASC Insurance Policy - 1/3 of $100,000 9 1130486 "Altogether, Dorothy's children have collectively received approximately $672,186.00 a result of the Decedent's death. 9 "Decedent's Comments Regarding Disposition of Decedent's Estate "When Dorothy died, title to most, if not all, of the Decedent's and Dorothy's assets were held joint with rights of survivorship or in one of the spouse's name with the other spouse individual as the beneficiary upon death. The Decedent was the beneficiary of Dorothy's individual retirement account, with Dorothy's children named as contingent beneficiaries. The Decedent received the assets of Dorothy's individual retirement account upon Dorothy's death. "Tiger testified that the Decedent told Tiger before the Decedent and Katina married that: (1) the Decedent and Katina planned to get married, (2) any property the Decedent acquired before his marriage to Katina would be devised by the Decedent to Tiger, Crystal, and Tim upon the Decedent's death, and (3) any property the Decedent acquired after his marriage to Katina would be devised to Katina. After the Decedent married Katina, Tiger's relationship with the Decedent continued. There were periodic visits. According to Tiger, on one such visit the Decedent told Tiger that the Decedent intended to make financial provisions for Katina, although he (the Decedent) did not know how he would do so. "Smith testified that the Decedent told Smith that he (the Decedent) planned to formulate a new last will and testament that would provide for Katina, Tiger, and Crystal. According to Smith the Decedent wanted to provide for Katina because 'she was his wife and he loved her.' "Smith testified that approximately three to five months preceding the Decedent's death the 10 1130486 Decedent and Smith had a conversation about a new estate plan the Decedent proposed formulating. Smith testified that in said conversation the Decedent stated that the Decedent wanted to: (1) devise the Baratara Property to Katina; (2) devise the Third Avenue residence to Tiger and Crystal (in order to afford Tim a place to reside in fulfillment of a promise the Decedent made to Dorothy before her death); (3) name Katina as the beneficiary of an existing life insurance policy where Dorothy was the named beneficiary; and (4) name Katina, Tiger, and Crystal as the beneficiaries of the Decedent's 'government life insurance' and other life insurance on the Decedent's life. Smith testified that he told the Decedent that he (Smith) objected to the Decedent's proposal, saying 'you can't do that to the kids -- you need to split the property equally amongst them.' "Crystal and the Decedent conversed about a month prior to the Decedent marrying Katina, and the Decedent stated that Katina was not interested in the Decedent's money. Crystal also testified that following the Decedent's marriage to Katina, Crystal and the Decedent spoke several times regarding the Third Street residence. Crystal testified that the Decedent told Crystal that the Decedent had promised Dorothy that Tim would have a place to live. The Decedent was afraid that Tim would lose the Third Street residence if it was deeded outright to Tim and the Decedent wanted to give the house to Crystal with the understanding that Tim could reside in the residence. Crystal further testified that she objected to the Decedent devising the Third Street residence to Crystal because she did not want the responsibility. Crystal testified that she had no discussions with the Decedent regarding the Decedent's other assets. Finally, about a month before the Decedent died, Crystal testified that the Decedent told Crystal with reference to Katina that 'I will make sure she's taken care of if something happens to me.' 11 1130486 "Katina testified that the Decedent told her that upon his death the Decedent desired: (1) Katina receive the Baratara Property; (2) Tiger and Crystal receive the Third Street Property, with Tim continuing to reside in said residence; (3) other financial arrangements would be made to provide compensation to Tiger and Crystal because Dorothy had lived in and helped acquire the Baratara Property; and (4) all of the Decedent's remaining assets with the exception of various firearms and household furnishings and personal property purchased prior to the Decedent and Katina being married, would be devised to Katina. "Events Following Decedent's Death "There was electronic mail ('e-mail') dialogue between Katina and Crystal following the Decedent's death regarding the disposition of the Decedent's estate. In an e-mail message dated August 11, 2012 (approximately one month following the Decedent's death), Katina related to Crystal that she (Katina) knew 'Jim's [the Decedent] wishes ... and I'm willing to execute them. This way I can be the "fall guy" with Tim and it not interfere with your sibling relationship.' This e-mail message was sent days before Katina and Tiger met with Charles Hicks ('Hicks'), a lawyer in Mobile, Alabama. "Hicks met with Katina on four (4) or five (5) occasions to discuss the Will. Katina, Tiger, and Smith were physically present at the initial meeting and Crystal participated by telephone. At the initial meeting, the persons present discussed the Decedent's intentions and wishes. At said meeting Katina indicated that the Decedent wanted the bulk of his estate to go to Katina, Crystal, and Tiger. Katina further indicated that the Decedent had had a falling out with his other stepson (by deduction this was Tim). Katina stated that the Decedent's wishes were for Tim to receive nothing of the Decedent's estate. 12 1130486 "At the meeting with Hicks, the parties attempted to reach an agreement regarding the distribution of the Decedent's assets in a manner that differed from the provisions of the Will (Tim would receive less than the others). Hicks testified that the parties recognized that any agreement to distribute the Decedent's assets in a manner different from what the Will provided would require Tim's agreement. Hicks prepared and filed with the Court the petition to probate the Will. As noted above, the Will was admitted to probate without objection. There were several follow-up conversations between Hicks and Katina and Tiger. The parties could not reach an agreement. Based upon comments made in the subsequent conversations, Hicks determined that he had a conflict of interest and Hicks withdrew from representation of any party in interest in this cause. "In a document dated February 1, 2013, that was presented to Tiger and Crystal, Katina stated that she expected the following: "1. 50 percent of the following assets: "A. Baratara Property "B. Third Street Property "C. U.S. Savings Bonds "D. All accounts administered by Money Concepts "E. Scottrade accounts "F. E Trade accounts "G. 2007 Chevy Tahoe "H. All accounts held at HSBC in Greece "2. One firearm the Decedent purchased shortly before his death "3. The household furnishings purchased while the Decedent and Katina were a couple (identified as the living room furniture, informal dining set, bed, television, wedding gifts, and Greek language recordings). 13 1130486 "Posture of Decedent's Estate Proceeding "On April 9, 2013, Katina filed her 'Petition for an Omitted Spouse's Share Pursuant to Ala. Code 1975 § 43-8-90, or, in the Alternative for Further Relief.' In her prayer for relief Katina requested that the Court determine that Katina was the Decedent's omitted spouse. Alternatively, Katina requested that the Court award Katina her elective share pursuant to Ala. Code 1975, § 43-8-70, and the allowance provided in Ala. Code 1975, §§ 43-8-110, 111 and 112. Later, Katina withdrew her request for an elective share. " " The parties apparently all agree that the 1 value of the Greek bonds is questionable. " This account was payable on death to Tiger and 2 Crystal. Tiger testified that he had received $45,000 as a result of this asset. The amount Crystal received is unknown. " The pay-on-death beneficiaries of the Plan 3 were Katina (50 percent), Tiger (25 percent) and Crystal (25 percent). " According to her February 1, 2013, statement 4 (see below), Katina has possession of the living room furniture, informal dining set, bed, television, wedding gifts and Greek language recordings that were in the Baratara Property. It is uncertain as to whether these assets are included in the Personal Representative's inventories. " According to her February 1, 2013, statement, 5 Katina has possession of one firearm (described as being a 'handgun'). It is uncertain as to whether this firearm is included in the Personal Representative's inventories. 14 1130486 " The pay-on-death beneficiaries of the policy 6 were Katina (50 percent), Tiger (25 percent) and Crystal (25 percent). " Katina was the beneficiary of this policy. 7 " The pay-on-death beneficiaries of the policy 8 were Tiger, Crystal and Tim (one-third each). " Computation presumes that Crystal also 9 received $45,000 as a result of being a 50 percent death beneficiary of the Money Concepts Account." The probate court went on to discuss the applicable caselaw regarding § 43-8-90. The probate court listed several points a court is to consider in making omitted-spouse determinations. The probate court noted that § 43-8-90 provides that an omitted spouse shall receive the same share of the estate he or she would have received if the decedent had left no will. The intestate share for a surviving spouse is set out in § 42-8-41, Ala. Code 1975, and the probate court noted that because the decedent had no biological children and no surviving parents, Katina would be entitled to all of the decedent's intestate estate. The probate court concluded: "In the instant cause, Tiger and Crystal have the burden of proving that the transfers by the Decedent to or for the benefit of Katina were intended to be in lieu of a testamentary provision. As noted above, an indication of such can be 15 1130486 obtained by comparing the value of the probate estate to the value of the property the respective interested parties have received or will receive. Tiger and Crystal provided such information to the Court. However, the Alabama appellate cases discussed herein and the decisions of other states' appellate courts cited with approval by the Alabama Supreme Court note that there are other factors to be considered as well by a trial court when trying to determine a testator's intent in this type of matter. "Tiger and Crystal provided no other evidence to support their position that at the time the Decedent made the beneficiary designations that made Katina a beneficiary, the Decedent intended by those designations and actions that Katina receive said benefits in lieu of a testamentary provision. "Further, the actual documents reflecting the beneficiary designations for the Decedent's Thrift Savings Plan and FEGLI life insurance benefits were not introduced into evidence. Consequently, the Court is unable to consider the timing of said actions by the Decedent in relation to the Decedent's statements to Tiger, Crystal, Smith, and Katina that the Decedent wanted to revise the Will and update his estate plan. There was no testimony that the Decedent told anyone that he was making the beneficiary designations in question that benefited Katina in lieu of a testamentary provision in favor of Katina. "Testimony was presented that the Decedent considered having a prenuptial contract with Katina and deliberately chose not to pursue such. The deliberate act of not having a prenuptial contract is noteworthy in the instant cause. "Tiger and Crystal cited Wester [v. Baker, 675 So. 2d 447 (Ala. Civ. App. 1996),] in support of their position. As noted above, in Wester was 16 1130486 testimony that the decedent stated to a disinterested person that the decedent was pleased with her last will and testament the way it had been drafted and she would leave it that way. Wester, 615 So. 2d at 448. As noted by Katina, it is clear that in Wester the decedent did not plan to change the decedent's last will and testament. The undisputed testimony in this cause is the exact opposite: (1) the Decedent was not happy with the Will; (2) the Decedent desired to change the Will; and (3) the Decedent was struggling with how to provide for Katina, address his testamentary provision for Tim, and address the Third Street Property. 11 "The Court is cognizant that: (1) the purpose of the omitted spouse statute is to preserve the remainder of the will, while still providing for the omitted spouse; (2) by ruling that Katina is an omitted spouse, coupled with the provisions of Ala. Code 1975, § 43-8-41, practically speaking, Tiger, Crystal, and Tim will not participate as beneficiaries of the Decedent's probate estate and Katina will be the only beneficiary of the Decedent's probate estate; and (3) Katina will receive more than she acknowledged that the Decedent intended for her to receive upon his death. "At first blush, this result appears harsh. However, it must be remembered that: (1) surviving spouses are accorded special rights in the law; (2) 12 children of decedents can be and are frequently 13 disinherited by their parents; (3) adult children 14 of a decedent are not accorded any special status in this aspect of probate law; and (4) the Alabama Legislature specifies Alabama's statutory-positive law, not the courts. Notwithstanding such, it must also be noted that Tiger, Crystal, and Tim have all received substantial amounts as a result of the Decedent's death, which the Decedent was not legally required to provide to them. Finally, it must be remembered that this Court (and all courts) make rulings based upon the law, not what a particular 17 1130486 person in a position to make a decision likes or considers moral. Because of the facts in this case, Katina will receive more of the Decedent's estate than she acknowledged the Decedent desired for her to receive. Such is a moral matter for Katina to ponder and act as her conscience dictates. "Upon consideration of demeanor of all of the witnesses, the documentary evidence introduced and applicable law, the Court is of the opinion, for the reasons stated herein, that Tiger and Crystal failed to meet their burden of proving that the transfers by the Decedent to or for the benefit of Katina were intended to be lieu of a testamentary provision. "Upon consideration of demeanor of all the witnesses, the documentary evidence introduced and applicable law, the Court is of the opinion, for the reasons stated herein, that Katina is an omitted spouse in this cause and that she should be accorded such status in the Decedent's estate. "________________ " The Court notes that Tim is in possession of 11 the Third Street Property. There was no evidence that the Decedent ever told Tim or any other party in interest that the Decedent was conveying or gifting the Third Street Property to Tim. And there is no specific devise of the Third Street Property to Tim in the Will. Consequently, the Court found no legal bases to rule that Tim now owns the Third Street Property or to declare that Tim would receive the Third Street Property. See also, Ala. Code 1975, §§ 8-9-2 and 35-4-20. " Surviving spouses' special status is 12 reflected in allowances, exemptions available to them, along with the right to elect against a will or to assert rights as an omitted spouse, as was done by Katina in the instant cause. 18 1130486 " In the instant cause it is undisputed that 13 Tiger, Crystal, and Tim are not the Decedent's children. The only basis for their having an interest in the Decedent's estate is their being named beneficiaries in the Will. " It is very common for married persons with 14 children to provide in their last will and testament that their entire estate will be devised to their surviving spouse upon their death, even if there are children of said marriage. Typically when there is a second spouse and children of a prior relationship, testators make testamentary provisions for their surviving spouse or otherwise they have a prenuptial contract." Tiger filed a timely appeal. Standard of Review Because the probate court received evidence ore tenus, our review is governed by the following principles: "'"'[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.'"' Water Works & Sanitary Sewer Bd. v. Parks, 977 So. 2d 440, 443 (Ala. 2007)(quoting Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005), quoting in turn Philpot v. State, 843 So. 2d 122, 125 (Ala. 2002)). '"The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment."' Waltman v. Rowell, 913 So. 2d 1083, 1086 (Ala. 2005)(quoting Dennis v. Dobbs, 474 So. 2d 77, 79 (Ala. 1985)). 'Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or 19 1130486 the incorrect application of law to the facts.' Waltman v. Rowell, 913 So. 2d at 1086." Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So. 2d 924, 929 (Ala. 2007). Discussion Section 43-8-90 provides: "(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven. "(b) In satisfying a share provided by this section, the devises made by the will abate as provided in section 43-8-76[, Ala. Code 1975]." In Hellums v. Reinhardt, 567 So. 2d 274 (Ala. 1990), this Court addressed, for the first time, the interpretation of § 43-8-90 and the burden of proof in actions brought pursuant to the omitted-spouse statute. We recognized that § 43-8-90 was based upon the Uniform Probate Code ("UPC") drafted by the National Conference of Commissioners on Uniform State Laws: "The purpose of § 43–8–90, which is based on UPC § 2–301, is to remedy the unintentional disinheritance of a spouse when the decedent's will was executed before their marriage. The adoption of 20 1130486 that section reflects 'the view that the intestate share of the spouse is what the decedent would want the spouse to have if he had thought about the relationship of his old will to his new situation.' Commentary to § 43–8–90." 567 So. 2d at 277. The Hellums Court looked to other states that had adopted versions of the UPC's omitted-spouse provision. The Court concluded that the burden of proof that must be met is that once the surviving spouse proves that he or she was omitted from the will, the burden of proof then shifts to the proponent of the will to show that the testator provided for the surviving spouse by inter vivos transfers and that those transfers were intended to be in lieu of a testamentary provision. This interpretation was consistent with the courts in North Dakota and Arizona as set out in In re Estate of Knudsen, 342 N.W.2d 387 (N.D. 1984), and In re Estate of Beaman, 119 Ariz. 614, 583 P.2d 270 (Ariz. Ct. App. 1978), respectively. The Court stated: "Shifting the burden to the proponent of the will to prove that the testator provided for the spouse outside the will is most consistent with the terms of the statute, which requires that the will make apparent an intent to omit the future spouse or that the testator's intent to substitute an inter vivos transfer for a testamentary provision be reasonably proven." 21 1130486 567 So. 2d at 277. The Court went on to address inter vivos transfers that have been held to be in lieu of testamentary provisions, such as the opening of joint-tenancy checking accounts and savings accounts and the assignment of retirement or insurance benefits as set out in In re Estate of Taggart, 95 N.M. 117, 619 P.2d 562 (N.M. Ct. App. 1980). The Court also noted other transfers that would satisfy this requirement, as set out in Annot., 11 A.L.R. 4th 1213 (1982). In Hellums, the decedent executed her will on June 29, 1987. She married Hellums on May 20, 1988, and remained married to him until her death on December 1, 1988. No evidence was presented that the decedent gave Hellums any inter vivos gifts, and the decedent's will did not contain any language indicating that the decedent intended to omit a future spouse or restrict a future spouse's inheritance. Holding that the probate court had erred in finding that Hellums was not entitled to an intestate share as an omitted spouse, this Court reversed the judgment. In Becraft v. Becraft, 628 So. 2d 404 (Ala. 1993), the widow petitioned for an omitted-spouse share of the decedent's estate. The widow showed her eligibility as an omitted spouse 22 1130486 under § 43-8-90 by presenting evidence indicating that she was married to the decedent until his death seven months after the marriage. The decedent had a will at the time of his death. However, that will had been written years earlier and left his entire estate to Barbara, his wife at time the will was executed. The decedent's will also provided that, if Barbara predeceased him, the estate would go their children. It was undisputed that the decedent made the widow the beneficiary of a $25,000 life-insurance policy. The issue was whether the children, as proponents of the will, reasonably proved that the decedent intended the insurance proceeds to be in lieu of a testamentary provision. The probate court concluded that the children had not carried their burden of showing that the insurance policy was given in lieu of a testamentary provision. The children's testimony that the decedent intended his estate to go them was contradicted by the widow's testimony. The probate court also considered the circumstances surrounding the decedent's marriage and death. The probate court also considered the amount of the insurance proceeds and the size of the intestate share. We affirmed the probate court's judgment. We noted that the size of an inter 23 1130486 vivos gift or one that passes outside the estate in relation to the intestate share is relevant to the question whether the gift was intended to be in lieu of a testamentary provision but that there is no requirement that an inter vivos or extra- estate gift be equal to or approximately the same as an intestate share to qualify as a transfer in lieu of a testamentary provision. In Kellum v. Dutton, 706 So. 2d 1179 (Ala. 1997), the husband filed a petition against his deceased wife's estate, seeking a share as an omitted spouse. In 1988, the wife had executed a will leaving her residual estate to her nephew and his wife. On December 13, 1991, the parties entered into a prenuptial agreement, conditioned upon their future marriage, whereby each waived and released "all rights" to the other's estate. On December 14, 1991, the parties married. In 1994, the wife died. The husband was not entitled to a share of the wife's estate as a surviving spouse omitted from the wife's 1988 will, which predated their marriage. The prenuptial agreement was a vehicle of transfer, outside the will, and constituted sufficient proof of the wife's intent that that 24 1130486 inter vivos transfer be in lieu of making provisions for the husband in her will. The Court of Civil Appeals in Wester v. Baker, 675 So. 2d 447 (Ala. Civ. App. 1996), upheld the probate court's holding that the husband was not entitled to a share as an omitted spouse. The wife had executed a will in 1972, naming her niece as the sole beneficiary and the executrix of her will. The wife married the husband in 1973. In 1974, they purchased real property in joint tenancy with right of survivorship, and they lived on this property. The wife had another parcel of property. The wife died in 1994. The husband petitioned the probate court to receive a share of the wife's estate as an omitted spouse. The niece, as the proponent of the will, presented evidence from one of the wife's sisters indicating that she and the wife had discussed the will about a year before the wife's death and that the wife had helped the husband purchase the house so that he would have a home of his own and so that she would not have to change her will. There was also testimony from the wife's sister-in-law that the wife told her that the husband had been pestering her to change the 25 1130486 will but that she was pleased with the will and would leave it the way it was. The purpose of § 43-8-90 is to avoid an unintentional disinheritance of the spouse of a testator who had executed a will prior to the parties' marriage. It serves to give effect to the probable intent of the testator and protects the surviving spouse. The operative effect of § 43-8-90 is to carve out an intestate share as a vehicle to carry out the probable intent of the testator and to protect the omitted spouse. Section 43-8-90 goes on to provide two exceptions to allowing an omitted spouse an intestate share: (1) if it appears from the will that the omission of the surviving spouse was intentional or (2) if the testator provided for the surviving spouse with transfers outside the will with the intent that those transfers were in lieu of a provision in the will. If either exception exists, the surviving spouse is not entitled to a share as an omitted spouse. Based on Hellums and its progeny, and the cases this Court cited in Hellums, we discern the following regarding a determination whether the testator provided for the surviving spouse outside the will: (1) inter vivos transfers that have 26 1130486 been held to be "transfers" in lieu of testamentary provisions include joint-tenancy checking and savings accounts and assignments of retirement or insurance benefits; (2) the size of the inter vivos transfer or a transfer that passes outside the estate in relation to the intestate share may be a relevant comparison, but there is no requirement that the inter vivos or extra-estate gift be approximately the same as the intestate share in order to qualify as a transfer in lieu of a testamentary provision; (3) a valid prenuptial agreement is a "transfer" outside the will and constitutes sufficient proof of intent that that transfer is in lieu of a testamentary provision; (4) statements made by the testator concerning transfers outside the will may be relevant to show the testator's intent that the transfers be in lieu of a testamentary provision; (5) statements made by the testator concerning the old will in relation to the new marriage may be relevant to show that the testator reexamined the will and did not change the will; (6)the separate estate of the surviving spouse may be relevant; (7) the duration of the marriage may be relevant; and (8) the beneficiaries under the will may be relevant. 27 1130486 Because § 43-8-90 is designed to give effect to the probable intent of the testator and to protect the surviving spouse, the above-listed relevant considerations or factors are not exclusive. Other factors may also be considered. The factors relevant in one case may not be relevant in another. These factors are not a mechanical checklist to reasonably prove the testator's intent that the transfer be in lieu of a testamentary provision, because the circumstances and facts vary from case to case in probate proceedings such as this. With this in mind, we turn to the present case. It is undisputed that the decedent executed his will in 2002 and that he and Katina married in 2011. Nothing in the decedent's will indicates that the omission of Katina from the will was intentional; therefore, the first exception to the omitted- spouse share is not applicable. Now, we must determine 1 whether the probate court correctly held that the second exception was not met, i.e., that Tiger failed to reasonably Section 43-8-90 is based on § 2-301 of the UPC. Since 1 the adoption of § 43-8-90, § 2-301 has been amended to provide for the following exception to the omitted-spouse share: If "it appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse," then the surviving spouse is not entitled to the omitted-spouse share. (Emphasis added.) 28 1130486 prove that the decedent provided for Katina outside the will and that those transfers were in lieu of a testamentary provision. The decedent died in 2012, without changing his will. The decedent had no children, his parents had predeceased him, and he had no surviving siblings. Because § 43-8-90 provides that an omitted-spouse share is what the omitted spouse would have received if the decedent had had no will, then under the intestate statute, § 43-8-41(1), Ala. Code 1975, Katina would receive the decedent's entire estate. The beneficiaries under the will are Crystal, Tiger, and Tim. It is undisputed that the decedent had a "parent/child" relationship with his stepchildren before Dorothy's death and that he remained close to Crystal and Tiger after Dorothy's death. When Dorothy predeceased the decedent, all of their assets were held jointly with rights of survivorship. The decedent was the beneficiary of Dorothy's retirement accounts. Katina and the decedent had an affair during the decedent's marriage to Dorothy. Katina refused to come to Alabama unless she and the decedent married. Katina had no separate estate; she was living paycheck to paycheck before 29 1130486 she married the decedent. Katina and the decedent were married for less than a year before his death. The decedent provided Katina with inter vivos transfers and transfers outside the will, including checking accounts, life insurance, and retirement benefits. Those transfers amount to lump-sum payments totaling approximately $548,000 and a monthly stipend for the rest of her life in the amount of $900 in pension benefits. Crystal, Tiger, and Tim all 2 received inter vivos transfers and transfers outside the will. Crystal and Tiger each received approximately $319,000, and Tim received $33,000. The trial court valued the decedent's probate estate at $378,200 with $233,000 attributed to two residences. The probate court valued the decedent's property located on Baratara Drive at $152,500, although the house actually sold for $77,000 after the decedent's death. There was testimony that the decedent was considering changing his will after his marriage to Katina. The decedent told Katina and his best friend that he was considering This amount differs from the amount shown by the probate 2 court ($532.37) because the probate court did not include the health-insurance premium that is deducted from the pension benefit. 30 1130486 leaving the property on Third Avenue to Tim to fulfil a promise to Dorothy to provide a house for Tim. The decedent was also considering leaving the property on Baratara Drive to Katina in order for her to have a place to live because she had moved to Alabama to marry the deceased. The decedent could not decide what to do, and he did not change his will. The decedent told Crystal and Katina that he was going to provide for Katina. Although the probate court states that "by all accounts " the decedent died unexpectedly, there was testimony from Crystal that the decedent was sick and had been hiding his illness. There was also testimony from the decedent's best friend that the decedent was on oxygen the last few months of his life. The probate court focuses on the fact that the decedent never stated that the transfers he made to Katina were in lieu of changing his will. Although such testimony was present in Wester, supra, and would have been helpful here, it is not the only evidence relevant to show the testator's intent. Here, the decedent, during his brief marriage to Katina, changed beneficiaries on his retirement accounts and insurance policies. He was considering changing his will, but did not 31 1130486 do so. In short, he considered his old will in relation to his new marriage. He also substantially provided for Katina; Katina acknowledges that, if she received the intestate share, she would be receiving more than the decedent intended her to have. The probate court focuses on the fact that Tiger presented no evidence of the precise dates when the decedent changed the beneficiaries of his retirement accounts and life- insurance policies. In In re Taggart's Estate, supra, the New Mexico court noted that the intent of the decedent at the time of the transfers controlled. In that case, there was an issue as to whether the transfers to the wife were to provide her with a convenient method for managing the couple's expenses or whether the transfers were for the wife's benefit. The decedent in Taggart made the transfers to his wife shortly after their marriage, and there was testimony that the decedent stated that he wanted to "protect" the wife. The court stated that it was not material that the transfers were later used by the wife for day-to-day expenses. The Taggart court went on to discuss whether the transfers were in lieu of a testamentary provision and considered the facts that the 32 1130486 marriage was brief, that the inter vivos transfers to the widow represented 20 percent of the decedent's total estate, that the widow was also receiving monthly retirement benefits as a result of the marriage, and that there was testimony that the decedent had wanted to provide for his former mother-in- law, who was the beneficiary under the will. The court held that the transfers were in lieu of a testamentary provision. Although the precise timing of a transfer and the type of transfer may be relevant in some cases to show the intent of the decedent at the time a transfer is made as to whether it was a "transfer" under the omitted-spouse statute or whether it was for some other purpose, it is undisputed in the present case that the transfers were transfers outside the will under § 43-8-90. The issue in this case was whether those transfers were in lieu of a testamentary provision. Also, no one disputes that the decedent changed the beneficiaries to his retirement and insurance policies during his brief marriage to Katina. In the present case, the amount of the transfers made during the marriage, along with the testimony that the decedent considered the terms of his will, the fact that 33 1130486 Katina was not included in the will, the fact that the decedent did not change his will, and the fact that the will ultimately benefited Dorothy's children provide reasonable proof to satisfy Tiger's burden of proving an exception to the omitted-spouse share under the facts of this case. We are cognizant of our standard of review, given that the probate court heard ore tenus evidence. However, it was the main role of the probate court in this case to apply the law to the largely undisputed material facts. We also are aware that this is the first time this Court has set out any guidelines for determining whether a transfer outside a will was in lieu of a testamentary provision, and we applaud the probate court for its well-written order. Based on the foregoing, the judgment of the probate court is reversed, and the cause is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. Moore, C.J., and Murdock, Main, and Bryan, JJ., concur. 34	September 19, 2014
fa872a7e-66f8-41ae-acd2-280c2c6c8fa9	Luong v. Alabama	N/A	1121097	Alabama	Alabama Supreme Court	REL: 03/14/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121097 ____________________ Ex parte State of Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Lam Luong v. State of Alabama) (Mobile Circuit Court, CC-08-840; Court of Criminal Appeals, CR-08-1219) STUART, Justice. 1121097 In February 2008, a Mobile County grand jury charged Lam Luong with five counts of capital murder in connection with the deaths of his four children. The murders were made capital because: (1) two or more persons were killed "by one act or pursuant to one scheme or course of conduct," see § 13A-5-40(a)(10), Ala. Code 1975; and (2) each child was less than 14 years of age when he or she was murdered, see § 13A-5- 40(a)(15), Ala. Code 1975. Following a jury trial, Luong was convicted of five counts of capital murder. The trial court sentenced Luong to death for each of the five capital-murder convictions. The Court of Criminal Appeals reversed Luong's convictions and death sentences, holding that the trial court erred by refusing to move the trial from Mobile County because, it reasoned, the pretrial publicity was presumptively prejudicial and by refusing to conduct individual questioning of the potential jurors regarding their exposure to that publicity. The Court of Criminal Appeals also held that the trial court erred in denying defense counsel funds to travel to Vietnam to investigate mitigation evidence and in admitting into evidence during the sentencing hearing a videotape simulation using sandbags approximately the weight of each 2 1121097 child illustrating the length of time it took for each child to fall from the bridge to the water. Luong v. State, [Ms. 1 CR-08-1219, February 15, 2013] ___ So. 3d ___ (Ala. Crim. App. 2013). This Court granted the State's petition to review the decision of the Court of Criminal Appeals. We reverse and remand. Facts In its sentencing order, the trial court presented the following facts surrounding the offenses: "[Luong] met Kieu Phan, the children's mother in 2004. She lived in Irvington and he was working on a shrimp boat in Bayou La Batre. At the time, she was pregnant with Ryan, and although not [Luong's] biological child, he treated Ryan as his own. Thereafter, [Luong] and Kieu had the three other children, Hannah, Lindsey, and Danny. "Some time after Hurricane Katrina in August of 2005, they moved to Hinesville, Georgia. Kieu worked in a nail salon and [Luong] first worked at a car wash and then took a job as a chef at a restaurant. But it was also in Hinesville that marital problems arose. [Luong] took a girlfriend, he wouldn't work, and he was smoking crack. Kieu was upset by this and decided to move back to Irvington with the children and move in with her mother. [Luong] followed along. This was in December of 2007, approximately a month before he killed the children. Back in Irvington things did Luong killed his four children by throwing them off a 1 bridge into the water 100 feet below the bridge. 3 1121097 not improve. He still had a girlfriend, still did not work regularly, was asking Kieu and her mother, Dung, for money, and was using the money to buy crack and was staying out all night. The family was not happy with his behavior and communicated their displeasure to him. "Monday morning, January 7, 2008, around 8:30 a.m., [Luong] took Hannah, Lindsey, and Danny and put them in the family van and left the house. A few minutes later, he returned and got Ryan. It was then that he made the 15-20 minute drive with his children to the top of the Dauphin Island Bridge and threw them to their deaths. "Ryan Phan was 3 years and 11 months old, Hannah Luong was 2 years and 8 months old, Lindsey Luong was 1 year and 11 months old and Danny Luong was 4 months old. On Jan. 7, 2008, [Luong] put them in the family van, drove them from their home in Irvington to the top of the Dauphin Island Bridge. There, he pulled the van over to the side of the roadway and threw all four children, one by one, over the rail, some 106 feet, to their deaths in the water below. "After leaving the bridge, the van was running out of gasoline. Luong set about trying to get gas and then obtaining money from Kieu to buy crack. Several witnesses testified about their encounters with [Luong] as he was trying to enlist their assistance in obtaining gasoline. They all said that he did not appear to be under the influence of drugs or alcohol. A video from a Chevron gas station also showed [Luong] attempting to obtain gas shortly after throwing the children from the bridge. He did not appear at all impaired. "[Luong's] day's travels, after killing his children, ended around 5:30 p.m. when the van had a flat tire and a wrecker towed him home. Kieu's mother, Dung, had been calling him all day to find 4 1121097 out where the children were but Luong would not answer the phone. [Luong] informed her that he gave the children to a woman named Kim who acted like she knew the family and Kim had not returned the children. When Kieu learned of this, she insisted he report the children missing, which he did. "At the Bayou La Batre police station the night of January 7, 2008, [Luong] maintained the story that he gave the children to a woman named Kim who never returned the children. There were some variations in the different versions he related, but the essential 'theme' was that he gave the children to a woman named Kim. "The next day he told Captain Darryl Wilson that if Wilson would take him to Biloxi, Mississippi, that maybe they could find Kim. Captain Wilson took [Luong] to Biloxi, but after riding around for about an hour, [Luong] stated that he did not know where to find the children. They returned to the Bayou La Batre police department and shortly thereafter [Luong] told his wife, Kieu, that the children were dead. He further informed Captain Wilson that the children were in the water, and he agreed to take Captain Wilson to the location. [Luong] directed Captain Wilson to the top of the Dauphin Island Bridge and pointed out the exact locations where he parked the van and threw the children into the water below. "[Luong] subsequently gave a recorded statement in which he admitted throwing his children into the water from the bridge. He stated, 'My family they make me.' He said his family and his wife looked down on him like he was nothing. Captain Wilson asked [Luong] if he contemplated killing himself when he was on the bridge and [Luong] said he did. However, when Captain Wilson inquired why he did not, [Luong] said, 'I wanted to see what my wife and family looked like.' Wilson replied, 'You wanted to watch your wife's face after you told her that you 5 1121097 had killed them?' [Luong] nodded in the affirmative and said, 'Uh-huh.' "Several witnesses driving across the bridge at the time [Luong] was in the act of throwing his children off of the bridge one at a time witnessed various parts of the events. Howard Yeager saw a van matching the description of [Luong's] van on top of the bridge during the relevant time period. Jeff Coolidge saw [Luong] parked in the location where [Luong] pointed out he was parked, and saw [Luong] throw something over the side. As Coolidge got closer to the van he saw three toddlers in the van. Alton Knight, in another vehicle, saw a van matching the description of [Luong's] van and observed a little girl, a toddler, with dark hair and pigtails in the van. (The children's grandmother, Dung, testified that Lindsey had pigtails when she left that morning.) Frank Collier, who was in the vehicle with Alton King, saw a van matching the description of [Luong's] van and saw [Luong] straddling the rail of the bridge. "The next day ... [Luong] was interviewed again, and at this time he recanted his earlier statement, and reverted back to the 'Kim' story. He smiled and told Captain Wilson, 'If you find the bodies, then you charge me.' "Before any of the bodies were found, but after he had been arrested and was in jail, Luong called his wife from the jail and during the conversation laughed and told her that no one would find the children. "A massive search effort began. On Saturday, January 12, 4-month-old Danny was found 12.5 miles west of the bridge on the banks of an isolated marsh area. On Sunday, January 13, 3-year-11-month-old Ryan was found 16.4 miles west of the bridge. On Tuesday, January 15, 1-year-11-month-old Lindsey was found in Mississippi, 18 miles west of the bridge 6 1121097 and five days later, on January 20, 2-year-11-month- old Hannah was located floating in the Gulf of Mexico, south of Venice, Louisiana, 144 miles west of the bridge. "The cause of death for Ryan, Danny and Lindsey was blunt force trauma and asphyxia due to drowning. The cause of death for Hanna was drowning. ".... "The most convincing evidence of Luong's guilt was his confession to throwing his children off the Dauphin Island Bridge, which was corroborated by [Luong] pointing out the location of the murders, and by witnesses who saw either him or children matching the description of his children on the bridge at the time he said he threw them into the water. This was further corroborated by the locations where the bodies of the children were later found." Analysis I. First, the State contends that the decision of the Court of Criminal Appeals that "Luong's case represents one of those rare instances where prejudice must be presumed," ___ So. 3d at ___, conflicts with Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896 (2010), and Ex parte Fowler, 574 So. 2d 745 (Ala. 1990). The State maintains that the holdings of the Court of Criminal Appeals that the evidence indicated presumed prejudice against Luong and that his case should have been 7 1121097 transferred to another venue ignores two important principles: the principal that criminal trials should be held in the communities where the crimes occurred and the principal that the law vests the trial court with discretion in determining how to ensure the impartiality of a jury. The State acknowledges that "[i]n today's world, when a crime is committed that is as incomprehensible as Luong's, the media will extensively cover it as a matter of course," but it emphasizes that "the advent of 24-hour news and the internet" does not mean that a fair trial cannot be conducted in the community where the offense was committed. In Skilling, the United States Supreme Court examined whether the publicity attending the securities scandal involving Enron corporation prevented an Enron executive charged with criminal conduct from receiving a fair trial in Houston, Texas, where Enron's corporate headquarters were located. The Supreme Court recognized that media coverage of the crimes did not alone create a presumption that a trial in the venue where the offense was committed necessarily deprived the defendant of due process and that "[a] presumption of prejudice ... attends only the extreme case." 561 U.S. ___, 8 1121097 130 S.Ct. at 2915. The Supreme Court then examined the pretrial publicity and alleged community prejudice in that case, in light of the following factors: (1) the size and characteristics of the community where the offenses occurred; (2) the content of the media coverage; (3) the timing of the media coverage in relation to the trial; and (4) the media interference with the trial or the verdict. Skilling, 561 U.S. at ___, 130 S.Ct. at 2915-17. The Supreme Court concluded that no presumption of prejudice existed in Skilling. In Ex parte Fowler, this Court reviewed whether the trial court exceeded the scope of its discretion in denying a defendant's request for a change of venue for her new trial. This Court stated: "It is well established in Alabama, however, that the existence of pretrial publicity, even if extensive, does not in and of itself constitute a ground for changing venue and thereby divesting the trial court of jurisdiction of an offense. Beecher v. State, 288 Ala. 1, 256 So. 2d 154 (1971), rev'd on other grounds, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972); see, also, the cases annotated at § 15-2-20. In Nelson v. State, 440 So. 2d 1130 (Ala. Crim. App. 1983), the Court of Criminal Appeals correctly noted that jurors do not have to be totally ignorant of the facts and issues involved in a particular case in order to reach an unbiased verdict. Quoting Irvin v. Dowd, 366 U.S. 717, 9 1121097 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751, 756 (1961), the court further noted: "'"In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."' "440 So. 2d at 1131. To satisfy her burden of proof in the present case, [the defendant] had to establish that prejudicial pretrial publicity has so saturated [the county] as to have a probable prejudicial impact on the prospective jurors there, thus rendering the trial setting inherently suspect. This required a showing that a feeling of deep and bitter prejudice exists in [the county] as a result of the publicity. Holladay v. State, 549 So. 2d 122 (Ala. Crim. App. 1988), aff'd Ex parte Holladay, 549 So. 2d 135 (Ala. 1989), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989)." 