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18164f07-315b-48c9-844d-56925e3cdb03	Municipal Workers Compensation Fund, Inc. v. Morgan Keegan & Co.	N/A	1120532	Alabama	Alabama Supreme Court	REL:04/03/2015 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 ____________________ 1120532 ____________________ Municipal Workers Compensation Fund, Inc. v. Morgan Keegan & Company, Inc., and Morgan Asset Management, Inc. Appeal from Jefferson Circuit Court (CV-12-1124) BOLIN, Justice. Municipal Workers Compensation Fund, Inc. ("the Fund"), appeals from the Jefferson Circuit Court's order denying the 1120532 Fund's motion to vacate a judgment entered on an arbitration award. We reverse and remand. I. Facts and Procedural History The Fund is a nonprofit corporation that administers a self-insured group workers' compensation fund for the benefit of its members, which comprise approximately 624 municipalities and governmental organizations in Alabama. The purpose of the Fund is to provide affordable workers' compensation insurance to its members, who contribute to the Fund by paying premiums. The Fund entrusted the management and investment of approximately $50 million in assets to Morgan Asset Management, Inc. ("MAM"), and Morgan Keegan & Company, Inc. ("Morgan Keegan"). MAM served as an investment advisor for a managed account and certain mutual funds owned by the Fund. Morgan Keegan served as the broker-dealer for the Fund's managed account and had the authority as the broker-dealer to execute transactions in that account as directed by the Fund. A second account at Morgan Keegan held the mutual funds that had been sold to the Fund through a Morgan Keegan broker. 2 1120532 The Fund states that it directed MAM and Morgan Keegan to invest its funds conservatively and that it relied on MAM and Morgan Keegan for sound financial advice and management. However, according to the Fund, MAM and Morgan Keegan disregarded this mandate by recommending that the Fund purchase and hold what the Fund says were unsuitable investments, by overconcentrating the Fund's assets in investments that had undue exposure to the sub-prime mortgage market and in other risky investments, and by misrepresenting and failing to disclose material facts pertaining to the investments. The Fund claims that it sustained losses in excess of $15 million in 2007 and 2008 as a result of the actions of MAM and Morgan Keegan. On May 28, 2009, the Fund initiated arbitration proceedings against MAM and Morgan Keegan by filing a statement of claim with the Financial Industry Regulatory Authority ("FINRA") pursuant to the arbitration provision contained in its contracts with MAM and Morgan Keegan. The Fund asserted claims of breach of fiduciary duty; breach of contract; negligence; fraud; violations of NASD and NYSE Rules; and violations of the Alabama Securities Act. 3 1120532 The arbitration provisions contained in the Fund's contracts with MAM and Morgan Keegan provided that arbitration was to be conducted before FINRA in accordance with that organization's rules and procedures. As part of the standard FINRA arbitration proceedings, the parties were required to submit "Uniform Submission Agreements," which provided that the parties understood and agreed that the arbitration would be conducted in accordance with the "FINRA By-Laws, Rules, and Code of Arbitration Procedure." The FINRA Rules contain specific procedures regarding the selection of an arbitrator. Included within those procedures are rules requiring disclosure by the arbitrator. Rule 12405 provides: "(a) Before appointing arbitrators to a panel, the Director will notify the arbitrators of the nature of the dispute and the identity of the parties. Each potential arbitrator must make a reasonable effort to learn of, and must disclose to the Director, any circumstances which might preclude the arbitrator from rendering an objective and impartial determination in the proceeding, including: "(1) Any direct or indirect financial or personal interest in the outcome of the arbitration; "(2) Any existing or past financial, business, professional, family, social, or 4 1120532 other relationships or circumstances with any party, any party's representative, or anyone who the arbitrator is told may be a witness in the proceeding, that are likely to affect impartiality or might reasonably create an appearance of partiality or bias; "(3) Any such relationship or circumstances involving members of the arbitrator's family or the arbitrator's current employers, partners, or business associates; ".... "(b) The obligation to disclose interests, relationships, or circumstances that might preclude an arbitrator from rendering an objective and impartial determination described in paragraph (a) is a continuing duty that requires an arbitrator who accepts appointment to an arbitration proceeding to disclose, at any stage of the proceeding, any such interests, relationships, or circumstances that arise, or are recalled or discovered." Pursuant to FINRA's arbitrator-disclosure requirements, arbitrators submit detailed biographical information when they submit an application to join FINRA's roster of arbitrators. This biographical information is compiled to create an arbitrator-disclosure report. During the arbitrator-selection process, the parties are given the opportunity to review a potential arbitrator's disclosure report. The parties depend on the information contained in the arbitrator-disclosure reports as part of the process of selecting a panel of 5 1120532 arbitrators. In order to ensure that the arbitrator- disclosure reports are accurate and current, FINRA provides the arbitrators with their disclosure reports each time an arbitrator is appointed to a case. FINRA's Arbitrator Guide provides, in part: "It is extremely important that arbitrators update their Disclosure Reports frequently .... "Arbitrator disclosure is the cornerstone of FINRA arbitration, and the arbitrator's duty to disclose is continuous and imperative. Disclosure includes any relationship, experience and background information that may affect –- or even appear to affect –- the arbitrator's ability to be impartial and the parties' belief that the arbitrator will be able to render a fair decision. When making disclosures, arbitrators should consider all aspects of their professional and personal lives and disclose all ties between the arbitrator, the parties and the matter in dispute, no matter how remote they may seem. If you need to think about whether a disclosure is appropriate, then it is: make the disclosure." FINRA's arbitrator-disclosure requirements are designed to provide the arbitrating parties with an honest, unbiased adjudicatory process, and FINRA "strongly encourages arbitrators to make a wide variety of disclosures [and] ... when in doubt, always err in favor of making a disclosure," because meeting the disclosure