574 So. 2d at 747-48. Unequivocally, the record establishes that the media coverage of these offenses and the proceedings before Luong's trial were extensive; however, this fact alone does not 10 1121097 support a finding of presumed prejudice. To make such a determination, this Court considers the pretrial publicity and the alleged community prejudice in light of the Skilling factors. A. The size and characteristics of the community where the offenses occurred. The record establishes that Mobile County has a large and diverse population. According to the 2010 census, Mobile County was Alabama's second largest county with a population of over 400,000 citizens. Even though the record indicates that a large percentage of Mobile County residents read the local newspaper, the size of the population of Mobile County reduces the likelihood of prejudice. In light of Mobile County's large population and its diverse pool of citizens, this Court is reluctant to conclude that 12 impartial jurors could not be empaneled. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1044 (1991)(plurality opinion)(recognizing that the likelihood of a presumption of prejudice was less because venire was selected from pool of over 600,000 residents). But see Rideau v. Louisiana, 373 U.S. 723 (1963)(finding a presumption of prejudice in a case where the offense was committed in a community of 150,000 residents). 11 1121097 B. The content of the media coverage. As previously observed, the record clearly establishes that the newspaper, television, and radio coverage of the offenses and the subsequent proceedings were extensive. However, as the State maintains: "[I]f exposure to a certain level of pretrial publicity renders a community presumptively unable to convene an impartial jury, then no venue will be acceptable, and no trial will be possible, in any case that draws significant national attention." The Court of Criminal Appeals provides a thorough summary of the content of the articles published in the Mobile Press- Register, the local newspaper of Mobile County, that are contained in the record, see Luong v. State, ___ So. 3d at ___. This Court has reviewed those articles and concludes that, although they do not paint a flattering picture of Luong, the media coverage mainly focused on the facts surrounding the offenses and the proceedings of the case. Additionally, the majority of the information contained in the media reports was admitted into evidence at trial. This Court has also reviewed the personal opinions expressed through comments on the newspaper's Web site, the call-in telephone line, and the editorial pages. Although statements were made 12 1121097 condemning Luong, other statements were made to the effect that Luong "was entitled to his day in court." This Court cannot conclude that, in this age of digital communication, the published opinions of certain of the citizens in this particular community constitute grounds for presuming that a fair trial could not be conducted in Mobile County. Cf. Woodward v. State, 123 So. 3d 989, 1050 (Ala. Crim. App. 2012). This Court has also considered Luong's argument that the media coverage of Luong's confession and the withdrawal of his guilty plea amounted to "the kind of deeply prejudicial pretrial exposure that jurors cannot be reasonably expected to ignore." However, in light of the admission into evidence at trial of Luong's confession in which he admitted that he threw his children off the bridge, the publicity about his confession and guilty-plea proceeding did not result in a preconceived prejudice that permeated the trial, preventing the seating of a fair and impartial jury. A review of the record simply does not support a finding that the content of the media coverage incited anger, revulsion, and indignation to the degree that jurors chosen from citizens of Mobile County could not determine Luong's 13 1121097 guilt or innocence based solely on the evidence presented at trial. C. The timing of the coverage in relation to the trial. Luong admitted to this Court that 45 of the 59 articles published in the Mobile Press-Register and cited in the opinion of the Court of Criminal Appeals were published more than a year before his trial. Indeed, the record establishes 2 that the majority of the media coverage occurred during the first month following the offenses. The fact that the majority of the publicity occurred more than a year before the trial supports a conclusion that a fair and impartial jury could be selected from the community. See Ex parte Travis, 776 So. 2d 874, 879 (Ala. 2000)(holding that prejudice is unlikely as a result of publicity that occurred more than a year before the trial). According to Luong, television coverage "continued to 2 run" in the two months before the trial. The record, however, provides limited information about the content of the television coverage, and neither the transcripts nor the videotapes of the television coverage were presented to the trial court. Therefore, this Court cannot evaluate the prejudice, if any, the television coverage had upon the community. 14 1121097 D. The media interference with the trial court or the verdict. The record establishes that the trial court ordered certain precautions to ensure that the media did not interfere with the trial or that media representatives did not have contact with the jurors. Such procedures are precisely the type of preventive measures courts should take to avoid tainting the jury. Nothing in the record indicates that the media interfered with Luong's trial. Therefore, this factor does not support a finding of presumed prejudice. This Court recognizes that in Skilling the United States Supreme Court found that the jury's acquittal of Skilling of several counts with which he had been charged supported its conclusion that a presumption of prejudice did not exist. However, in light of the facts of this case, in particular Luong's admission that he threw each of his children off the bridge, the fact that Luong was not acquitted of any of the charged offenses does not either support or rebut a presumption of jury bias or impartiality. The evidence in this case simply did not create any inference from which the jury could conclude that he killed some, but not all, of his children. Therefore, in light of the facts of this case, the 15 1121097 jury's verdict is not a consideration in determining the existence of a presumption of prejudice. E. Additional factor raised by Luong. This Court has also considered Luong's argument that the "Mobile community's close involvement with the case" resulted in prejudice that prevented a fair trial. The Court of Criminal Appeals relied on State v. James, 767 P.2d 259 (Utah 1989), and Rideau in reaching its conclusion that prejudice was presumed. After examining those cases in light of the facts of this case, this Court concludes that those cases are distinguishable. In State v. James, the size of the community and the actions of the defendant are substantially different than here. The James community was much smaller than the community in this case. The town where the offense in James was committed had a population of 28,880; the county had a population of 69,200. In this case, the populations of Mobile and Mobile County are substantially larger. Additionally, 3 the James community engaged in a rescue effort much more As previously noted, Mobile County has a population of 3 over 400,000 citizens. 16 1121097 widespread than the one in this case. The defendant in James played the role of victim and deceived the public by leading the citizens to believe that the child was alive and could be rescued, resulting in a massive search when the defendant knew that the child was dead. The James community searched for a missing child reported to be alive; here, the publicity about and search for the children occurred after the children were dead. Luong did not deceive the Mobile community; the community involvement began after he admitted that the children were dead, and the community then assisted in the recovery of the bodies. The small size of the community and the actions of the defendant in James supported a finding of presumed prejudice in light of the community's involvement in a rescue effort and its frustration over the defendant's deception. In this case, the larger population of Mobile County and the facts surrounding the involvement of the community in the search for the bodies make these facts and circumstances less inflammatory than the facts and circumstances in James and did not create an environment where prejudice must be presumed. 17 1121097 Rideau is the "seminal" case discussing prejudice presumed from pretrial publicity. The evidence in Rideau established that the offense was committed in a community of 150,000 residents and that an "out-of-court" trial of Rideau was conducted when the media published Rideau's interrogation and confession. In this case, the media did not broadcast a tape-recording of Luong's confession, and, although the media did report on Luong's guilty-plea proceeding, the report was objective and detailed a public event that transpired in court. Because Luong was not "tried" in the media and because the community of Mobile is larger than the community in Rideau, Rideau is distinguishable. Finally, this Court has considered the decision in Wilson v. State, 480 So. 2d 78 (Ala. Crim. App. 1985), reversing a trial court's order refusing to transfer a case. The offense in Wilson occurred in a town of less than 10,000, and the community encouraged the local officials to arrest the defendant. The evidence indicated that the public believed that Wilson, a white male, had killed one of his employees, a black male. When the sheriff refused to arrest Wilson, there was public outcry. Evidence was presented that 20 years 18 1121097 earlier Wilson's grandfather had been tried for the murder of a young black activist and found not guilty. Additionally, testimony was presented that community talk indicated that Wilson's trial was an opportunity to avenge the death of the black activist at the hands of Wilson's grandfather. The Court of Criminal Appeals held that the record disclosed that "bias and prejudice" against Wilson permeated the community and that the trial court had exceeded the scope of its discretion in denying Wilson's motion for a change of venue. Unlike the record in Wilson, the record in this case does not establish that bias and prejudice permeated the Mobile community at the time of Luong's trial. Although the facts surrounding the offenses in this case are inflammatory, no evidence indicates that the community demanded Luong's arrest or that an underlying bias against Luong existed at the time of trial. This Court acknowledges that the record supports a finding that the community of Mobile grieved over the tragic deaths of the four children. The community exhibited its compassion by helping to search for the children's bodies and its generosity by raising funds to pay for funeral expenses 19 1121097 for the children. This type of community involvement, however, does not create a presumption of bias against Luong; rather, it indicates the humanity and mercy of the citizens of Mobile County. We cannot conclude that such acts support a finding that Luong could not receive a fair trial in Mobile County. After considering the pretrial publicity, the community involvement, and the alleged resulting community prejudice in this case, in light of the size and characteristics of Mobile County, the content of the pretrial publicity, the timing of media coverage in relation to Luong's trial, and the lack of media interference with the trial or the verdict, this Court concludes that this case does not present "one of those rare instances where prejudice must be presumed," ___ So. 3d at ___, i.e., that the publicity was so prejudicial that the jurors could not decide the case fairly. Unquestionably, the record establishes that members of the venire recalled the offenses; however, the record does not support the conclusion that the community's initial feelings of shock and reprehensibility at the time the offenses were discovered were present in the venire for Luong's trial. 20 1121097 "If, in this age of instant, mass communication, we were to automatically disqualify persons who have heard about an alleged crime from serving as a juror, the inevitable result would be that truly heinous or notorious acts will go unpunished. The law does not prohibit the informed citizen from participating in the affairs of justice. In prominent cases of national concern, we cannot allow widespread publicity concerning these matters to paralyze our system." Calley v. Callaway, 519 F.2d 184, 210 (5th Cir. 1975). See also Patton v. Yount, 467 U.S. 1025, 1035 (1984)(recognizing that "[i]t is not unusual that one's recollection of the fact that a notorious crime was committed lingers long after the feelings of revulsion have passed"). Therefore, this Court holds that the trial court did not exceed the scope of its discretion in refusing to find presumed prejudice against Luong and refusing to transfer his case on that basis, and the judgment of the Court of Criminal Appeals in this regard is reversed. II. Next, the State contends that the Court of Criminal Appeals' holding that the trial court's refusal to conduct individual voir dire of the venire concerning the effects of the pretrial publicity on the veniremembers' capacities to be fair precluded Luong from showing actual prejudice conflicts 21 1121097 with cases that hold that a trial court has wide discretion in conducting voir dire and in making determinations of juror bias and prejudice. See Skilling, 561 U.S. at ___, 130 S.Ct. at 2917 (recognizing that "[n]o hard-and-fast formula dictates the necessary depth or breadth of voir dire" and that "[j]ury selection ... is 'particularly within the province of the trial judge'"); and Patton v. Yount, 467 U.S. at 1036 (noting that the trial court must determine "did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed"). According to the State, the trial court's use of juror questionnaires and its questions posed to the venire adequately provided the trial court and the parties an opportunity to determine whether the veniremembers could base their decision on the evidence presented at trial. The State admits that individual voir dire of the venire is the "preferred approach" as a matter of policy when a case involves extensive publicity but maintains that the trial court's procedures in this case satisfied the requirements of the established law, adequately assessed the risk of bias and prejudice among the veniremembers, and did 22 1121097 not render the process of jury selection constitutionally deficient. To assist the trial court and the parties in determining the effect of the pretrial publicity on the venire, the trial court required the veniremembers to complete jury questionnaires and then to respond to questions propounded to the venire as a whole. The jury questionnaire asked each veniremember to answer the following questions: "Did you read or hear anything concerning this case?" _______________ "Before coming to the courthouse?" _______________ "Since arriving at the courthouse?" _______________ "If [you have read or heard anything about this case], what did you hear?" The questionnaire then asked the veniremember to identify the television programs he or she watched; the local news stations watched; the frequency with which the veniremember watched the news; the radio stations the veniremember listened to; and the periodicals, including magazines and newspapers, the veniremember read. During the voir dire, the following occurred: 23 1121097 "THE COURT: Now, listen to this question very carefully. Would any of you, based on what you have read, seen, or heard, or remember could you set those things aside and serve as a fair and impartial juror? "In other words, is there any member of the jury who thinks because they have a recollection of this case, whether it be from radio, television, or newspaper, Internet, or any other source, that it would be impossible for you to put that aside, lay that aside and sit as a fair and impartial juror in this case and base your decision only on the evidence as you hear it in this courtroom? "Can any of you –- or would any of you tell me it would be impossible for you to sit as a fair and impartial jury in this case? "(Response.) "THE COURT: I see a hand in the back. Could you please stand, sir, and just give us your name and number? "PJ [T.]: [T], 141. "THE COURT: Mr. [T.], you are telling me that regardless of what you may have heard, read or seen, you are telling me that you in no way could set that aside and sit as a juror? "PJ [T.]: No, sir. "THE COURT: Thank you. Is it 144? "PJ [T.]: 141. "THE COURT: All right. The rest of you are telling me that even though you may have heard, read, or seen matters about this case, and you may have had some preconceived impression or opinion, 24 1121097 based on what you have heard, read or seen, that you could sit as a juror in this case, base your verdict only on the evidence as it comes from the witness stand and any evidence as it comes from the witness stand and any evidence that may be introduced into evidence in the form of photographs or documents or something, and you could render a fair and impartial verdict by setting aside any of that and base your verdict on the evidence that you hear in this courtroom? You can do that? "(No response.) "THE COURT: If you can't, other than Mr. T., please raise your hand. "(No response.)" When Luong preserved his objection to the trial court's denial of his motion to conduct individual voir dire with regard to pretrial publicity, the trial court responded: "Okay. First of all, it's my reading of the law that individual voir dire is not a requirement and it is not a right. Only where the Court feels, in its discretion, that it is necessary to explore other areas more thoroughly is an individual voir dire preferable. "Secondly, the Court has gone to a significant length to have the attorneys for both parties develop a lengthy questionnaire. And this questionnaire was given to the venire on Monday, and they were give all the time needed, and encouraged by me to be thorough in their answers in filling out the questionnaires. "The Court then, at the parties' request, gave an entire day to go through these questionnaires, 25 1121097 read them, and study them, so that they could more intelligently strike a jury. "The law further says, as I read it from various cases dealing with change of venues and pretrial publicity, that even though a person might have a preconceived recollection based on pretrial publicity, if they say they can put aside what they have heard, read or seen, that's all that's necessary, if they can render a fair and impartial verdict based on the evidence as it is adduced at trial. ".... "From my reading of the law, at least the Alabama Supreme Court is going to have to absolutely change 180 degrees its years of precedent in saying that I need to have or allow defense individual voir dire. Because no one other than Mr. [T.] indicated that they would have any problem whatsoever in setting aside anything that they may have heard, read or seen." In Ex parte Anderson, 602 So. 2d 898, 899 (Ala. 1992), this Court provided the standard of review for a trial court's decision regarding whether to conduct individual voir dire, stating: "Whether to allow individual voir dire examinations is within the trial court's discretion. Hallford v. State, 548 So. 2d 526, 538 (Ala. Crim. App. 1988), affirmed, 548 So. 2d 547 (Ala. 1989), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989). Furthermore, '"[t]he decision of the trial court in denying individual voir dire examination will not be disturbed absent abuse of that discretion."' Henderson v. State, 538 So. 2d 276, 283 (Ala. Crim. App. 1990), affirmed, 583 So. 26 1121097 2d 305 (Ala. 1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992)(quoting Hallford, 548 So. 2d at 538)." The United States Supreme Court in Skilling discussed the trial court's responsibility in selecting a fair and impartial jury and the appellate court's deference in reviewing the selection process when pretrial publicity is at issue, stating: "When pretrial publicity is at issue, 'primary reliance on the judgment of the trial court makes [especially] good sense' because the judge 'sits in the locale where the publicity is said to have had its effect' and may base her evaluation on her 'own perception of the depth and extent of news stories that might influence a juror.' ... Appellate courts making after-the-fact assessments of the media's impact on jurors should be mindful that their judgments lack the on-the-spot comprehension of the situation possessed by trial judges. "Reviewing courts are properly resistant to second-guessing the trial judge's estimation of a juror's impartiality, for that judge's appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record -- among them, the prospective juror's inflection, sincerity, demeanor, candor, body language, and apprehension of duty. ... In contrast to the cold transcript received by the appellate court, the in-the-moment voir dire affords the trial court a more intimate and immediate basis for assessing a venire member's fitness for jury service." Skilling, 561 U.S. at ___, 130 S.Ct. at 2918. 27 1121097 In Ex parte Brown, 632 So. 2d 14 (Ala. 1992), this Court examined whether the trial court's refusal to conduct individual voir dire even though the evidence established that the pretrial publicity with regard to the offense and the defendant was significant denied the defendant his right to an impartial jury. Because Brown discusses the United States Supreme Court decision in Mu'min v. Virginia, 500 U.S. 415 (1991), addressing this issue and because both cases are analogous to this case, we quote extensively from the facts and analysis in Brown: "On August 10, 1987, the bodies of Linda LeMonte and her daughter, Sheila Smoke, were found in their home. Dr. Allan Stillwell testified that LeMonte died as a result of a nine-inch cut to her throat and that Smoke died as a result of multiple stab wounds to the chest, throat, and abdomen. On August 12, 1987, Brown was arrested for the murders. "Prior to voir dire of the venire, the defendant moved for individual voir dire, based on the pretrial publicity of the case. The judge denied the motion, but during voir dire asked the following question: 'Now, ladies and gentlemen, does anyone know anything about this case, either what you have heard, read, know first-hand, news media, anybody know anything about this case?' Of the 66 members of the jury venire, 42 members (or 63%) responded affirmatively. The trial judge then continued: "'All right. Now, ladies and gentlemen, those of you who stood and stated that you had either read, heard, or talked about 28 1121097 this particular case, this is one of the most crucial questions I have asked all morning. This is the question where the seriousness of your oath will come forth. You will understand the seriousness of it again, the only thing this court, –- the thing this court is required to do, and these lawyers are required to do, is to strike or empanel a fair and impartial jury. That's what the system requires. That's what we intend to do. Is there any member of the venire who has heard, read, talked about, knows anything about this case, or believes that you have already formed some opinion, have any preconceived ideas, have [a] predisposition to the extent that it would interfere with your ability to go into the jury room with the rest of the jurors, ... absorb the evidence, listen to the evidence, weigh it, sift through it, and, at the appropriate time, render a fair and impartial verdict, based on the evidence and the law that I charge you is applicable in this case? I'm going to give you until 1:30 to make that decision, because we are going to take a lunch break. I want to let you think about that question because that's the crucial question in this case, whether those that have read or heard something about this case, could you still be a fair and impartial juror? Court will be in recess until 1:30.' "After the lunch break, the following occurred: "'BY THE COURT: All right, the question I asked you just before lunch, any member of the venire believes or those that stood [and] said that you had heard, read, talked about this matter, either one of you feel that it would interfere with your ability 29 1121097 to render a fair and impartial verdict with the rest of the jurors, after listening to the evidence and the law that I charge you that is applicable in this case? If you would, please stand. Any further questions?' "Defense counsel then stated that because of the unusual amount of pretrial publicity and the intense amount of interest this case had generated in the community, he wished to individually question the prospective jurors concerning what they had heard or read about the case in order to determine the extent of what the jurors knew about the case. Defense counsel further stated that he did not believe that the jury had been thoroughly examined on the issue of pretrial publicity, and he added, 'Human nature [is] such that people will not readily get up and admit in a courtroom in front of a judge, who is the ultimate symbol of impartiality, that they cannot be fair ... reasonable and ... objective.' In response, the judge stated: "'I have painstakingly and in great detail voir dired this jury venire, okay? And I believe that I have done it about as thoroughly as it could have been done. Now, I don't know any other way for me to make the jurors say pretrial publicity would affect them other than ask them the questions the way I have asked them. Now, you know, I can't, and I don't think I should go to the extent, and I'll –- not only the law but fairness doesn't require me to go to extent of having carte blanche exposition of asking the jurors questions, especially the detailed way in which I have voir dired this jury, and trying to seek out, ferret out their views about certain things.' 30 1121097 "The judge further stated that he believed that individual voir dire was necessary only if a prospective juror equivocated as to whether he or she could be fair and impartial. The trial judge then asked the jury venire: "'Does any ... member of the venire know of any reason, any reason whatsoever that you believe that you should not be selected to serve on this jury? If you do, stand, I'll take you in chambers and find out what the reason is.... Anyone has any predisposed position about this case ...? Anyone in your mind feel that you could not be fair in this matter, or render a fair, impartial verdict?' "In response to those questions, two of the jurors admitted that they could not be fair and impartial. These jurors were excused. The judge denied defense counsel's renewed request for individual voir dire. "The issue before this Court is whether the Court of Criminal Appeals erred when it held that the instant case is distinguishable from Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). "In Mu'Min, the following had been reported in the news media: (1) Mu'Min's previous criminal history; (2) the details of the charged crime; (3) the fact that Mu'Min had been rejected for parole six times; (4) the details of the prior murders of which Mu'Min had been convicted; (5) Mu'Min's prison infractions; (6) the fact that the death penalty had not been available at the time of the previous murders; (7) the fact that Mu'Min had confessed to the charged crime; and (8) the opinion of local officials that Mu'Min was guilty. There had been 47 newspaper articles published related to the murder. 31 1121097 "Further, in Mu'Min the petitioner submitted 64 proposed voir dire questions to the trial judge and filed a motion for individual voir dire. The trial judge denied the motion for individual voir dire, but he separated the venire into panels of four to deal with the issue of publicity. If a veniremember stated that he or she had acquired information about the alleged offense or the accused from the news media or from any other source, the judge then proceeded to ask each person individually whether the information he or she had received affected that person's impartiality in the case. The defendant in Mu'Min argued that the judge's failure to question the veniremembers about the specific content of the news reports to which they had been exposed violated his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to due process. The Supreme Court held that the trial judge had only to examine the extent of the exposure to the prejudicial publicity in order to determine whether a juror could act impartially. "In the instant case, Brown filed a request for individual voir dire because of the pre-trial publicity. The trial judge denied this request and proceeded to ask the venire as a whole whether the members could be impartial. Some of the types of pre-trial publicity involved in this case were as follows: (1) 53 front page newspaper articles; (2) radio broadcasts (lead stories); (3) deputy district attorney's statements to the effect that this case was '[o]ne of the most graphically horrible cases we've had since I've been a D.A.,' and that 'if any case called for the electric chair, Brown's does'; (4) a reference by the Montgomery chief of police to the crime scene as 'one of the most hideous ... in this area in a long time'; (5) publication of the details of the defendant's prior crimes; and (6) statements by the prosecutor to the effect that the defendant had admitted the crime. 32 1121097 "This case is virtually indistinguishable from Mu'Min. The only meaningful factual difference between this case and Mu'Min is that the trial judge in Mu'Min broke the venire into panels of four to determine whether the jurors could be impartial, whereas in this case the trial judge asked the venire as a whole whether the members could be impartial. The method of determining impartiality is not critical. The crucial requirement is that the trial court get enough information to make a meaningful determination of juror impartiality. As the Court in Mu'Min stated: "'Whether a trial court decides to put questions about the content of publicity to a potential juror or not, it must make the same decision at the end of the questioning: is this juror to be believed when he says he has not formed an opinion about the case?' "500 U.S. at 425, 111 S.Ct. at 1905. "After carefully reviewing the record, we conclude that the trial judge acquired adequate information from the venire to make an independent determination as to whether the jurors would be impartial." 632 So. 2d at 15-17. This case is essentially indistinguishable from Brown and Mu'Min, the United State Supreme Court case discussed in Brown. Similar to the pretrial publicity in Brown and Mu'Min, the pretrial publicity in this case included numerous newspaper articles and radio and television broadcasts discussing the nature of the offenses, the potential 33 1121097 punishments for the offenses, the details of the defendant's life and his confession to committing the offenses. Like the trial courts in Brown and Mu'Min, the trial court refused to conduct individual voir dire and obtained information from the veniremembers by propounding questions to the venire to determine whether the veniremembers would be impartial. Just as in Mu'Min and in Brown, the question to be answered by this Court is whether the trial court erred by accepting, without individual voir dire, the assurances of the seated jurors that they could put aside what they had read or heard and render a fair verdict based on the evidence. Applying the precedent of the United States Supreme Court and this Court to the facts of this case, we cannot conclude that the trial court exceeded the scope of its discretion in denying Luong's request that the trial court conduct individual voir dire. The record indicates that the trial court was acutely aware of the pretrial publicity, the local reaction to the crime, Luong's reputation, and the alleged community prejudice. The record further reflects that the trial court was concerned about providing Luong with a fair and unbiased jury. The trial court's determination that 34 1121097 individual voir dire regarding pretrial publicity was not required was the culmination of a lengthy process that incorporated responses to questionnaires, responses or the lack thereof to oral inquiries about bias, and repeated admonishments to the venire of the need for candor. The trial court asked the veniremembers if they could determine the case based only on the evidence presented. With the exception of one veniremember, who was struck, the other veniremembers indicated that, even though they had knowledge of the case, they could set aside any preconceived notions and render a fair and impartial decision based upon the evidence. The record does not establish that any of the seated veniremembers indicated a potential bias based on his or her exposure to pretrial publicity. Only speculation and conjecture supports a finding otherwise. Individual voir dire is required only when there is an indication that the assurances of the seated jurors that they could put aside what they had read or heard and render a fair verdict based on the evidence are not genuine. The record in this case indicates that the veniremembers were contemplative of the trial court's questions and genuine in their responses. Although this Court 35 1121097 may have employed different voir dire procedures, it cannot conclude that the trial court exceeded its discretion in denying individual voir dire with regard to the impact of the publicity to uncover bias. Because the record does not establish that the veniremembers were not forthright with their responses that they could render a fair trial based on the evidence, and in light of the broad discretion vested in the trial court in conducting voir dire, the Court of Criminal Appeals erred in holding that individual voir dire was mandated, and its judgment in this regard is reversed. III. The State further contends the Court of Criminal Appeals' holding that the trial court exceeded the scope of its discretion by denying Luong's counsel funds to travel to Vietnam to interview family members to develop mitigation evidence conflicts with Bui v. State, 888 So. 2d 1227 (Ala. 2004). In Bui, this Court stated: "While we recognize defense counsel's obligation to conduct a thorough investigation of a defendant's background, the trial court must consider the reasonableness of the investigation." 888 So. 2d at 1230. We further opined that "'a court must 36 1121097 consider not only the quantum of the evidence already known to counsel, but whether the known evidence would lead a reasonable attorney to investigate further.'" 888 So. 2d at 1230 (quoting Wiggins v. Smith, 539 U.S. 510, 527 (2003)). Luong moved the trial court for funds for his counsel to travel to Vietnam to investigate his childhood and to interview various relatives, including his mother, stepfather, and aunts in an effort to develop mitigation evidence. In support of his motion, Luong attached an affidavit from a Dr. Paul Leung, a Vietnam native and a mitigation expert. Dr. Leung averred: "I am of the opinion that Lam Luong's childhood and adolescence in Vietnam is significant mitigation evidence. Vietnamese society is generally cruel in its treatment of Amerasian children, especially black Amerasians, and they are often ostracized and banished from society. Lam Luong is a black Amerasian and his personal history reveals he was treated much like other Amerasian children born before the fall of Saigon in 1975." The foregoing affidavit, however, does not adequately establish that the "known evidence" would lead a reasonable attorney to investigate further. The affidavit presents generalizations about the treatment of Amerasian children in Vietnam and does not provide any specific information about 37 1121097 Luong's childhood from which the trial court could determine that additional investigation in Vietnam would yield mitigation evidence. Therefore, the trial court did not exceed the scope of its discretion in denying Luong's motion. Moreover, the trial court did not deny Luong's motion without providing an avenue for future relief. The trial court suggested that Luong's counsel conduct videoconferencing with Luong's relatives in Vietnam to determine what, if any, potential evidence the relatives could provide. The trial court further provided that, if the videoconferencing indicated that mitigation evidence could be developed in Vietnam, Luong could request funds for travel at a later date. Because the record establishes that the trial court considered the reasonableness of Luong's request and provided a means for Luong to develop mitigation evidence, the trial court did not exceed the scope of its discretion in denying Luong's request for funds for his counsel to travel to Vietnam to investigate mitigation evidence, and the judgment of the Court of Criminal Appeals holding otherwise is reversed. IV. 38 1121097 Last, the State contends that the Court of Criminal Appeals erred in determining that the trial court exceeded the scope of its discretion by admitting into evidence at the sentencing hearing a videotape of Cpt. Darryl Wilson tossing sandbags of the approximate weight of each of the children off the Dauphin Island Bridge and his testimony about the rate of speed at which the children fell. The Court of Criminal Appeals held that "because there was no testimony that showed that the experiment was similar to the actual events that occurred on the Dauphin Island Bridge, the admission of the evidence of Cpt. Wilson's experiment was not relevant to or probative of the issue of Luong's sentencing." Luong, ___ So. 3d at ___. According to the State, the decision of the Court of Criminal Appeals conflicts with this Court's decision in Ex parte Hinton, 548 So. 2d 562 (Ala. 1989), which recognizes that § 13A-5-45(d), Ala. Code 1975, provides for the admission of "[a]ny evidence which has probative value and is relevant to sentence." The State maintains that the videotape and Cpt. Wilson's testimony demonstrated how the offenses were committed and were probative and relevant to the jury's determination whether the aggravating circumstance that "the capital offense was 39 1121097 especially heinous, atrocious, or cruel as compared to other capital offenses," see § 13A-5-49(8), Ala. Code 1975, was applicable. This Court's review of the record indicates that although Luong objected to the admissibility of the videotape and to Cpt. Wilson's testimony before the sentencing hearing began, he did not object at the time the evidence was admitted. The law is well established that when a party is denied relief upon the filing of a motion in limine, the party must object with specificity at the time the evidence is proffered at trial to preserve the issue for appellate review. See Parks v. State, 587 So. 2d 1012, 1015 (Ala. 1991); and Huff v. State, 678 So. 2d 293, 296-97 (Ala. Crim. App. 1995). Because Luong did not object with specificity when the trial court admitted the videotape and testimony into evidence at the sentencing hearing, this issue is not preserved for appellate review. However, because Luong has been sentenced to death, his failure to object at trial does not bar appellate review; 40 1121097 rather, this Court may conduct a review for plain error. See Rule 45A, Ala. R. App. P.4 In Ex parte Brown, 11 So. 3d 933, 935-36 (Ala. 2008), this Court explained: "'The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is "particularly egregious" and if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." See Ex parte Price, 725 So. 2d 1063 (Ala. 1998).'" (Quoting Hall v. State, 820 So. 2d 113, 121–22 (Ala. Crim. App. 1999).) Rule 45A, Ala. R. App. P., states: 4 "In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant." 41 1121097 Additionally, this Court recognizes that this alleged error occurred during the sentencing hearing of Luong's trial. Section 13A-5-45(d), Ala. Code 1975, provides that "[a]ny evidence which has probative value and is relevant to sentence" is admissible during the sentencing phase of a capital trial. The Alabama Rules of Evidence do not apply at sentencing. Rule 1101(b)(3) of the Alabama Rules of Evidence provides: "(b) Rules Inapplicable. These rules, other than those with respect to privileges, do not apply in the following situations: ".... "(3) Miscellaneous Proceedings. Proceedings for extradition or rendition; preliminary hearings in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise." (Emphasis added.) See also Whatley v. State, [Ms. CR-08-0696, Oct. 1, 2010] ___ So. 3d ___ (Ala. Crim. App. 2010)(holding that no rule of evidence barred the relevant testimony of the social worker at the penalty phase because "[t]he Rules of Evidence do not apply to sentencing hearings"). Furthermore, 42 1121097 in Harris v. State, 352 So. 2d 479 (Ala. 1977), which predates the adoption of the Alabama Rules of Evidence, this Court stated: "In the conduct of the sentencing hearing, the rules of evidence should be relaxed; and, while the criteria for aggravating circumstances are strictly construed against the State, proof of aggravating and mitigating circumstances may be by deposition, written interrogatories, affidavits or by reliable hearsay. While some discretion must of necessity be vested in the trial judge, wide latitude should be given the parties and their counsel in making opening statements, proffer of evidence, and in making closing arguments. Particularly, the convicted defendant should not be restricted unduly; for, literally, he is pleading for his life." 352 So. 2d at 495 (emphasis added). In Duke v. State, 889 So. 2d 1, 18 (Ala. Crim. App. 2002) rev'd on other grounds, 544 U.S. 901 (2005), the Court of Criminal Appeals held that the trial court did not exceed the scope of its discretion by admitting into evidence during the sentencing hearing of a capital trial a mannequin to demonstrate the way the victims were killed. Although this case involves a videotape demonstrating how the offenses were committed, we find the caselaw and reasoning in Duke instructive. Duke argued that the use of a mannequin, which was not comparable to the size and physical characteristics of 43 1121097 the victims, constituted prejudice that was not outweighed by any probative value. In considering this issue, the Court of Criminal Appeals stated: "A claim of this nature is relatively rare; however, this Court in Minor v. State, 780 So. 2d 707 (Ala. Crim. App. 1999), rev'd on other grounds, 780 So. 2d 796 (Ala. 2000), addressed the use of a doll in a capital-murder prosecution to demonstrate how the victim's injuries may have occurred. We stated: "'"The rule on the admissibility of experiments in open court is stated in Shows v. Brunson, 229 Ala. 682, 682, 159 So. 248 (1935). "'"'Experiments or tests of this character in open court are usually within the discretion of the trial judge, guided by a sound judgment as to whether the result will b e s u f f i c i e n t l y relevant and material to warrant such procedure. 22 C.J. p. 700, § 899. "'"'Similarity of conditions, and a test that will go to the substantial question in hand, should appear.' "'"See also Hawkins v. State, 53 Ala. App. 89, 93, 297 So. 2d 813 44 1121097 (1974). Both the scope and extent of the experiment, if allowed, rest within the sound discretion of the trial judge. The exercise of that discretion will not be reversed on appeal unless it has been clearly and grossly abused. Campbell v. State, 55 Ala. 80 (1876); C. Gamble, McElroy's Alabama Evidence, § 81.02(1) (3rd ed. 1977). "'"While the conditions of the experiment and of the occurrence in issue should be substantially similar, they need not be identical. McElroy, 81.01(4). "'"'A reasonable or substantial similarity suffices and only where the conditions are dissimilar in an essential particular should the evidence of an experiment be rejected. If we have a case wh er e the conditions are not identical, then the dissimilarity goes to the weight of the evidence of the experiment but not to its admissibility.' "'"See also Eddy v. State, 352 So. 2d 1161 (Ala. Cr. App. 1977)." 45 1121097 "'Ivey v. State, 369 So. 2d 1276, 1278–79 (Ala. Cr. App. 1979). See also, C. Gamble, McElroy's Alabama Evidence, § 81.02 (5th ed. 1996). "'However, before the demonstration, the trial court should determine if the prejudicial effect of the demonstration substantially outweighs its probative value. Even if the trial court finds the demonstration to be relevant and helpful to the jury, the trial court may still exclude it if the probative value is substantially outweighed by the danger of unfair prejudice. See Rule 403, Ala. R. Evid.; McElroy § 81.02. "The power to make this determination is vested in the trial court." Hayes v. State, 717 So. 2d [30,] 37 [(Ala. Crim. App. 1997)].' "780 So. 2d at 762–63." 889 So. 2d at 18. Cf. Morgan v. State, 518 So. 2d 186, 189 (Ala. Crim. App. 1987)(holding that the trial court did not exceed the scope of its discretion in admitting into evidence during the guilt phase of a capital trial a videotaped reenactment of the offense). The question presented by the admission of the videotape and Cpt. Wilson's testimony is whether the evidence had probative value and was relevant to a jury determination and, if it was probative and relevant, whether the prejudicial 46 1121097 effect of the evidence substantially outweighed its probative value. The test for probativeness is whether an experiment or demonstration is "substantially" like the real event. I Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence § 81.001(2)(6th ed. 2009). This Court has viewed the videotape, which shows the Dauphin Island Bridge and Cpt. Wilson dropping sandbags from the bridge, and has read Cpt. Wilson's testimony. Cpt. Wilson testified that he "made the sandbags to the approximate weights ... of each child" and that he dropped the bags from the top of the bridge at that point where Luong had stated he had dropped the children. He also testified that the weather on the day he dropped the sandbags was similar to the weather on the day the offenses were committed. Luong did not cross- examine Cpt. Wilson about the videotape or about whether the conditions on the day it was made were similar to the conditions on the day of the offenses. The videotape was illustrative of the offenses and relevant to the determination whether the aggravating circumstance that the offenses were heinous, atrocious, or cruel applied to these murders. Considering the content of 47 1121097 the videotape and the "relaxed" evidentiary standard during a sentencing hearing, the videotape had probative value and was relevant to the determination of an aggravating circumstance. Moreover, this Court cannot agree with Luong that because the videotape had a "big visual impact" the risk of prejudice against him was extreme to the extent that it affected his substantial rights. Luong admitted that he threw his children off the Dauphin Island Bridge. The videotape demonstrated the acts Luong admitted he committed and did not create a danger unfair prejudice that substantially outweighed the probative value of the evidence. Cf. Duke, supra (holding that the prejudicial impact of a demonstration in open court during the penalty phase of how the children's throats were slit did not outweigh the probative value of the demonstration). This Court agrees with the trial court that the probative value of the evidence outweighed any danger of unfair prejudice. This Court has also considered the questionable credibility and accuracy of Cpt. Wilson's testimony that "objects fall at the same rate of speed, regardless of the weight," and that the children fell at a speed of 25 mph. Luong had an opportunity to challenge this testimony through 48 1121097 cross-examination, and he chose not to do so. See Ballard v. State, 767 So. 2d 1123, 1140 (Ala. Crim. App. 1999)("'A party is given wide latitude on cross-examination to test a witness's partiality, bias, intent, credibility, or prejudice, or to impeach, illustrate, or test the accuracy of the witness's testimony or recollection as well as the extent of his knowledge.'" (quoting Williams v. State, 710 So. 2d 1276, 1327 (Ala. Crim. App. 1996))). Therefore, in light of Luong's acceptance of Cpt. Wilson's testimony and the fact that the jurors observed the rate at which the sandbags fell when they watched the videotape, this Court cannot conclude that the admission of the videotape "seriously affected his substantial rights" and "had an unfair prejudicial impact on the jury's deliberations." See Ex parte Brown, 11 So. 3d 933, 938 (Ala. 2008). See also Ex parte Walker, 972 So. 2d 737, 752 (Ala. 2007) (recognizing that the appellant has the burden of establishing prejudice relating to an issue being reviewed for plain error). Therefore, the judgment of the Court of Criminal Appeals holding that the trial court exceeded the scope of its discretion in admitting the videotape and Cpt. Wilson's testimony into evidence is reversed. 49 1121097 Conclusion Based on the foregoing, the judgment of the Court of Criminal Appeals is reversed, and this case is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. Moore, C.J., and Bolin, Shaw, and Bryan, JJ., concur. Parker, Murdock, and Main, JJ., dissent. Wise, J., recuses herself.* *Justice Wise was a member of the Court of Criminal Appeals when that court considered this case. 50 1121097 PARKER, Justice (dissenting). I respectfully dissent from the main opinion. I write specifically to address Parts I and II of that opinion. This Court has a duty to protect the Constitution and to uphold is provisions. "The right of the accused to a fair and impartial trial, or to a fair trial before an impartial jury, is a constitutional right. Regardless of all other considerations, it affirmatively appears from the record before us in its entirety that the accused did not have a trial by an impartial jury. We cannot, if we were so disposed, ignore the solemn duty placed upon this court by our organic law. The Constitution is the supreme law of this jurisdiction, and we are enjoined to enforce and to uphold its provisions. No higher obligation could be placed upon us. Fidelity to our oaths demands that we give effect to the constitutional guaranty that every person accused of crime has a right to a trial before an impartial jury. We are convinced that the accused has been denied his constitutional right. ... "In the case of Johnson v. Craft et al., 205 Ala. 386, 87 So. 375 [(1921)], it was said: "'The Constitution's control is absolute wherever and to whatever its provisions apply; and every officer, executive, legislative, and judicial, is bound by oath (section 279) to support the Constitution, to vindicate and uphold its mandates, and to observe and enforce its inhibitions without regard to extrinsic circumstances. It commits to nobody, officer, or agent any authority or power whatever to change or modify or suspend the effect or operation of its mandates or its prohibitions.'" 51 1121097 Martin v. State, 22 Ala. App. 154, 158, 113 So. 602, 606 (1926)(emphasis added), reversed on other grounds, 216 Ala. 160, 113 So. 602 (1926). These principles compel me to dissent from the main opinion for the specific reasons set forth below. I. I dissent from the conclusion in the main opinion that "the trial court did not exceed the scope of its discretion in refusing to find presumed prejudice against [Lam] Luong ...." ___ So. 3d at ___. Under the Sixth Amendment to the United States Constitution, every criminal defendant has a right to an impartial jury. One of the ways a criminal defendant's right to an impartial jury can be threatened is by media coverage. In certain cases, when extensive and inflammatory media coverage has saturated the community, a presumption may arise that any potential jurors are prejudiced against the defendant. In order to ensure that a criminal defendant's Sixth Amendment right to an impartial jury is protected, the Supreme Court of the United States has developed a four-factor test to determine whether a presumption of juror prejudice exists in light of the specific facts of a case. The four 52 1121097 factors are: "(1) the size and characteristics of the community where the crimes occurred; (2) the general content of the media coverage; (3) the timing of the media coverage in relation to the trial; and (4) the media interference with the trial or the verdict." Luong v. State, [Ms. CR-08-1219, February 15, 2013] ___ So. 3d ___, ___ (Ala. Crim. App. 2013) (summarizing the four factors set forth in Skilling v. United States, 561 U.S. 358, ___, 130 S. Ct. 2896, 2915-16 (2010)). Of critical importance in the present case is the second factor: the content of the media coverage. Generally, the presumed-prejudice principle is "rarely applicable" and is "reserved for extreme situations." Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir. 1985). However, the Supreme Court of the United States has held that when a confession is accompanied by media coverage of other prejudicial or inflammatory information, prejudice is presumed. Rideau v. Louisiana, 373 U.S. 723, 733 (1963). The media coverage in this case, the details of which are set forth in the Court of Criminal Appeals' opinion in Luong and discussed more thoroughly below, warrants a presumption that the jurors, chosen from citizens in Mobile County, were prejudiced against Luong. "The theory of [the trial] system is that the 53 1121097 conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado ex rel. Attorney General of Colorado, 205 U.S. 454, 462 (1907). Accordingly, a trial court may, upon motion by the defense or the prosecution, transfer a case to another county or take any other action designed to ensure that a fair trial may be had if there exists in the county in which the prosecution is pending such prejudice that a fair trial cannot be had there. See Skilling, 561 U.S. at ___, 130 S. Ct. at 2913 ("The Constitution's place-of-trial prescriptions ... do not impede transfer of the proceeding to a different district at the defendant's request if extraordinary local prejudice will prevent a fair trial —- a 'basic requirement of due process.'"). The prerequisite for obtaining a change of venue on the ground of prejudice is that the prejudice is such that it will prevent a fair and impartial trial in the current venue. This prejudice can take several forms, but the ground most commonly advanced for a change of venue is that adverse pretrial publicity precludes the selection of an unbiased jury. 4 Wayne R. LaFave et al., Criminal Procedure § 16.3(b), 806 (3d 54 1121097 ed. 2007). In other words, when pretrial publicity creates prejudice, a change of venue may be appropriate. Furthermore, prejudice may be presumed where "'pretrial publicity is so pervasive and prejudicial that [a court] cannot expect to find an unbiased jury pool in the community.'" House v. Hatch, 527 F.3d 1010, 1023-24 (10th Cir. 2008) (quoting Goss v. Nelson, 439 F.3d 621, 628 (10th Cir. 2006)); see also United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990) (stating that court must consider whether prejudicial inflammatory publicity regarding the defendant's case so saturated the community as to render it virtually impossible to obtain an impartial jury there). To justify a presumption of prejudice under this standard, the publicity must be both extensive and sensational in nature. Angiulo, 897 F.2d at 1181. The rationale underlying the principle of presumed prejudice is that defendants and judges "simply cannot rely on '"jurors' claims that they can be impartial."'" United States v. McVeigh, 153 F.3d 1166, 1182 (10th Cir. 1998) (quoting Mu'Min v. Virginia, 500 U.S. 415, 429 (1991), quoting in turn Patton v. Yount, 467 U.S. 1025, 1031 (1984) ("[A]dverse pretrial publicity can create such a presumption of prejudice 55 1121097 in a community that the jurors' claims that they can be impartial should not be believed.")); Hayes v. Ayers, 632 F.3d 500, 511 (9th Cir. 2011) ("We may give 'little weight' to a prospective juror's assurances of impartiality 'where the general atmosphere in the community or courtroom is sufficiently inflammatory.'" (citations omitted)); United States v. Abello-Silva, 948 F.2d 1168, 1176-77 (10th Cir. 1991) ("In rare cases, the community is so predisposed that prejudice can be presumed, and venue must be transferred as a matter of law."); 6 LaFave, Criminal Procedure § 23.2(a), 264 ("[P]rejudicial publicity may be so inflammatory and so pervasive that the voir dire simply cannot be trusted to fully reveal the likely prejudice among prospective jurors."). As mentioned above, the principle of presumed prejudice is rarely applicable and is reserved for extreme situations. See Hayes, 632 F.3d at 508; United States v. Campa, 459 F.3d 1121, 1143 (11th Cir. 2006); accord Skilling, 561 U.S. at ___, 130 S. Ct. at 2915 ("A presumption of prejudice, our decisions indicate, attends only the extreme case."). The defendant's burden in proving presumed prejudice is, consequently, extremely high. McVeigh, 153 F.3d at 1182. Thus, it has been said that to establish presumptive prejudice, the defendant 56 1121097 must show that "an irrepressibly hostile attitude pervade[s] the community" and that the publicity "dictates the community's opinion as to guilt or innocence." Abello-Silva, 948 F.2d at 1176. It likewise has been said that prejudice cannot be presumed unless the trial atmosphere has been "'utterly corrupted by press coverage.'" Campa, 459 F.3d at 1144 (quoting Dobbert v. Florida, 432 U.S. 282, 303 (1977)). The reviewing court "must find that the publicity in essence displaced the judicial process, thereby denying the defendant his constitutional right to a fair trial." McVeigh, 153 F.3d at 1181. As stated above, the Supreme Court of the United States has considered four factors in determining whether a trial court should presume prejudice from media coverage: (1) the size and characteristics of the community in which the crime or crimes occurred; (2) whether the media coverage contained a confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight, i.e., the general content of the media; (3) the temporal proximity between the media coverage and the defendant's trial; and (4) media interference with the jury's verdict. Skilling, 561 U.S. at ___, 130 S. Ct. at 2913-16. 57 1121097 I agree with the Court of Criminal Appeals' analysis of each of the above factors. I find the Court of Criminal Appeals' discussion of the second prong to be particularly persuasive in this case. In Rideau v. Louisiana, 373 U.S. 723 (1963), the seminal case concerning presumed prejudice, the defendant's videotaped confession to law enforcement was broadcast on numerous occasions over a local television station to a relatively small community; the Supreme Court of the United States concluded that such media coverage resulted in a "kangaroo court" that derailed due process and quashed any hope of a fair trial in that location. 373 U.S. at 726. The Supreme Court held that "the spectacle of [the defendant] personally confessing in detail to the crimes with which he was later to be charged," to the tens of thousands of people who saw and heard it, "in a very real sense was [the defendant's] trial –- at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality." Rideau, 373 U.S. at 726. The Supreme Court reached this conclusion "without pausing to examine a particularized transcript of the voir 58 1121097 dire examination of the members of the jury." 373 U.S. at 727. The Supreme Court held that prejudice was presumed. In Skilling, the Supreme Court of the United States noted that, although the news stories regarding the defendant and the crime were not kind by any means, they did not contain "a confession or other blatantly prejudicial information" of the type readers or viewers could not reasonably be expected to ignore. 561 U.S. at ___, 130 S. Ct. at 2916. Comparing the content of the media coverage in Skilling to that of Rideau, supra, the Supreme Court found that the content of the media coverage did not warrant a presumption of prejudice. Skilling, 561 U.S. at ___, 130 S. Ct. at 2916. The Supreme Court noted in Rideau that "[w]hat the people ... saw on their television sets was [the defendant], in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder, in response to leading questions by the sheriff." Rideau, 373 U.S. at 725. The Supreme Court also noted in Rideau that "[f]or anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was [the defendant's] trial -- at which he pleaded guilty to murder." 59 1121097 373 U.S. at 726. In contrast, the Supreme Court noted in Skilling that although Rideau's "dramatically staged admission of guilt ... was likely imprinted indelibly in the mind of anyone who watched it," the pretrial publicity involving Skilling, in comparison, was less memorable, and thus less prejudicial; Skilling did not involve any confession, much less a blatantly prejudicial smoking-gun variety confession, that could invite prejudgment opinions throughout the community regarding his culpability. Skilling, 561 U.S. at ___, 130 S. Ct. at 2916. The United States District Court for the Southern District of Texas denied Skilling's change-of- venue motion, despite "isolated incidents of intemperate commentary," because the media coverage "ha[d] [mostly] been objective and unemotional," and the facts of the case were "neither heinous nor sensational." 561 U.S. at ___, 130 S. Ct. at 2908. The court concluded that pretrial publicity concerning the case did not warrant a presumption that the defendant would be unable to obtain a fair trial in that venue. 561 U.S. at ___, 130 S. Ct. at 2909. In Ex parte Fowler, 574 So. 2d 745 (1990), this Court also declined to presume prejudice when the media coverage gave only "factual and objective accounts of the events 60 1121097 surrounding the petitioner's case." 574 So. 2d at 748. The defendant in Fowler attempted to show that there had been extensive publicity surrounding the case in Fayette County and that some of that publicity had spilled over into Lamar County, the county the trial judge, upon a motion for a change of venue, deemed appropriate in which to try the case. Fowler, 547 So. 2d at 749. The defendant introduced the results of a survey of 200 potential jurors in Lamar County. A majority of those who participated in the survey stated that they had knowledge of the case. Those who stated that they were aware of the case also stated that they had acquired their knowledge largely by reading articles appearing in newspapers published in Fayette, Lamar, and Tuscaloosa Counties, by listening to the radio, and by talking with friends and relatives. Of those who participated in the survey, 46% stated that, based on what they had read or heard about the case, they personally believed that the defendant was not justified in killing her husband. After carefully reviewing the numerous newspaper articles and the transcripts of radio broadcasts that were contained in the record, this Court concluded that none of the media coverage was inherently prejudicial or tended to inflame the community to rally 61 1121097 against the defendant. To the contrary, the media coverage contained only factual and objective accounts of the events surrounding the defendant's case and not necessarily anything that would be unfairly prejudicial or inflammatory. Id. In this case, Lam Luong confessed to throwing his four children, one at a time, off the Dauphin Island Bridge. The State emphasizes, however, that Luong's confession, unlike the defendant's confession in Rideau, was not broadcast. State's brief, at p. 36. However, Luong's guilty plea was broadcast. State's brief, at p. 36. The Supreme Court of the United States in Skilling hinted that a guilty plea, by itself, whether treated the same as a confession or as mere "blatantly prejudicial information," might not be enough to warrant the presumption of prejudice when the guilty plea is made by a codefendant; it, however, did not address the effect of broadcasting a defendant's guilty plea, as occurred in this case. Skilling, 561 U.S. at ___, 130 S. Ct. at 2917 ("Although publicity about a codefendant's guilty plea calls for inquiry to guard against actual prejudice, it does not ordinarily –- and, we are satisfied, it did not here –- warrant an automatic presumption of prejudice."). 62 1121097 Regardless, because the media content consisted of other prejudicial information, not only a confession or a guilty plea, such as "Luong's prior criminal history, ... Luong's desire to plead guilty, Luong's decision to withdraw his guilty plea, the community's outrage over the death of the four children, and what the community believed should be Luong's punishment," Luong, ___ So. 3d at ___, it is not necessary to determine whether a confession alone has any bearing upon the presumption-of-prejudice analysis and whether a guilty plea is treated as a confession under Skilling. The Court of Criminal Appeals detailed the extensive media coverage in Luong, as follows: "Most of the articles cited above appeared on the front page of the [Mobile] Press-Register and were often accompanied by photographs of the four children, photographs of the recovery efforts, and photographs of individuals mourning the loss of the four victims. It was reported on numerous occasions that Luong had been described by the local community as a crack addict, that the motive for the murders was revenge, that Luong had a criminal history, that Luong had been in trouble with the law in Georgia and Mississippi, that Luong had been arrested in Georgia for possessing crack cocaine, that Luong had pleaded guilty in 1997 to possessing cocaine in the State of Mississippi, that Luong had had another drug charge in 2000 but that charge was dropped, that Luong's drug problem and his behavior were getting worse, and that Luong had said that he wanted his case to be more famous than Virginia Tech or September 11, 2001. 63 1121097 "There were articles describing the impact of the crime on the community and the community's efforts to come to terms with the ramifications of Luong's actions. There was extensive publicity concerning the community's involvement in the case and the recovery efforts the community had undertaken to find the bodies of the four children. At one point over 150 people, mostly volunteers, helped with the recovery efforts, and the newspaper asked all owners of property near the water to walk their properties. A local cemetery donated the plots for the children to be buried and set aside a plot for the children's mother. A local school raised money for the mother. A permanent memorial was erected at Maritime Park in Bayou La Batre to honor the children. The community was invited to the graveside service for the children, the family of the victims hosted an appreciation dinner for the volunteers who had searched for the children's bodies, and a moment of silence was observed at a Mardi Gras parade to honor the children. Individuals indicated how consumed the Mobile community had become with the tragedy and the anger and outrage that the community felt toward Luong. "Luong's case also received extensive local television coverage. Bob Cashen, news director for local FOX affiliate WALA-TV, Channel 10, stated that his station aired 143 news segments related to the murders. Christian Stapleton, the custodian of records for local CBS affiliate WKRG, Channel 5, stated that 442 stories had been aired concerning the case from January 2008 through January 2009. Wes Finley, news director for local NBC affiliate WPMI, Channel 15, furnished a list of 93 stories that had been aired about the case. WKRG also hosted an online forum concerning the murders entitled 'Children Thrown from the Bridge.' One topic in this forum entitled 'How Should the Baby Killer be Dealt With' was viewed over 16,000 times." 64 1121097 Luong, ___ So. 3d at ___ (footnote and reference to record omitted). Further, in support of his change-of-venue motion, Luong presented the results of a telephone poll that had been conducted by Dr. Verne Kennedy, the president of Market Research Insight, Inc. Dr. Kennedy's poll, conducted in January 2009 of 350 people in the Mobile area, revealed that 84% of those polled had heard about the case, that 44% had heard a great deal about the case, that 71% had a personal opinion that Luong was guilty, and that 75% thought that other people viewed Luong as guilty. The media coverage in this case was extensive and sensational; I agree with the Court of Criminal Appeals concerning this issue and its conclusion that "Luong's case represents one of those rare instances where prejudice must be presumed." Luong, ___ So. 3d at ___. Therefore, I respectfully dissent from the conclusion in the main opinion that "the trial court did not exceed the scope of its discretion in refusing to find presumed prejudice against Luong ...." ___ So. 3d at ___. II. 65 1121097 I also dissent from the conclusion in the main opinion that "the Court of Criminal Appeals erred in holding that individual voir dire was mandated ...." ___ So. 3d at ___. Based on my conclusion that Luong put forth evidence of pervasive prejudice against him based on the extensive and sensational media coverage, the burden then shifted to the State to rebut that presumption. Campa, 459 F.3d at 1143. In Campa, the United States Court of Appeals for the Eleventh Circuit held that "the government can rebut any presumption of juror prejudice by demonstrating that the district court's careful and thorough voir dire, as well as its use of prophylactic measures to insulate the jury from outside influences, ensured that the defendant received a fair trial by an impartial jury." 459 F.3d at 1143. Individual voir dire was necessary in order to ensure that the veniremembers selected to serve on Luong's jury held no prejudice against him. I note that, in Alabama, voir dire is conducted under the discretion of the trial court and that, "'[e]ven in capital cases, there is no requirement that a defendant be allowed to question each prospective juror individually during voir dire examination ....'" Browning v. State, 549 So. 2d 548, 552 66 1121097 (Ala. Crim. App. 1989) (quoting Hallford v. State, 548 So. 2d 526 (Ala. Crim. App. 1988)). Additionally, according to the United States Supreme Court, "no hard-and-fast formula dictates the necessary depth or breadth of voir dire." Skilling, 561 U.S. at ___, 130 S. Ct. at 2917. However, "individual questioning may be necessary under some circumstances to ensure that all [juror] prejudice has been exposed." Haney v. State, 603 So. 2d 368, 402 (Ala. Crim. App. 1991). Also, "questions on voir dire must be sufficient to identify prospective jurors who hold views that would prevent or substantially impair them from performing the duties required of jurors." Jackson v. Houk, 687 F.3d 723, 735 (6th Cir. 2012); see also 6 LaFave, Criminal Procedure § 23.2(f), 278 ("Yet another way to overcome the prejudicial impact of pretrial publicity is by a voir dire that identifies those prospective jurors influenced by the publicity and a challenge procedure that eliminates all persons in that group who actually have been biased by the publicity."). In the present case, in light of the voluminous evidence put forth by Luong establishing a presumption of prejudice based on the extensive and sensational media coverage, individual voir dire was required to ensure that Luong receive 67 1121097 a fair trial by an impartial jury. In support of my conclusion, a comparison of two cases decided by the United States Court of Appeals for the Eleventh Circuit, Campa, supra, and Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985), is helpful. In Campa, a case concerning whether presumed prejudice based on extensive and inflammatory media coverage existed, the Eleventh Circuit Court of Appeals stated: "Once the defendant puts forth evidence of the pervasive prejudice against him, the government can rebut any presumption of juror prejudice by demonstrating that the district court's careful and thorough voir dire, as well as its use of prophylactic measure to insulate the jury from outside influences, ensured that the defendant received a fair trial by an impartial jury." 459 F.3d at 1143. The Eleventh Circuit then examined the trial court's voir dire of the veniremembers and stated: "The voir dire in this case was a model voir dire for a high profile case. The court conducted a meticulous two-phase voir dire stretching over seven days. In contrast to the generalized, pre-fabricated, and sometimes leading questions of [a] survey [submitted by the defendant] were the detailed and neutral voir dire questions that the court carefully crafted with the parties' assistance. In the first phase of voir dire, the court screened 168 prospective jurors for hardship and their ability to reach a verdict based solely on the evidence. In the second phase, the court extensively and individually questioned 82 prospective jurors outside the venire's presence regarding sensitive subjects .... Phase two 68 1121097 questioning revealed that most of the prospective jurors, and all of the empaneled jurors, had been exposed to little or no media coverage of the case. Those who had been exposed to media coverage of the case vaguely recalled a 'shootdown,' but little else. Ultimately, the court struck 32 out of 168 potential jurors (19%) for Cuba-related animus [the defendant was Cuban], which was well within an acceptable range." 459 F.3d at 1147 (footnotes omitted). The Eleventh Circuit concluded: "In sum, the record in this case amply demonstrates that the district court took extraordinary measures to carefully select a fair and impartial jury. The court extensively and individually questioned the prospective jurors, repeatedly cautioned them not to read anything or talk to anyone about the case, insulated the jurors from media publicity, provided the defendants with extra peremptory challenges, struck 32 persons for cause, and struck all of the Cuban–Americans over the government's Batson[ v. Kentucky, 476 U.S. 79 (1986),] objection. Under these circumstances, we will not disturb the district court's broad discretion in assessing the jurors' credibility and impartiality." 459 F.3d at 1148. In Coleman v. Kemp, the Eleventh Circuit stated that a presumption of juror prejudice as a result of media coverage could be rebutted by voir dire of the members of the jury. 778 F.2d at 1541 n. 25. In Coleman, the defendant was charged with murdering six individuals. 778 F.2d at 1488. Once charges were brought against the defendant, the defendant 69 1121097 filed a motion for a change of venue, alleging that refusal to grant the motion would deprive him of his right to an impartial jury guaranteed by the Sixth Amendment; the trial court denied the defendant's motion, and the defendant appealed. On appeal, the defendant argued that the "pretrial publicity and the community's atmosphere were so prejudicial and inflammatory that the trial court's refusal to grant the [defendant's] motion for a change of venue deprived him of his rights guaranteed by the Sixth ... Amendment[]." 778 F.2d at 1489. The Coleman court concluded that the defendant could not receive a fair trial before an impartial jury in that venue because of the presumption of prejudice that had arisen as a result of the inflammatory pretrial publicity that had saturated the community. 778 F.2d at 1537-38. The State argued that the transcript of the voir dire record setting forth the "examination of the members of the jury" could rebut any presumption of prejudice; the Coleman court agreed that there could be such a rebuttal. However, the Coleman court concluded that the voir dire examinations conducted by the trial judge were insufficient to rebut the presumption of prejudice for two reasons. 70 1121097 First, the problem with the voir dire in Coleman was that the trial court in that case did not ask "questions which were calculated to elicit the disclosure of the existence of actual prejudice, the degree to which the jurors had been exposed to prejudicial publicity, and how such exposure had affected the jurors' attitude towards the trial." 778 F.2d at 1542. Instead, the trial court in that case conducted an insufficient voir dire by asking leading questions and inducing conclusory answers. Second, the voir dire in Coleman was insufficient because the trial court examined prospective jurors in the presence of other prospective jurors who had not yet been examined. The Coleman court stated that preferable voir dire procedures would have followed the American Bar Association Guidelines, as follows: "'If there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure shall take place outside the presence of other chosen and prospective jurors.'" 778 F.2d at 1542. The voir dire in the present case is more similar to the voir dire conducted in Coleman than to the voir dire conducted in Campa. In the present case, the trial court failed to 71 1121097 conduct a sufficient voir dire examination of each juror by failing to obtain enough information to evaluate the degree to which the jurors had been exposed to prejudicial publicity and how such exposure had affected the jurors' attitudes toward the trial. According to the Court of Criminal Appeals, the trial court conducted the voir dire in the following order: "On March 9, 2009, the voir dire examination began, and 156 prospective jurors completed juror questionnaires related to Luong's case. The questionnaire consisted of 11 pages. Question number 51 specifically asked the jurors if they had read or heard about the case and the content of what they had read or heard. ... Most of the jurors who indicated that they had heard or read about the case did not complete the question concerning the content of what they had heard or read. "A review of the questionnaires indicated that of the 156 jurors who completed questionnaires, 139 of those jurors had heard about the case and only 15 had not heard about the case; 38 of the jurors who had heard about the case responded that they had heard or read that Luong either had confessed to the murders or had pleaded guilty to the murders. "After the circuit court held that it was allowing individual voir dire, the following occurred: "'The Court: What I am going to do is I'm going to say: I want everybody to raise their hand if they have heard, read, or seen, or by word of mouth know anything about this case. Raise your hand. Don't tell me what it is. "'We're going to take their names. I'm going to have them identify who they 72 1121097 are and then we will take them individually.' "However, during voir dire examination the circuit court merely asked the following questions concerning pretrial publicity: "'The Court: Okay. I have told you that there has been media coverage from various media outlets about this case. And I want to see a show of hands as to who may remember seeing, reading or hearing anything about this case. "'(Response.) "'The Court: Okay. I Think a better question would be -- please put your hands down. "'(Laughter.) "'The Court: Who among you have not heard, read or seen anything about this case? "'(Response.) "'The Court: Okay. Could you -- Ma'am, could you stand and give us your name and your number? "'[S.E.]: [S.E.], number 62. "'The Court: Thank you, ma'am. You may be seated. "'Yes, sir? "'[L.M.]: [L.M.], number 63. "'The Court: Thank you very much. Okay "'Now, listen to this question very carefully. Would any of you, based on what 73 1121097 you have read, seen, or heard, or remember, could you set those things aside and serve as a fair and impartial juror? "'In other words, is there any member of the jury who thinks because they have a recollection of this case, whether it be from radio, television, or newspaper, Internet, or any other source, that it would be impossible for you to put that aside, lay that aside and sit as a fair and impartial juror in this case and base your decision only on the evidence as you hear it is in this courtroom? "'Can any of you -- or would any of you tell me it would be impossible for you to sit as a fair and impartial juror in this case? "'(Response.) "'The Court: I see a hand in the back. Could you please stand, sir, and just give us your name and number? "'[S.T.]: Mr. [S.T.], 141. "'The Court: [S.T.], you are telling me that regardless of what you have heard, read or seen, you are telling me that you in no way could set that aside and sit as a juror? "'[S.T.]: No, sir. "'The Court: Thank you. Is it 144? "'[S.T.]: 141. "'The Court: All right. The rest of you are telling me that even though you may have heard, read or seen matters about this case, and you may have had some 74 1121097 preconceived impression or opinion, based on what you have heard, read or seen, that you could sit as a juror in this case, base your verdict only on the evidence as it comes from the witness stand and any evidence that may be introduced into evidence in the form of photographs or documents or something, and you could render a fair and impartial verdict by setting aside any of that and base your verdict on the evidence that you hear in this courtroom? You can do that. "'(Response.) "'The Court: If you can't, other than [S.T.], please raise your hand. "'(No response.)'" Luong, ___ So. 3d at ___ (footnotes omitted). As the Court of Criminal Appeals noted, Luong objected to the trial court's method of handling the issue of pretrial publicity and the court's failure to allow individual voir dire. ___ So. 3d at ___. Further, the trial court in this case did not follow the American Bar Association Guideline, recommended in Coleman, that "'the examination of each juror with respect to exposure shall take place outside the presence of other chosen and prospective jurors.'" Coleman, 778 F.2d at 1542. The trial court questioned the prospective jurors as a whole. 75 1121097 The voir dire conducted in this case is a mere shadow of the "model voir dire for a high profile case" employed by the federal district court in Campa. In the present case, all 12 jurors who served in Luong's jury indicated in their juror questionnaires that they had heard that Luong had confessed or that he had pleaded guilty; however, none of those jurors were questioned individually. Instead, during the voir dire examination, the trial court merely asked the prospective jurors to raise their hands if they remembered seeing, reading, or hearing anything about the case. None of the jurors who served on Luong's jury were questioned individually concerning their exposure to pretrial publicity. The trial court's failure to conduct an individual voir dire of the jurors left unrebutted the presumption that the jurors were prejudiced against Luong based on the inflammatory pretrial publicity that saturated the community. In short, the trial court did not get enough information to make a meaningful determination of juror impartiality. Therefore, I dissent from the conclusion in the main opinion that "the Court of Criminal Appeals erred in holding that individual voir dire was mandated." ___ So. 3d at ___. 76 1121097 I also write to address the sentiment in the following paragraph from the main opinion: "This Court has also considered Luong's argument that the media coverage of Luong's confession and the withdrawal of his guilty plea amounted to 'the kind of deeply prejudicial pretrial exposure that jurors cannot be reasonably expected to ignore.' However, in light of the admission into evidence at trial of Luong's confession in which he admitted that he threw his children off the bridge, the publicity about his confession and guilty-plea proceeding did not result in a preconceived prejudice that permeated the trial, preventing the seating of a fair and impartial jury." ___ So. 3d at ___. It appears that the main opinion concludes that because Luong was so obviously guilty it was harmless error that his Sixth Amendment right to an impartial jury was violated. I disagree. In Irvin v. Dowd, 366 U.S. 717, 722 (1961), the Supreme Court of the United States noted that a "'fair trial in a fair tribunal is a basic requirement of due process.'" (Quoting In re Murchison, 349 U.S. 133, 136 (1955).) There, when the defendant was indicted for murder, the defendant immediately filed a motion for a change of venue alleging that the jury pool was highly prejudiced due to "widespread and inflammatory publicity." 366 U.S. at 720. The trial court granted the defendant's motion and transferred the case to Gibson County. 77 1121097 Alleging that Gibson County was also saturated with inflammatory publicity, the defendant filed a second motion for a change of venue. This motion was denied by the trial court based on the Indiana statute that allows only a single change of venue. However, based on an Indiana Supreme Court decision that states that it is a "'duty of the judiciary to provide to every accused a public trial by an impartial jury even though to do so the court must grant a second change of venue and thus contravene [the statute],'" 366 U.S. at 721 (quoting State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 642, 159 N.E.2d 713, 715 (1959)), the United States Supreme Court agreed with the defendant that the media coverage in Gibson County was extensive and inflammatory and, thus, vacated the judgments of the Supreme Court of Indiana and the trial court, which had denied the defendant's second motion for a change of venue. The United States Supreme Court also added that only a jury, based on evidence presented in court, can strip a person of his or her liberty and that "this is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies." 366 U.S. at 722. 78 1121097 In Coleman, the defendant had been charged with six counts of murder. The United States Court of Appeals for the Eleventh Circuit agreed with the State that evidence of the defendant's guilt was overwhelming. 778 F.2d at 1541. However, regardless of the evidence of the defendant's guilt in that case, the Coleman court affirmed the trial court's holding that a presumption that the jury was prejudiced against the defendant based on extensive and inflammatory media coverage existed because "to hold otherwise would mean an obviously guilty defendant would have no right to a fair trial before an impartial jury, a holding which would be contrary to the well established and fundamental constitutional right of every defendant to a trial." 778 F.2d at 1541. In the case at hand, this Court should not simply overlook the presumption that the jury was prejudiced against Luong based on the overwhelming evidence of his guilt. To do so violates Luong's right to a fair trial before an impartial jury. Therefore, I must dissent. Murdock and Main, JJ., concur. 79 1121097 MURDOCK, Justice (dissenting). Reading the pervasive and sensational nature of the pre- trial publicity in this case, as summarized by the Court of Criminal Appeals in Luong v. State, [Ms. CR-08-1219, February 15, 2013] ___ So. 3d ___, ___ (Ala. Crim. App. 2013), and requoted near the end of Part I of Justice Parker's dissenting opinion, ___ So. 3d at ___, as well as the polling data referenced by Justice Parker in support of that summary, ___ So. 3d at ___, it is hard to imagine a case involving more extensive and more prejudicial publicity or a case that would more readily warrant a conclusion of presumed prejudice. By the same token, it is hard to imagine a case with a greater need for individualized voir dire to enable a defendant to show actual prejudice. I recognize that we have witnessed significant changes in news and communication technologies in recent years; however, the fundamental and well established constitutional principles at stake have not changed. With all due respect, I fear that if these principles are not to be allowed operative effect in a case such as this one, then they are left with little or no meaningful field of operation. 80	March 14, 2014