requirement is part of an "arbitrator's overarching duty ... to preserve the integrity 6 1120532 and fairness of the arbitral process." FINRA arbitrators also receive a FINRA arbitrator's manual, which states that "[i]t is extremely important that the [arbitrator-disclosure] profile be completed accurately and updated periodically." Once an arbitrator is selected to serve on a case, FINRA forwards to the arbitrator information regarding the case, including the names of the parties, the names of the parties' representatives, and the nature of the case; the oath of arbitrator, which includes the arbitrator-disclosure checklist; and the case materials, which include the pleadings, disclosures of the other arbitrators selected, and the witness list. The arbitrator is obligated to review these materials and to perform a conflicts check. Only after these case materials have been reviewed, the disclosure checklist completed, and a conflicts check performed should the arbitrator sign the oath of arbitrator. On November 16, 2009, FINRA provided the Fund, MAM, and Morgan Keegan with a list of 30 proposed arbitrators for the parties' pending arbitration from which they were to select a panel of 3 arbitrators by using a systems of "ranks" and "strikes" based on the arbitrator-disclosure reports, which 7 1120532 were also provided to the parties. The final panel of arbitrators appointed consisted of William Julavits (chairperson), Patricia Dewitt (public panelist), and Eric Kunis (non public/securities-industry panelist). On March 26, 2012, the parties received Julavits's disclosure checklist. Included in the checklist was question 11, which appeared within the checklist section entitled "Subject Matter Disclosures." Question 11(A) specifically asked: "Have you, your spouse, or an immediate family member been involved in a dispute involving the same or similar subject matter as the arbitration?" Julavits answered "No." Question 11(B) asked: "Did the dispute assert any of the same allegations as the assigned arbitration, even if the dispute was not securities related?" Julavits answered "NA," i.e., not applicable. According to the Fund, at the time Julavits answered questions 11(A) and 11(B), he was the recent subject of five lawsuits alleging tort claims, including breach of fiduciary duty, misrepresentation, and negligence, which are the same claims the Fund has asserted against MAM and Morgan Keegan. 8 1120532 Four of the five lawsuits were still pending at the time the Fund's case was set to be heard by the arbitration panel. Kunis confirmed in his oath that he had reviewed the arbitrator-disclosure checklist and that he had nothing to disclose. As mentioned above, Rule 12405(a)(2) and (3) of the FINRA Rules requires disclosure of "[a]ny existing or past financial, business, professional ... relationships or circumstances with any party ... that are likely to affect impartiality or might reasonably create an appearance of partiality or bias" and "any such relationship or circumstances involving ... the arbitrator's current employers, partners, or business associates." The "Conflicts/Disclosures" section of the arbitrator application specifically asks: "In the last five years, has your employer/firm had a business relationship with any brokerage firms?" Additionally, included in the disclosure checklist under the section "Personal Disclosures" were questions 1 and 2, which specifically asked: "1. Have you had any professional, social, or other relationships or interactions with counsel for any of the parties in this arbitration or their law firms? 9 1120532 "2. Have you had any professional, social, or other relationships or interactions with any of the parties or their employers in the arbitration?" Kunis has been since 2002 a vice president/partner in Maxim Group, LLC, a financial-services firm. According to the Fund, Maxim Group had a close, ongoing, and material relationship with Morgan Keegan and its counsel at the time of the arbitration proceeding in this case, which Kunis failed to reveal in the oath of arbitrator, the arbitrator application, or the disclosure checklist. The Fund's underlying action proceeded to an arbitration hearing, and, on August 1, 2012, the three-person arbitration panel issued its award, denying all of the Fund's claims in their entirety. On September 14, 2012, the trial court entered a judgment based on the arbitration award. On September 21, 2012, the Fund moved the trial court to vacate its judgment based on the arbitration award. The Fund alleged that, after the arbitration award was entered in this case, it discovered that Julavits and Kunis had failed to disclose material and relevant information during the arbitrator-selection process. The Fund stated that Julavits failed to disclose at any time, and actively concealed, the 10 1120532 fact that he was a defendant in five lawsuits alleging against him claims substantially similar to those asserted by the Fund against MAM and Morgan Keegan. The Fund explained that Julavits had been named as a third-party defendant in five separate actions filed in 2011 in Beaufort County, South Carolina, seeking to recover damages for the devaluation and decreased marketability of real property and equity interests in club memberships associated with that real property. The Fund stated that the South Carolina claims sought damages from Julavits in his capacity as a board member of the Callawassie Island Members Club ("CIMC"). Certain members of CIMC alleged that CIMC, through its board members, made false statements to them concerning the value of their property at Callawassie Island and the value of their equity interests in certain club memberships. The CIMC members also alleged that the board members owed certain fiduciary duties to them and that the board members had breached those fiduciary duties. The CIMC members claimed that the alleged misrepresentations and breaches of fiduciary duties by the board members caused the value of their memberships to be greatly diminished. The South Carolina actions were dismissed in the summer of 2012. 