fca16d0a-0497-47cc-80fe-e1cf58d5fcd1	Estes Oil Company, Inc. v. Sam's Real Estate Business Trust, Inc. (Appeal from Lauderdale Circuit Court: CV-12-0139). Affirmed. No Opinion.	N/A	1121365	Alabama	Alabama Supreme Court	REL: 05/02/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121365 ____________________ Estes Oil Company, Inc. v. Sam's Real Estate Business Trust, Inc. Appeal from Lauderdale Circuit Court (CV-12-0139) STUART, Justice. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P. Bolin, Parker, Main, and Wise, JJ., concur. Moore, C.J., and Murdock, Shaw, and Bryan, JJ., dissent. 1121365 MOORE, Chief Justice (dissenting). Because I believe that the trial court incorrectly construed the agreement the interpretation of which is at issue in this case, I respectfully dissent from affirming its judgment. I. Facts and Procedural History In 1991, Wal-Mart Stores, Inc. ("Wal-Mart"), and Estes Oil Company, Inc. ("Estes"), entered into an "Access and Facility Easements" agreement ("the agreement") regarding the use of their adjacent properties in Florence. Wal-Mart's property was termed "Tract 1" in the agreement; Estes's property was termed "Tract 3." Paragraph 11 of the agreement states: "Competing Businesses. Wal-Mart covenants that as long as Estes or any affiliate of Estes is the user of Tract 3, either as owner or lessee, no portion of Tract 1 shall be leased or occupied by or conveyed to any other party for use as an auto gasoline station." Wal-Mart built a Sam's Wholesale Club on Tract 1. On October 21, 1996, Sam's Real Estate Business Trust, Inc. ("Sam's REBT"), was organized as a business entity in Delaware. On October 31, 1996, Wal-Mart conveyed Tract 1 by a warranty deed to Sam's REBT, which on March 13, 1997, 2 1121365 registered to do business as a foreign corporation in Alabama. In 2003, Wal-Mart recorded in Lauderdale County the warranty deed conveying Tract 1 to Sam's REBT. In 2012, Sam's REBT began building a gasoline station on Tract 1. Paragraph 9 of the agreement states: "The rights and obligations contained herein shall run with the title to Tract 1 and Tract 3 and shall bind and insure [sic] to the benefit of the respective successors and assigns of the parties hereto." Upon discovering that Sam's REBT was building a gasoline station on Tract 1, Estes, which had operated a gasoline station on Tract 3 since 1984, sued Sam's REBT, seeking injunctive relief to halt the construction of the gasoline station. Sam's REBT counterclaimed, seeking a judgment declaring that the agreement did not forbid its construction of a gasoline station on Tract 1. The trial court, treating Sam's REBT as the legal equivalent of Wal-Mart, denied injunctive relief to Estes and entered a summary judgment for Sam's REBT. Estes appeals. II. Standard of Review A summary judgment is reviewed de novo, and the judgment is given no presumption of correctness. Baldwin v. Branch, 888 3 1121365 So. 2d 482, 484 (Ala. 2004). A summary judgment is proper when there is "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56, Ala. R. Civ. P. III. Analysis The dispositive issue is whether Sam's REBT qualifies as "any other party" under paragraph 11 of the agreement. Sam's REBT argues that as a wholly owned subsidiary of Wal-Mart it is not "any other party" but is the same party as Wal-Mart. Thus, it argues, paragraph 11 does not restrict its use of Tract 1. The trial court, agreeing with Sam's REBT, stated in its summary-judgment order: "While paragraph 11 would appear to prevent an 'other party' from using [Wal-Mart's] property as an 'auto gasoline station,' [Estes] has offered no viable legal or factual argument suggesting that [Sam's REBT] is such an 'other party' or that paragraph 11 has any application to [Sam's REBT's] own use of its property." However, in its opposition to Sam's REBT's summary-judgment motion, Estes contended that Sam's REBT was an "other party" to the agreement because, it argued, "Sam's is not an original party to the [agreement], Sam's is a freestanding corporate entity, Sam's has not been merged into Wal-Mart or any other 4 1121365 corporate entity, and it does not claim to be the alter-ego of Wal-Mart." A party is "[o]ne who takes part in a transaction." Black's Law Dictionary 1231 (9th ed. 2009). In 1996, Sam's REBT took part in a transaction with Wal-Mart, namely the conveyance by a warranty deed of Tract 1 from Wal-Mart to Sam's REBT. The deed was recorded in Lauderdale County in 2003. Sam's REBT is organized as a Delaware business trust and is registered as a foreign corporation in Alabama under its own name. If Sam's REBT were not a separate legal entity from Wal-Mart, how could Wal-Mart convey Tract 1 to Sam's REBT? It can hardly be argued under the law that the conveyance of Tract 1 by a warranty deed was not a transaction between two parties. No legal justification exists for one party to deed to itself property it already owns. Nor, for example, would a lien against Wal-Mart be filed against property in the name of Sam's REBT. Sam's REBT, though a wholly owned subsidiary of Wal-Mart, is nonetheless an "other party" to the agreement between Estes and Wal-Mart and thus also a successor or assignee of Wal-Mart under paragraph 9. 5 1121365 Had Wal-Mart desired to exclude affiliates or subsidiaries from the scope of the term "any other party" in the agreement, it could have bargained with Estes to add such an exclusion to the agreement and thus protected from the constraints of paragraph 11 any conveyance of Tract 1 to an affiliated entity. However, as the agreement is worded and in accord with common usage of the term "party," Sam's REBT is a stranger to the agreement and thus an "other party" under its terms. "Words used in a contract will be given their ordinary, plain, or natural meaning where nothing appears to show they were used in a different sense or that they have a technical meaning." Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 36 (Ala. 1998). See also Strickland v. Rahaim, 549 So. 2d 58, 60 (Ala. 1989) (noting that "the parties [to a contract] are presumed to have intended what the terms clearly state"). IV. Conclusion Because Sam's REBT is a separate legal entity from Wal- Mart and was not a party to the agreement, it qualifies as an "other party" under paragraph 11 of the agreement. Therefore, I respectfully dissent from affirming the trial court's summary judgment for Sam's REBT. 6 1121365 MURDOCK, Justice (dissenting). The covenant at issue was made by Wal-Mart Stores, Inc. ("Wal-Mart"), in favor of Estes Oil Company, Inc. ("Estes"), and it provided that Wal-Mart would not convey the parcel of land at issue to any "other party" for use as a gasoline station. There is no evidence indicating that the parties to this covenant meant anything by the term "other party" except its plain and ordinary meaning. Sam's Real Estate Business Trust, Inc. ("Sam's REBT"), is not Wal-Mart; it is a separate legal entity. It is not even a wholly owned subsidiary of Wal-Mart. It is a subsidiary of a subsidiary of a subsidiary of Wal-Mart. Thus, one might say that it is indirectly owned and controlled by Wal-Mart. The plain language of the covenant here, however, contains no exception for the conveyance of land to entities indirectly owned or controlled by Wal-Mart. By its plain language, it prevents the conveyance of the property to any "other party" -- any separate legal entity -- for use as a gasoline station. Wal-Mart has voluntarily used the separate "corporate" form of Sam's REBT to gain tax advantages and/or to insulate itself from potential liabilities. Having voluntarily chosen 7 1121365 the legal advantages offered by this "corporate veil," Wal- Mart and Sam's REBT may not so readily ignore their separate status merely because it suits their purposes to do so in the immediate controversy. See, e.g., Joyce v. Super Fresh Food Markets, Inc., 815 F.2d 943, 946 (3d Cir. 1987) ("[The defendant] chose to construct a complex corporate family structure. ... This structure has afforded the [defendant corporate] family various tax and labor advantages. ... While we certainly do not begrudge the [defendant corporate] family these fruits, we will not sympathetically listen as they complain of the other consequences."); Mitchell Co. v. Campus, CIV.A.08-0342-KD-C (S.D. Ala. June 17, 2009) (not reported in F. Supp. 2d) ("Even where the directors and officers of one company decided to incorporate a separate company, whatever the motive, they become 'bound by the disadvantages as well as the advantages of separate incorporation.'") (quoting Diesel Sys., Ltd. v. Yip Shing Diesel Eng'g Co., 861 F. Supp. 179, 181 (E.D. N.Y. 1994)). As one authority put it recently, courts view with "disfavor ... contradictory attempts to secure the benefits of the corporate form while at the same time seeking to avoid the disadvantages of same." General 8 1121365 Nutrition Corp. v. Gardere Wynne Sewell, LLP, 727 F. Supp. 2d 377, 387 n.10 (W.D. Pa. 2010). For that matter, and the most concerning aspect of our decision today in my opinion, is the ease with which this Court ignores the separate legal status of Wal-Mart and Sam's REBT and thereby acts in a manner inconsistent with our own decisions -- decisions in which we have been careful to observe and to safeguard the separate legal status of a corporation and its shareholders. A substantial showing is necessary to justify ignoring that separate status. "'"Piercing the corporate veil is not a power that is lightly exercised. The concept that a corporation is a legal entity existing separate and apart from its shareholders is well settled in this state. Co–Ex Plastics, Inc. v. AlaPak, Inc., 536 So. 2d 37 (Ala. 1988). Alorna Coat Corp. v. Behr, 408 So. 2d 496 (Ala. 1981). The mere fact that a party owns all or a majority of the stock of a corporation does not, of itself, destroy the separate corporate identity. Messick v. Moring, 514 So. 2d 892 (Ala. 1987); Forester & Jerue, Inc. v. Daniels, 409 So. 2d 830 (Ala. 1982)."'" Econ Mktg., Inc. v. Leisure Am. Resorts, Inc., 664 So. 2d 869, 870 (Ala. 1994)(quoting Backus v. Watson, 619 So. 2d 1342, 1345 (Ala. 1993), quoting in turn Simmons v. Clark Equip. Credit Corp., 554 So. 2d 398, 400–01 (Ala. 1989)(emphasis added)). Here, there is an absence of any showing by Sam's 9 1121365 REBT that the corporate veil (actually, veils) between it and Wal-Mart should be pierced. In the absence of such a showing, and given the absence of any evidence of some special meaning of the term "other party" in the covenant, the Court's decision today is at odds with long-established and important precedent respecting the ability of parties to take on separate corporate forms. Finally, the violation of the restrictive covenant here is a matter that may be the enforced against Sam's REBT because the covenant is a recorded encumbrance and by its terms is binding on the "successors and assigns" of Wal-Mart. See also West Town Plaza Assocs., Ltd. v. Wal-Mart Stores, Inc., 619 So. 2d 1290, 1296 (Ala. 1993) (holding that "[t]he Overlease and the Sublease granted Wal-Mart an easement in land, a property right," entitling Wal-Mart to injunctive relief). I therefore must respectfully dissent. Bryan, J., concurs. 10	May 2, 2014
715e3b45-6e57-4dfe-a62d-f13b8f98c714	Ross v. West Wind Condominium Association, Inc.	N/A	1120636	Alabama	Alabama Supreme Court	REL:04/04/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1120636 ____________________ Ex parte Howard Ross PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Howard Ross v. West Wind Condominium Association, Inc., and Joseph London III) (Madison Circuit Court, CV-08-596; Court of Civil Appeals, 2101167) MOORE, Chief Justice. 1120636 Howard Ross petitioned this Court for a writ of certiorari to review the judgment of the Court of Civil Appeals affirming summary judgments in favor of West Wind Condominium Association, Inc. ("West Wind"), and Joseph London III. See Ross v. West Wind Condo. Ass'n, [Ms. 2101167, Dec. 14, 2012] ___ So. 3d ___ (Ala. Civ. App. 2012). We granted certiorari review, and we now reverse and remand. I. Facts and Procedural History Howard Ross owned four condominium units within the West Wind condominium community. On August 2, 2005, Ross and West Wind agreed that West Wind would accept maintenance and repair work from Ross in lieu of his paying the condominium association's monthly dues. West Wind informed Ross in September 2006 that further work would not be necessary and that he should start paying the dues. Ross paid his dues monthly starting in December 2006. When Ross made his payments for April and May 2007, West Wind rejected those payments and sent Ross a letter through its attorney, A. Mac Martinson, disputing Ross's charges for the maintenance and repair work that Ross had performed. Through an attorney named Patrick Jones, Ross submitted an itemized list of charges for his work 2 1120636 done for West Wind, but Ross never received any further correspondence from West Wind. On December 3, 2007, West Wind recorded instruments in the office of the Probate Judge of Madison County claiming liens on Ross's four condominium units. On January 18, 2008, West Wind published notice of a foreclosure sale on Ross's units in a local newspaper and continued publishing the notice for four weeks. On February 15, 2008, West Wind conducted foreclosure sales on Ross's four condominium units and was the highest bidder as to all of them. That same day, the auctioneer executed foreclosure deeds conveying the four units to West Wind. On March 3, 2008, West Wind conveyed two of the units to Jimmy Spruill and Cynthia Spruill, one unit to Joseph London III (who was president of West Wind), and one unit to Delvin Sullivan. Ross sued West Wind, London, Sullivan, and the Spruills in the Madison Circuit Court on April 18, 2008, alleging claims of wrongful foreclosure and seeking redemption of the properties. Ross sought an order setting aside the foreclosure sales, as well as redemption of the four condominium units. Ross claimed that West Wind had foreclosed on his units 3 1120636 without giving him proper notice and that he had not learned of the foreclosures until after they had occurred. The trial court entered a default judgment against Sullivan, but it entered summary judgments in favor of London and the Spruills on January 4, 2010, and March 8, 2011, respectively, on their motions. On March 28, 2011, West Wind also moved for a summary judgment, arguing, among other things, that it had the right to foreclose under § 35-8-17, Ala. Code 1975, based on Ross's unpaid dues. West Wind supported its summary-judgment motion with copies of letters Martinson had sent to Ross and lien claims filed by West Wind against Ross. West Wind also included a letter dated December 11, 2007, from Robert Vargo, who was the attorney representing West Wind at the time, to Patrick Jones, notifying Jones of West Wind's intention to foreclose. The letter from Vargo to Jones stated: "I represent West Wind Condominium Association, Inc. in an effort to collect past due assessments from Howard Ross. It is my understanding that you represent Mr. Ross in connection with this subject matter. "Enclosed please find the lien claims filed by my client in connection with the failure of your client to pay assessments. In the event the subject 4 1120636 amounts are not paid in full by December 22, 2007, we will commence foreclosure proceedings." On April 1, 2011, Ross filed a response opposing West Wind's summary-judgment motion, arguing that West Wind was not entitled to a summary judgment because, he said, a genuine issue of material fact existed as to whether he had received proper notice from West Wind. Ross's response also contained a narrative of facts, a number of unauthenticated documents, an affidavit by Ross, and an affidavit by Patrick Jones, which stated, in relevant part: "1. I have not represented nor acted as attorney for Howard Ross in any matters between said Howard Ross and Westwind [sic] Condominium Association. "2. I have no knowledge of receipt of any alleged notices or communications sent by Robert Vargo, attorney at law, to Howard Ross." On April 7, 2011, West Wind moved to strike Ross's affidavit and the unauthenticated documents attached to Ross's response. On the same day, West Wind filed an affidavit from Robert Vargo, which stated, in relevant part: "Having reviewed the correspondence between the offices of Mr. A. Mac Martinson, an attorney who had previously represented West Wind in the same matter of collection of assessments from Howard Ross, and Mr. Patrick A. Jones, I understood that Howard Ross was being represented at the time by Mr. Patrick A. Jones. ... In representing my client, and in order 5 1120636 not to violate attorney ethics regarding not communicating about the subject matter of the representation with a party under circumstances implying that such party is represented in the matter by an attorney (i.e. Rule 4.2, Alabama Rules of Professional Conduct), I prepared my letter for Howard Ross to be addressed to attorney Patrick A. Jones." Vargo's affidavit further stated that he mailed the letter to Jones, that the copy of the letter in West Wind's summary- judgment motion was a true and correct copy of that letter, and that he never received a reply from either Jones or Ross. Vargo also stated that he published notices of the sales in the local paper and that he held the foreclosure sales on February 15, 2008, and acted as the auctioneer. On April 14, 2011, the trial court granted West Wind's motion to strike and then granted West Wind's motion for a summary judgment. Ross filed a motion to reconsider on July 22, 2011, which the trial court denied on July 25, 2011. Ross appealed to the Court of Civil Appeals.1 Before the Court of Civil Appeals, Ross argued that West Wind had not given him proper notice of the foreclosures by power of sale under § 35-8A-316(a), Ala. Code 1975; instead, Ross did not appeal the summary judgment in favor of the 1 Spruills; he appealed only the summary judgments in favor of West Wind and London. 6 1120636 he argued, notice was improperly given of the foreclosures by an action under § 35-8-17. West Wind replied that it had the authority to foreclose under § 35-8-17 but made no argument concerning § 35-8A-316. The Court of Civil Appeals held, among other things, that West Wind made a prima facie showing that Ross received notice of the foreclosures under § 35-8A-316. The court then held that Ross did not argue in his principal brief that he presented substantial evidence creating a genuine issue of material fact as to whether he had received such notice and that, therefore, he had waived that argument. Ross petitioned this Court for a writ of certiorari, which we granted. II. Standard of Review "This Court reviews a summary judgment de novo. We apply the same standard as the trial court to determine whether the evidence made out a genuine issue of material fact, see Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988), and whether the movant was 'entitled to a judgment as a matter of law.' Rule 56(c), Ala. R. Civ. P.; Wright v. Wright, 654 So. 2d 542 (Ala. 1995). "'"When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). Evidence is 7 1120636 'substantial' if it is of 'such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright [v. Wright], 654 So. 2d [542] at 543 [(Ala. 1995)] (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So. 2d 359 (Ala. 1993); Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala. 1990)."' "Walker v. City of Montgomery, 833 So. 2d 40, 43 (Ala. 2002) (quoting Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344 (Ala. 1997))." Baldwin v. Estate of Baldwin, 875 So. 2d 1138, 1140 (Ala. 2003). III. Analysis This Court granted certiorari to consider, as a matter of first impression, whether the power to foreclose by judicial action under § 35-8-17, Ala. Code 1975, includes the power to foreclose by sale under § 35-8A-316, Ala. Code 1975. In 1964, the legislature passed what is currently § 35-8- 17 as part of the Condominium Ownership Act. Section 35-8-17 states, in relevant part: 8 1120636 "The association shall have a lien on each unit for any unpaid assessment duly made by the association for a share of common expenses, limited common expenses or otherwise, together with interest thereon and, if authorized by the declaration or bylaws, reasonable attorney's fees. Such lien shall be effective from and after the time of recording in the public records of the county in which the unit is located of a claim of lien stating the description of the unit, the name of the record owner, the amount due and the date when due. Such claim of lien shall include only sums which are due and payable when the claim of lien is recorded and shall be signed and verified by an officer or agent of the association. ... ".... "(4) Liens for unpaid assessments may be foreclosed by an action brought in the name of the association in the same manner as a foreclosure of a mortgage on real property." (Emphasis added.) In 1991, the legislature enacted § 35-8A-316 as part of the Alabama Uniform Condominium Act. Section 35-8A-316(a) states, in relevant part: "The association has a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due. The association's lien may be foreclosed in like manner as a mortgage on real estate but the association shall give reasonable advance notice of its proposed action to the unit owner and all lienholders of record of the unit." (Emphasis added.) 9 1120636 These statutes provide condominium associations two different methods for foreclosing on condominium units. As demonstrated above, § 35-8-17 requires a claim of lien to be filed in the public records of the county in which the unit is located. After that, the condominium association may commence a foreclosure action against the condominium unit. In contrast, § 35-8A-316 states that the lien is effective against the unit from the time the assessment becomes due. Also unlike § 35-8-17, § 35-8A-316 does not require the condominium association to commence an action to foreclose on the unit. Instead, "[s]ubsection (a) permits the association's assessment lien to be foreclosed in the manner of a realty mortgage. This is intended to mean a mortgage that includes a power of sale." § 35-8A-316, Alabama Commentary; cf. §§ 35-10- 1 through -16 (providing for power of sale in mortgages). However, if a condominium association seeks to foreclose by sale pursuant to § 35-8A-316, the association must give "reasonable advance notice" to the unit owner, whereas § 35-8- 17 has no such requirement. Given the differences between the two foreclosure methods provided in these statutes, we hold 10 1120636 that the power to foreclose by an action under § 35-8-17 does not include the power to foreclose by sale under § 35-8A-316. In this case, Ross argues that West Wind initiated foreclosure by judicial action under § 35-8-17 but then foreclosed by sale under § 35-8A-316(a) without giving him reasonable advance notice. In the proceedings below, the Court of Civil Appeals interpreted this argument as presented in Ross's brief to mean that "West Wind failed to make a prima facie showing that it had given him such notice." Ross, ___ So. 3d at ___. The court held that West Wind had satisfied its burden of making a prima facie showing by submitting in support of its summary-judgment motion Vargo's December 11, 2007, letter to Jones and Vargo's affidavit. ___ So. 3d at ___. The Court of Civil Appeals held that the burden then shifted to Ross to present substantial evidence of the existence of a genuine issue of material fact as to whether he received proper notice and that, because he did not make that argument in his principal brief to that court, the argument that he did not receive proper notice was waived. ___ So. 3d at ___. 11 1120636 The Court of Civil Appeals based its analysis on the following section of Ross's brief: "West Wind asserted in its motion for summary judgment that it gave Ross advance notice of the intended foreclosure of his condominium units and supported its claim with an affidavit of Robert Vargo, its attorney at that time. Vargo's affidavit stated that the notice of foreclosure was sent to local attorney, Patrick Jones, because it was Vargo's understanding that Mr. Jones represented Ross. Ross presented an affidavit of Patrick Jones which stated that, not only did Mr. Jones not represent Ross in matters between Ross and West Wind, but that Mr. Jones did not receive any notice of the intended foreclosure of Ross's condominium units. The content of that letter was a notice of the lien claims filed by West Wind along with a demand for payment and a conditional threat of foreclosure proceedings if the payment were not tendered. The said letter does not constitute a notice of foreclosure, as was later published by West Wind in the newspaper. Even if the referenced letter had been sent to Ross, it would fail to satisfy the notice requirement of Ala. Code 1975, § 35-8A-316(a). In accordance with Ala. Code 1975, § 35-8A-316(a), a condominium association maintains a lien by law for any money owed for assessed condominium dues. This section authorizes foreclosure of such a lien by the power of sale, as for a mortgage, if the association provides reasonable advance notice, as opposed to by action under Ala. Code 1975, § 35-8-17. Ala. Code 1975, § 35-8A-316(d), provides that recording the declaration constitutes record notice and perfection of the lien, and no further recordation of any claim of lien for assessment under this section is required." 12 1120636 (Ross's brief on appeal, at 25-26.) The essence of Ross's argument to the Court of Civil Appeals was that, although West Wind's steps to provide notice would have complied with the requirements of foreclosure under § 35-8-17, Ala. Code 1975, West Wind did not provide proper notice as required by § 35- 8A-316, Ala. Code 1975, which, Ross says, was the applicable statute in this case. To prove his point, Ross stated that he presented Jones's affidavit, in which Jones said that he neither represented Ross in any matters between him and West Wind nor had knowledge of any receipt of communications sent from Vargo to Ross. Thus, the essence of Ross's argument was not that West Wind failed to make a prima facie showing that there was no genuine issue of material fact but, rather, that he had presented substantial evidence showing that there was a genuine issue of material fact. Arguably, Ross should have presented his argument in the context of a burden-shifting analysis, but his argument was still sufficient to satisfy Rule 28(a)(10), Ala. R. App. P., and to preserve his argument for appeal. Therefore, the Court of Civil Appeals erred in holding that Ross had waived the argument. 13 1120636 Ross also argues that West Wind should have known that Jones could not be representing Ross because Jones and Ross were made codefendants in another suit after Ross sent his itemized list of charges to West Wind through Jones. Ross cites Rule 1.7, Ala. R. Prof. Cond., to argue that Jones could not continue to represent Ross because that representation would have created a conflict of interest. However, the documents upon which Ross relies to make this argument were struck from the evidence, and Ross has not argued that the trial court erred in striking this evidence. Thus, this argument is not properly before us. Regardless, Jones's affidavit was still properly admitted and provided substantial evidence to create a genuine issue of material fact as to whether Ross had received proper notice under § 35-8A-316, Ala. Code 1975. Thus, the trial court erred in entering a summary judgment for West Wind and London. The Court of Civil Appeals erred in holding that Ross had waived the argument that he had presented substantial evidence creating a genuine issue of material fact as to whether he had received proper notice, and that judgment is due to be reversed. 14 1120636 IV. Conclusion Based on the foregoing, the judgment of the Court of Civil Appeals is reversed and the cause is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. Stuart, Parker, Main, and Wise, JJ., concur. Bolin, J., concurs in the result. Murdock, J., concurs in the result, but dissents as to the rationale. Shaw, J., dissents. Bryan, J., recuses himself.* ___________________ *Justice Bryan was a member of the Court of Civil Appeals when that court considered this case. 15 1120636 MURDOCK, Justice (concurring in the result, but dissenting as to the rationale). I agree with the main opinion that the power to foreclose by judicial action under § 35-8-17, Ala. Code 1975, does not include the power to foreclose by sale under § 35-8A-316, Ala. Code 1975. Our providing an answer to this question, however, does not resolve the dispute presented. Clearly, West Wind Condominium Association, Inc. ("West Wind"), attempted to pursue to a conclusion only a foreclosure by the power of sale, a power given to it under § 35-8A-316, independent of § 35-8-17. The dispositive question presented, however, is whether West Wind actually satisfied the prerequisites for conducting a power-of-sale foreclosure or, more precisely, whether it and Joseph London III were entitled to a summary judgment to this effect. The Court of Civil Appeals considered the issue before it to be whether the letter sent by Robert Vargo, an attorney representing West Wind, and the averments in Vargo's affidavit were sufficient to establish a prima facie case that West Wind gave Ross the notice required for a power-of-sale foreclosure under § 35-8A-316(a). Because § 35-8A-316(a) requires a condominium association to give notice of foreclosure "to the 16 1120636 unit owner" and because Vargo averred only that he sent notice to Patrick Jones (who Vargo averred was Ross's attorney), I disagree with the Court of Civil Appeals' conclusion that West Wind and London established a prima facie case of proper notice under the statute. In fact, West Wind's showing conclusively demonstrates that the notice required by the statute was not given and therefore that Ross, not West Wind and London, would be entitled to a summary judgment. By the same token, I disagree with the answer supplied by by the main opinion, which considers the issue to be whether an affidavit executed by Jones in response to Vargo's affidavit created a genuine issue of material fact as to whether Ross received a proper power-of-sale notice under § 35-8A-316. I agree that Jones's affidavit constituted substantial evidence creating a genuine issue of fact as to whether Jones represented Ross at the time he received the Vargo letter. I do not agree, however, that whether Jones was Ross's attorney is something that matters here, i.e., is an issue of "material fact." This is so because, again, § 35- 8A-316(a) requires a condominium association to give notice of its proposed action "to the unit owner." 17 1120636 Both West Wind's position that it did present a prima facie case of the requisite notice to Ross and Ross's position that West Wind failed to do so or that he countered West Wind's showing with sufficient evidence to create a genuine issue of fact in this regard presuppose that Rule 4.2, Ala. R. Prof. Cond., alters the statutory notice requirement of § 35-8A-316. Rule 4.2 limits the ability of a lawyer for one party to communicate directly with another party who the lawyer knows is represented by counsel. A rule of professional conduct promulgated by this Court, however, cannot alter or countermand a statutory mandate of the nature presented here. Concomitantly, I do not think this Court intended by a rule of professional conduct to alter a statutory mandate of this nature. Furthermore, even if Rule 2 4.2 prevented an attorney retained by West Wind from giving the statutorily required notice directly to Ross, this would not have prevented West Wind itself from sending that notice directly to Ross, i.e., from sending the statutorily required When a statute prescribes a specific notice or other 2 condition to a real-property right, it is that specific notice or condition that must be met. Also, a notice of the nature mandated by statute in such a case does no harm of the nature that Rule 4.2 was intended to guard against. 18 1120636 notice without the aid of an attorney operating under such a restriction. Alternatively (i.e., even if the statutory requirement of notice to Ross could have been satisfied by the delivery of a notice to Ross's attorney), the content of the letter presented by West Wind fails to satisfy another statutory prerequisite. Section 35-8A-316(a) requires notice of the actual foreclosure. The letter delivered to Jones in this case (i) advised the reader that West Wind had filed lien claims against the condominium units (a step previously taken by West Wind in anticipation of a judicial-action foreclosure) and (ii) made a demand for payment. As Ross points out, the letter also (iii) contained "a conditional threat of foreclosure proceedings if the payments were not tendered." Accordingly, Ross contends, the "letter does not constitute a notice of foreclosure." Ross is right. The letter simply is not a notice of an actual foreclosure. It is only a threat of a foreclosure if certain conditions are not satisfied. The threat may be of a foreclosure that, if it occurs, will occur imminently, but it is still only a threat of a foreclosure and it is still 19 1120636 conditioned on the occurrence of potential future events that might or might not ever occur. The letter does not advise of an actual or present foreclosure. It is not the notice prescribed in § 35-8A-316(a). For this additional reason, West Wind and London were not entitled to a summary judgment; instead, Ross is entitled to such a judgment. In sum, the record does not reflect a prima facie showing by West Wind that the required power-of-sale statutory notice was given to Jones. Indeed, rather than being able to conclude that West Wind and London were entitled to a summary judgment, I must conclude that it was Ross who was entitled to a summary judgment on the issue of the validity of the foreclosure. Accordingly, I agree with the main opinion that the judgment of the trial court should be reversed and the case remanded, but I disagree with the rationale upon which the main opinion reaches that conclusion and with the implied instruction that the case be remanded to the trial court for further proceedings. I would remand the cause to the Court of Civil Appeals with instructions that that court in turn remand the case to the trial court for the entry of a judgment consistent with the foregoing analysis. 20 1120636 SHAW, Justice (dissenting). The issue in the certiorari petition that this Court agreed to consider (ground "A") is accurately summarized in the main opinion: "This Court granted certiorari to consider, as a matter of first impression, whether the power to foreclose by judicial action under § 35-8-17, Ala. Code 1975, encompasses the power to foreclose by sale under § 35-8A-316, Ala. Code 1975." So. 3d at . See Rule 39(a)(1)(C), Ala. R. App. P. ("[P]etitions for writs of certiorari will be considered ... [f]rom decisions where a material question requiring decision is one of first impression for the Supreme Court of Alabama ...."). I dissented from granting the petition: Of course, the power to foreclose by judicial action under § 35-8-17 does not include the power to foreclose by sale under § 35-8A-316--the latter Code section was enacted 26 years after the former. And this issue is of no consequence-- it is not material--because the Court of Civil Appeals did not base its decision in any way on § 35-8-17; in fact, the court did not even mention that Code section, which does not apply to "events and circumstances occurring after January 1, 1991...." Ala. Code 1975, § 35-8A-102(a). 21 1120636 The main opinion goes on to address whether a genuine issue of material fact exists as to whether West Wind Condominium Association, Inc., provided proper notice to Howard Ross under § 35-8A-316. This is not the issue the main opinion identifies--quoted above--as the issue upon which this Court granted certiorari review, and it is not the issue presented by ground "A" of the certiorari petition. It is certainly not a "material question of first impression"; that a trial court erred in finding that no genuine issue of material fact existed for purposes of entering a summary judgment is simply a general allegation of error, which is not a proper ground for certiorari review under Rule 39(a)(1). Further, Ross's certiorari petition never challenged the Court of Civil Appeals' holding that he waived this issue on appeal. The main opinion is thus reversing that court's judgment on an issue not before us. Simply granting certiorari on one discreet ground for review does not open the Court of Civil Appeals' decision to a full review of every issue ruled upon by that court. West Wind, which did not file a brief, had no notice that this Court would address the issue. 22	April 4, 2014
abe2b6d2-b25b-4b2d-abf7-f90d1af7da6b	Volcano Enterprises, Inc., d/b/a Club Volcano v. Peggy Bender Rush, as administratrix of the Estate of Derric Edwin Rush, deceased, et al.	N/A	1121185	Alabama	Alabama Supreme Court	REL: 05/09/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1121185 ____________________ Volcano Enterprises, Inc., d/b/a Club Volcano v. Peggy Bender Rush, as administratrix of the Estate of Derric Edwin Rush, deceased, et al. Appeal from Jefferson Circuit Court (CV-11-902863) MURDOCK, Justice. Volcano Enterprises, Inc., d/b/a Club Volcano ("Volcano Enterprises"), appeals from the denial of its Rule 60(b)(4), Ala. R. Civ. P., motion to set aside the judgment entered against it in a wrongful-death action filed by Peggy Bender 1121185 Rush, as administratrix of the estate of her husband Derric Edwin Rush and as the widow of Derric Edwin Rush, and by Dashton Rush, the Rushes' minor son, by an through his mother and next friend, Peggy Bender Rush (hereinafter collectively referred to as "Rush"). We reverse and remand. I. Facts and Procedural History This appeal stems from a default judgment entered against Volcano Enterprises based on its failure to answer a complaint served upon it by publication under Rule 4.3, Ala. R. Civ. P. For purposes of this appeal, the uncontested facts provided in Rush's complaint are the only facts properly before us. In pertinent part, the complaint alleges that police officer James Lenoir Kendrick met a friend of his, an off-duty police officer, at Club Volcano (sometimes referred to hereinafter as "the club") after Kendrick's shift had ended. The complaint alleges that Kendrick consumed a substantial amount of alcohol while sitting in a parked vehicle in the parking lot of the club, after which he entered the club with his friend. The complaint further alleges that Kendrick "remained for several hours" in the club, that while there he "became visibly intoxicated," and that, "despite his "visibly 2 1121185 intoxicated condition, [he] was served additional alcohol and allowed to leave in an intoxicated condition." Finally, the complaint alleges that, in his intoxicated condition, Kendrick drove his vehicle in a manner that caused the death of Derric Edwin Rush. 1 On August, 11, 2011, Rush filed the complaint in the Jefferson Circuit Court, naming as defendants Kendrick and Volcano Enterprises and seeking damages based upon a claim of "wrongful death." Daryl Williams is the owner of Volcano Enterprises and its designated agent for service of process. Rush attempted to serve Volcano Enterprises by attempting to effect personal service on Williams in that capacity. In a "Motion for Extension of Time to Serve Defendant Volcano Enterprises and Service by Publication" filed by Rush on December 12, 2011, Rush's counsel stated: "On September 29, 2011, we received a 'No Service' notice from the Clerk's office. On November 9, 2011, plaintiffs' counsel was notified that the summons and complaint could not be served on Daryl Williams, the registered agent for Volcano Enterprises, Inc., at 836 Spring Street, Birmingham, Alabama, due to it being destroyed in the [April 2011] tornado. In addition to efforts by the The record indicates that Kendrick eventually was 1 convicted of reckless manslaughter in connection with these events. 3 1121185 Jefferson County Sheriff Department to serve Daryl Williams, the registered agent for Volcano Enterprises, plaintiffs' counsel has attempted service through an alias summons by personal process server." Rush attached to the motion an affidavit from Scott Hadly, a hired process server, in which Hadly averred, in pertinent part: "2. I have made the following efforts to serve Daryl Williams, the registered agent for Volcano Enterprises, at Club Volcano: "11/19/1l @6:08pm. Spoke with man inside bar icing down the beer, who told me he did not know of a Daryl Williams, that the bar manager was named Leonard Smith and I should come back when he was on. "11/20/11 @6:57 pm no one there -- could not get in. "ll/27/ll @7:14pm could not get in. "11/27/11 @7:14pm no one admitted to being or knowing a Daryl Williams. "12/3/11 @9:08 pm Same thing, no one would admit knowing anyone by that name. "3. ... Volcano Enterprises, Inc., d/b/a Club Volcano, is aware of the many efforts I have made to perform service. [Volcano Enterprises] employees have been informed of the nature of the papers to be served and that there is a lawsuit pending against Volcano Enterprises." 4 1121185 Additionally, on December 9, 2011, Hadly signed a "Return of Service" stating that the summons and complaint had not been served on Volcano Enterprises because Volcano Enterprises had "avoided service." In the motion for service by publication, Rush noted that, "[p]ursuant to Rule 4.3[, Ala. R. Civ. P.], numerous efforts have been made to serve Daryl Williams, the only known registered agent of Volcano Enterprises. Plaintiffs' counsel, through their process server, has been informed that Daryl Williams cannot be found in the state of Alabama and that his home was destroyed by the April tornado. Plaintiffs' counsel moves the Court to deem these circumstances as evidence of service under Rule 4.3(c) and allow service by publication to defendant Volcano Enterprises." On December 19, 2011, the trial court granted the motion to serve Volcano Enterprises by publication. Thereafter, Rush had an affidavit of publication published in the Alabama Messenger, a semi-weekly newspaper published in Jefferson County, for four consecutive weeks on February 8, 2012, February 15, 2012, February 22, 2012, and March 1, 2012. Volcano Enterprises did not file an answer or make any appearance in the action. 5 1121185 On April 18, 2012, Rush filed an application for a default judgment against Volcano Enterprises. The following day the trial court entered a default judgment against Volcano Enterprises and in favor of Rush with leave to prove damages. A jury trial on the claims against Kendrick and on the issue of damages as to Volcano Enterprises was held on February 25, 2013. The jury entered a verdict on February 27, 2013, in favor of Rush and against Kendrick. On March 1, 2013, the trial court entered a final order pursuant to the verdict, awarding $3.25 million in damages against Kendrick, who appeared and defended against the action, and $37 million in damages against Volcano Enterprises. On March 29, 2013, Volcano Enterprises filed a "Motion to Alter, Vacate, or Amend or in the alternative Motion for a New Trial." Pertinent to this appeal, the motion sought to set aside the default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P., on the ground that "said judgment is void due to the lack of in personam jurisdiction over [Volcano Enterprises] because proper service has not been effected pursuant to Rule 4.3 of the Alabama Rules of Civil Procedure." Volcano 2 In the motion, Volcano Enterprises also made arguments 2 for a remittitur and for a new trial. 6 1121185 Enterprises contended that Rush did not present facts sufficient to warrant service by publication based on avoidance of service by Volcano Enterprises. In support of its motion, Williams filed an affidavit executed on March 29, 2013, that provided, in pertinent part: 3 "3. The physical office of Volcano [Enterprises] for the Registered Agent, as registered with the Secretary of the State of Alabama is 836 Spring Street Birmingham, AL 35214, which is my personal residence. "4. In April of 2011, my personal residence was struck by a tornado and totally destroyed. As soon as practical, and after public access was granted to the area, the mailbox which serviced the address was fully functional. I have continued to receive mail at the physical address of the Registered Agent through the present date and have received no mail, certified mail, registered mail or any other correspondence or communication regarding any attempt or effort to deliver legal documents to me as the Registered Agent for Volcano [Enterprises] and which pertain to the litigation in this case. "5. Although I am the Registered Agent for Volcano [Enterprises], I do not manage the [Club] Volcano and do not attend to its daily functions. I do not participate in its day to day operations. "6. I have two (2) managers who handle the day to day operations and who deal with and communicate with the employees of the facility. Neither the Volcano Enterprises provided other submissions in support 3 of its motion, but those submissions pertained to arguments in its motion that did not address the issue of service of process, which is the only issue before us in this appeal. 