11 1120532 The Fund argued that the South Carolina claims against Julavits were "strikingly" similar to the claims asserted by it against MAM and Morgan Keegan in that it had alleged that MAM and Morgan Keegan had made material misrepresentations and had breached certain fiduciary duties owed it regarding the Fund's investment accounts and that those alleged misrepresentations and breaches of fiduciary duties caused the Fund to suffer substantial investment losses. The Fund argued that Julavits, in "complete and utter disregard" for the FINRA disclosure requirements, never disclosed to the parties his involvement in the recent similar litigation and, when specifically asked whether he had ever been involved in litigation with "similar allegations ... even if not securities related," affirmatively responded that he had not. As for Kunis, the Fund claimed that he had failed to make the required disclosure of his firm's relationship with Morgan Keegan and its counsel. The Fund alleged: (1) that Maxim Group had been a co-underwriter with Morgan Keegan on approximately 36 multi-million-dollar equity and debt issuances, (2) that Maxim Group and Morgan Keegan had been co- defendants in a number of lawsuits, including lawsuits filed 12 1120532 by investors to recover losses in securities underwritten by Maxim Group and Morgan Keegan; (3) that Maxim Group had a past and ongoing attorney-client relationship with Greenberg Traurig, the law firm representing Morgan Keegan in the arbitration proceeding; and (4) that Kunis failed to disclose Maxim Group's involvement with the investment product at issue in this case. The Fund argued that the FINRA Rules placed a duty on Kunis to make a reasonable effort to learn of and then to disclose "any existing or past financial, business, professional, ... or other relationships or circumstances with any party ... that are likely to affect impartiality or might reasonably create an appearance of partiality or bias" and "any such relationship or circumstance involving the arbitrator's ... business associates." The Fund contended that Kunis had failed to disclose the existence of his firm's relationship with Morgan Keegan in the oath of arbitrator, the arbitrator application, and the disclosure checklist. The Fund argued in its motion to vacate the judgment entered on the arbitration award that both Julavits and Kunis had failed to fully disclose certain facts and relationships as required by the FINRA Rules and that, because Julavits and 13 1120532 Kunis had failed to make full disclosures under the FINRA Rules, it was entitled to have the arbitration award vacated pursuant to 9 U.S.C. § 10(a)(1) through (4) and § 6-6-14, Ala. Code 1975, a provision in the Alabama Arbitration Act. Following a hearing on the Fund's motion to vacate, the trial court, on December 18, 2012, entered an order denying the Fund's motion. The trial court found that both Julavits and Kunis had failed to make required disclosures and that the failures to make the disclosures was "contrary to the spirit of all of the FINRA Rules and guidelines." However, the trial court further concluded that, although Julavits and Kunis had failed to make the disclosures required by the FINRA Rules, those failures to disclose did not amount to an "evident partiality" on the part of the arbitrators, i.e., an "impression of bias that is direct, definite, and capable of demonstration," because to determine that the failures did amount to bias, the trial court would have been required to speculate as to the existence of bias stemming from the relationships between the arbitrators and the facts and circumstances they failed to disclose to the Fund. See Waverlee Homes, Inc. v. McMichael, 855 So. 2d 493, 508 (Ala. 14 1120532 2003). Specifically, the trial court made the following findings of fact and conclusions of law: "Arbitrator disclosure is the 'cornerstone' of FINRA arbitration. The arbitrator's duty to disclose is continuous and imperative, and it includes any relationship, experience, and background information that may affect -– or even appear to affect -- the arbitrator's ability to be impartial. The FINRA Guide further instructs potential arbitrators that, in making their disclosures, 'arbitrators should consider all aspects of their professional and personal lives and disclose all ties between the arbitrator, the parties and the matter in dispute, no matter how remote they may seem. If you need to think about whether a disclosure is appropriate, then it is: make the disclosure.' This principle is repeated on the next page of the FINRA Guide: 'As a rule, when in doubt, always err in favor of making a disclosure.' "Further, pursuant to FINRA Rule 12405, each potential arbitrator 'must make a reasonable effort to learn of, and must disclose ... (2) Any existing or past financial, business, professional, family, social, or other relationships or circumstances with any party [or] party's representative ... that are likely to affect impartiality or might reasonably create an appearance of partiality or bias; (3) [a]ny such relationship or circumstances involving ... the arbitrator's current employers, partners, or business associates.' ".... "On March 26, 2012, the parties received from FINRA additional disclosures made by Julavits. Under the heading 'Subject Matter Disclosures,' Question 11(A) of the Disclosure Checklist asked: 15 1120532 "'Have you, your spouse, or an immediate family member been involved in a dispute involving the same or similar subject matter as the arbitration?' "Julavits answered 'No' to this question. Question 11(B) then asked: "'Did the dispute assert any of the same allegations as the assigned arbitration, even if the dispute was not securities related?' "Julavits answered this question by marking 'NA,' or 'not applicable.' "It is undisputed that Julavits was named as a third-party defendant in five related cases in South Carolina ('South Carolina Litigation') involving a dispute over the alleged disparate treatment of certain members of an equity-membership golf and social club located on Callawassie Island, South Carolina, related to unpaid membership dues. [The Fund] alleges that Julavits should have disclosed his involvement in these suits, and that his failure to do so constitutes evident partiality under 9 U.S.C. § 10(a)(2). [The Fund] further alleges that, had it been aware of Julavits's involvement in these suits, it would have exercised its rights to have him removed from the arbitration panel. ".... "As a threshold issue, this court finds that Julavits should have disclosed his involvement in the South Carolina Litigation in questions 11A and 11B of the Disclosure Checklist, or otherwise in his disclosures. This is the only reasonable and logical finding considering FINRA's unwavering emphasis on an arbitrator's disclosure of all aspects of their professional and personal lives, no matter how remote they may seem. However, this 16 1120532 court is not persuaded by the [Fund's] argument that an arbitrator's failure to disclose equates to a per se showing of evident partiality under 9 U.S.C. § 10(a)(2). Rather, this court has examined whether Julavits's nondisclosure gives rise to an impression of bias that is direct, definite, and capable of demonstration, as distinct from a mere appearance of bias that is remote, uncertain, and speculative. See Waverlee Homes, Inc. [v. McMichael], 855 So. 2d [493] at 508 [(Ala. 2003)]. "The facts alleged in Waverlee clearly gave rise to an impression of bias that is direct and identifiable. The facts in this case are not as definitive. The subject matter of the arbitration involved the large-scale investment of funds into alleged