7 1121185 management nor the employees are Registered Agents of Volcano [Enterprises] and are not authorized and have never been authorized to accept process on behalf of Volcano [Enterprises]. "7. I first learned about the lawsuit against Volcano [Enterprises] after entry of judgment when I was informed by an acquaintance that they had heard about the judgment on the news. ..." On April 30, 2013, Rush filed a response in opposition to Volcano Enterprises' motion. Rush attached to her response a copy of court records showing that over 30 filings had been mailed to Williams's home address during the course of litigation and that none of those filings had been returned as undelivered. The filings included, among other documents: Kendrick's answer to the complaint, subpoenas to various non- parties, Kendrick's motion for leave to appear at trial, motions in limine -- including one such motion filed by Rush specific to Volcano Enterprises, the parties' proposed jury charges, and the court order entering judgment on the jury verdict. Additionally, in an effort to refute Williams's assertion that he was not involved in the daily functions of Club Volcano, Rush submitted excerpts from files of the Alabama Alcoholic Beverage Control Board ("the ABC Board") pertaining 8 1121185 to Volcano Enterprises. Those documents showed that during the period leading up to the incident, Williams signed and filed documents with the ABC Board on behalf of Volcano Enterprises. The filings included affidavits executed by Williams for the renewal of Club Volcano's liquor licenses over the course of several years and documents showing that 4 at least two separate inspections of Club Volcano were performed by ABC Board agents in 2009, during which violations were found and for which Williams had signed violations notices and had paid fines, that an ABC Board agent had personally served Williams with an insufficient-fund/payment notice, and that payments had been made to the ABC Board on behalf of Club Volcano by money orders signed by Williams. Rush also submitted a copy of a complaint Williams had filed in the Madison Circuit Court against the City of Huntsville in February 2013 on behalf of Volcano Enterprises for its establishment in Huntsville, which averred that "Mr. Williams In a July 2009 application for an ABC license renewal for 4 Club Volcano, Williams certified that he was the "sole owner" of Volcano Enterprises and that Volcano Enterprises had the minimum required liability insurance for such an establishment of $100,000 with "Colony Insurance Co." Rush demonstrated during the trial on damages that this representation by Williams was false. 9 1121185 has twenty years of experience owning, managing, and operating adult entertainment clubs." Volcano Enterprises filed a motion to strike Rush's evidentiary submissions. Volcano Enterprises argued that the submissions were filed late under Rule 59(c), Ala. R. Civ. P., and that the submissions were not relevant to demonstrating that Williams actively managed Club Volcano. On May 21, 2013, the trial court denied Volcano Enterprises' motion to strike. On May 2, 2013, the trial court held a hearing on Volcano Enterprises' motion to set aside the default judgment. On May 21, 2013, the trial court entered an order denying Volcano Enterprises' motion to set aside the default judgment, concluding, among other things, that it did not find Williams's affidavit credible in certain respects. Among 5 other things, the court stated that it "reasonably inferred that Club Volcano employees probably knew Daryl Williams and that they probably would not falsely state to a process server Our holding today does not depend on a finding of 5 credibility on the part of Williams, or upon any of the information contained in his affidavit. Instead, our holding is based on the facts that the burden of proof for showing avoidance of service fell on Rush and that the limited facts presented to the trial court in Hadly's affidavit do not rise to a level sufficient to justify such a finding. 10 1121185 that they did not know Daryl Williams unless they were involved in the process of avoiding service as instructed by managers, officer, or agents of Club Volcano." Volcano Enterprises filed a timely appeal of the trial court's judgment. II. Standard of Review "A trial court's ruling on a Rule 60(b)(4) motion is subject to de novo review. Bank of America Corp. v. Edwards, 881 So. 2d 403 (Ala. 2003). In Bank of America, supra, our supreme court stated: "'"'The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield 11 1121185 v. Winston Industries, Inc., 553 So. 2d 61 (Ala. 1989).'"' "881 So. 2d at 405, quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So. 2d 655, 657 (Ala. 2001), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala. 1991). See also Northbrook Indem. Co. v. Westgate, Ltd., 769 So. 2d 890, 893 (Ala. 2000). "The failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the trial court of personal jurisdiction over the defendant and renders a default judgment void. Cameron v. Tillis, 952 So. 2d 352 (Ala. 2006); Image Auto, Inc. v. Mike Kelley Enters., Inc., supra. In Bank of America, supra, our supreme court also stated: "'"One of the requisites of personal jurisdiction over a defendant is 'perfected service of process giving notice to the defendant of the suit being b r o u g h t . ' Ex parte V o l k s w a g e n w e r k Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983). 'When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.' Id. A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void. Satterfield v. Winston Industries, Inc., 553 So. 2d 61 (Ala. 1989)."' 12 1121185 "881 So. 2d at 405, quoting Horizons 2000, Inc. v. Smith, 620 So. 2d 606, 607 (Ala. 1993)." Nichols v. Pate, 992 So. 2d 734, 736 (Ala. Civ. App. 2008). III. Analysis A default judgment was entered against Volcano Enterprises based on its failure to answer a complaint. Rule 4.3(c), Ala. R. Civ. P., addresses this situation and provides, in pertinent part, that, "[w]hen a defendant avoids service and that defendant's present location or residence is unknown and the process server has endorsed the fact of failure of service and the reason therefor on the process and returned it to the clerk or where the return receipt shows a failure of service, the court may, on motion, order service to be made by publication." The committee comments to Rule 4.3 observe that "more than mere inability to find the defendant is required because of the use of the term 'avoidance' of service. Without this element of culpability on the part of the defendant when plaintiff has failed to obtain service other than by publication, substantial constitutional questions may be posed by the obtaining of an in personam judgment by publication." Rule 4.3, Ala. R. Civ. P., Committee Comments on 1977 Complete Revision (emphasis added). Volcano Enterprises argues that Hadly's affidavit did not demonstrate the culpability necessary to find avoidance of 13 1121185 service rather than a mere failure on his part to find the defendant. We agree. Although there is no requirement for such in the Alabama Rules of Civil Procedure, it is worth noting that, following the failed attempt to achieve personal service upon Williams at the club, and despite having a mailing address for Williams at which he had clearly received a great deal of mail in this case, Rush did not attempt service by certified mail. She attempted personal service in two ways. First, the sheriff attempted to serve process by physically visiting Williams's residence, only to find that it had been destroyed by a tornado. The other attempt at personal service was made by sending Hadly, a hired process server, to the club in an effort to locate Williams at that location. Even giving Hadly's affidavit a generous reading, he merely attested that he visited the club on three occasions6 over a two-week period and that, on each visit, he talked to at least one employee of the club who informed him that he or she did not know anyone by the name Daryl Williams. On one 7 On a fourth visit, Hadly "could not get in" the club. 6 For that matter, Hadly's affidavit explicitly states that 7 he spoke with an employee of the club on only the first of his 14 1121185 of those visits, however, an employee with whom Hadly spoke recommended to Hadly that he return on another occasion when he could speak with one of the managers, a man identified by the employee as Leonard Smith. The affidavit submitted by Hadly does not state that Hadly ever attempted to follow this recommendation. 8 Ultimately, this is a case in which the trial court inferred that a process server spoke with a club employee on each of three occasions, that those employees did in fact know Daryl Williams, and that, moreover, those employees had been instructed by Daryl Williams to deny that they knew him. There is a substantial question of the sufficiency of the evidence to support the trial court's inferences. In addition, there is no evidence indicating that, on any of the visits to the club, November 19, 2011. As to the descriptions of visiting the club on November 27 and December 3, no similar averments are included in Hadly's affidavit; instead, he simply states that, on those occasions, "no one" stated that they knew Williams. He does not expressly aver that he spoke with any persons who were working at the club on either of those occasions. Hadly does not aver that he asked the unidentified 8 employee for a telephone number or other means by which he might contact Smith or that he inquired as to what day and time he should return to the establishment in an effort to find Smith in person. Nor does Hadly aver that he left his own contact information with the employee to relay to Smith. 15 1121185 occasions on which Hadly visited Club Volcano, Williams was in fact present at the club or that, even if the employees knew Williams, any of those individuals had any information regarding Williams's physical whereabouts that they could have shared with Hadly. Based on the facts before us in this particular case, we cannot conclude that the averments of Hadly's affidavit are sufficient to justify a finding of anything other than that Hadly simply did not find Williams at the club on the three occasions he visited there. The burden of proving "avoidance of service" in order to justify service by publication is on the plaintiff. See, e.g., Nichols v. Pate, 992 So. 2d 734, 737 (Ala. Civ. App. 2008). With one exception, Rush does not identify any of the persons with whom the process server spoke; none of them were called as witnesses; and there is no evidence indicating that any of them did in fact know Daryl Williams, despite the fact that he was the owner of the club and was listed as its registered agent. A fortiori, there is no direct evidence that any of these employees had been instructed by Williams to lie on his behalf. 16 1121185 Volcano Enterprises likens this case to Fisher v. Amaraneni, 565 So. 2d 84, 87-88 (Ala. 1990), in which this Court stated: "In the official comments to Rule 4.3(c), it is stated that 'more than mere inability to find the defendant is required because of the use of the term "avoidance" of service. Without this element of culpability on the part of the defendant when plaintiff has failed to obtain service other than by publication, substantial constitutional questions may be posed by the obtaining of an in personam judgment by publication.' In Federal Deposit Ins. Corp. v. Sims, 100 F.R.D. 792, 796 (N.D. Ala. 1984), a district court, interpreting Rule 4.3, [Ala.] R. Civ. P., stated the following: "'It is obvious that the draftsmen required proof of "culpability" or a "hiding out" by a defendant before suggesting that an in personam judgment can be entered on service by publication.' "In Gross v. Loewen, 522 So. 2d 306 (Ala. Civ. App. 1988), the court held that a wife's affidavit stating that 'the defendant [her husband] is avoiding service, as service attempted by certified mail was returned undelivered' was an insufficient averment of facts showing that her husband had avoided service of process; therefore, the affidavit did not satisfy the requirement of Rule 4.3(d)(1), and service by publication in that case was improperly allowed by the trial court. Consequently, the trial court's judgment in that case was void, since the court had not acquired personal jurisdiction over the defendant. "In this case, the plaintiffs essentially stated in their affidavit that because the process server had failed in six (6) attempts to serve process upon 17 1121185 the Fishers at their residence and had returned the process to the circuit clerk's office endorsed 'not found' that such 'facts' were sufficient to show avoidance of service on the Fishers' part and to allow the trial court to authorized service by publication. We disagree. "A reading of the plaintiffs' affidavit does indicate that the process server attempted on numerous occasions to serve process on the Fishers at their residence and was unable to serve them because of their absence, an absence that the process server was told was due to the Fishers' presence in California, but these 'facts' are not enough to show that the Fishers avoided service of process. "We cannot hold, under the facts of this case, that the conclusory statements made in the plaintiffs' affidavit that the Fishers were avoiding service, coupled with the process server's failed attempts to perfect service of process upon them and his later endorsement of the returned process as 'not found,' are sufficient to satisfy the requirement of Rule 4.3(d)(1), [Ala.] R. Civ. P., so that service by publication was proper." (Footnote omitted.) See also, e.g., Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So. 3d 667, 689 (Ala. 2009); Nichols v. Pate, 992 So. 2d at 738; and Wagner v. White, 985 So. 2d 458, 461-62 (Ala. Civ. App. 2007). Rush seeks to rely upon a 2003 Court of Civil Appeals' opinion, Snead v. Snead, 874 So. 2d 568 (Ala. Civ. App. 2003). In that case, a special process server visited the office where a defendant was known to be present and spoke to the 18 1121185 defendant's secretary in an outer office. The secretary informed the process server that the defendant was, in fact, in the building, in what she referred to as "the lab," but that he "would not come out." Unlike the evidence in the present case, the evidence in Snead made clear that an employee of the defendant did in fact know the defendant, that the defendant was in fact on the premises at the time of the process server's visit, and that the defendant refused to "come out," a scenario that was repeated on three separate occasions. The evidence presented by Rush simply does not rise to the same level as the evidence presented by the plaintiffs in Snead. In this case, Rush no doubt was frustrated by the inability of her process server to find Williams at the club on the several occasions he visited that establishment. Again, however, the mere inability to find a defendant is not a sufficient ground for service by publication. Without implicating the "substantial constitutional questions" relating to due process referenced in the Committee Comments to Rule 4.2, Ala. R. Civ. P., we cannot license the use of service by publication without the presentation of more 19 1121185 evidence of the avoidance of service than was presented by Rush in this case. IV. Conclusion Rush had the burden of demonstrating that Williams avoided service, which necessarily involves a level of culpability on the part of the defendant, such as hiding out or actively avoiding service, rather than just an inability to serve the defendant. Hadly's affidavit did not establish such avoidance of service, and Rush presented no other evidence. Without proper service, the judgment is void. Accordingly, the trial court erred in failing to grant Volcano Enterprises' Rule 60(b)(4) motion to set aside the default judgment against Volcano Enterprises. REVERSED AND REMANDED. Moore, C.J., and Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. 20	May 9, 2014
5bc8bfe7-2865-426b-898e-b62ac7423b31	Davis v. Bennett	N/A	1111629	Alabama	Alabama Supreme Court	REL: 04/18/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1111629 ____________________ Don Davis, as Judge of Probate of Mobile County v. Jim Bennett, as Secretary of State, et al. Appeal from Montgomery Circuit Court (CV-12-900994) MURDOCK, Justice. Don Davis, in his capacity as the Judge of Probate for Mobile County ("Judge Davis"), appeals from the Montgomery Circuit Court's final judgment in favor of then Secretary of 1111629 State Beth Chapman ("the Secretary") and the three members of 1 the Mobile County Board of Registrars: Pat Tyrrell, Shirley Short, and Virginia Delchamps ("the Board members"). This case concerns a regulation promulgated by the Secretary in an apparent effort to comply with certain federal election laws and an asserted conflict between that regulation and the residency requirement prescribed by three Alabama election statutes. We reverse the judgment of the circuit court. I. Facts and Procedural History A. Applicable Provisions of Federal and State Law The Secretary is "the chief elections official in the state and shall provide uniform guidance for election activities." § 17-1-3A(a), Ala. Code 1975. As the Judge of Probate for Mobile County, Judge Davis is "the chief elections official of the county." § 17-1-3A(b), Ala. Code 1975. The Mobile County Board of Registrars is charged with "pass[ing] favorably upon the person's qualifications" to vote before a person is registered, § 17-3-1, Ala. Code 1975; maintaining an While this appeal was pending, Secretary of State Chapman 1 resigned from office, and Jim Bennett was appointed Secretary of State. He was automatically substituted as one of the appellees. See Rule 43(b), Ala. R. App. P. Secretary Bennett had previously served as Secretary of State. 2 1111629 ongoing voter-registration list in Mobile County ("the County"), see, e.g., § 17-4-7, Ala. Code 1975; and purging from the voter list the names of individuals who no longer qualify to vote in the County because of death, incapacity, or a change of address, see § 17-4-3, Ala. Code 1975. In addition to being the chief elections official for the State, the Secretary has been designated by the legislature as the state official charged with "promulgat[ing] rules and prescrib[ing] forms and instructions as shall be necessary to implement the National Voter Registration Act of 1993 in Alabama or the Help America Vote Act of 2002." § 17-4-63, Ala. Code 1975. Both of the federal acts mentioned in § 17-4- 63, the National Voter Registration Act, 42 U.S.C. § 1973gg et seq. ("NVRA"), and the Help America Vote Act, Pub. L. 107–252, Title III, § 302, codified at 42 U.S.C. § 15301 et seq. ("HAVA"), are implicated in this dispute. More specifically, the issue before us is the effect, if any, of the foregoing federal statutes and a regulation promulgated by the Secretary on three Alabama election statutes. Accordingly, in addition to reviewing the relevant provisions of the federal statutes, we take note of the 3 1111629 pertinent state statutes as they existed both before and after the enactment of the federal statutes. Before the enactment of NVRA in 1993 and HAVA in 2002, three Alabama statutory provisions each provided that a voter could vote only in the precinct or polling place designated for that voter's current residence. The first statute, § 17- 2 6-5, Ala. Code 1975, originally enacted in 1989 and codified as § 17-5A-6, charged the judge of probate with making a "list of all the names of ... voters for each voting place." The last sentence of § 17-5A-6 provided: "A vote cast at a place other than the voting place at which the voter is entitled to vote shall be illegal." (Emphasis added.) Also "on the books" at the time NVRA and HAVA were enacted was § 17-7-13, the predecessor statute of what is now § 17-9-10, Ala. Code 1975, a provision that has been part of Alabama law since the Code of 1876. When the Code of 1975 was adopted, then § 17-7-13 provided: Of course, all three of these statutes refer only to 2 persons who have registered to vote in a timely manner. See generally § 17-3-50 et seq., Ala. Code 1975 (amended by Act No. 2014-428, Ala. Acts 2014, effective July 1, 2014). Nothing in NVRA or HAVA purports to change state registration requirements. See, e.g., 42 U.S.C. § 1973gg-6(e)(2)(A) (stating that NVRA applies to "[a] registrant"). 4 1111629 "At all elections by the people of this state the elector must vote in the county and precinct of his residence and nowhere else and must have registered as provided in this title; and, if any elector attempts to vote in any precinct other than that of his residence, his vote must be rejected, except as provided in section 17-[1]3-2."3 (Emphasis added.) The third and final statute, the former version of what is now § 17-10-3, Ala. Code 1975, which dates back to 1947 and when the Code of 1975 was adopted was designated § 17-4-127, read as follows: "It shall be unlawful for any elector to cast his or her ballot during any general election, primary election, municipal election or special election in any precinct, any district, any ward or any other subdivision where his or her name does not duly appear upon the official list of such precinct, district, ward or subdivision. All ballots cast in any election contrary to the provisions of this section are hereby declared illegal and, upon a contest duly instituted, such ballots shall be excluded in determining the final result of any election; provided, that nothing in this section shall prevent any qualified elector residing in said precinct, ward or voting district from voting after presenting a proper certificate from the board of registrars, or from voting a challenge ballot with the proper officials of said box or voting place." (Emphasis added.) The statute referenced at the end of § 17-7-13, i.e., 3 § 17-13-2, provided the procedure to be followed in the event of an "improperly marked ballot." 5 1111629 The "challenge ballot" allowed in the last clause of former § 17-4-127 was the means by which state law made allowance for voters whose eligibility was challenged by polling officials or whose names were not on the official list of qualified voters at the precinct of their residence. See former §§ 17-12-1 and -2, Ala. Code 1975, repealed by Act No. 2003-313, Ala. Acts 2003, § 12. A voter seeking to cast such a challenge ballot had to confirm his or her address within the precinct in which he or she sought to vote by personal oath and by the oath of another qualified elector in the precinct, and, if he or she could not do so, his or her vote was to be rejected. See former §§ 17-12-3 through -5, Ala. Code 1975, repealed by Act No. 2003-313, § 12.4 NVRA was enacted in 1993. It established certain registration-related procedures for elections for federal office. See 42 U.S.C. § 1973gg et seq. NVRA does not In addition, former § 17-12-6 provided that a voter who 4 gave a "false oath" in attesting to his or her current address and other necessary information committed the felony of perjury, punishable by a sentence of up to two years in prison. Former § 17-12-7 provided that any "inspector of election" who receives a vote from a challenged voter without requiring the sworn oath as to the person's address and related information was guilty of a misdemeanor. Both sections were repealed by Act No. 2003-313, § 12. 6 1111629 prescribe the registration procedures for state and local elections, but, "[b]ecause it quickly became apparent that maintaining two sets of registration rolls would impose massive administrative and economic burdens, most states elected to adopt NVRA registration procedures for their state and local elections as well as federal elections, thereby producing a single, unified registration system and electorate." Welker v. Clarke, 239 F.3d 596, 599 (3d Cir. 2001). Alabama is one of the states that maintains a unified registration system so that its citizens do not have to follow two separate sets of procedures in order to vote in elections involving federal, state, and local offices. See Reg. 820-2-2-.01, Ala. Admin. Code (Secretary of State) (stating that NVRA "shall apply to all elections for state and local government offices in the State of Alabama"). NVRA imposes restrictions on when a state is permitted to remove a voter's name from its voter-registration list. See 42 U.S.C. § 1973gg-6(d). A voter's name may be removed when the voter has confirmed in writing to the Board of Registrars that he or she has moved to another county. See 42 U.S.C. § 1973gg-6(d)(1)(A). Otherwise, a voter's name may not be 7 1111629 removed based on a change of address unless a voter fails to respond to a notice NVRA requires to be sent to the voter and thereafter fails to vote during the next two federal general elections. See § 1973gg-6(d)(1)(B). If the voter has moved within the county, the Board of Registrars simply must update the registry with the voter's new address. NVRA also prescribes procedures for how to process a voter who has failed to respond to the required notice but who has not yet been removed from the voter list. Concerning such voters, NVRA provides: "(e) Procedure for voting following failure to return card "(1) A registrant who has moved from an address in the area covered by a polling place to an address in the same area shall, notwithstanding failure to notify the registrar of the change of address prior to the date of an election, be permitted to vote at that polling place upon oral or written affirmation by the registrant of the change of address before an election official at that polling place. "(2)(A) A registrant who has moved from an address in the area covered by one polling place to an address in an area covered by a second polling place within the same registrar's jurisdiction and the same congressional district and who has failed to notify the registrar of the change of 8 1111629 address prior to the date of an election, at the option of the registrant-- "(i) shall be permitted to correct the voting records and vote at the registrant's former polling place, upon oral or written affirmation by the registrant of the new address before an election official at that polling place; or "(ii)(I) shall be permitted to correct the voting records and vote at a central location within the same registrar's jurisdiction designated by the registrar where a list of eligible voters is maintained, upon written affirmation by the registrant of the new address on a standard form provided by the registrar at the central location; or "(II) shall be permitted to correct the voting records for purposes of voting in future elections at the appropriate polling place for the current address and, if permitted by State law, shall be permitted to vote in the present election,[ ] 5 upon confirmation by the registrant of the new address by such means as are required by law. We understand this to be a reference to voting in the 5 polling place designated for the voter's new, i.e., "current," address. 9 1111629 "(B) If State law permits the registrant to vote in the current election upon oral or written affirmation by the registrant of the new address at a polling place described in subparagraph (A)(i) or (A)(ii)(II), voting at the other locations described in subparagraph (A) need not be provided as options." 42 U.S.C. § 1973gg-6(e) (emphasis added). In the wake of Congress's enactment of NVRA in 1993, no change was made to any of the three state statutes at issue, now codified as §§ 17-6-5, 17-9-10, and 17-10-3. Nonetheless, in 1994, in response to the above-quoted portion of NVRA, and notwithstanding § 1973gg-6(e)(2)(B), then Secretary of State Jim Bennett promulgated Reg. 820-2-2-.13, Ala. Admin. Code (Secretary of State), entitled "Fail-Safe Voting." 6 Subdivision (1) of the regulation states: "(1) A registrant who has moved from an address in the area covered by one polling place to an address covered by a second polling place within the same Board of Registrar's jurisdiction and who has failed to notify the Board of Registrars of the change of address prior to the date of an election shall be permitted to correct the voting records with the registrant's new address and vote at the registrant's former polling place." The history of the regulation states that it was 6 promulgated in 2001, but that date refers to a recodification of the regulation; the parties agree that the text of the regulation was promulgated in 1994. 10 1111629 (Emphasis added.) In 2002, Congress enacted HAVA, which became effective January 1, 2004. See 42 U.S.C. §§ 15301-15545. HAVA's purpose was to alleviate the problem of voters "arriv[ing] at the polling place believing that they are eligible to vote, and then [being] turned away because election workers cannot find their names on the list of qualified voters." H.R. Rep. No. 107-329, at 38 (2001). To address this problem, HAVA required, among other things, that states provide for what HAVA referred to as "provisional balloting," that is, a system under which a ballot would be submitted on election day but counted only if the person casting the provisional ballot was later determined to have been entitled to vote. 7 Specifically, § 302 of HAVA imposed a requirement on all states that they provide voters the opportunity to cast "provisional ballots" under the following circumstances: "(a) Provisional voting requirements. HAVA also requires each state to maintain "a single, 7 uniform, official, centralized, interactive computerized statewide voter registration list." 42 U.S.C. § 15483(a)(1)(A). See also § 17-4-33, Ala. Code 1975. 11 1111629 "If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows: "(1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election. "(2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is -- "(A) a registered voter in the jurisdiction in which the individual desires to vote; and "(B) eligible to vote in that election. "(3) An election official at the polling place shall transmit the ballot cast by the individual or the voter information contained in the written affirmation executed by the individual under paragraph (2) to an appropriate State or local election official for prompt verification under paragraph (4). "(4) If the appropriate State or local election official to whom the ballot or voter information is transmitted under 12 1111629 paragraph (3) determines that the individual is eligible under State law to vote, the individual's provisional ballot shall be counted as a vote in that election in accordance with State law." 42 U.S.C. § 15482 (emphasis added). HAVA provides federal funding for elections to those states that comply with its requirements. 42 U.S.C. § 15301(a). As previously noted, before the enactment of HAVA, the last sentence of what is now § 17-6-5 provided that "[a] vote cast at a place other than the voting place at which the voter is entitled to vote shall be illegal." As was true following the enactment of NVRA, no change was made (or has been made) to this sentence in the wake of the enactment of HAVA. See Act No. 2006-570, Ala. Acts 2006 (renumbering what was formerly § 17-5A-6 as § 17-6-5). Essentially the same can be said of what are now §§ 17-10-3 and 17-9-10. Apparently in an effort to ensure that Alabama law did not run afoul of HAVA's new requirements for what it called "provisional ballots," in 2003 the Alabama legislature did amend the last sentence of § 17-10-3, then § 17-4-127, to refer to "provisional ballots" rather than "challenge ballots." In all other aspects, this sentence 13 1111629 remained unchanged. As before, the sentence does not affirmatively prescribe either "challenge" or "provisional" ballots, but states merely that "nothing in this section shall prevent" such ballots from being cast. Moreover, the sentence expressly references the casting of such ballots only by "qualified elector[s] residing in the precinct, ward, or voting district."8 Thus, Act No. 2003-313 amended former § 17-4-127 to read 8 in its entirety as follows (with changes emphasized): "It shall be unlawful for any elector to cast his or her ballot during any general election, primary election, municipal election or special election in any precinct, any district, any ward, or any other subdivision where his or her name does not duly appear upon the official list of the precinct, district, ward, or subdivision. All ballots cast in any election contrary to this section are hereby declared illegal and, upon a contest duly instituted, the ballots shall be excluded in determining the final result of any election; provided, that nothing in this section shall prevent any qualified elector residing in the precinct, ward, or voting district from voting after presenting a proper certificate from the board of registrars, or from voting a provisional ballot when his or her name does not duly appear upon the official list of the precinct, district, ward, or subdivision." In Act No. 2003-313, the legislature also repealed Chapter 12 of Title 17, see Act No. 2003-313, § 12, providing for "challenge ballots" and adopted in its place what is now § 17- 10-2, which provides for "provisional ballots" as prescribed 14 1111629 As it did in amending the predecessor of the predecessor of § 17-10-3 in an effort to ensure consistency with the requirements of HAVA, the legislature in Act No. 2003-313 also amended the last clause of the predecessor of § 17-9-10 to expressly reference "provisional ballots." Specifically, the legislature substituted for the prior reminder in the final clause that "improperly marked ballots" must be handled by HAVA. See discussion, infra. In 2006, Act No. 2006-570 amended and renumbered the former § 17-4-127 to be the current § 17-10-3. At that time, the legislature also added a clause referring to the casting of "challenged ballot[s] in municipal elections," a provision not pertinent here except for what it may reveal regarding a perceived equivalence of the purpose of the "provisional ballots" required by Congress and the former "challenge ballots." The clause at the end of § 17-10-3, as amended by the legislature in 2006, read with this added reference emphasized: "[P]rovided, that nothing in this section shall prevent any qualified elector residing in the precinct, ward, or voting district from voting after presenting a proper certificate from the board of registrars, or from voting a provisional ballot or challenged ballot in municipal elections when his or her name does not duly appear upon the official list of the precinct, district, ward, or subdivision." Act No. 2006-570, § 50 (according to the "Code Commissioner's Notes" to § 17-10-3, the Code Commissioner changed the term "challenged" in the above-emphasized passage to "provisional"). 15 1111629 as otherwise provided by law, language confirming that an elector may vote a provisional ballot "as provided by law": "At all elections held within this state, the elector shall vote in the county and precinct of his or her residence and nowhere else and shall have registered as provided in this title. If any elector attempts to vote in any precinct other than that of his or her residence, his or her vote shall be rejected, except when casting a provisional ballot, as provided by law." (Emphasis added.) In Act No. 2006-570, the legislature renumbered § 17-7-13 to its current designation, § 17-9-10, and changed the term "precinct" to "voting place" and "residence" to "domicile": "At all elections held within this state, the elector shall vote in the county and voting place of his or her domicile and nowhere else and shall have registered as provided in this title. If any elector attempts to vote in any voting place other than that of his or her domicile, his or her vote shall be rejected, except when casting a provisional ballot, as provided by law." Act No. 2006-570 (emphasis added). 9 In making the latter changes to § 17-9-10 and amending 9 other election laws in Act No. 2006-570, the legislature stated that its purpose was to "to modernize the language, to resolve ambiguities that have arisen from multiple enactments over the years, to incorporate judicial decisions and constructions of language, to incorporate administrative rules, and to make other technical changes to Title 17, all without making any substantive change in existing law." Act No. 2006-570, § 90 (emphasis added). 16 1111629 B. Procedural History Before the Alabama primary election of 2012, then Secretary Chapman sent an e-mail on March 10, 2012, to all the Board of Registrars offices in the state providing "instructions and reminders prior to the primary election." The instructions included the following based on Reg. 820-2-2-.13, Ala. Admin. Code (Secretary of State): "1) Voters who have moved within the county but have not updated "• If a voter has moved from one part of your county to another part of your county but has not updated her record, she may vote "N by regular ballot at her old polling place, or "N by provisional ballot [at] her new polling place. The provisional ballot will count if it shows that she voted in the correct polling place for the address where she now lives (as indicated on the update form that is part of the PB-3 Provisional Ballot Statement)." Judge Davis alleged that those instructions violated Alabama law because the instructions -- and the regulation upon which they were based -- allowed voters to cast ballots 17 1111629 at polling places designated for locations in which the voters did not reside. During the primary election, the Board members implemented the instructions in the e-mail, counseling poll workers who sought instruction concerning how to process voters who had moved to a location in the County that was serviced by a different polling place but who had failed to update their registration to allow those voters to cast regular ballots at their former polling place. In contrast, the Mobile Probate Court counseled poll workers who sought instruction concerning how to process such voters to direct the voters to cast provisional ballots at the polling places designated for their current residences. Judge Davis alleged that approximately 20,000 active registered voters in the County had mailing addresses that differed from the addresses reflected in the Board of Registrars' voter list. As a result of the conflicting instructions provided to poll workers, an unprecedented number of provisional ballots were cast in the primary election. 10 The conflicting instructions prompted Judge Davis and 10 the Board members to seek an opinion from the Alabama Attorney General concerning the parties' actions surrounding the 2012 primary election. The attorney general's opinion on the matter concluded that 18 1111629 Following the primary election and in anticipation of the November general election, Judge Davis, on August 3, 2012, filed a complaint in the Montgomery Circuit Court seeking a judgment declaring Reg. 820-2-2-.13 unlawful, an injunction against then Secretary Chapman and the Board members, and a writ of mandamus directed to then Secretary Chapman. Judge Davis contended that Reg. 820-2-2-.13 is contrary to state and federal law. On the same day, Judge Davis filed a motion for a preliminary injunction and for an expedited hearing. On August 13, 2012, then Secretary Chapman filed her opposition to Judge Davis's motion for a preliminary injunction. The following day the circuit court held a hearing on the motion. No testimony was taken. On August 15, 2012, the parties "[b]ecause the voting provisions of [NVRA] and [HAVA] ... work together, when a voter's name appears on the precinct voter registration list, but the voter has moved to a 'new' precinct in the county and has not updated his or her voter registration records with the board of registrars, the voter may use the fail-safe voting provision to cast a regular ballot at his or her former ('old') polling place and update the voting record for future elections or a voter may use the provisional ballot process to vote at his or her current ('new') polling place." Op. Ala. Att'y Gen. No. 2012-071 (July 27, 2012). 19 1111629 jointly filed a motion to consolidate the preliminary- injunction hearing with the trial on the merits. On September 13, 2012, the circuit court entered an "Order and Final Judgment," which reflected that the preliminary-injunction hearing had been consolidated with the final trial on the merits. The circuit court denied the motion for a preliminary injunction and the petition for a writ of mandamus, and it entered a final judgment in favor of the Secretary and the Board members. The order provided, in part: "[Davis] has challenged the validity of an administrative rule promulgated by the Office of the Secretary of State. Said rule pertains to voters who have moved from one address to another within the same county but who have not updated their voter registration information with the county board of registrars before election day. The rule in question, Ala. Admin. Code § 820-2-[2-].13, allows such voters to cast a regular ballot at their old precinct so long as the voter updates his voter registration on election day. "The Court finds that the promulgation of the above- cited rule falls within the rule-making powers of the Secretary of State pursuant to Code of Alabama §§ 17-4-60 and 17-4-63 (2006).[ ] See also A.G. 11 opinion 2012-071. The Court further finds that the rule is consistent with the requirements of [NVRA]." Section 17-4-60(a) provides that "[t]he Secretary of 11 State shall be the primary state official for federal contact for the implementation of [NVRA] and [HAVA]." 20 1111629 Judge Davis appeals the circuit court's September 13, 2012, order. II. Standard of Review No testimony was taken in the trial below, and the circuit court's decision solely involved the construction and interpretation of statutes and regulations. Therefore, our standard of review is clear. "Our standard of review is de novo: 'Because the issues presented by [this appeal] concern only questions of law involving statutory construction, the standard of review is de novo. See Taylor v. Cox, 710 So. 2d 406 (Ala. 1998).' Whitehurst v. Baker, 959 So. 2d 69, 70 (Ala. 2006). This Court has also said: "'[I]t is this Court's responsibility in a case involving statutory construction to give effect to the legislature's intent in enacting a statute when that intent is manifested in the wording of the statute. Bean Dredging[, LLC v. Alabama Dep't of Revenue], 855 So. 2d [513] at 517 [(Ala. 2003)].... "'"'If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.'"'" Pitts v. Gangi, 896 So. 2d 433, 436 (Ala. 2004) (quoting DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998), quoting in turn earlier cases). In determining the intent of the legislature, we must examine the statute as a whole and, if possible, give effect to each section. 21 1111629 Employees' Retirement Sys. of Alabama v. Head, 369 So. 2d 1227, 1228 (Ala. 1979).' "Ex parte Exxon Mobil Corp., 926 So. 2d 303, 309 (Ala. 2005)." Ex parte Birmingham Bd. of Educ., 45 So. 3d 764, 767 (Ala. 2009). III. Analysis The issue presented is whether Reg. 820-2-2-.13(1), Ala. Admin. Code (Secretary of State), violates state law and is therefore void. As noted, § 17-9-10, Ala. Code 1975, provides: "At all elections held within this state, the elector shall vote in the county and voting place of his or her domicile and nowhere else and shall have registered as provided in this title. If any elector attempts to vote in any voting place other than that of his or her domicile, his or her vote shall be rejected, except when casting a provisional ballot, as provided by law."12 The plain language of § 17-9-10 prohibits a voter from 12 voting at a former polling place. This section does make reference, however, to casting a provisional ballot if and when "provided by law." Section 17-10-2 now governs provisional balloting under Alabama law. It provides for provisional balloting in the following circumstances: "(1) The name of the individual does not appear on the official list of eligible voters for the precinct or polling place in which the individual seeks to vote, and the individual's registration cannot be verified while at the polling place by the 22 1111629 Section 17-6-5, Ala. Code 1975, commands that "[a] vote cast at a place other than the voting place at which the voter is entitled to vote shall be illegal." (Emphasis added.) Further, § 17-10-3 expressly states that "[]it shall be unlawful for any elector to cast his or her ballot ... in any precinct, any district, any ward, or any other subdivision where his or her name does not duly appear upon the official registrar or the judge of probate. "(2) An inspector has knowledge that the individual is not entitled to vote at that precinct and challenges the individual. "(3) The individual is required to comply with the voter identification provisions of Section 17-10-1 but is unable to do so. ... "(4) A federal or state court order extends the time for closing the polls beyond that established by state law and the individual votes during the extended period of time. ... "(5) The person has requested, but not voted, an absentee ballot." (Emphasis added.) The intent of § 17-9-10 is further made clear in § 17-10-3, which reaffirms that one may not vote at a polling place in a location where he or she does not live, but that for purposes of provisional balloting such a circumstance should not be confused with the circumstance where the voter's name merely does not appear on the list of qualified voters for that location. See discussion in text following this note and infra at note 18. 