high-risk securities. The lawsuits against Julavits involved a dispute over country club dues wherein some members received reimbursements while others did not. The gravamen of the South Carolina litigation is different from that in the arbitration. However, some of the causes of action alleged against Julavits in the South Carolina Litigation are the same as alleged against [MAM and Morgan Keegan] in the arbitration. "Julavits should have disclosed the South Carolina Litigation to allow the parties the opportunity to consider its significance in making their selection. It is possible that Julavits's defense of causes of action similar to those at issue in the arbitration may have resulted in commensurate favoritism toward the defendants in this case. However, it seems overreaching to find that there exists an impression of bias that is direct, definite, and capable of demonstration. Rather, any such finding would require this court to speculate that there existed a definite impression of bias because of Julavits's involvement in the South Carolina lawsuits. For that reason, the court finds no evident partiality on the part of Julavits. Likewise, the court finds that vacatur is not 17 1120532 warranted under any of the other prongs of 9 U.S.C. § 10(a), as a result of Julavits's failure to disclose the South Carolina Litigation. ".... "Since 2002, Kunis has been a Vice President and partner in the financial services firm Maxim Group, LLC. There, Kunis is a broker and financial advisor. Other employees and partners at Maxim are involved in securities underwriting. Maxim is a relatively small investment firm with approximately three hundred fifty (350) employees. Kunis served as the non-public/securities industry arbitrator on the panel. "[The Fund] alleges that, 'at the time of the arbitration hearing and undisclosed by Kunis at any time, Kunis's firm had a close, on-going and material relationship with [Morgan Keegan] and its counsel which was required to be disclosed.' Specifically, [the Fund] alleges that Kunis failed to disclose (1) that Maxim and [Morgan Keegan] were co-underwriters on 'no fewer than 36 issuances' of securities; (2) that Maxim and [Morgan Keegan] were co-defendants in two lawsuits filed by investors to recover losses in securities underwritten by Maxim and [Morgan Keegan]; (3) that [Morgan Keegan's] counsel in the arbitration proceeding, Greenberg Traurig, had represented Maxim in its capacity as underwriter on at least eight securities issuances; (4) that Maxim regularly underwrote, managed, or distributed securities that were the same or extremely similar to the unique securities at issue in the arbitration; and (5) that some of the securities underwritten, managed, or distributed by Maxim were actually owned by [the Fund] by virtue of its investments with [Morgan Keegan] and MAM. "[The Fund] further alleges that, had [it] been aware of these undisclosed relationships, '[the Fund] would have exercised all of its rights to 18 1120532 prevent Kunis from serving on the panel.' [Morgan Keegan] counters that there is no evidence that Kunis knew of the undisclosed relationships between Maxim and [Morgan Keegan], or Maxim and Greenberg Traurig. Further, [Morgan Keegan] argues that the relationships are so distant, trivial, and immaterial so as to fail to demonstrate evident partiality. "The FINRA Arbitrator's Manual ('Manual') instructs that: "'An arbitrator is required to disclose ... any existing or past financial, business, [or] professional ... relationships that are likely to affect impartiality. Persons requested to serve as arbitrators should disclose any such relationships that they have with any party or its counsel[;] ... [t]hey should also disclose any such relationship involving ... their current or former employers, partners, or business associates.' "The Manual further instructs the arbitrators that, even '[i]f the arbitrator does not believe a conflict exists, but rather some association with the parties, counsel, and/or witnesses may be questioned, the arbitrator must disclose the association. When in doubt, disclosure should be the rule.' "In addition to the emphasis it places on full and candid disclosure, FINRA imposes on potential arbitrators a duty to investigate the existence of possible or potential conflicts. FINRA Rule 12405 (stating that arbitrators 'must make a reasonable effort to learn of' and must disclose any circumstances which might create an appearance of bias). The 'Conflicts/Disclosures' section of the FINRA Arbitrator Application specifically inquires, '[i]n the last five years, has your employer/firm 19 1120532 had a business relationship with any brokerage firms? Provide details.' "Reading this question in conjunction with FINRA Rule 12405, this court finds that Kunis was required to make a reasonable effort to determine whether his employer, Maxim, had any type of business relationship with [Morgan Keegan] or MAM prior to his acceptance of appointment to the arbitration panel. "Had Kunis known of these relationships, this court finds that the information should have been disclosed to the parties. However, as discussed in the findings related to Julavits's non-disclosure, the failure to disclose is not, in and of itself, a per se showing of evident partiality under 9 U.S.C. § 10(a)(2), and does not automatically warrant dismissal under any of the other prongs of 9 U.S.C. § 10(a). This court is not persuaded that constructive notice, wherein Kunis 'should have known' of Maxim's relationships with [Morgan Keegan] and Greenberg Traurig, should be treated as actual notice for purposes of imparting bias on Kunis. It does appear to this trial court that, had a basic conflict check been conducted by Kunis, the relationships between Maxim and [Morgan Keegan], and possibly between Maxim and Greenberg Traurig, would have been revealed. The relationship would presumably have then been disclosed, and considered by all parties in making their selections. However, there can be no reasonable impression of bias that is definite, direct, and capable of demonstration where, as here, there is no evidence that Kunis even knew of the disclosed business relationship. "There is no allegation that Maxim ever received compensation from [Morgan Keegan]. In addition, Kunis was the securities panelist. His experience in that industry is presumably what made him qualified to serve in that capacity. The undisclosed relationships are not so close and 20 1120532 influential as to create an impression of bias that is direct, definite, and capable of demonstration. Again, any such finding would be premised on an 'appearance of bias,' and would require this court to speculate as to the existence of bias stemming from the relationships. Likewise, this court does not find sufficient grounds for vacatur under the other prongs of 9 U.S.C. § 10(a), based on Kunis's non-disclosure." The