23 1111629 list," with only one exception: "any qualified elector residing in the precinct, ward, or voting district" may cast a "provisional ballot" in that location. Because "[t]he provisions of a statute will prevail in any case of a conflict between a statute and an agency regulation," Ex parte Jones Mfg. Co., 589 So. 2d 208, 210 (Ala. 1991), Judge Davis contends that the circuit court should have declared Reg. 820-2-2-.13(1) void. The Secretary contends that, notwithstanding the 13 aforesaid statutes, her obligation to ensure the State's compliance with federal law requires the application of Reg. 820-2-2-.13(1) instead of Alabama's statutory law in the instance where a voter has failed to update his or her registration following a change of address in the same county to a location that is serviced by a different polling place. Specifically, the Secretary contends that NVRA requires the State to allow such voters to vote by regular ballot at their former polling place. The Board members, in their brief to this Court, elected 13 to adopt in its entirety the brief submitted by the Secretary. Therefore, this opinion refers to the Secretary when describing the arguments of all the appellees. 24 1111629 The dispute between the parties is a matter of first impression for our courts. There are no Alabama cases interpreting Reg. 820-2-2-.13(1) or the applicable provisions of NVRA or HAVA, and the circuit court did not provide any substantive analysis of NVRA. In evaluating the contentions of the parties, it is perhaps helpful to begin by noting that "NVRA does not require a state to pass legislation. The Supremacy Clause, U.S. Const., Art. VI, Cl. 2, renders [NVRA] binding on state officials even in the absence of any state legislative action. Any inconsistent state voter registration laws or state procedures for federal elections are simply preempted and superseded." Association of Cmty. Organizations for Reform Now v. Miller, 912 F. Supp. 976, 984 (W.D. Mich. 1995), aff'd, 129 F.3d 833 (6th Cir. 1997). Thus, if NVRA and state law conflict, NVRA prevails. Conversely, if NVRA does not override Alabama statutory law on this subject, Reg. 820-2-2-.13(1) is due to be declared void. As we detailed in Part I.A., the applicable portion of NVRA provides: "(e) Procedure for voting following failure to return card ".... 25 1111629 "(2)(A) A registrant who has moved from an address in the area covered by one polling place to an address in an area covered by a second polling place within the same registrar's jurisdiction and the same congressional district and who has failed to notify the registrar of the change of address prior to the date of an election, at the option of the registrant-- "(i) shall be permitted to correct the voting records and vote at the registrant's former polling place, upon oral or written affirmation by the registrant of the new address before an election official at that polling place ['option 1']; or "(ii)(I) shall be permitted to correct the voting records and vote at a central location within the same registrar's jurisdiction designated by the registrar where a list of eligible voters is maintained, upon written affirmation by the registrant of the new address on a standard form provided by the registrar at the central location ['option 2']; or "(II) shall be permitted to correct the voting records for purposes of voting in future elections at the appropriate polling place for the current address and, if permitted by State law, shall be permitted to 26 1111629 vote in the present election,[ ] 14 upon confirmation by the registrant of the new address by such means as are required by law ['option 3']. "(B) If State law permits the registrant to vote in the current election upon oral or written affirmation by the registrant of the new address at a polling place described in subparagraph (A)(i) or (A)(ii)(II), voting at the other locations described in subparagraph (A) need not be provided as options." 42 U.S.C. § 1973gg-6(e) (emphasis added). Section 1973gg-6(e)(2)(A) states that this portion of NVRA applies to a voter who has moved within the same county and the same congressional district but who has failed to update his or her voter registration before the election. 15 As previously noted, see note 5, supra, this paragraph 14 references a voter's being permitted by state law to vote in the polling place designated for the voter's new address. Judge Davis states that eight counties in Alabama 15 contain multiple congressional districts and yet, as written, Reg. 820-2-2-.13(1) applies to all Alabama counties. Judge Davis contends that Reg. 820-2-2-.13(1) violates federal law because it allows voters who move within the same county but to a different congressional district to vote according to the options provided in 42 U.S.C. § 1973gg-6(e)(2). The Secretary concedes that "[Reg.] 820-2-2-.13(1) does not include a restriction on crossing Congressional District lines, but since Mobile County is in a single Congressional District ... any issue which might be caused by the lack of restriction is not operative in this case." Be that as it may, our holding in this case by its nature necessarily governs voting 27 1111629 "NVRA specifically affords states considerable latitude in how to administer" its provisions. National Voter Registration Act of 1993, 59 Fed. Reg. 32311-01 (June 23, 1994). Illustrative of this fact is § 1973gg-6(e)(2)(B), which essentially provides that if a state's law allows a voter to vote under one of the three options described in § 1973gg- 6(e)(2)(A), it does not have to provide the other options. 16 Consistent with this understanding, the parties agree that procedures throughout the State. A survey of other states shows that they have 16 implemented § 1973gg-6(e)(2)(A) of NVRA in a variety of ways. For example, Delaware does not permit a voter to cast a ballot at the voter's former polling place, but such a voter can vote at his or her current polling place after filling out an eligibility affidavit that will be reviewed by the state's Department of Election. See Del. Code Ann. Tit. 15, § 2047. New Jersey permits a voter to cast a ballot only at his or her new polling place (by provisional ballot, if necessary, after affirming the change of address). See N.J. Stat. Ann. §§ 19:31-11, 19:53C-3. Pennsylvania permits a voter to cast a regular ballot at his or her former polling place following affirmation of the change of address. See 25 Pa. Cons. Stat. Ann. § 1902(a)(2). Rhode Island permits a voter to cast a regular ballot at his or her former or current polling place or at a central location following an affirmation of the change of address. See R.I. Gen. Laws Ann. § 17-9.1-16(a)(2). South Carolina permits a voter to cast a provisional ballot at his or her former polling place or to vote at a central location. See S.C. Code Ann. § 7-5-440(B). Tennessee permits a voter to cast a ballot only at his or her new polling place following affirmation of the change of address. See § 2-7-140, Tenn. Code Ann. 28 1111629 Alabama law does not –- and need not –- provide voters with "a central location within the same registrar's jurisdiction" at which to cast a ballot (option 2). § 1973gg- 6(e)(2)(A)(ii)(I). The parties' understanding of Alabama law and the requirements of § 1973gg-6(e)(2) diverge in relation to option 1 and option 3. Judge Davis contends that option 3 -- voting at the polling place designated for the voter's current residence -- is provided under Alabama law through voting by provisional ballot. Section 17-10-3, Ala. Code 1975, provides: "It shall be unlawful for any elector to cast his or her ballot during any general election, primary election, municipal election or special election in any precinct, any district, any ward, or any other subdivision where his or her name does not duly appear upon the official list of the precinct, district, ward, or subdivision. All ballots cast in any election contrary to this section are hereby declared illegal and, upon a contest duly instituted, the ballots shall be excluded in determining the final result of any election; provided, that nothing in this section shall prevent any qualified elector residing in the precinct, ward, or voting district from voting after presenting a proper certificate from the board of registrars, or from voting a provisional ballot or a provisional ballot in municipal elections when his or her name does not duly appear upon the official list of the precinct, district, ward, or subdivision." 29 1111629 (Emphasis added.) According to Judge Davis, because provisional balloting fulfills the requirements of option 3, the State is not required to permit voting under option 1 (at the polling place for the voter's former residence), as Reg. 820-2-2-.13(1) purports to allow. The Secretary contends that casting a provisional ballot does not satisfy option 3 and that, therefore, the State is required to permit a voter to cast a regular ballot under option 1, despite the fact that doing so violates §§ 17-9-10, 17-6-5, and 17-10-3. The reason a provisional ballot does not satisfy option 3, according to the Secretary, is that provisional balloting did not exist when NVRA was enacted in 1993. Provisional balloting was a creation of HAVA in 2002, and it was implemented in Alabama by Code changes that became effective in 2004. See Act No. 2003-313. The text of option 3 provides that a voter will only be allowed to vote at the polling place for his or her current address "if permitted by State law." § 1973gg-6(e)(2)(A)(ii)(II). Thus, the Secretary argues that option 3 cannot be referring to provisional balloting because provisional balloting was a creation of federal, not state, law. The Secretary also notes that, in 30 1111629 enacting HAVA, Congress did not expressly amend option 3 to state that a voter "shall be permitted to vote provisionally" at his or her current polling place. In sum, the Secretary contends that Judge Davis's interpretation of § 1973gg- 6(e)(2)(A) would mean that "option 3 [implicitly] took on a new meaning once [HAVA] was passed" even though HAVA specifically provides that "nothing in this Act may be construed to authorize or require conduct prohibited under ... [NVRA]." See 42 U.S.C. § 15545(a)(4). The Secretary is correct that option 3 does not expressly refer to provisional balloting. This does not mean, however, that provisional balloting cannot satisfy the criteria of option 3. The language of option 3 does not specify the type of vote a voter must be permitted to cast. It simply states 17 that, "if permitted by State law, [a voter] shall be permitted to vote in the present election, upon confirmation by the registrant of the new address by such means as are required by law." § 1973gg-6(e)(2)(A)(ii)(II). Under Alabama law, an individual who casts a provisional ballot In fact, NVRA does not define the term "vote" in any of 17 its provisions. 31 1111629 "shall execute a written affirmation ... before the inspector or clerk stating the following: "'State of Alabama, County of ____. I do solemnly swear (or affirm) that I am a registered voter in the precinct in which I am seeking to vote and that I am eligible to vote in this election [with provision for signature, address, and date of birth].' "(3) The individual shall complete a voter reidentification form prescribed by the Secretary of State for use in updating the state voter registration list...." § 17-10-2(b)(2) and (3), Ala. Code 1975. As stated, § 19733gg-6(e)(2)(A)(ii)(II) of NVRA, option 3, contemplates that voters seeking to vote at their new polling place will "correct their voting records." Thus, not only is the casting of a provisional ballot not prohibited by option 3, an affidavit of the type that characterizes a provisional ballot is expressly contemplated by option 3. It might still be asked whether option 3 was available to a voter in Alabama before the implementation of HAVA and the ensuing adoption in Alabama of "provisional balloting" by the legislature's enactment of § 17-10-2 effective June 19, 2003. See Act No. 2003-313, § 5. In other words, at the time Reg. 820-2-2-.13(1) was initially promulgated in 1994, could a 32 1111629 voter cast a vote at his or her current polling place in a manner other than by provisional ballot? Before the enactment of § 17-10-2, however, Alabama law provided: "It shall be unlawful for any elector to cast his or her ballot during any general election, primary election, municipal election or special election in any precinct, any district, any ward or any other subdivision where his or her name does not duly appear upon the official list of such precinct, district, ward or subdivision. All ballots cast in any election contrary to the provisions of this section are hereby declared illegal and, upon a contest duly instituted, such ballots shall be excluded in determining the final result of any election; provided, that nothing in this section shall prevent any qualified elector residing in said precinct, ward or voting district from voting after presenting a proper certificate from the board of registrars, or from voting a challenge ballot with the proper officials of said box or voting place." Former § 17-4-127, Ala. Code 1975 (emphasis added). In other words, a voter whose name did not appear on the Board of Registrars' voting list at a particular polling location but who resided in the precinct serviced by that polling location could vote by casting a "challenge ballot." A voter casting a challenge ballot had to "take and subscribe an oath" that consisted of the following: "'State of Alabama, County of _____. I do solemnly swear (or affirm) that: 1. I 33 1111629 am a duly qualified elector under the constitution and laws of the State of Alabama. 2. That I am 18 years of age or upwards. 3. That I have not been convicted of any crime which disfranchises me. 4. That I have been duly registered. 5. I know of no reason why I am not entitled to vote. 6. I am generally known by the name under which I now desire to vote, which is ____. 7. I have not voted and will not vote in any other precinct (or if the precinct has been divided into districts, in any other voting district) in this election. 8. My occupation is ____, the name of my employer is ____. 9. My residence is ____ (if in a city or town give street number). 10. That ____ and ____ have personal knowledge of my residence in the State of Alabama. 11. This affidavit has been read to me. So help me God. ____ Signature. Subscribed and sworn to before me this ____ day ____, 19__'" Former § 17-12-3, Ala. Code 1975 (repealed by Act No. 2003- 313, § 12, effective June 19, 2003). Additionally, such a voter had to "prove his identity, residence in the state, county and precinct in which he offers to vote by the oath of some elector personally known to some one of the inspectors to be a qualified elector and a freeholder and householder, which oath shall be administered by one of the inspectors, and be in the following form: "'State of Alabama, County of ____. I, ____ do solemnly swear (or affirm) that I have known ____ (here insert the name of the person offering to vote) preceding this 34 1111629 election, and that he has been a resident of this state, in this county, and he actually resides in this precinct or district at the time of this election. I do solemnly swear (or affirm) that I am a qualified elector of this precinct; that I have been a freeholder and householder in this precinct for one year next preceding this election; that my occupation is ____; my residence is ____; my business address is ____; Subscribed and sworn to before me this ____ day of ____, 19__' "and, upon such oath being duly taken and subscribed, the ballot of the person offering to vote must be received and deposited as other ballots of qualified electors, and the inspectors shall require the persons making said affidavits to swear to and subscribe to an original and a carbon, the carbon to be treated as an original, one set of said affidavits, when so taken and subscribed when the election is closed, shall be sealed by the inspectors in a sealed package and forwarded to the district attorney for the county, who shall lay them before the next grand jury sitting for the county. The other set of said affidavits shall be sealed and deposited in the ballot box." Former § 17-12-4, Ala. Code 1975 (repealed by Act No. 2003- 313, § 12). As noted, option 3 of NVRA contemplated that a recently moved "registrant" be able to vote at the polling place applicable to his or her new address "if permitted by State law" and "upon confirmation by the registrant of the new address by such means as are required by law." The text of 35 1111629 the above-quoted statutes applicable to voters in Alabama before June 19, 2003, were the "means" by which such voting was "permitted by State law." In short, at all times since the enactment of NVRA, Alabama law has provided, and continues to provide, voters with option 3 (voting at the polling place designated for the voter's new residence). Because option 3 was and continues to be available to voters in Alabama, NVRA did not at the time of its enactment, and does not now, require Alabama to make available option 1 (voting at the polling place designated for the voter's former residence). Section 17-6-5 has not changed in any respect in the wake of Congress's enactment of NVRA and HAVA; it still expressly makes it "illegal" for an elector to vote other than at his or her proper polling place. Nor has § 17-10-3 changed in any material way in the wake of the enactment of NVRA and HAVA. It now makes reference to "provisional ballots" rather than "challenge ballots" as it did before HAVA, but it still expressly limits the use of such ballots to "qualified elector[s] residing in the precinct, ward, or voting district" to which they must attest they currently live. 36 1111629 Nor does the post-HAVA change made by the legislature to § 17-9-10 work any change in the aforesaid rule. The timing of the amendments to our election law regarding "provisional ballots" in the immediate wake of the enactment of HAVA, including the amendment to § 17-9-10 to allow such ballots as "provided by law," makes clear that the legislature was simply trying to ensure that Alabama's statutes were worded in a way that would accommodate Congress's new "law." As other courts have since held, however, Congress did not intend, or purport, by HAVA to override such a traditional state-election-law requirement –- one as fundamental, and perfunctory –- as requiring voters to vote in the precinct in which they live.18 Sections 17-9-10, 17-6-5, and 17-10-3 all make clear, in 18 strongly worded provisions, that a voter simply may not vote where he or she does not live. Although as has already been noted, see note 12, supra, § 17-9-10 references the possibility of voting a provisional ballot "as provided by law," § 17-6-5 contains no such reference. Furthermore, § 17- 10-3 informs the reference in § 17-9-10 to the voting of provisional ballots as "provided by law" by explaining that if the voter is a "qualified elector residing in the precinct, ward, or voting district," then, in that circumstance, he or she may cast a provisional ballot. In other words, the purpose of provisional balloting, insofar as it is relevant to this case, is merely to allow a voter to overcome a challenge to his or her qualifications or the omission of his or her name from the official list of electors for the polling place where he or she lawfully seeks to vote, not to vote in a place where he or she does not live. See generally § 17-10-2, Ala. 37 1111629 In Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir 2004), the United States Court of Appeals for the Sixth Circuit noted with approval statements in HAVA's legislative history suggesting that the term "jurisdiction" in that statute "means the particular state subdivision within which a particular State's laws require votes to be cast." 387 F.3d at 575. Referring to provisions of Ohio election statutes similar to the Alabama statutes at issue here, the court aptly explained: "In the absence of a compelling reason for defining HAVA's use of this term to mean the geographic reach of the unit of government that maintains the voter registration rolls, we look to the overall scheme of the statute to determine its meaning. See United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000) Code 1975. Indeed, to interpret 17-9-10 as allowing for provisional voting at a location where the voter does not live would be to provide for a futile act or, perhaps better put, a statutory scheme that "meets itself coming." All the aforesaid statutory sections state in clear and commanding terms that a ballot cast by a voter in a location where he or she does not in fact reside is "illegal." In order to cast a provisional ballot in the type of circumstances at issue, a voter would have to certify his or her current address, thereby documenting the very fact that would make his or her ballot illegal and thereby prevent it from ever being counted under these statutes. 38 1111629 (ruling that 'this court also looks to the language and design of the statute as a whole in interpreting the plain meaning of statutory language') (internal quotation marks and citation omitted). Nowhere in the language or structure of HAVA as a whole is there any indication that the Congress intended to strip from the States their traditional responsibility to administer elections; still less that Congress intended that a voter's eligibility to cast a provisional ballot should exceed her eligibility to cast a regular ballot. After all, the whole point of provisional ballots is to allow a ballot to be cast by a voter who claims to be eligible to cast a regular ballot, pending determination of that eligibility. "In Ohio, like many other states, a voter may cast a ballot only in his or her precinct of residence. See Ohio Rev. Code Ann. § 3503.01 (West 2004) (providing that an eligible voter 'may vote at all elections in the precinct in which the citizen resides'); Ohio Rev. Code Ann. § 3599.12(A)(1) (West 2004) (making it a crime under Ohio law for a voter to knowingly vote anywhere except in the precinct in which he or she resides). As such, in Ohio, HAVA requires that a provisional ballot be issued only to voters affirming that they are eligible to vote and are registered to vote in the precinct in which they seek to cast a ballot." 387 F.3d at 575-76 (emphasis added). Similarly, in James v. Bartlett, 359 N.C. 260, 267-71, 607 S.E.2d 638, 642-45 (2005), the North Carolina Supreme Court explained: "The plain language of the [North Carolina] statute clearly and unambiguously states that a voter is 'qualified to register and vote in the precinct in which he resides.' Id. (emphasis added). 39 1111629 Furthermore, N.C.G.S. § 163–55 refers three separate times to 'the precinct' and one additional time to 'one precinct.' Had the General Assembly intended that each voter be permitted to cast a ballot at his precinct of choice, this statute would surely have employed the phrase 'any precinct' or 'a precinct.' 'Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.' Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). The plain meaning of section 163–55 is that voters must cast ballots on election day in their precincts of residence. ".... "The conclusion that a provisional ballot must be cast in a voter's precinct of residence is supported by other regulatory and statutory provisions concerning the use of provisional ballots. In 2003, the General Assembly ratified N.C.G.S. § 163–166.11, which addresses voters who appear at a precinct polling place on election day but are not listed on the registration records for that precinct. Pursuant to section 163–166.11, such voters may cast a provisional ballot at the precinct and later have their ballots counted if it is determined that the voter was eligible to vote. Section 163–166.11 was created in response to Congress' passage of the Help America Vote Act (HAVA) of 2002, 42 U.S.C. §§ 15481–15485 (2002), which mandated that such provisional ballots be made available for federal elections beginning in January 2004. Act of June 11, 2003, ch. 226, sec. 1, 2003 N.C. Sess. Laws 341, 353–54.[ ] ... In our review, 19 we have found no indication that Congress' intent in passing HAVA, or our state legislature's intent in N.C.G.S. § 163–166.11 is the equivalent of Alabama's 19 § 17-10-2 and was enacted at about the same time and for the same reason, as discussed below in the quoted passage. 40 1111629 passing N.C.G.S. § 163–166.11, was to enable voters to cast valid ballots outside their precincts of residence when such a vote would not otherwise be supported by state law. ".... "... [I]t is but a perfunctory requirement that voters identify their proper precinct and appear within that precinct on election day to cast their ballots. Voters may identify their precinct via mail, telephone, Internet, or in person at their local boards of elections. Election officials are expected to work with voters to help them locate their correct precinct. Indeed, when a voter appears at the wrong polling place, election officials have a statutory duty to assist the voter in finding the correct precinct in which to vote. N.C.G.S. § 163–82.15(e)." IV. Conclusion Alabama statutory law continues to require, as it long has, that voters who have moved cast ballots at the polling place designated for their new address. Further, Ala. Admin 20 Code (Secretary of State), Reg. 820-2-2-.13(1), was not and is not required by NVRA or HAVA. Because Reg. 820-2-2-.13(1) expressly contradicts Alabama statutory law, it is void. Under certain limited circumstances described in Ala. 20 Code 1975, §§ 11-46-38 and 11-46-109, this requirement does not apply to municipal elections; however, "regular municipal elections" "are held at times different from elections held by the State and counties." Fluker v. Wolff, 46 So. 3d 942, 951 (Ala. 2010) (discussing municipal-election laws set out in § 11-46-1 et seq., Ala. Code 1975). 41 1111629 The circuit court's judgment is due to be reversed and the cause remanded for the entry of a judgment consistent with this opinion. REVERSED AND REMANDED. Moore, C.J., and Stuart, Bolin, Parker, Shaw, Main, and Bryan, JJ., concur. Wise, J., recuses herself. 42	April 18, 2014
6c89e70b-acc6-4380-923a-e4217d77a1bf	Ex parte G.N., Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: G.N., Jr. v. Cullman County Department of Human Resources) (Cullman Juvenile Court: JU-11-3.02; Civil Appeals : 2120639). Writ Quashed. No Opinion.	N/A	1130031	Alabama	Alabama Supreme Court	Rel: 4/4/14 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130031 ____________________ Ex parte G.N., Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: G.N., Jr. v. Cullman County Department of Human Resources) (Cullman Juvenile Court, JU-11-3.02; Court of Civil Appeals, 2120639) BRYAN, Justice. WRIT QUASHED. NO OPINION. 1130031 Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur. Moore, C.J., dissents. 2 1130031 MOORE, Chief Justice (dissenting). G.N., Jr. ("the father"), appealed the juvenile court's termination of his parental rights to his son, G.N.N. ("the child"). The Court of Civil Appeals affirmed, without an opinion. G.N., Jr. v. Cullman Cnty. Dep't of Human Res. (No. 2120639, Sept. 27, 2013), ___ So. 3d ___ (Ala. Civ. App. 2013) (table). This Court granted certiorari review; it now quashes the writ. I respectfully dissent. Although allegations of domestic violence have been made concerning the father and his wife, C.N. ("the mother"), no evidence indicates that the child was ever "in imminent danger from the surroundings ... and that the removal of the child is necessary for the protection of the health and safety of the child." § 12-15-306(a)(1), Ala. Code 1975. I believe the juvenile court lacked legal grounds to remove the child from his parents because there was no evidence of "[h]arm or the risk of harm to the emotional, physical health, or welfare of a child." § 12-15-301(2), Ala. Code 1975. In addition, because allegations of domestic violence against a spouse do not provide legal grounds for the termination of parental rights, I believe the father's parental rights were terminated without 3 1130031 clear and convincing evidence, as required by § 12-15-319(a), Ala. Code 1975. I. Facts and Procedural History At the time of the proceedings below, the father and the mother had been together for about 13 years. The mother has two children from a prior relationship, K.H., a daughter, and C.H., a son. In 2006, the Department of Human Resources ("DHR") became involved with the family on account of the parents' domestic violence and illegal drug use. The parents refused to take drug screens or to cooperate with DHR's safety plans for the children. The mother told DHR to put the children into foster care. DHR instead located a relative who took custody of the children. The child was born in 2009. The parents planned to give the child up for adoption, but they decided to keep the child after he was born. After the child's birth, hospital staff expressed concerns to DHR about the parents' ability to parent the child and the domestic violence in the home. A DHR caseworker investigated the reports but took no action. DHR had no further contact with the family in 2009. 4 1130031 In 2010, presumably at the age of 13, K.H. returned to the house where the mother and the father were living. K.H. testified that things were good in the beginning but that they got progressively worse because the parents would often fight. In August 2010, DHR received a report that the parents were using drugs, that there was no food in the house, that K.H. was sleeping on the floor, and that the father had thrown water on K.H. to wake her up. D.M., the father's mother, had moved into the family home after being diagnosed with cancer. D.M. reported that some of her prescription pain medication was missing. A DHR caseworker investigated and found no evidence of recent physical abuse or inadequate food but did not determine what happened to D.M.'s medication. DHR had no further involvement with the family in 2010. On January 1, 2011, the mother attempted to leave the father. The mother got into her vehicle, and, while she was holding the child, the father attempted to remove the mother from the vehicle by pulling her legs. The mother was able to hand the child to K.H., and no one was injured. Later the same month, the child became very ill and started vomiting. The mother thought that the father had poisoned the child and took 5 1130031 the child to Children's Hospital of Alabama in Birmingham, where the child was treated for a stomach virus. A nurse then told the mother that she was free to take the child home. The mother told the nurse that she did not want to go home because the father physically abused her, and she asked the nurse for help in getting away from the father. The mother said that the father had threatened her "with lawyers." The hospital contacted DHR, which began an investigation. The mother became angry and told DHR that she was going home with the father. DHR interviewed the family, including K.H., who was 14 years old at the time. K.H. reported that the parents had been violent toward one another shortly before the hospital visit. DHR also learned that the parents were being treated by psychiatrists, that they were using prescription medication, and that the father had been diagnosed with post- traumatic stress syndrome after his military service during Operation Desert Storm and the War in Iraq. DHR thereafter obtained a "pick-up" order from the juvenile court and took the child and K.H. into protective custody. DHR's "Comprehensive Family Assessment" indicates 6 1130031 that the "Original Reason the Family's Case was Opened for Services" was: "There were concerns for [the child] (1) and [K.H.] (14). [The child] was at Children's Hospital for a fever and vomiting. [The mother] reported to the nursing staff that she was afraid to go home because she had been threatened by her husband, [the father]. She stated the trailer had wires under it and the phones were bugged. She stated she and her husband were both recovering addicts and she is currently taking Percocet and slept with her prescription so that [the father] couldn't take the bottle from her and accused her of taking too much. [The mother] admitted to physical violence in the past [sic] however no police reports have been filed. [The mother] states [the father] is playing games that no one can understand. She accused her stepson of casting spells on her with sardines and [1] boiled eggs and a plastic baggie placed on top of the trailer. It was stated in hospital paperwork that 'someone' is trying to make the [child] sick by putting a baggie of sardines and boiled eggs in to the water while [the mother] was washing the baby's bottles. "It was learned that the most recent occurrence of domestic violence was on January 1, 2011 by [the father] and [the mother] where [the father] held [the mother] down and drug [sic] her out of the car by her feet. [K.H.] and [the child] were both present and [K.H.] tried to intervene. [The mother] was holding the [child] some time during the altercation. Police were called but no report was filed. [The mother's] behavior was volatile at the hospital. Both parents did not understand the risk to children from the domestic violence and their behaviors. They were unable to arrange for third party for safety plan." The father has three children from a prior marriage. 1 7 1130031 K.H. thanked a DHR caseworker for removing her from the parents' home because she was scared to be at home with all the fighting between the parents. The mother's sister took custody of K.H. On January 18, 2011, the child was placed in foster care. He was approximately 18 months old. DHR offered the parents supervised visitation with the child and counseling, but the parents were resistant to working with DHR. Debra Coffey, a DHR caseworker, identified the services the parents needed in order to be reunited with the child -- counseling, psychiatric care, substance-abuse counseling, and drug screens. The parents were not receptive to DHR's services. The parents either did not show up for the drug screens or refused to take the screens. The father refused counseling because he was receiving counseling through the Department of Veterans Affairs ("the VA"). The VA provided counseling for the father to treat his post-traumatic stress syndrome and to help him deal with his home life and his anger issues and to teach him how to cope without resorting to violence. The VA required the father to submit to unannounced 8 1130031 drug screens at least once a month. The father testified that he had not failed a VA drug screen. In February 2011, the father, at DHR's request, was given a psychological evaluation by Dr. Barry Woods. Dr. Woods found that "no test results ... support the idea that the [father] is prone to violence toward his wife, his children, or others." Dr. Woods attempted to evaluate the father's relationship with the child, but the father responded to Dr. Woods's questions "with excessive defensiveness that rendered [his answers] uninterpretable and invalid." Beginning in January 2011, DHR provided the parents services from Transforming Lives, a company that provides in- home parenting-skills training, budgeting classes, and marital counseling and skills training. Although the parents attended visitation with the child during that period, they were not compliant with recommendations or redirection about their parenting skills. The parents often spent their visitation complaining about DHR's involvement with the family. In July 2011, Michael Goodwin, a counselor at Transforming Lives, supervised the parents' visitation. Goodwin testified that the child enjoyed the visitation with the parents. Goodwin 9 1130031 testified that he did not have any specific issues with the parents' parenting skills but that there was "room for improvement." In November 2011, Transforming Lives stopped providing services to the parents because they were resistant to any counseling that was not provided through the VA. At the end of 2011, DHR referred the parents to counseling with Sherry Brown. The goal was for the parents to begin individual counseling and then to proceed to marital counseling. Brown had three or four individual sessions with each parent. However, Brown did not think the parents would make progress because the father thought he had no need to be there, and she stopped the counseling sessions. On April 10, 2012, approximately 15 months after the child had been placed in foster care, DHR filed a petition to terminate the parental rights of the parents to the child. In May 2012, a DHR worker reinitiated DHR's efforts to offer the parents services, including individual counseling, marriage counseling, parenting assistance, and domestic-violence counseling. As before, the parents would agree to participate in such services only through the VA. However, the parents agreed to submit to drug screens, and they participated in the 10 1130031 "court-referral program." The parents tested positive for opiates, but both were taking prescription opiates as part of their mental-health treatment. The parents continued regular visitation with the child. On October 12, 2012, a DHR worker again told the parents that DHR needed both of them to attend domestic-violence counseling. The father insisted that he would not participate in such counseling unless it was through the VA. After being contacted by a DHR supervisor, the father's VA caseworker told the father that he should participate in DHR's counseling program. The father contacted DHR and indicated he wanted to participate in domestic-violence counseling. However, the father never began domestic-violence counseling. At the time of the trial in March 2013, the mother and the father were living in a rented three-bedroom, one-bathroom house. DHR had no concerns about the physical adequacy of the home. The father received $3,500 a month in VA disability and Social Security income. His expenses were approximately $2,000 a month. The parents did not provide any support for the child after he entered foster care in January 2011. At the time, the 11 1130031 parents had been married for 13 years, and the father planned to remain married to the mother. In late 2012, the father and mother started attending couples counseling in Decatur, where they learned skills to improve their marriage. According to the father, "the most useful thing" that had improved his relationship with the mother was that he now worked out of town and he was no longer at home all day. The father testified that he loved the child and that he would never hurt the child. He testified that he was still being treated by the VA for anger issues but that his VA caseworker would testify that the child was not in danger from the father. The father testified that there had not been a police report of domestic violence filed against him since 1999, when his ex-wife had filed a report. Between 2 late 2011 and mid 2012, the police had responded to two domestic-violence incidents at the parents' home, but no arrests were made. On March 8, 2013, the juvenile court held a hearing on DHR's petition to terminate the father's and the mother's This report was filed by the father's ex-wife. A 2 protection-from-abuse order was issued against the father in July 1999, but the ex-wife had filed a motion to dismiss the action about six days later. 12 1130031 parental rights as to the child. On April 18, 2013, the juvenile court entered a judgment terminating their parental rights and found: "[T]he parents have been noncompliant and/or unable to make improvements to their situation ... the father and mother of the minor child are unable or unwilling to discharge their responsibilities to and for the minor child[,] the conduct or condition [of the parents] is unlikely to change in the foreseeable future[,] the child is dependent[,] and there is no viable alternative other than termination of parental rights." The mother did not appeal the juvenile court's judgment. The father timely appealed, and the Court of Civil Appeals affirmed the judgment of the juvenile court without an opinion. This Court granted certiorari review, which it now quashes. II. Standard of Review "'The ore tenus rule applies in cases involving termination of parental rights. When the evidence is presented ore tenus, the judgment of the trial court is "presumed correct and will be set aside only if the record reveals the judgment to be plainly and palpably wrong."'" Ex parte J.R., 896 So. 2d 416, 423 (Ala. 2004) (quoting G.D.M. v. State, 655 So. 2d 1020, 1022 (Ala. Civ. App. 1995)). "[The ore tenus] 13 1130031 rule does not relieve this Court of its responsibility to ensure that those facts clearly and convincingly warrant the termination of parental rights." Ex parte T.V., 971 So. 2d 1, 9 (Ala. 2007). The clear-and-convincing standard requires "an exacting level of certainty based on evidence of the parent's current situation." Id. This Court does "'"not sit in judgment of the facts,"'" but "'"review[s] the factfinder's determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law."'" Id. (quoting Hinds v. Hinds, 887 So. 2d 267, 272-73 n. 2 (Ala. Civ. App. 2003), quoting in turn Curtis White Constr. Co. v. Butts & Billingsley Constr. Co., 473 So. 2d 1040, 1041 (Ala. 1985)). III. Analysis A. Removal of the Child from Parental Custody Alabama's juvenile courts have jurisdiction over child- dependency proceedings. § 12-15-114, Ala. Code 1975. Under Alabama law, "[a] child or minor may be taken into [protective] custody ... [p]ursuant to an order of the juvenile court." § 12-15-125(a)(1), Ala. Code 1975. The court's "pickup order" must be supported by a petition that 14 1130031 sets forth "with specificity" the facts that bring the child under the juvenile court's jurisdiction, the facts constituting the child's alleged dependency, and the facts showing that the child is in need of the care or protection of the State. § 12-15-121(c)(1), Ala. Code 1975. The child was not dependent. His parents were providing 3 "for the care, support, or education of the child," § 12-15- 102(8)2, Ala. Code 1975, and were discharging their "responsibilities to and for the child." Id. at (8)6. The child was not abused. § 12-15-301(2), Ala. Code 1975 (defining "abuse" as "[h]arm or the risk of harm to the emotional, physical health, or welfare of a child"). There is no evidence indicating that the one incident of alleged domestic violence involved any "harm or the risk of harm" to the child. The parents' domestic violence was directed toward one another, not the child. The child was not neglected. § 12-15-301(7), Ala. Code 1975 (defining "neglect" as "the failure to provide adequate food, medical treatment, supervision, education, clothing, or shelter"). In fact, DHR's investigator The child was not "dependent" under seven of the eight 3 statutory definitions of "dependent child." See § 12-15-102(8), Ala. Code 1975. 15 1130031 interviewed the family right after the parents had obtained medical attention for the child. The child was taken into the State's protective custody because of the parents' bizarre behavior, one incident of alleged domestic violence, and the parents' lack of understanding about the risks of that behavior or violence to the child. The evidence indicates that the mother was able to hand the child to K.H. during the one incident of alleged domestic violence. No member of the family was injured. In fact, DHR's "Comprehensive Family Assessment" never stated that the child was directly at risk. Rather, the juvenile court removed the child from his parents because the parents lacked understanding that their bizarre behavior and the alleged domestic violence might put the child at risk. Although I acknowledge that parent-on-parent domestic violence may put children at risk on a variety of levels, a parent's lack of understanding about the risks of domestic violence, without a demonstration of actual harm or risk to the child, should not vest the juvenile court with jurisdiction over the child. 16 1130031 The parents simply did not understand or comprehend that their conduct might create potential risks for the child. Other than this lack of understanding, they were fit parents. Where there was no evidence of abuse, neglect, or exploitation of the child, the "pickup order" does not make sense, apart from DHR's mandate to protect children from even the risk of violence. DHR has the duty to "[s]eek out and prevent or remedy the neglect, abuse or exploitation of children." Rule 660-1-2-.01(2)(a), Ala. Admin. Code (DHR). DHR has a mandate "to seek out and aid minor children in the state who are in need of its care and protection, and protective services shall be made available in an effort to prevent further abuse and neglect, and to safeguard and enforce the general welfare of such children." Rule 660-5-34-.13(1)(a), Ala. Admin. Code (DHR). DHR's child- protective-services workers are tasked with "analyzing parents' or primary caregivers' protective capacities; determining to what extent parents or primary caregivers are able and willing to control threats and manage risks; and determining if identified risks are significant enough to warrant on-going services in order to prevent maltreatment." Rule 660-5-34-.13(4), Ala. Admin. Code (DHR). "Protective capacities" are "parenting/caregiving knowledge and skills; 17 1130031 attachment to the children; awareness of and ability to interpret and meet children's needs; and a willingness and ability to act protectively when the children experience safety threats." Rule 660-5-34-.14(4), Ala. Admin. Code (DHR). Thus, a parent's lack of "protective capacities," as determined by DHR's child-protective-services workers, may be sufficient to warrant the removal of "dependent" children from their parents. Under Alabama law, the final definition of "dependent child" is a child "[w]ho, for any other cause, is in need of the care and protection of the state." § 12-15-102(8)8, Ala. Code 1975 (emphasis added). This "catch-all" definition allows DHR's child-protective-services workers to remove children from their parents for causes undefined by Alabama law, including causes that might never occur. "Any other cause" might include family conditions and circumstances "that threaten child safety" or conditions that "present[] a risk of serious harm to the children" and conditions that, "if left unchanged, can cause child abuse/neglect," or which "are likely to cause abuse/neglect if ongoing services are not 18 1130031 provided." Rule 660-5-34-.14(1)-(2), (6), and (9), Ala. Admin. Code (DHR). The application of DHR's mandate to seek out minor children in need of the State's protection has resulted in the child's being wrested from his parents because of the parents' lack of understanding about risks of certain behavior to the children. The juvenile court had no jurisdiction over the minds and understanding of the parents and cannot deprive them of their right to the custody and control of their child in the absence of child abuse, child neglect, or some other criminal offense concerning the child.4 One of the legal principles behind Virginia's Statute for Religious Liberty applies directly in such cases: "[T]o suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all ... liberty, because [the civil magistrate] being of course judge Ex parte G.C., 924 So. 2d 651, 677-78 (Ala. 2005) 4 (Parker, J., dissenting) (noting that courts should take judicial notice that "God, not the state, has given parents these rights and responsibilities, and, consequently, that courts should interfere as little as possible with parental decision-making, instead deferring to parental authority whenever it has not been fundamentally compromised by substantial neglect, wrongdoing, or criminal act"). 19 1130031 of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order ...." Virginia Statute for Religious Liberty, January 16, 1786, reprinted in I Documents of American History 126 (Henry Steel Commager, ed. 1968). Likewise, I would hold that a juvenile court obtains jurisdiction over a child only when the parents' lack of understanding actually "break[s] out into overt acts" of abuse, neglect, or some crime against the child. Allowing DHR to intrude its considerable legal powers into the realm of parental opinions and understanding because of a possible risk to a child is a dangerous fallacy and works to destroy the parental rights of parents in Alabama, rights that exist independent of law or organized government, being among those inalienable rights with which parents are endowed by their Creator. Art. I, § 1, Ala. Const. 1901. B. The Basis for Termination of the Father's Parental Rights Allegations of domestic violence against a spouse do not furnish legal grounds for the termination of the spouse's parental rights. Alabama's juvenile courts may terminate 20 1130031 parental rights only when the evidence is "clear and convincing, competent, material, and relevant in nature." § 12-15-319(a), Ala. Code 1975. DHR's "Petition to Terminate [the] Parental Rights" of the father and mother states: "Neither parent understood that they were putting these children at risk due to their hostile behavior. ... "... [N]either parent was receptive to [DHR] providing counseling services to the family. ... [T]he ... father goes to [counseling] appointments but refuses to participate and states that he does not need to be there. " ... The ... father has a history of domestic violence. He has poor coping skills and becomes volatile in stressful situations. "... [T]he mother does not have the parenting ability to protect the child. ... "The minor child is without proper parental care and control necessary for his well being because of the faults of the parents. The parents of said child demonstrate no significant interest in or sense of responsibility toward said child. "... The parents have refused to adjust their circumstances to meet the needs of the child. ".... "[DHR] further prays that after the final hearing in this cause, the Court will terminate, permanently, any and all legal rights to the parents of said child as to his custody and grant permanent custody of said child to [DHR]." 21 1130031 (Emphasis added.) The juvenile court's order reads, in part: "[T]he parents have been noncompliant and/or unable to make improvements to their situation.... [T]he father and mother of the minor child are unable or unwilling to discharge their responsibilities to and for the minor child; the conduct or condition [of the parents] is unlikely to change in the foreseeable future; the child is dependent; and there is no viable alternative other than termination of parental rights." The parents' ability and willingness to discharge their responsibilities to the child were never questioned until the juvenile court removed the child from his parents. The parents' alleged noncompliance or inability pertained to their refusal to understand and address their alleged domestic- violence problem to DHR's satisfaction. No evidence indicates that the child was directly at risk from the parents' alleged domestic violence. The father's psychological evaluation indicates that "no test results ... support the idea that the [father] is prone to violence toward his wife, his children, or others." The father testified that he loves the child and that he would never hurt him. The father admitted that he was still being treated for "anger issues" by the VA but that his caseworker would testify that the child is not in danger from the father. 22 1130031 Although police responded to domestic-violence reports in the family home in 2011 and 2012, no arrests were made and no charges were filed. At trial, the father testified that he had obtained employment and was out of the house during the day, which helped improve the marital relationship. The parents had even attended counseling on their own initiative for several months before the trial. In addition, the evidence regarding the parents' ability to parent the child was positive. Michael Goodwin, a counselor at Transforming Lives, stated that he "did not have any specific issues with the mother and the father's parenting skills" but that there was room for improvement. Goodwin also testified that the parents were willing to improve in this area. The parents maintained visitation with the child during these proceedings. In sum, the evidence demonstrates that the parents were fit at that time DHR took the child and that they remained fit in many respects at the time of the trial. It appears, however, that the juvenile court terminated the parents' rights as to the child not because they were bad parents, but because they were bad spouses. This conclusion appears 23 1130031 unavoidable from the record and the juvenile court's order but is simply not supported by the evidence. A man may be a bad husband or a bad parent, but a bad husband is not automatically a bad parent. The evidence does not rise to the level of clear and convincing evidence that would warrant the termination of the parental rights of the parents to the child under § 12-15-319(a), Ala. Code 1975, which requires "an exacting level of certainty based on evidence of the parent's current situation." Ex parte T.V., 971 So. 2d at 9. IV. Conclusion I believe that the juvenile court in the first instance lacked legal grounds to order the child taken into protective custody and ultimately lacked the clear and convincing evidence that would provide a legal ground for the termination of parental rights. 24	April 4, 2014
95873ad7-bcf5-4f44-a08f-a5c43d84f098	Morrow v. Caldwell	N/A	1111359	Alabama	Alabama Supreme Court	REL: 03/14/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 _________________________ 1111359 _________________________ Wayne Morrow v. Shameka Caldwell, as mother and next fried of Keandarick Russell, a deceased minor Appeal from Montgomery Circuit Court (CV-10-900779) PER CURIAM. Wayne Morrow filed a permissive appeal pursuant to Rule 5, Ala. R. App. P., from the Montgomery Circuit Court's order denying Morrow's request for a judgment declaring that the $100,000 cap on damages in § 11-47-190, Ala. Code 1975, 1111359 applies to Morrow, a municipal employee who was sued in his individual capacity. We affirm the trial court's order. Facts and Procedural History In January 2009, Alice Yu sought to have Alabama Power Company ("Alabama Power") restore electrical service in her name at a commercial building she was leasing at 1940 N. Ripley Street in Montgomery ("the premises"). Because the premises had been without power for approximately eight months, the City of Montgomery ("the City") had to perform an electrical inspection of the premises and clear the premises for service before Alabama Power could restore electrical service. On January 29, 2009, Morrow, who was an electrical inspector with the City, inspected the premises. Morrow stated that there was a raised concrete pad at the back of the building and that there was an air-conditioning system on the raised concrete pad. Morrow also stated that there was a chain-link fence around the entire concrete pad, that the entry to the system was by a locked gate, and that the top of the fence was also enclosed by a chain-link fence that went over the air-conditioning system and was secured to the building. Morrow stated that, above the concrete pad, there 2 1111359 was an electrical source that could be used to install a floodlight ("the electrical source") and that the electrical source was covered by a circular, weatherproof junction box. Morrow further stated that he did not find any electrical defects or any dangerous conditions with regard to the electrical system and that he approved the premises for the restoration of power. On January 30, 2009, Alabama Power restored power to the premises. On June 30, 2009, Keandarick Russell, a minor, was staying with his great-grandmother, who lived next door to the premises. Russell, who was playing on the concrete pad on which the air-conditioning system was located, was electrocuted when he came in contact with the chain-link fence. When the incident occurred, the gate in the fence was broken, the top part of the enclosure had been rolled back and was resting against the wall of the building, and the wires from the electrical source were not covered by a junction box. The wires from the electrical source had come in contact with a portion of the fence, and, as a result, the fence had become electrified and Russell was electrocuted when he touched the fence. 3 1111359 On June 17, 2010, Shameka Caldwell, as Russell's mother and next friend, filed a wrongful-death action against multiple defendants, including fictitiously named defendants. On September 2, 2010, Caldwell amended her complaint to substitute Morrow and Yu for two of the fictitiously named defendants. In the amended complaint, Caldwell alleged that Morrow had negligently, recklessly, and/or wantonly inspected the premises and had negligently, recklessly, and/or wantonly allowed electrical service to be restored to the premises. In his answer, Morrow asserted that he was entitled to State immunity, to State-agent immunity, and to qualified immunity. On March 15, 2011, Caldwell filed a second amended complaint. In the second amended complaint, Caldwell stated that Morrow "is sued herein in his individual capacity for his individual acts of negligence and wantonness which caused or contributed to cause the death of Keandarick Russell." Also, in her second amended complaint, Caldwell alleged that Morrow had acted "negligently and/or recklessly and/or wantonly and/or maliciously and/or willfully and/or with fraudulent conduct and/or in bad faith and/or intentionally and/or beyond his authority and/or under a mistaken interpretation of the 4 1111359 law" when he inspected the premises; that he had been "negligent and/or wanton and/or reckless and/or malicious and/or willful and/or [had acted] with fraudulent conduct and/or in bad faith and/or intentionally and/or beyond his authority and/or under a mistaken interpretation of the law" when he allegedly did not follow proper protocol and procedures for inspecting the premises for electrical service; and that Morrow had negligently, recklessly, and/or wantonly allowed electrical service to be restored to the premises. Finally, in the second amended complaint, Caldwell stated that Morrow had "acted negligently and/or wantonly in this case and this action is brought against him specifically in his individual capacity." In his answer to the second amended complaint, Morrow again alleged that he was entitled to State immunity, to State-agent immunity, and to qualified immunity. On July 1, 2011, Morrow filed a motion for a summary judgment in which he argued that he was entitled to State- agent immunity under Ex parte Cranman, 792 So. 2d 392 (Ala. 2000). In her brief in opposition to Morrow's summary- 1 The test set forth in Cranman, a plurality opinion, was 1 subsequently adopted by a majority of the Court in Ex parte Butts, 775 So. 2d 173 (Ala. 2000). 5 1111359 judgment motion, Caldwell argued that she had presented evidence that created a reasonable inference that Morrow was not entitled to State-agent immunity under Cranman because, she says, he "failed to enforce the [National Electrical Code] as he was required and failed to follow the dictates of the Electrical Ordinance of the City of Montgomery in a willful manner and in complete disregard for the safety of others." The trial court denied Morrow's summary-judgment motion. Subsequently, Morrow filed a petition for a writ of mandamus with this Court, in which he asked this Court to compel the trial court to enter a summary judgment in his favor on the basis of State-agent immunity. This Court denied the petition without ordering an answer and briefs. (No. 1101312, August 31, 2011.) On May 25, 2012, Morrow filed a motion asking the trial court for "a judgment declaring the statutory limitations of liability of $100,000, pursuant to Ala. Code 1975, § 11-47- 190, are applicable to Defendant Wayne Morrow in this case." Caldwell filed a response to Morrow's request for a declaratory judgment in which she contended that the statutory cap on recovery set forth in § 11-47-190 for damages against 6 1111359 a municipality would not apply to the claims in this case because the claims were brought against Morrow in his individual capacity and because she alleged that Morrow had acted recklessly, wantonly, or willfully. On June 27, 2012, the trial court entered an order denying Morrow's request for a judgment declaring § 11-47-190 applicable in which it stated, in pertinent part: "The law concerning caps on damages against municipalities and their employees appears to be unsettled at the present time. As best this Court can discern the law, this Court would find the issue in favor of [Caldwell] and holds that the caps would not apply to damages attributable to wanton conduct by Morrow when sued in his individual capacity." On June 28, 2012, Morrow filed a motion in which he requested that the trial court "certify the question of the extent to which any individual capacity claim against Morrow is limited to $100,000 under Ala. Code § 11-47-190, and to stay the proceedings pending the filing of a petition for interlocutory appeal, pursuant to Rule 5, Ala. R. App. P." The trial court provided the certification necessary for an interlocutory appeal pursuant to Rule 5, Ala. R. App. P. Subsequently, Morrow filed a petition for permissive appeal in this Court. This Court granted the petition. 7 1111359 Discussion The trial court's certification included the following controlling question of law for permissive appeal: "Whether the claims against a municipal employee, sued in his individual capacity, are subject to the statutory cap of Ala. Code 1975, § 11-47-190, when those claims fall within the 'willful or wanton' exception to the doctrine of State-agent immunity, under Ex parte Cranman, 792 So. 2d 392 (Ala. 2000)." This case presents a pure question of law. This Court has held: "'"[O]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court's review is de novo."' Rogers Found. Repair, Inc. v. Powell, 748 So. 2d 869, 871 (Ala. 1999) (quoting Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997))." City of Prattville v. Corley, 892 So. 2d 845, 847 (Ala. 2003). In answering the trial court's question, we are guided by the following principles of statutory construction: "'In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature.' Dekalb County LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998). "'"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly 8 1111359 what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect."' "Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So. 2d 293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992))." City of Prattville v. Corley, 892 So. 2d at 848. "In Archer v. Estate of Archer, 45 So. 3d 1259, 1263 (Ala. 2010), this Court described its responsibilities when construing a statute: "'"'[I]t is this Court's responsibility in a case involving statutory construction to give effect to the legislature's intent in enacting a statute when t h a t intent i s manifested in the wording of the statute. ... "'"'[I]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.'"'" ... In determining the i n t e n t o f t h e legislature, we must examine the statute as a whole and, if 9 1111359 possible, give effect to each section.' "'"Ex parte Exxon Mobil Corp., 926 So. 2d 303, 309 (Ala. 2005). Further, "'"'when determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute. ... When the language is clear, there is no room for judicial construction. ...' "'"Water Works & Sewer Bd. of Selma v. Randolph, 833 So. 2d 604, 607 (Ala. 2002)."' "(Quoting Ex parte Birmingham Bd. of Educ., 45 So. 3d 764, 767 (Ala. 2009).) Similarly, in Lambert v. Wilcox County Commission, 623 So. 2d 727, 729 (Ala. 1993), the Court stated: "'"The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. ... In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses ... and words are given their plain and usual meaning. ... Moreover, just as statutes dealing with the same subject are in pari materia and should be construed together, 10 1111359 ... parts of the same statute are in pari materia and each part is entitled to equal weight."' "(Quoting Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367 So. 2d 1378, 1380-81 (Ala. 1979).)" First Union Nat'l Bank of Florida v. Lee Cnty. Comm'n, 75 So. 3d 105, 111-12 (Ala. 2011). Morrow argues that the plain language of § 11-47-190 clearly dictates that the $100,000 statutory cap on recovery would apply to the claims against him even though he is being sued in his individual capacity and even though Caldwell is alleging that he acted recklessly, willfully, and wantonly. This Court has not yet addressed whether the statutory cap on recovery set forth in § 11-47-190 would apply to limit the liability of municipal employees sued in their individual capacity. 2 In Suttles v. Roy, 75 So. 3d 90 (Ala. 2010), this Court 2 held that, although the statutory cap on recovery against "a governmental entity" set forth in § 11-93-2, Ala. Code 1975, applied to an action against a municipal employee sued in his official capacity, it did not apply to an action against a municipal employee sued in his individual capacity. With regard to § 11-47-190, this Court noted: "Suttles and Homewood also state in the 'summary of argument' and the 'conclusion' portions of their brief that the plain language of § 11-47-190 provides that no recovery may be had against an employee of a municipality in excess of $100,000, 11 1111359 Section 11-47-190, Ala. Code 1975, provides: "No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part regardless of whether the employee is sued in his individual or official capacity. No explanation or elaboration on this argument is found in the initial brief, and no authority is cited supporting their interpretation of the Code section. Therefore, we decline to address this issue." 75 So. 3d at 99 n.5 (emphasis added). Additionally, when this Court overruled Suttles and Homewood's application for rehearing, Justice Shaw issued a special writing concurring specially and stating: "In the third issue in their brief on rehearing, Homewood and Suttles contend that, if Roy is able to assert individual-capacity claims against Suttles, then any damages award must be capped at $100,000 by Ala. Code 1975, § 11–47–190. As noted in the opinion on original submission, we have refused to address this issue based on the lack of argument regarding it in Homewood and Suttles's initial brief. Because we do not address this issue, it must wait to be resolved on another day." 75 So. 3d at 104 (emphasis added). 12 1111359 of the council or other governing body and whenever the city or town shall be made liable for damages by reason of the unauthorized or wrongful acts or negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured. However, no recovery may be had under any judgment or combination of judgments, whether direct or by way of indemnity under Section 11-47-24, or otherwise, arising out of a single occurrence, against a municipality, and/or any officer or officers, or employee or employees, or agents thereof, in excess of a total $100,000 per injured person up to a maximum of $300,000 per single occurrence, the limits set out in the provisions of Section 11-93-2 notwithstanding." (Emphasis added.) The first sentence of § 11-47-190 recognizes the principle that municipalities are generally immune from suit ("No city or town shall be liable for damages ....") and then provides an exception for actions seeking damages for the negligent acts of the agents or employees of municipalities ("unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee"). There is no exception in the statute allowing an action against a municipality for the wanton or willful conduct of its agents or employees. Cremeens v. City of Montgomery, 779 So. 2d 1190, 1201 (Ala. 2000) ("A 13 1111359 municipality cannot be held liable for the intentional torts of its employees. See Ala. Code 1975, § 11-47-190 ...."); Town of Loxley v. Coleman, 720 So. 2d 907, 909 (Ala. 1998) ("This Court has construed § 11–47–190 to exclude liability for wanton misconduct."). Further, this Court has interpreted the first sentence of § 11-47-190 as serving "to limit municipality liability to two distinct classes. In the first classification, the municipality may be liable, under the doctrine of respondeat superior, for injuries resulting from the wrongful conduct of its agents or officers in the line of duty. In the second classification, the municipality may be liable for injuries resulting from its failure to remedy conditions created or allowed to exist on the streets, alleys, public ways, etc., by 'a person or corporation not related in service to the municipality.' Isbell v. City of Huntsville, 295 Ala. 380, 330 So. 2d 607, 609 (1976); City of Birmingham v. Carle, 191 Ala. 539, 542, 68 So. 22, 23 (1915). The municipality must have actual or constructive notice of the condition. If the claim is predicated under the second classification, then the third party shall also be liable. Isbell, supra, 330 So. 2d at 609, Carle, 191 Ala. at 541-42, 68 So. at 23." Ellison v. Town of Brookside, 481 So. 2d 890, 891-92 (Ala. 1985). The second sentence of § 11-47-190, which provides a cap on any recovery on a judgment resulting therefrom, begins with 14 1111359 the word "however." The use of the sentence adverb (or conjunctive adverb) "however" indicates that the second 3 sentence modifies the preceding sentence. Thus, it sets a limit on the "recovery" stemming from a "judgment" or "judgments" that result from the liability allowed by the exception contained in the first sentence. So, while the first sentence provides that a municipality may be liable for the negligent acts of its agents or employees, the second sentence, by starting with the word "however," limits the "recovery" from any such resulting "judgment." In other words, the "recovery" that is capped to $100,000 by the second sentence is the recovery for any liability in a negligence action allowed by the first sentence. Thus, when the second sentence of § 11-47-190 is read in light of the first sentence, it is clear that the second sentence is meant to be a limitation on the amount of damages a person or corporation may recover from a municipality in those limited situations in which the municipality may be held liable. A sentence or conjunctive adverb "is a word that modifies 3 a whole previous statement." Frederick Crews, The Random House Handbook 403 (6th ed. 1992). 15 1111359 Morrow advances a different reading of the second sentence of § 11-47-190. Specifically, he points to the language that "no recovery may be had under any judgment ... against ... any ... employee ... in excess of" $100,000 and contends that this provides a blanket cap on any damages awarded against any municipal agent or employee in any action. In other words, he would interpret the second sentence as limiting recovery from actions that are different from the actions allowed by the first sentence, including recovery in actions alleging wanton or willful conduct against municipal employees in their individual capacity. This reading of § 11- 47-190 improperly disconnects the second sentence from the context of the entire section and fails to acknowledge the conjunctive adverb "however" that links the second sentence to, and causes it to modify, the first sentence. Further, it is clear that the reference to judgments against "any officer or officers, or employee or employees, or agents" in the second sentence is made because of the need to be clear that municipal liability is limited to $100,000 even where that liability is a function of an action against one of those persons in their official capacity or of the special 16 1111359 statutory indemnity imposed on a municipality by 11-47-24, Ala. Code 1975. As to the former, in Smitherman v. Marshall County Commission, 746 So. 2d 1001, 1007 (Ala. 1999), this Court held that "claims against county commissioners and employees in their official capacity are, as a matter of law, claims against the county and subject to the $100,000 cap contained in § 11-93-2[, Ala. Code 1975, capping damages against governmental entities at $100,000]." Similarly, claims that are brought against municipal employees in their official capacity are also, as a matter of law, claims against the municipality. By the same token, because of the need to be clear that municipal liability is limited to $100,000 even where that liability is a function of an action against a municipal employee in his or her official capacity or of the special statutory indemnity imposed on the city by 11-47-24, the second sentence of § 11-47-190 specifically addresses "judgments ... by way of indemnity under Section 11-47-24" that arise from judgments against "any officer or officers, or employee or employees, or agents" of a municipality. Section 11-47-24, Ala. Code 1975, provides: 17 1111359 "(a) Whenever any employee of a municipal corporation of the State of Alabama shall be sued for damages arising out of the performance of his official duties, and while operating a motor vehicle or equipment engaged in the course of his employment, such government agency shall be authorized and required to provide defense counsel for such employees in such suit and to indemnify him from any judgment rendered against him in such suit. In no event shall a municipal corporation of the state be required to provide defense and indemnity for employees who may be sued for damages arising out of actions which were either intentional or willful or wanton. "(b) All municipal corporations of the State of Alabama are hereby authorized to contract at governmental expense for policies of liability insurance to protect employees in the course of their employment." As this Court noted in Benson v. City of Birmingham, 649 So. 2d 82, 87 (Ala. 1995), by amending § 11-47-190 in 1994 to add the second sentence, the legislature clarified the fact that the limitation on recovery against a municipality also limits the amount for which a municipality may indemnify a negligent employee. Finally, no language in § 11-47-190 suggests that it is intended to apply to claims against municipal employees who are sued in their individual capacities. Rather, when the statute is read as a whole, it is clear that the limitation on recovery in the second sentence of § 11-47-190 is intended to 18 1111359 protect the public coffers of the municipality, not to protect municipal employees from claims asserted against them in their individual capacity.4 Conclusion Because the plain language of § 11-47-190 does not limit the recovery on a claim against a municipal employee in his or her individual capacity, the $100,000 statutory cap on recovery set forth in § 11-47-190 would not apply to Caldwell's claims against Morrow. Therefore, the trial court properly denied Morrow's request for a judgment declaring that it would. Accordingly, we affirm the trial court's order. AFFIRMED. Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs specially. Moore, C.J., concurs in the result. Under § 11-47-24(a), the City would not be required to 4 indemnify Morrow for any judgment against him that was based on damage resulting from his intentional, willful, or wanton conduct. 19 1111359 MURDOCK, Justice (concurring specially). I fully concur in the main opinion and the reasoning therein. I write separately to further explain the basis for my concurrence. I must confess that, until recently, I found the provisions of §§ 11-47-190 and -191, Ala. Code 1975, confusing. The purpose of both sections appears to be to address the liability of municipal governments, but they seek to accomplish this with unusual clauses and categories, the meaning, need, and consistency of which are not readily apparent. I found the second sentence of § 11-47-190 particularly difficult to understand, given its multiple commas, conditional clauses, and especially the content and placement of the particular clause referring to judgments against "any officer or officers, employee or employees, or agents" of a municipality in the midst of a statute (two statutes if you include § 11-47-191) otherwise singularly focused on municipal-governmental liability and protecting municipal-government coffers. Having recently examined the historical context in which the first predecessors of these statutes were enacted, as well as early decisions of this 20 1111359 Court rendered not long after their enactment, see discussion infra, I have come to what I believe is a clearer understanding of these statutes, and I offer the following observations. First, the provisions of § 11-47-190 must, of course, be read as a whole. Second, they must be read in pari materia with the provisions of § 11-47-191. Moreover, the provisions of § 11-47-190 must be read as a whole and in pari materia with those of § 11-47-191 within the unique historical context of the preexisting doctrine of local governmental immunity and the debate relating to that doctrine attendant to the adoption of the Alabama Constitution of 1901. 5 The common-law doctrine of governmental immunity for municipal and county governments predates not only the adoption of § 11-47-190 and its predecessors, but also the adoption of the 1901 Constitution. Nonetheless, the doctrine 6 The main opinion aptly states that § 11-47-190 5 "recognizes" -– not that it "creates" or "establishes" -- the general rule of local governmental immunity. ___ So. 3d at ___. The original predecessors of § 11-47-190 and -191 were 6 enacted by the legislature in 1907 as companion provisions. Ala. Code 1907, §§ 1273 and 1274. See also Ala. Code 1923, §§ 2029 and 2030. 21 1111359 survived the adoption of that Constitution, including §§ 11 and 13 thereof. E.g., Garner v. Covington Cnty., 624 So. 2d 1346 (Ala. 1993); Home Indem. Co. v. Anders, 459 So. 2d 836 (Ala. 1984). Because it was in fact (and remains) a common- law doctrine, and not a Constitutional requirement, the doctrine of local governmental immunity was and is subject to modification by the legislature. Id. Further, as noted, the doctrine of local governmental immunity was a doctrine concerned with protecting local governments, specifically, the public coffers maintained by those governments, see, e.g., Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995), and Garner. It afforded no protection to local-government employees when they might be sued in their individual capacity on the basis of some duty imposed upon them personally by tort law (e.g., the duty to use due care vis-á-vis other motorists while driving on public roadways on municipal or county business). As this Court explained in Anders, a case indicating that §§ 11-93-2, Ala. Code 1975 (also imposing a $100,000 cap on local governmental liability), and 11-47-190 should be construed in pari materia, the intent and effect of such statutes "must be addressed in 22 1111359 the context of the unique status of counties and cities as governmental entities," and actions against counties and municipalities "have always been subject to reasonable regulation by the legislature on a basis not applicable to actions against individuals and other entities." 624 So. 2d at 1351 (emphasis added). See Smith, 671 So. 2d at 1343 (emphasizing that "the unique status of counties or cities" was "crucial to the rationale of Garner" upholding § 11-93-2 against a constitutional challenge); Garner, 624 So. 2d 1351- 54 (quoting at length portions of the convention debate regarding municipal governmental immunity and the ability of the legislature to abrogate it as it might see fit under the proposed constitution). See also, e.g., Health Care Auth. for Baptist Health v. Davis, [Ms. 1090084, May 17, 2013] ___ So. 3d ___, ___ (Ala. 2013). Thus, the fact and amount of liability by a municipal employee in his or her individual capacity were not and are not proper, or intended, subjects of the legislature's enactment of §§ 11-47-190 and -191 and their predecessors. Instead, employees, officers, and agents of a municipality find themselves referenced in the last sentence of § 11-47-190 23 1111359 simply because of the need to be clear that governmental liability is limited to $100,000 even where that liability is a function of an action against one of those persons in his or her official capacity or of the special statutory indemnity obligation imposed on the municipality by § 11-47-24, Ala. Code 1975. The legislature's use of the word "however" to introduce the second sentence of § 11-47-190, and the relationship between the first and second sentences of § 11- 47-190 that, as discussed in the main opinion, it reflects, simply reinforces this understanding. As noted, the predecessors of §§ 11-47-190 and -191 date back to 1907, not long after the adoption of the 1901 Constitution and the debates over municipal liability that occurred at the convention that produced that constitution. The above-stated understanding of these statutes is informed, therefore, by a long line of cases, the first of which was decided in 1915. See City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22 (1915) (explaining the meaning of the §§ 1273 and 1274, Ala. Code 1907); City of Birmingham v. Norwood, 220 Ala. 497, 126 So. 619 (1930) (explaining §§ 2029 and 2030, Ala. Code 1923); City of Anniston v. Hillman, 220 Ala. 505, 24 1111359 126 So. 169 (1930); City of Birmingham v. Corr, 229 Ala. 321, 157 So. 56 (1934); City of Mobile v. Reeves, 249 Ala. 488, 31 So. 2d 688 (1947) (explaining §§ 502 and 503, Title 37, Ala. Code 1940); Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419 (1957); Smitherman v. Marshall Cnty. Comm'n, 746 So. 2d 1001 (Ala. 1999); Health Care Auth. for Baptist Health v. Davis, [Ms. 1090084, May 17, 2013] ___ So. 3d ___ (Ala. 2013) (discussing the historical context and reasons for §§ 11-47- 190 and -191); Ex parte City of Bessemer, [Ms. 1104155, Oct. 18, 2013] ___ So. 3d ___ (Ala. 2013) (to like effect). See also Suttles v. Roy, 75 So. 2d 90 (Ala. 2010) (applying § 11- 93-2, but indicating that that Code provision and § 11-47-190 are to be construed in pari materia). Finally, I note that the question before us in this permissive appeal is limited to whether, if an employee of a municipality is personally liable for a tort he or she commits in the course of his or her employment by a municipality, that liability can exceed the $100,000 cap referenced in § 11-47- 190. Any such liability, however, would of course depend as a threshold matter on the existence of a duty that was personal to the employee (not merely a duty of his or her 25 1111359 employer) and that ran to the plaintiff (and not merely from the employee to his or her employer). This and other questions concerning the prospective liability of a municipal employee in Wayne Morrow's position are not before us, and the main opinion should not be understood as implying any answer to them. 26	March 14, 2014
79f9d7a1-de2c-4d9f-822b-d3ef3e791f54	Ex parte Shawn Ray Harper. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Shawn Ray Harper v. State of Alabama)	N/A	1130479	Alabama	Alabama Supreme Court	REL: 04/18/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130479 ____________________ Ex parte Shawn Ray Harper PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Shawn Ray Harper v. State of Alabama) (Cullman Circuit Court, CC-10-74.61; Court of Criminal Appeals, CR-12-1794) WISE, Justice. The petition for the writ of certiorari is denied. 1130479 In denying 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 Criminal Appeals' unpublished memorandum. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT DENIED. Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., dissents. 2 1130479 MOORE, Chief Justice (dissenting). Shawn Ray Harper pleaded guilty to first-degree unlawful manufacture of a controlled substance, a violation of § 13A- 12-218, Ala. Code 1975. On April 28, 2013, he filed the underlying Rule 32, Ala. R. Crim. P., petition, alleging, among other things, that the trial court lacked jurisdiction to render a judgment or to impose a sentence because Harper's preliminary hearing was waived by a court-appointed attorney whom Harper had fired and replaced with another attorney before the hearing. I would grant the petition for the writ of certiorari to determine whether the attorney who allegedly no longer represented Harper improperly waived Harper's preliminary hearing. Therefore, I respectfully dissent. 3	April 18, 2014
11d51740-2164-48b5-a8df-c0f1bb4ba6fd	Ex parte William Keith Robey. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: William Keith Robey v. Alabama Department of Corrections) (Montgomery Circuit Court: CV-13-309; Criminal Appeals : CR-12-1967). Writ Denied. No Opinion.	N/A	1130618	Alabama	Alabama Supreme Court	Rel: 05/16/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130618 ____________________ Ex parte William Keith Robey PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: William Keith Robey v. Alabama Department of Corrections) (Montgomery Circuit Court, CV-13-309; Court of Criminal Appeals, CR-12-1967) PARKER, Justice. WRIT DENIED. NO OPINION. 1130618 Stuart, Shaw, and Wise, JJ., concur. Moore, C.J., concurs specially. 2 1130618 MOORE, Chief Justice (concurring specially). Because the rules under which the Alabama Department of Corrections ("ADOC") operates its work-release program are not inconsistent with the statute that authorizes that program, I concur in denying William Keith Robey's petition for a writ of certiorari. In 1997, while he was driving under the influence of alcohol, "Robey's vehicle swerved across the dividing line of the road and into the lane of oncoming traffic." Ex parte Robey, 920 So. 2d 1069, 1070 (Ala. 2004). Robey was convicted of reckless murder and reckless assault for causing the death of his girlfriend and injuring another motorist in the ensuing accident. In 2013 he petitioned the Montgomery Circuit Court for a writ of certiorari to order ADOC to consider him for the work-release program. The circuit court denied the petition; the Court of Criminal Appeals affirmed, by an unpublished memorandum. Robey v. Alabama Dep't of Corr. (No. CR-12-1967, Feb. 7, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014) (table). Before the circuit court and on appeal, Robey raises a question of law whether an administrative rule in the ADOC Classification Manual ("the manual") conflicts with the 3 1130618 statute that authorizes the promulgation of such rules. Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004). "The provisions of a statute will prevail in any case of a conflict between a statute and an agency regulation." Ex parte Jones Mfg. Co., 589 So. 2d 208, 210 (Ala. 1991). Robey argues that an ADOC rule is in conflict with § 14-8-2(a), Ala. Code 1975, which provides as follows: "The [Department of Corrections] is authorized to adopt regulations and policies permitting the commissioner [of Corrections] to extend the limits of the place of confinement of an inmate, as to whom there is reasonable cause to believe he will know his trust, by authorizing him, under prescribed conditions, to leave the confines of that place unaccompanied by a custodial agent for a prescribed period of time to work at paid employment .... Inmates shall participate in paid employment at the discretion of the [Department of Corrections]." The ADOC rule at issue bars certain inmates from being considered for work release, which is known as the "minimum- community custody level" of confinement. Among those barred are inmates convicted in "[h]omicide cases, past or present. Inmates convicted of vehicular homicide, manslaughter involving DUI or otherwise, are not barred. However, if the nomenclature of the conviction is 'murder', they are 4 1130618 ineligible" for the work-release program. § 5.4.6.1 of the manual. Robey claims that the manual is fatally inconsistent with the statute that authorizes its promulgation. "'A regulation ... which operates to create a rule out of harmony with the statute[] is a mere nullity.'" State v. Maddox Tractor & Equip. Co., 260 Ala. 136, 141, 695 So. 2d 426, 430 (1953) (quoting Manhattan Gen. Equip. Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 134 (1936)). As authority for the proposition that the rule in the manual is inconsistent with the statute, Robey cites Hill v. State, 594 So. 2d 246 (Ala. Crim. App. 1992), which cites, in turn, Hendking v. Smith, 781 F.2d 850 (11th Cir. 1986). Hill held that "the classification scheme adopted by the Alabama prison system to determine the custody status of prisoners 'is not arbitrary and capricious, but reasonable and appropriate.'" 594 So. 2d at 248 (quoting Hendking, 781 F.2d at 852). Hendking found reasonable under the Equal Protection Clause an inmate-classification scheme that permitted murderers to qualify for minimum-community status but that excluded sex offenders. 781 F.2d at 851-52. 5 1130618 Robey argues that the holding in Hendking that a classification permitting murderers to qualify for minimum custody is reasonable is inconsistent with the current rule that murderers may not qualify for minimum-community status. The Hendking court reasoned that prison officials could reasonably find that sex offenders have an antisocial propensity that could express itself at any time in the community, whereas, apart from professional killers, "few people commit more than one murder in a lifetime." 781 F.2d at 852. Thus, allowing murderers to work in the community while prohibiting sex offenders from doing so was "reasonable and appropriate." Id. Hendking did not hold, however, that prison officials are required to allow murderers to be eligible for minimum- community status. Currently in Alabama both murderers and sex offenders are ineligible for the work-release program. ADOC's grading of work-release classifications by the seriousness of the inmate's offense is not inherently "arbitrary and capricious." The inclusion of murderers at one time in minimum-community status and their current exclusion does not violate the Equal Protection Clause; that decision simply 6 1130618 falls within the discretion granted to ADOC "to extend the limits of the place of confinement of an inmate." Further, Robey does not raise an equal-protection challenge as was raised in Hendking. He argues instead that the rule in the manual is inconsistent with the statute. The rule, however, that excludes prisoners convicted of murder from eligibility for the work-release program falls within the discretion permitted ADOC by the statute, regardless of whether at an earlier time such offenders might have been considered eligible for the work-release program. 1 Because the work-release classification Robey challenges is not out of harmony or in conflict with § 14-8-2(a), the authorizing statute, I concur in denying his petition for a writ of certiorari. Robey may apply to the ADOC Commissioner of Corrections 1 for an exception to the classification that prohibits him from participating in the work-release program. The commissioner "has full over-ride authority of any criteria in this manual that is not otherwise directed by law." Manual, § 2.1. 7	May 16, 2014