Fund appeals. II. Standard of Review This Court has stated: "In R.P. Industries, Inc. v. S & M Equipment Co., 896 So. 2d 460 (2004), this Court reviewed the trial court's order granting a motion to confirm an arbitration award and denying the opposing party's motion to vacate that award. We stated: "'"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 21 1120532 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)."' "896 So. 2d at 464 (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 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. Discussion A. The Evidentiary Issues The Fund argues on appeal that the judgment entered on the arbitration award is due to be vacated because Julavits and Kunis did not fully disclose the existence of certain facts and relationships as required by the FINRA Rules. However, as a threshold matter, we must first address the challenge by MAM and Morgan Keegan to the evidence presented 22 1120532 by the Fund in support of its motion to vacate the judgment entered on the arbitration award. The Fund submitted a brief and a substantial amount of evidentiary materials in support of its motion to vacate the judgment. After MAM and Morgan Keegan filed responses in opposition to its motion to vacate, the Fund filed a reply in support of the motion to vacate, which was supported by additional exhibits. The Fund then supplemented its motion to vacate the judgment with supplemental evidence in the form of additional exhibits. During the evidentiary hearing on the Fund's motion to vacate the judgment, MAM and Morgan Keegan moved the trial court to strike the documents presented by the Fund in support of its motion to vacate. Specifically, MAM and Morgan Keegan objected to a majority of the documents on the ground that they were not properly authenticated or certified. MAM and 1 Morgan Keegan also objected to a couple of the documents on hearsay grounds. Although MAM and Morgan Keegan argued to the trial court that many of the documents had been printed from MAM and Morgan Keegan specifically excluded from their 1 objection the FINRA Rules, the FINRA arbitration guide, "and things of that nature." 23 1120532 Internet Web sites, they have not disputed or challenged the actual contents of those documents. The Fund responded to the 2 motion to strike the documents in support of its motion to vacate by contending that MAM and Morgan Keegan had waived the right to object to the documents by waiting until the day of the hearing on the motion to vacate, when they had had notice of the documents for approximately 30 to 45 days before the date of the hearing. The Fund also argued that the documents contained an indicia of authenticity and thus were self- authenticating. The Fund requested that the trial court give it "an opportunity to respond" if the trial court found any of the documents offered in support of its motion to vacate to be "problematic." The trial court advised the parties that it would notify them if it wanted any additional briefing on the issue of the admissibility of the Fund's documents. The trial court never expressly ruled on MAM and Morgan Keegan's motion to strike the documents presented by the Fund in support of its motion to vacate. However, it appears that the trial court Although MAM and Morgan Keegan have not disputed the 2 contents of those documents, they have vigorously challenged their evidentiary significance. 24 1120532 implicitly denied the motion to strike because the trial court relied on certain of the disputed documents in its order. See Moody v. Town of Weymouth, 805 F.2d 30, 31 (1st Cir. 1986)(holding that "[t]he district court did not expressly rule on plaintiff's motion to strike, but implicitly denied it, for the court, in its opinion granting defendants' motion to dismiss, relied on defendants' materials"). MAM and Morgan Keegan argue on appeal that the denial of the Fund's motion to vacate is due to be affirmed because, they say, the Fund offered no admissible evidence in support of its motion -- the documents it presented in support of the motion, they argued, were either not properly authenticated or contained hearsay. MAM and Morgan Keegan contend, as they did in the trial court, that many of the documents offered in support of the motion to vacate had simply been printed from Internet Web sites. Again, we note that MAM and Morgan Keegan have not challenged the contents of the documents. The Fund initially argues that because MAM and Morgan Keegan failed to timely cross-appeal challenging the trial court's denial of their motion to strike the Fund's evidentiary materials, those evidentiary issues are not before this Court. We disagree. In McMillan, Ltd. v. Warrior 25 1120532 Drilling & Engineering Co., 512 So. 2d 14, 24 (Ala. 1986), this Court stated: "In the absence of taking an appeal, an appellee may not cross-assign as error any rulings of the trial court adverse to appellee." However, in an opinion on rehearing, this Court rejected its prior holding that a cross- appeal was required in order to challenge an adverse ruling where the appellee was not seeking to enlarge his own rights under the order. This Court stated: "Appellees on rehearing ask that we reexamine the question of whether they were required to file a cross-appeal in order to preserve for appellate review the question of whether summary judgment was properly granted on grounds other than those relied upon by the trial court. Appellees' argument that no cross-appeal was required is well taken. "We find that the proper rule is set forth by Professor Moore: "'[A]n appellee, though he files no cross-appeal or cross-petition, may offer in support of his judgment any argument that is supported by the record, whether it was ignored by the court below or flatly rejected. The classic statement of this principle appears in the opinion of Mr. Justice Brandeis, speaking for a unanimous Court in United States v. American Railway Express Co.