010aa2bb-f9b7-48ee-ae2e-1744fbb1f31a	Regions Bank v. Lowrey	N/A	1120612	Alabama	Alabama Supreme Court	Rel: 04/11/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1120612 ____________________ Regions Bank, as trustee of the J.F.B. Lowrey Trust v. Sam G. Lowrey, Jr., individually and on behalf of the J.F.B. Lowrey Trust, and Shelby Jones, individually and on behalf of the J.F.B. Lowrey Trust Appeal from Monroe Circuit Court (CV-07-900073) PARKER, Justice. Regions Bank ("Regions"), as sole trustee of the J.F.B. Lowrey Trust ("the Lowrey Trust"), appeals the order of the Monroe Circuit Court ("the trial court") awarding Regions 1120612 $312,257.36 from the Lowrey Trust as reimbursement for attorney fees and expenses Regions incurred as trustee during the successful defense of an action brought against Regions by two of the beneficiaries of the Lowrey Trust –- Sam G. Lowrey, Jr., and Shelby Jones ("the beneficiaries").1 Facts and Procedural History This is the second time this matter has come before this Court. In Regions Bank v. Lowrey, 101 So. 3d 210 (Ala. 2012), we set forth the relevant facts and procedural history concerning the underlying action: "On December 11, 2007, the beneficiaries sued Regions, alleging breach of fiduciary duty. The beneficiaries claimed that Regions failed to protect and preserve the assets of the Lowrey Trust, which consisted primarily of approximately 20,000 acres of timberland located in Monroe and Conecuh Counties and which have been the subject of much intra-family litigation as the trial judge set out in its order and judgment as follows: "'II. Prior Litigation and Court Order History "'There has been considerable intra-family litigation over the years pertaining to the Lowrey Trust, and this [c]ourt has issued several orders that have a direct bearing on the issues in this Regions became the sole trustee of the Lowrey Trust in 1 2006 when it merged with AmSouth Bank. AlaTrust, Inc., was named successor trustee effective August 3, 2010. 2 1120612 case. The first pertinent order was the Consent Decree (the "1990 Order") dated July 6, 1990, entered in "H. Lowrey McNeil, et al., v. Samuel Graves Lowrey. et al.," Case No. CV–88–114. ... The more significant provisions of this order are as follows: "'–-AmSouth Bank was appointed as co-trustee along with Sam Lowrey, Sr. "'--The two trustees were required to select an independent, neutral professional forestry consultant whose primary task was to recommend a timber management plan to the trustees. "'--The timber management plan was to "balance the interest of t h e s u c c e s s i v e i n c o m e beneficiaries of the [Lowrey] Trust and the remainder interest." The plan was not to endanger "the safety of the principal in order to produce a large income" or sacrifice "income for the purpose of increasing the value of the principal." "'--Distributable income from the Lowrey Trust was to be based on the annual growth of the forest, and the timber management plan was to provide for cutting "at least 87% of the average annual growth of the forest during each five-year period, but not less than 75% of the annual growth in any single year." 3 1120612 "'--The timber management plan was to be periodically reviewed and updated. "'In response to this Order, Mr. Lowrey and AmSouth Bank selected Pomeroy & McGowin as the independent forestry consultant, and Pomeroy submitted a timber management plan. This plan was in effect for 10 years into 2000 and called for a thinning of mature natural pine stands rather than an aggressive clear-cutting plan. It is undisputed that the selection of Pomeroy & McGowin was appropriate. No one contends that the Pomeroy plan was inconsistent with the 1990 Order, and the [beneficiaries] stipulated during the trial that they had no complaint concerning this plan or the manner in which the Bank had implemented it. "'Further court proceedings occurred in 1993. These proceedings ultimately resulted in an Order and Judgment dated July 21, 1993 (the "1993 Order"). ... This Order made AmSouth Bank the sole trustee of the Lowrey Trust and vested the Bank with additional powers and authorities beyond those specified in the Will. Included among these additional powers and authorities were the following: "'c. To hold and retain without liability for loss or depreciation any real or personal property ... without regard to any statutory or constitutional limitations applicable to the investment of funds and though the retention might violate principles of investment 4 1120612 diversification, so long as the trustee shall consider the retention for the best interests of the trust. "'d. To sell at public or private sale ... or otherwise dispose of all or any portion of the trust in such manner and upon such terms and conditions as the trustee may approve. "'1993 Order, paragraph 3. As acknowledged by the Bank's witnesses, this language from the 1993 Order did not require the Bank to retain the timberland; however, it authorized the Bank to either retain or sell the timberland as it thought best, without concern over specific investment rules or principles of diversification.' "On September 16, 2004, Hurricane Ivan made landfall and moved over Monroe and Conecuh Counties, causing severe wind damage and destruction of much of the standing timber owned by the Lowrey Trust. In their complaint, the beneficiaries averred that Regions failed to discharge its duty to protect and preserve the assets of the Lowrey Trust and claimed losses amounting to approximately $13,000,000. Specifically, the beneficiaries asserted that Regions should have purchased casualty-loss insurance on the timber, should have sold most of the timberland before Hurricane Ivan in order to diversify the investments of the trust estate, should have cut the timber more rapidly, or should have pursued some combination of these tactics in order to preserve the corpus of the Lowrey Trust. "From June 28, 2010, through July 2, 2010, the trial court conducted a 5–day bench trial, at which ore tenus evidence was received and 12 witnesses testified. On August 2, 2010, as trustee of the 5 1120612 Lowrey Trust, Regions filed a motion to award attorney fees and costs and requested an evidentiary hearing on its motion. Regions also moved for the joinder of AlaTrust, Inc., which was named the successor trustee of the Lowrey Trust on August 3, 2010. The trial court scheduled several evidentiary hearings, but continued those dates. On March 9, 2011, without conducting an evidentiary hearing on Regions' motion, the trial court issued an order denying Regions' motion to award attorney fees and reserved ruling on an award of costs. "The following day, on March 10, 2011, the trial court entered a detailed order in favor of Regions, rejecting the beneficiaries' claims of mismanagement of the trust assets and taxing costs against the beneficiaries." 101 So. 3d at 212-13. Regions appealed the trial court's denial of its motion for reimbursement of attorney fees, and the beneficiaries cross-appealed the trial court's judgment on their breach-of-fiduciary-duty claim. On appeal, this Court affirmed the trial court's judgment in favor of Regions on the beneficiaries' breach-of-fiduciary- duty claim. Regions Bank, 101 So. 3d at 221. However, this Court reversed the trial court's ruling on Regions' motion for reimbursement of attorney fees, stating as follows: "On appeal ... Regions contends that the trial court erred in summarily denying its motion for attorney fees. ... "In Alabama, attorney fees are to be awarded only if they are provided for by statute, contract, 6 1120612 or special equity. Hart v. Jackson, 607 So. 2d 161, 163–64 (Ala. 1992). Reimbursement for expenses, including attorney fees, incurred by a trustee in defending an action is allowed pursuant to § 19–3B–709, Ala. Code 1975,[ ] provided that the 2 trustee has not committed a material breach of the trust. Additionally, §§ 19–3B–816(a)(24) and (28), Ala. Code 1975, provide that a trustee may: "'(24) prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect trust property and the trustee in the performance of the trustee's duties and to employ counsel, expert witnesses, or other agents; "'.... Section 19–3B–709, Ala. Code 1975, provides as follows: 2 "(a) A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate for: "(1) expenses that were properly incurred in the administration of the trust, including the defense or prosecution of any action, whether successful or not, unless the trustee is determined to have willfully or wantonly committed a material breach of the trust; and "(2) to the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust. "(b) An advance by the trustee of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest." 7 1120612 "'(28) employ and compensate persons deemed by the trustee needful to advise or assist in the proper management and administration of the trust, including, but not limited to, agents, auditors, including public accountants, certified public accountants or internal auditors, brokers, attorneys-at-law, attorneys-in-fact, investment bankers, investment advisors, rental agents, realtors, appraisers, and tax specialists, including any related party, so long as the relationship and the fees charged are reasonable and disclosed in any reasonable manner to the current beneficiaries; and to do so without liability for any neglect, omission, misconduct, or default of the agent or representative, provided the trustee acted as a prudent person in selecting and monitoring the agent or representative. For purposes of the immediately preceding sentence, compensation charged by or paid to an affiliated business entity shall be presumed to be reasonable if the compensation is consistent with the published fee schedule maintained by the affiliated business entity in the ordinary course of business.' "Furthermore, when a trustee defends itself against attacks concerning the management of trust assets, the trustee is entitled to recover its litigation expenses, including attorney fees, from the trust. See, e.g., Farlow v. Adams, 474 So. 2d 53, 59 (Ala. 1985). "Based on the foregoing, we conclude that Regions was entitled to an award of attorney fees; therefore, the trial court erred in denying Regions' motion for attorney fees. Thus, we reverse the trial court's order denying Regions' motion for attorney fees, and we remand the cause for the trial court to 8 1120612 hold the requested evidentiary hearing on that attorney-fee motion. See, e.g., Kiker v. Probate Court of Mobile Cnty., 67 So. 3d 865 (Ala. 2010), and the cases cited therein." 101 So. 3d at 220-21. This Court also instructed the trial court to determine the taxation of costs. 101 So. 3d at 221. On remand, Regions filed with the trial court a supplemental brief in support of its original "motion to award and/or allow reimbursement of attorneys' fees." In its supplemental brief, Regions requested reimbursement in the amount of $642,547.57 for legal fees and $148,022.55 for expenses, as well as interest in the amount of $139,186.05. AlaTrust, Inc., as the current trustee of the Lowrey Trust, filed a response on November 27, 2012, in which it argued that the amount of attorney fees paid by Regions was unreasonable and that, therefore, Regions was not entitled to be reimbursed for the total amount. AlaTrust argued that the trial court should reduce Regions' requested amount by a line- by-line reduction of $363,795 for attorney fees that AlaTrust argued were not properly reimbursable. In the alternative, AlaTrust argued that Regions' requested reimbursement should be reduced by $279,137.61 ($210,000 in fees for defense of beneficiaries' claims plus $69,137.61 in fees and expenses for 9 1120612 seeking reimbursement) –- a figure AlaTrust alleged was a 27% reduction of the attorney fees Regions incurred while defending itself from the beneficiaries' claims, plus the amount of attorney fees Regions incurred while litigating its reimbursement claim. In addition to those reductions, 3 AlaTrust also argued that Regions' request for interest should be denied in its entirety. On November 28, 2012, the trial court conducted an evidentiary hearing on Regions' motion for reimbursement as instructed by this Court. At the hearing, Regions' lead attorney, Edward Dean, testified as to the accuracy of the invoices and the necessity of the time expended and the expenses incurred while successfully defending Regions from the beneficiaries' claims. In lieu of further testimony, the parties stipulated to the submission of three affidavits. The As explained below, in its November 27, 2012, response 3 to Regions' supplemental brief, AlaTrust recommended that the trial court reduce Regions' reimbursement for attorney fees and expenses by 27% –- a figure it based on Joseph Fawal's affidavit in which he recommended reducing Regions' attorney fees by $220,000. In a supplemental brief filed on December 18, 2012, AlaTrust stated that it had miscalculated the percentage and that Fawal's recommended reduction actually amounted to a 34.2% reduction of the requested attorney fees. Therefore, in its supplemental brief, AlaTrust argued that if the trial court were to apply a percentage reduction, the proper reduction would be 34.2% reduction. 10 1120612 first affidavit was from Dean, which explained his litigation strategy, the hours of work expended by him and others in his firm, Armbrecht Jackson, LLP, and the hourly rates at which his firm charged Regions. The second affidavit was from Carroll Blow, a senior vice president at Regions and head of the trust department in Regions' Mobile office. Blow stated that he had reviewed the invoices from Armbrecht Jackson and that either he or another authorized Regions employee had approved payment on the invoices submitted by Armbrecht Jackson. Blow also stated that it was his opinion that the fees and expenses stated in the invoices were reasonable and that Regions acted in good faith when it authorized payment for the full amount of the invoices. Blow also stated that reasonable interest on Regions' advancement of payments to Armbrecht Jackson was $139,186.05 as of November 28, 2012, an amount calculated at an interest rate of 6%. The third affidavit, submitted by AlaTrust, was from Joseph Fawal, a disinterested attorney located in Birmingham who has practiced law for 35 years and who has been involved in extensive trust litigation. Fawal stated that after 11 1120612 reviewing Armbrecht Jackson's invoices and discussing the case with the beneficiaries' attorney, David Rayfield, it was his opinion that the charges submitted by Armbrecht Jackson revealed unreasonable and excessive time and costs. Fawal also stated that in cases involving voluminous invoices, such as this one, it would be consistent with accepted billing practices to conduct a percentage reduction of the total amount of the invoices to offset the unreasonable and excessive charges in lieu of a line-by-line analysis of the invoices. Based on his review of the invoices, Fawal stated that it was his opinion that Regions' requested reimbursement should be reduced by a total of $220,000. On December 18, 2012, AlaTrust filed a supplemental brief in which AlaTrust stated that it had miscalculated the recommended percentage reduction contained in its November 27, 2012, brief, which AlaTrust had calculated based upon Fawal's recommended reduction of $220,000. AlaTrust argued that if the trial court were to apply a percentage reduction, then a 34.2% reduction should be applied to the requested attorney fees and expenses. AlaTrust concluded its supplemental brief by requesting that the trial court either reduce Regions' 12 1120612 requested reimbursement by a line-by-line reduction of the invoices, which would result in a reduction of $363,795 for attorney fees and $43,286.51 for costs, or, in the 4 alternative, reduce Regions' requested reimbursement by a percentage reduction totaling $289,137.61 ($220,000 in fees for defense of beneficiaries' claims plus $69,137.61 in fees and expenses for seeking reimbursement) for attorney fees and $50,623.71 for costs. AlaTrust also argued that interest should not be awarded in either case. On January 8, 2013, the trial court issued the following order: "1. The court finds that $191,869.86 in fees and expenses related to contact by counsel with twenty-seven (27) experts who were neither identified in this litigation nor called to offer any opinion shall not be taxed and the court hereby reduces the requested reimbursement of fees and costs by that amount. "2. The court finds that $29,236.56 in fees and expenses incurred regarding Charles Tarver[ ] was not 5 a proper item for taxation as he was not called to testify. The requested reimbursement of fees and costs is reduced by that amount. There are no documents in the record to support how 4 AlaTrust calculated this figure. Charles Tarver was retained by Regions as an expert in 5 forestry and timber investment. 13 1120612 "3. The court finds that the time and expense associated with the counterclaim[ ] by Regions and 6 the defense of the [beneficiaries'] motion to compel are not properly taxable. The requested reimbursement of fees and costs is accordingly reduced by $67,814.33. "4. The court finds that the fees and expenses incurred in seeking reimbursement for attorneys fees and costs is not taxable in this case and the court hereby reduces the requested reimbursement of fees and costs by $69,137.61. "5. The court also finds that fees and expenses incurred on miscellaneous matters, such as billing for summer clerks, the attendance at a conference on Hurricane Katrina and Ivan by an associate, research on an article involving the Red-Cockaded Woodpecker, and work related to the transfer of trust assets to AlaTrust were not properly taxable in this case. The requested reimbursement of fees and costs is accordingly reduced by $4,296.00. "6. The total of each of the above categories of work which the court finds is not proper as a taxable expense in this case as set forth in paragraphs 1-5 is $362,354.36. "7. The court also finds that interest is not warranted in this matter. Even if interest were warranted, there is no competent evidence before the court that the requested interest rate is reasonable. The request for $139,186.05 in interest is hereby denied. "8. The court finds that the testimony of the only expert providing any testimony regarding the reasonableness of the fees and costs, attorney The "counterclaim" refers to a request for instructions 6 regarding whether Regions should obtain timber insurance for the timberland included in the Lowrey Trust. 14 1120612 Joseph Fawal, concerning the balance of the requested reimbursement of fees and costs must be considered under the method of proof allowed under Alabama law and accordingly, the requested reimbursement is hereby reduced by an additional 27%, or $115,618.26. "9. The court further finds that the costs of witness fees ($20.59) and the deposition of Ed Wilson ($319.55) which was used at trial, are properly taxed against the [Lowrey] Trust. Because these expenses are also included in the expenses sought in Regions' 'motion to award and/or allow reimbursement of attorneys fees,' they are also deducted from the claimed amount. "Therefore it is ORDERED and DECREED that Regions is entitled to reimbursement of fees and expenses and costs arising out of the above-styled litigation in the amount of $312,257.36 and that costs be taxed against the [Lowrey] Trust in the amount of $340.14." (Capitalization in original.) On February 7, 2013, Regions filed a motion for a new trial and a motion to alter, amend, or vacate the trial court's January 8, 2013, order. On May 8, 2013, Regions' motions were denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Regions appealed. Standard of Review "'The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and its determination on such an issue will not be disturbed on appeal unless in awarding the fee the trial court exceeded that discretion. 15 1120612 State Bd. of Educ. v. Waldrop, 840 So. 2d 893, 896 (Ala. 2002); City of Birmingham v. Horn, 810 So. 2d 667, 681–82 (Ala. 2001); Ex parte Edwards, 601 So. 2d 82, 85 (Ala. 1992), citing Varner v. Century Fin. Co., 738 F.2d 1143 (11th Cir. 1984). "'This Court has set forth 12 criteria a court might consider when determining the reasonableness of an attorney fee: "'"[(1)] [T]he nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances." "'Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988). These criteria are for purposes of evaluating whether an attorney fee is reasonable; they are not an exhaustive list of specific criteria that must all be met. Beal Bank v. Schilleci, 896 So. 2d 395, 403 (Ala. 2004), citing Graddick v. First Farmers & Merchants Nat'l Bank of Troy, 453 So. 2d 1305, 1311 (Ala. 1984). "'We defer to the trial court in an attorney-fee case because we recognize that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in an attorney-fee 16 1120612 determination. Horn, 810 So. 2d at 681–82, citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed. 2d 40 (1983). Nevertheless, a trial court's order regarding an attorney fee must allow for meaningful appellate review by articulating the decisions made, the reasons supporting those decisions, and how it calculated the attorney fee. Horn, 810 So. 2d at 682, citing American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999); see also Hensley, 461 U.S. at 437, 103 S.Ct. 1933.'" Kiker v. Probate Court of Mobile Cnty., 67 So. 3d 865, 867-68 (Ala. 2010)(quoting Pharmacia Corp. v. McGowan, 915 So. 2d 549, 552–53 (Ala. 2004)). Discussion As set forth above, § 19-3B-709(a), Ala. Code 1975, provides for the reimbursement of a trustee for certain expenses incurred in the course of administering a trust: "A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate for: "(1) expenses that were properly incurred in the administration of the trust, including the defense or prosecution of any action, whether successful or not, unless the trustee is determined to have willfully or wantonly committed a material breach of the trust ...." Additionally, §§ 19-3B-816(a)(24) and (28), Ala. Code 1975, provide that a trustee may: 17 1120612 "(24) prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect trust property and the trustee in the performance of the trustee's duties and to employ counsel, expert witnesses, or other agents; ".... "(28) employ and compensate persons deemed by the trustee needful to advise or assist in the proper management and administration of the trust, including, but not limited to, ... attorneys-at-law, ... so long as the relationship and the fees charged are reasonable and disclosed in any reasonable manner to the current beneficiaries ...." Pursuant to the statutes set forth above, this Court, on its 7 first consideration of this case, held that Regions was entitled to reimbursement from the Lowrey Trust for the attorney fees and expenses that it reasonably had incurred during its successful defense of the beneficiaries' claims, and we remanded this case to the trial court to conduct an evidentiary hearing to determine the amount of those fees and expenses in light of the criteria set forth in Kiker and the Additionally, Regions, as trustee of the Lowrey Trust, 7 had the power under the terms of the trust, pursuant to the trial court's order entered on July 21, 1993, "[t]o appoint, employ, remove and compensate ... attorneys ... as the trustee deems necessary or desirable for the administration of the trust, and to treat as an expense of the trust any compensation so paid." Regions also had the power "[t]o advance money to or for the benefit of" the trust and to "be reimbursed for money so advanced." 18 1120612 cases cited therein. See Regions Bank, 101 So. 3d at 221. 8 The trial court conducted an evidentiary hearing as instructed on November 28, 2012, and issued an order on January 8, 2013, determining that Regions was not entitled to be reimbursed for specific categories of attorney fees and expenses totaling $362,354.36 of the approximately $790,000 expended by Regions in its defense. The trial court also denied Regions' request for interest in the amount of $139,186.05. In addition, the trial court reduced the remaining amount of Regions' reimbursement request by 27%, or $115,618.26. After making On remand, Regions argued for the first time that the 8 criteria set forth in Kiker are inapplicable to this case. Rather, Regions argued that its decision to advance its litigation expenses was the exercise of a discretionary power awarded a trustee and is not subject to court review except for an abuse of discretion. However, "[i]t is well established that on remand the issues decided by an appellate court become the 'law of the case,' and that the trial court must comply with the appellate court's mandate. Walker v. Carolina Mills Lumber Co., 441 So. 2d 980 (Ala. Civ. App. 1983)." Gray v. Reynolds, 553 So. 2d 79, 81 (Ala. 1989). See also Bagley v. Creekside Motors, Inc., 913 So. 2d 441, 445 (Ala. 2005)("'"Under the doctrine of the 'law of the case,' whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case." Blumberg v. Touche Ross & Co., 514 So. 2d 922, 924 (Ala. 1987).'"). Justice Murdock's separate writing in this case, concurring specially, addresses whether Kiker applies to this case; however, we will consider only whether the trial court properly followed our instructions on remand. 19 1120612 these reductions, the trial court awarded Regions $312,257.36 for attorney fees and expenses. The trial court also taxed costs against the Lowrey Trust for witness fees and deposition costs amounting to $340.14. The trial court's January 8, 2013, order, however, is not supported by the evidence. During the hearing, Regions presented the testimony of Dean as well as the affidavits by Dean and Blow, which supported Regions' arguments that the amount it had paid for its successful defense against the beneficiaries' claims was reasonable and that a reasonable interest rate on the money advanced for its defense would be 6%. The only evidence presented by AlaTrust at the hearing was Fawal's affidavit, in which he recommended that Regions' requested reimbursement for attorney fees be reduced by $220,000 –- approximately 27% of Regions' requested reimbursement for attorney fees and expenses. AlaTrust consistently argued that the trial court should either conduct a line-by-line review of Armbrecht Jackson's invoices and make specific reductions or reduce the amount of the attorney fees and expenses requested by Regions by a percentage method. Rather than applying either method to reduce Regions' 20 1120612 requested reimbursement, the trial court reduced Regions' requested reimbursement by both a line-by-line reduction and a percentage reduction for a total reduction of $477,972.62. The trial court's reduction of Regions' reimbursement is not supported by the evidence in that the reduction grossly exceeds the recommended reduction of AlaTrust's own expert witness. The trial court's categorical denial of specific types of fees is also problematic. The trial court disallowed $191,869.86 "in fees and expenses related to contact by counsel with twenty-seven (27) experts who were neither identified in this litigation nor called to offer any opinion" and $29,236.56 "in fees and expenses incurred regarding Charles Tarver ... [because] he was not called to testify." Regions contests the accuracy of the trial court's statement regarding the 27 individuals the court identifies as "experts." Even if the trial court's characterization were correct, however, the basis for denying Regions' request for reimbursement for those fees and expenses is not in keeping with the norms of litigation preparation and practice. 21 1120612 Regions successfully defended itself from the beneficiaries' $13,000,000 action against it. Had it failed, Regions would not have been entitled to any reimbursement. See Regions, 101 So. 3d at 220 ("Reimbursement for expenses, including attorney fees, incurred by a trustee in defending an action is allowed pursuant to § 19–3B–709, Ala. Code 1975, provided that the trustee has not committed a material breach of the trust."). In ascertaining whether Regions' expenditures on its defense were reasonable, the trial court must be mindful of the exposure Regions faced as it was conducting its defense. The trial court's disallowance of reimbursement for specific activities simply because the activities did not result in the production of evidence that was ultimately presented during the trial does not address whether a reasonable and zealous advocate would have conducted those activities in search of relevant evidence. Additionally, while functioning as defense counsel, an attorney must be prepared to adequately respond to any piece of evidence a plaintiff might present during a trial but must present only evidence necessary to rebut the plaintiff's case. Accordingly, the reasonableness of an attorney's preparation 22 1120612 for a case cannot be determined solely by whether a specific activity produced evidence that was ultimately presented during a trial. Rather, a specific activity is reasonable if a reasonable attorney might also have done the same thing in the course of representing the client. Therefore, when a court conducts a line-by-line examination of a trustee's attorney-fee-reimbursement request, as the trial court in the present case did in making the deductions found in paragraphs 1-3 and 5 of its order, it must order reimbursement for those attorney fees and expenses that are reasonable under the standard set forth above. The trial court also improperly denied Regions' request for reimbursement for fees and expenses incurred while seeking reimbursement (paragraph 4 of its order). In Farlow v. Adams, 474 So. 2d 53, 59 (1985), this Court set forth the following rationale for reimbursing a trustee for a successful defense of its administration of a trust: "The issue of whether defending against an unsuccessful attempt to remove a trustee is considered a personal benefit to the trustee and not a common benefit of the trust was addressed in Weidlich v. Comley, 267 F.2d 133 (2d Cir. 1959). There, Judge Learned Hand held: 23 1120612 "'Coming then to the merits of the dispute, the plaintiff's first complaint is the allowance to the defendant out of the trust assets of his expenses in defending himself in the action. The argument is that these expenses were incurred in the defendant's individual interest, and may not be charged against the trust. That completely misses the true situation: a trustee was appointed to administer the assets; the settlor selected him to do so, and whatever interferes with his discharge of his duty pro tanto defeats the settlor's purpose. When the trustee's administration of the assets is unjustifiedly assailed it is a part of his duty to defend himself, for in so doing he is realizing the settlor's purpose. To compel him to bear the expense of an unsuccessful attack would be to diminish the compensation to which he is entitled and which was a part of the inducement to his acceptance of the burden of his duties. This has been uniformly the ruling, so far as we have found. Jessup v. Smith, 223 N.Y. 203, 207, 119 N.E. 403 [(1918)]; Matter of Bishop's Will, 277 App. Div. 108, 98 N.Y.S.2d 69; 301 N.Y. 498, 95 N.E.2d 817 [(1950]); Gordon v. Guernsey, 316 Mass. 106, 55 N.E.2d 27 [(1944)]; Scott on Trusts, § 188.4.' "267 F.2d at 134." We similarly conclude that denying a trustee reimbursement for expenses incurred while pursuing reimbursement for the successful defense of the claims against it would "diminish the compensation to which [it] is entitled and which was a part of the inducement to [its] acceptance of the burden of 24 1120612 [its] duties." Farlow, 474 So. 2d at 59. Accordingly, Regions is entitled to be reimbursed for the cost of litigating its right to reimbursement. Additionally, the trial court improperly denied Regions' request for interest on the amount of its reimbursement. In this Court's first consideration of this case, it held that Regions was entitled to reimbursement under § 19-3B-709, Ala. Code 1975, which states that "[a] trustee is entitled to be reimbursed out of the trust property, with interest as appropriate." In addition to this statutory right, the terms of the Lowrey Trust, pursuant to the trial court's July 21, 1993, order, gave Regions the power "[t]o advance money to or for the benefit of any trust for any purpose of the trust" and provided for Regions to "be reimbursed for the money so advanced with reasonable interest thereon from the trust or from any funds belonging thereto." As stated above, this Court held in Farrows that "'[w]hen the trustee's administration of the assets is unjustifiably assailed it is a part of his duty to defend himself, for in so doing he is realizing the settlor's purpose.'" 474 So. 2d at 59 (quoting Weidlich v. Comley, 267 F. 2d 133, 134 (2d Cir. 1959)). Under 25 1120612 Farrows, Regions, in advancing money in its successful defense against the beneficiaries' claims, was realizing the settlor's purpose and, therefore, was advancing money for the benefit of the Lowrey Trust. Accordingly, Regions is entitled to reasonable interest on the amount it reasonably advanced for its defense. Conclusion Regions is entitled to be reimbursed for the attorney fees it incurred for activities a reasonable attorney might have conducted in the course of zealously defending Regions from the beneficiaries' claims. The trial court exceeded its discretion by reducing Regions' reimbursement by both a line- by-line reduction and a percentage reduction. Therefore, we reverse the trial court's January 8, 2013, order in its entirety and remand this case to the trial court to reconsider the reasonableness of each aspect of Regions' reimbursement request and to instruct AlaTrust, as trustee of the Lowrey Trust, to reimburse Regions accordingly. REVERSED AND REMANDED. Stuart, Shaw, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs specially. Moore, C.J., and Bolin, J., concur in the result. 26 1120612 MURDOCK, Justice (concurring specially). In Regions Bank v. Lowrey, 101 So. 3d 210 (Ala. 2012), this Court remanded this case for the trial court to set reasonable attorney fees and expenses in accordance with this Court's decisions in Hart v. Jackson, 607 So. 2d 161 (Ala. 1992), and Kiker v. Probate Court of Mobile County, 67 So. 3d 865 (Ala. 2010). I write separately because I question whether in doing so we set the trial court upon the right course. The approach reflected in Kiker and Hart, both of which speak of the broad discretion in the trial court to set attorney fees, is traceable to this Court's decision in Peebles v. Miley, 439 So. 2d 137 (Ala. 1983). In Peebles, this Court identified factors to be considered in cases where one of the three exceptions to the "American rule" is applicable to a lawsuit and the task of setting an attorney fee in a particular amount to be awarded against a losing litigant in that underlying litigation falls in the first instance to the trial court. That is not the case here. No fee is being awarded against the losing party in the underlying litigation. Moreover, the court is not called upon to decide ab initio the exact fee to be received by the 27 1120612 attorneys employed by the trustee. The fees at issue have already been incurred and paid by the trustee. The only question is whether the trustee is to be reimbursed those fees from the trust on whose behalf the trustee acted. The answer to this question, in turn, is solely a function of whether the purpose for which the fees were incurred and the amount of those fees fell within some reasonable bounds of authority and discretion vested in the trustee. Put differently, the present case simply involves a different starting point than do Peebles and its progeny. Applicable trust law and trust instruments authorize the trustee to engage in litigation affecting the trust and to incur attorney fees and expenses in this regard. Moreover, applicable trust law and trust instruments entitle the trustee to reimbursement from the trust of the fees and expenses it has decided to incur, provided that those fees and expenses meet certain conditions. That is, the trustee already has incurred certain fees and expenses on behalf of the trust, and the trial court does not write upon a blank slate to set a particular amount the trustee will be entitled to receive in reimbursement; instead its task is to consider the fee already incurred by the trustee to decide if that fee falls within the 28 1120612 bounds of reason. Although the factors identified in Peebles and its progeny might well be helpful in setting those bounds, in the end the task is a different one with a different standard than is the task of setting a particular fee "from scratch." Section 19-3B-709(a), Ala. Code 1975, provides in part that "[a] trustee is entitled to be reimbursed out of the trust property ... for: (1) expenses that were properly incurred in the administration of the trust, including the defense or prosecution of any action, whether successful or not, unless the trustee is determined to have willfully or wantonly committed a material breach of the trust ...." In Birmingham Trust National Bank v. Henley, 371 So. 2d 883, 895 (Ala. 1979), cert. denied, 445 U.S. 915 (1980), we explained that our "courts will not, as a general rule, interfere with the exercise of discretionary powers of trustees absent fraud or abuse of discretion." "A trustee generally has discretion (i.e., is to use fiduciary judgment) with respect to the exercise of the powers of Trusteeship." Restatement (Third) of Trusts § 87 com. a (2007). "When a trustee has discretion with respect to the 29 1120612 exercise of power, its exercise is subject to supervision by the Court only to prevent abuse of discretion." Restatement (Third) of Trusts § 87 (2007). Factors for consideration of whether the trustee has abused its discretion include the exercise of discretionary authority in bad faith or from an improper motive or in an unreasonable exercise of power -- that is, beyond the bounds of reasonable judgment. Judicial intervention "is called for, not because the court would exercise the discretion differently, but because the trustee's decision is one that would not be accepted as reasonable by persons of prudence." See Restatement (Third) of Trusts § 87 com. c (2007). In sum, it would appear that attorney fees and expenses are "properly incurred" within the meaning of our trust law when they fall within the bounds of reason or, alternatively, when they are not undertaken fraudulently, in bad faith, or as the result of an abuse of discretion. Given this standard, I agree with the decision of the Court in this case.9 In its brief to this Court, Regions Bank does not present 9 any argument focusing upon (and therefore I do not read our opinion as addressing) the trial court's decision not to allow reimbursement of the $4,296 in fees and expenses Regions incurred for "miscellaneous matters" or $69,137.61 incurred by Regions in prosecuting its "counterclaim" and defending against a motion to compel. 30	April 11, 2014
3b582350-d069-48b8-8e89-82c3238d1b4b	Ex parte Floyd Casey. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Floyd Casey v. State of Alabama)(Baldwin Circuit Court: CC-11-589; Criminal Appeals : CR-12-0593). Writ Denied. No Opinion.	N/A	1130314	Alabama	Alabama Supreme Court	Rel: 03/28/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 ____________________ 1130314 ____________________ Ex parte Floyd Casey PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Floyd Casey v. State of Alabama) (Baldwin Circuit Court, CC-11-589; Court of Criminal Appeals, CR-12-0593) PARKER, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Murdock, J., dissent. 1130314 MOORE, Chief Justice (dissenting). Floyd Casey was convicted of murder made capital because the killing of Edward McCrory occurred during the commission of a burglary. See § 13A-5-40(a)(4), Ala. Code 1975. Casey was sentenced to life imprisonment without the possibility of parole. Based on telephone calls to and from Casey shown on McCrory's cellular telephone in the time frame of the murder, a police investigator, pursuant to a warrant, searched Casey's residence and found incriminating evidence. Two witnesses, including an accomplice, also testified against Casey. Casey presents his petition for certiorari review under Rule 39(a)(1)(E), Ala. R. App. P., and asks this Court to overrule a controlling Alabama Supreme Court case followed in the decision of the Court of Criminal Appeals. Specifically, he asks this court to overrule Ex parte Davis, 737 So. 2d 480 (Ala. 1999), and to return to the prior rule expressed in Ex parte Gentry, 689 So. 2d 916 (1996). Both cases address the circumstances under which a murder is made capital because it occurred "during a burglary." First-degree burglary requires, among other things, that the perpetrator "knowingly and unlawfully enters or remains unlawfully in a dwelling with 2 1130314 intent to commit a crime therein ...." § 13A-7-5(a), Ala. Code 1975 (emphasis added). In Davis, which overruled Gentry, this Court held that "evidence of a struggle that gives rise to circumstantial evidence of revocation of a license or privilege can be used to show an unlawful remaining." 737 So. 2d at 483. Thus, "evidence of a struggle can supply the necessary evidence of an unlawful remaining." 737 So. 2d at 484. In Gentry, by contrast, the Court was concerned not to make every crime committed indoors automatically a burglary. The Court stated: "There was no separate crime of burglary simply because one could infer that she realized he was attacking her and therefore may or must have 'revoked his privilege to remain.' It was, therefore, error to instruct the jury that for purposes of determining whether the defendant had committed a burglary, 'the fact that the victim had terminated the defendant's license or privilege to be present in the victim's apartment can be inferred from the circumstances that a struggle took place.' This jury instruction had the effect of relieving the State of its burden of presenting a prima facie case of burglary." Gentry, 689 So. 2d at 921. Justice Johnstone, commenting on this issue in another case, stated: "I know from my service in the Alabama House of Representatives when that language originated that the legislature intended for this new alternative to reach only clandestine remaining -- that is hiding 3 1130314 inside the premises to await an opportune time to commit the intended crime. Ex parte Gentry, 689 So. 2d 916 (Ala. 1996), respected this limitation. Davis v. State, 737 So. 2d 480 (Ala. 1999), in overruling Gentry and eliminating this limitation, exceeds the intent of the legislature and violates the rule that criminal statutes be strictly construed against the State. The Davis rule will allow burglary convictions of unruly guests in fact scenarios never contemplated by the legislature as burglaries. We should return to the faithful Gentry interpretation." Ex parte Freeman, 776 So. 2d 203, 205-06 (Ala. 2000) (Johnstone, J., concurring in part and dissenting in part). This Court's current interpretation is that if the murder victim struggles with her killer in her residence, a burglary has occurred, even if the killer entered the residence with permission. This arguably strained interpretation of the burglary statute violates "the fundamental rule that criminal statutes are construed strictly against the State." Ex parte Hyde, 778 So. 2d 237, 239 n.2 (Ala. 2000). In my view, Gentry was properly decided and Justice Johnstone is correct in his analysis in Freeman. Rather than continuing to follow the Davis rule that evidence of a struggle satisfies the "remains unlawfully" element of burglary, I believe we should return to 4 1130314 the Gentry rule that the burglary has to be proven as a separate crime from the murder.1 For the reasons stated, I dissent from the denial of Casey's petition for a writ of certiorari. Murdock, J., concurs. In response to Furman v. Georgia, 408 U.S. 238 (1972), 1 the Alabama Legislature redefined the death penalty to apply only in certain aggravated circumstances. See Act No. 213, Ala. Acts 1975. Prior to Furman, the jury in its discretion determined whether the circumstances of a murder warranted the death penalty. The perceived need to stretch the aggravating factor of burglary to the breaking point reflects a desire, I believe, to allow for the death penalty in circumstances that do not clearly fit within that statutory aggravating factor. 5	March 28, 2014

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