[, 265 U.S. 425, at 435, 44 S.Ct. 560, at 564, 68 L.Ed. 1087] in 1924: "'"[A] party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case 26 1120532 is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below. But it is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it." "'By 1937, this formulation was referred to by the Court as "inveterate and certain," and it has been reiterated many times since then.' "9 J. Moore and B. Ward, Moore's Federal Practice ¶ 204.11[2] (2d ed. 1985). None of the cases cited on original deliverance for support of the opposite rule deals with this precise issue. In all of those cases, the appellee was attempting to argue for alteration of the judgment to enlarge his rights. Under such circumstances, those cases correctly held that a cross-appeal must be filed. In this case, appellees merely seek to argue grounds other than those relied upon by the trial court that support the summary judgment and in no way seek any more than what they have already obtained." McMillan, Ltd., 512 So. 2d at 25-26. Here, MAM and Morgan Keegan prevailed in the trial court and do not seek to have an 27 1120532 "alteration of the judgment to enlarge [their] rights." Id. They simply argue for affirmance of the trial court's order on an alternative ground that was presented to the trial court but that was not relied upon by the trial court. Accordingly, MAM and Morgan Keegan were not required to file a cross-appeal in this case in order to challenge the denial of their motion to strike the Fund's evidentiary materials. MAM and Morgan Keegan have specifically challenged the admissibility of various documents introduced by the Fund in support of its motion to vacate the judgment entered on the arbitration award. This Court has stated: "'"[T]he trial court has great discretion in determining whether evidence ... is relevant and whether it should be admitted or excluded." Sweeney v. Purvis, 665 So. 2d 926, 930 (Ala. 1995). When evidentiary rulings of the trial court are reviewed on appeal, "rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion." Bama's Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So. 2d 29, 32 (Ala. 1998), citing Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165 (Ala. 1991).' "Bowers v. Wal–Mart Stores, Inc., 827 So. 2d 63, 71 (Ala. 2001)." 28 1120532 Van Voorst v. Federal Express Corp., 16 So. 3d 86, 92 (Ala. 2008). We address the admissibility of the challenged documents in turn. 1. The "Declaration of Page A. Poerschke in Support of Motion to Vacate" In support of its motion to vacate the judgment entered on the arbitration award, the Fund submitted the "Declaration of Page A. Poerschke in Support of Motion to Vacate," which was accompanied by 40 exhibits constituting over 3,000 pages. Poerschke, a lawyer representing the Fund, stated in the declaration that she was "competent to testify as to the truth of the matters set forth [therein] and could and would competently testify thereto from [her] own personal knowledge" and that the copies of the exhibits attached to the declaration were "true and correct." Poerschke states in the declaration that, "as one of the attorneys of record, I was physically present during the entire [FINRA] arbitration hearing." MAM and Morgan Keegan objected to the Poerschke declaration as an authenticating source for the exhibits attached to it, stating that Poerschke did not have the authority under the law to authenticate the exhibits offered in support of the motion to vacate. 29 1120532 "It is an established rule of evidence that, to admit any document into evidence over objection, the party offering the evidence must show that the document is genuine or authentic." Hampton v. Bruno's, Inc., 646 So. 2d 597, 599 (Ala. 1994). Indeed, Rule 44, Ala. R. Civ. P., which addresses the form of authentication required for the admission of documents and records into evidence, does not provide a mechanism of authentication whereby the attorney for the party seeking to introduce the documents may authenticate the documents by his or her declaration. Poerschke has not made any foundational averments in her declaration as to her status as the legal custodian of the documents or that the documents were business records kept in the regular course of the business. See Rule 44(a)(1) and (h). We note that Rule 901(a), Ala. R. Evid., provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Authentication may be established by testimony from a witness with knowledge "that a matter is what it is claimed to be." Rule 901(b)(1), Ala. R. Evid. An attorney's declaration does not authenticate a document unless 30 1120532 the attorney had personal knowledge that the document is what it is claimed to be. Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002). See Logan v. City of Pullman, 392 F. Supp. 2d 3 1246 (E.D. Wash. 2005); Clark v. County of Tulare, 755 F. Supp. 2d 1075 (E.D. Cal. 2010). "'A document can be authenticated [under Rule 901(b)(1)] by a witness who wrote it, signed it, used it, or saw others do so.'" Orr, 285 F.3d at 774 n. 8 (quoting Wright & Gold, Federal Practice & Procedure: Evidence § 7106, 43 (2000)). Poerschke stated in her declaration that she was "competent to testify as to the truth of the matters set forth [therein] and could and would competently testify thereto from [her] own personal knowledge" and that the copies of the exhibits attached to the declaration were "true and correct." Poerschke has failed to assert facts evidencing personal knowledge as to the compilation and contents of these exhibits. To the extent that her statement that, "as one of the attorneys of record, I was physically present during the entire [FINRA] arbitration hearing" can be construed as Federal cases construing the Federal Rules of Evidence 3 are considered persuasive authority for Alabama state courts construing the Alabama Rules of Evidence. See Williams v. Harris, 80 So. 3d 273 (Ala. Civ. App. 2011). 31 1120532 averring personal knowledge of the exhibits, we note that the Fund contends in its brief that the materials evidencing a conflict on the part of Julavits and Kunis were not discovered until after the arbitration proceeding had been concluded. Thus, Poerschke could not have gained any personal knowledge of the exhibits relative to the Fund's motion to vacate during the arbitration proceeding. Although Poerschke's declaration purports to authenticate the documents printed from the Internet, she in fact lacks the personal knowledge required to set forth with any certainty that the documents obtained via third-party Web sites are, in fact, what she proclaims them to be. Accordingly, we conclude that the Poerschke declaration alone was insufficient to authenticate the exhibits offered in support of the motion to vacate. However, some of the documents may still be properly admitted for other reasons. 2. The Callawassie Papers As discussed in detail above, the Fund offered into evidence court documents, including pleadings and orders, from five separate actions filed in 2011 in Beaufort County, South Carolina, in which Julavits was named as a third-party defendant in actions asserting against him claims substantially similar to those asserted by the Fund against 32 1120532 MAM and Morgan Keegan ("the Callawassie papers"). The Fund argued that the claims asserted against Julavits in the South Carolina litigation were "strikingly" similar to the claims asserted by it against MAM and Morgan Keegan and that the South Carolina litigation should have been disclosed pursuant to the FINRA Rules. MAM and Morgan Keegan objected to the Callawassie papers on the ground they were not properly authenticated pursuant to Rule 44(a)(1), Ala. R. Civ. P., which governs the method for authenticating an official record. As stated above, the Poerschke declaration alone was insufficient to authenticate the documents attached as exhibits to the motion to vacate. The Fund argues on appeal that the trial court was free to take judicial notice of the pleadings filed in the South Carolina litigation and was, therefore, free to consider those pleadings in ruling on the motion to vacate. Generally, a court may not take judicial notice of the records of another court. Garrett v. Hadden, 495 So. 2d 616 (Ala. 1986). Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence § 484.02(2) (6th ed. 2010), states: "The circuit court takes judicial notice of all parts of its record of the case in hand. For a proper purpose, the circuit court takes judicial 33 1120532 notice of its own record in another case if, but only if, the pleadings in the case in hand refer to the record in the other case. However, the circuit court cannot take judicial notice of its record in another case for the purpose of supplying evidence in the case at hand, as the record in the other case must be introduced in evidence if it is to be considered as evidence. "Circuit courts do not take judicial notice of the records of another court." However, a court may take judicial "'notice of another court's order ... for the limited purpose of recognizing the "judicial act" that the order represents or the subject matter of the litigation and related filings.'" In re Delta Res., Inc., 54 F.3d 722, 725 (11th Cir. 1995) (quoting United States v. Jones, 29 F.3d 1549, 1553-54 (11th. Cir. 1994)). See also 4 Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir. 1992) (stating that "[a] court may take judicial notice of a document filed in another court '... to establish the fact of such litigation and related filings'"). In Al Najjar v. Ashcroft 257 F.3d 1262 (11th. Cir. 2001), an appeal from a deportation proceeding, the appellant argued on appeal that his detainment by the Immigration and Rule 201, Ala. R. Evid., was adopted verbatim from the 4 corresponding Federal Rule of Evidence dealing with judicial notice of adjudicative facts. Advisory Committee's Notes, Rule 201, Ala. R. Civ. P. 34 1120532 Naturalization Service and subsequent custody proceedings improperly affected his deportation case. The appellant requested that the court either supplement the record on appeal or take judicial notice of a number of documents, including newspaper articles describing his detainment and custody proceedings. In taking judicial notice of the custody proceedings, the court stated: "Although we are jurisdictionally precluded from admitting the proffered newspaper articles describing the custody proceedings, we may, and do, take judicial notice of the fact that [appellant's] custody proceeding occurred and the subject matter thereof. See In re Delta Resources, Inc., 54 F.3d 722, 725 (11th Cir. 1995) ('[T]his Court may take judicial "notice of another court's order ... for the limited purpose of recognizing the 'judicial act' that the order represents or the subject matter of the litigation and related filings."'). We will not take judicial notice of any factual findings, legal conclusions, or arguments advanced in the custody proceedings, and we will not consider these proceedings as impacting any of the [appellant's] claims on appeal. See 8 U.S.C. § 1105a(a)(4). In sum, we take judicial notice of the fact that [appellant's] custody proceedings occurred, and the subject matter thereof, although we will not rely on these proceedings in reviewing the [Board of Immigration Appeals'] decisions." 257 F.3d at 1282-83. It is not seriously disputed that Julavits was named a third-party defendant in the South Carolina litigation. In fact, Morgan Keegan submitted the same court documents from 35 1120532 the South Carolina litigation that were submitted by the Fund, plus additional court documents from the South Carolina litigation not submitted by the Fund, in support of its response in opposition to the Fund's motion to vacate. The trial court stated in its order denying the Fund's motion to vacate that "[i]t is undisputed that Julavits was named as a third-party defendant in five related cases in South Carolina." Accordingly, we conclude that the trial court could have properly considered the Callawassie papers in order to take judicial notice of the South Carolina litigation for the limited purpose of concluding that the litigation occurred and that Julavits was named as a third-party defendant in that litigation. 3. The "Hagman Order" and "Antietam Motion" The Fund submitted as an exhibit to its motion to vacate the judgment entered on the arbitration award an order issued by the Superior Court of Los Angeles County, California, in Hagman v. CitiGroup Global Markets, Inc. (Super. Ct. no. BS128800) (Feb. 9, 2011) ("the Hagman order"), in which that court vacated an arbitration award based on California law as a result of the arbitrator's failure to disclose his involvement two years earlier in his own lawsuit involving the 36 1120532 same subject matter made the basis of the arbitration. In its reply in support of the motion to vacate the judgment entered on the arbitration award, the Fund submitted a pleading filed by Morgan Keegan in an action styled Antietam Industries, Inc. v. Morgan Keegan & Company, Case no. 6:12-CV-1250 (M.D. Fla., August 13, 2012) ("the Antietam motion"), in which Morgan Keegan moved the court to vacate an arbitration judgment, arguing that the arbitrator had failed to disclose his involvement in prior litigation involving the same subject matter of the arbitration. The Fund argues that the trial court was free to take judicial notice of these exhibits. Both the Hagman order and the Antietam motion were offered for more than just recognizing a judicial act or the subject matter of the litigation. In re Delta Res., Inc., 54 F.3d at 725. The Hagman order was offered to show a legal conclusion reached by another court. The Antietam motion was offered to show an argument and position taken by Morgan Keegan in another case. Because these two documents were offered for more than the limited purpose of recognizing a judicial act or the subject matter of the litigation, the trial court could not have properly taken judicial notice of these documents and considered them in reaching its 37 1120532 determination in this matter. Al Najjar, 257 F.3d at 1283 (noting that a court "will not take judicial notice of any factual findings, legal conclusions, or arguments advanced in the [other] proceedings"). 4. Maxim Group and Morgan Keegan as Codefendants The Fund submitted as an exhibit to the Poerschke declaration the class-action complaint filed in Fire & Police Pension Association of Colorado v. American International Group, Inc., Case no. 08-CV-10586 (S.D.N.Y. December 4, 2008), in which Maxim Group and Morgan Keegan were named codefendants, along with numerous other defendants, in an action brought by a pension fund seeking to recover losses on securities underwritten by Maxim Group and Morgan Keegan. The Fund also submitted a docket sheet from an action styled In re the Mills Corp. Securities Litigation, Case no. 1:06-CV-00077 (E.D. Va. January 20, 2006), in which both Maxim Group and Morgan Keegan were named, among numerous others, as codefendants and were represented by the same attorney. Although both Maxim Group and Morgan Keegan were represented by the same attorney, that attorney was not an employee of Greenberg Traurig. Again, the Fund argues that the trial court was free to take judicial notice of these exhibits. As 38 1120532 with the Callawassie papers, the trial court could have properly considered the class-action complaint and the docket sheet for the limited purpose of taking judicial notice of the fact that Maxim Group and Morgan Keegan were named as codefendants in litigation involving securities. In re Delta Resources, supra. 5. Exhibit M -- Securities Issuances In support of its argument that Kunis's firm -- Maxim Group –- and Morgan Keegan had a close, ongoing relationship, the Fund submitted documents indicating that Maxim Group and Morgan Keegan had participated together as co-underwriters on 36 issuances of multi-million-dollar securities. Those documents were attached as Exhibit M to the Poerschke declaration. Initially, we note that MAM and Morgan Keegan do not dispute that Morgan Keegan and Maxim Group participated together, among others, as underwriters in the above-mentioned 36 securities issuances. Further, as mentioned above, MAM and Morgan Keegan do not dispute the contents of Exhibit M. In fact, in its response in opposition to the motion to vacate the judgment entered on the arbitration award, Morgan Keegan submitted the affidavit of its expert in which the expert based his opinion, in part, on Exhibit M. Morgan Keegan also 39 1120532 presented in support of its response in opposition to the motion to vacate an annotated version of Exhibit M upon which its expert's opinion was based. Because Morgan Keegan relied on Exhibit M in its response in opposition to the motion to vacate and has not challenged the contents of Exhibit M, we cannot say that the trial court exceeded its considerable discretion by denying MAM and Morgan Keegan's motion to strike Exhibit M and in subsequently relying on the contents of Exhibit M. Bowers v. Wal-Mart Stores, Inc., 827 So. 2d 63 (Ala. 2001). Consequently, this Court may consider Exhibit M on appeal. 6. Additional Web Site Materials The Fund presented additional materials printed from various Web sites, which, it says, also evidence a close, ongoing relationship between Maxim Group and Morgan Keegan. The materials are attached to the Poerschke declaration as Exhibits Q1-Q8, R, T, U, V, W, X, AA, DD, and EE. Exhibits Q1-Q8 evidence securities issuances in which Greenberg Traurig, Morgan Keegan's counsel, represented Maxim Group. The remaining exhibits evidence Maxim Group's involvement in the underwriting, management, and distribution of securities similar to those at issue in the underlying arbitration and 40 1120532 the fact that some of the securities underwritten, managed, and distributed by Maxim Group were actually owned by the Fund. Again, MAM and Morgan Keegan have not challenged or disputed the contents of those exhibits and do not dispute that Greenberg Traurig represented Maxim Group in the security issuances or that Maxim Group was involved in the underwriting, management, and distribution of securities similar to those made the basis of the arbitration proceeding. These materials consist of various offering prospectuses, shareholder reports, and offering circulars. These exhibits were not relied on by MAM or Morgan Keegan in their response in opposition to the motion to vacate as was Exhibit M. However, the Fund, relying upon Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002), argues that the Poerschke declaration establishes the authenticity of the documents printed from Web sites when the declaration is viewed in combination with circumstantial indicia of authenticity, such as the dates the documents were printed and the Web addresses from which the documents were printed. As discussed above, the Poerschke declaration is insufficient as an authenticating source because it lacks the requisite personal knowledge. Further, the exhibits do not contain the 41 1120532 Web addresses of the Web sites from which they were printed, nor do they indicate the dates on which they were printed. However, concerning authentication we note that the exhibits do contain other "distinctive characteristics" that, when considered in light of the circumstances, support a finding that the exhibits are what the Fund claims they are. See Rule 901(b)(4), Ala. R. Evid., providing as "examples of authentication or identification conforming with the requirement of this rule" "Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." (Emphasis added.) "The evidence establishing authenticity, however, 'does not have to be conclusive or overwhelming; rather, it must be strong enough for the question to go to the jury.'" Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So. 2d 802, 809 (Ala. 2004) (quoting the Advisory Committee's Notes, Rule 901(a), Ala. R. Evid.). The "contents" of these exhibits primarily consist of shareholder prospectuses and offering circulars that contain highly technical and detailed financial analysis based on current market information and recommendations to potential 42 1120532 investors based on that analysis. One exhibit consists of an in-depth shareholder financial report that had been filed with the United States Securities and Exchange Commission. Because of the highly technical nature of the financial documents, we cannot say that the trial court exceeded its wide discretion in denying the motion to strike as to these documents. This conclusion is only bolstered when considered in light of the circumstance, as Rule 901(b)(4) permits, that MAM and Morgan Keegan have not challenged the contents of the documents. See Rule 901(b)(4)(noting that authentication as a condition precedent is satisfied when contents and substance of documents taken in conjunction with circumstances support a finding that the matter in question is what its proponent claims it is). 7. The Hearsay Objections The Fund also sought to admit as exhibits to the Poerschke declaration a FINRA publication entitled "The Neutral Corner" and a marketing piece published by Greenberg Traurig ("the Greenberg booklet") touting the firm's and its lawyers' accomplishments, areas of practice, experience, and clients. The Neutral Corner contained information indicating that a prospective arbitrator should disclose the fact that he 43 1120532 or she had been sued for breach of a fiduciary duty if he or she has been selected to serve in an arbitration proceeding in which a breach of fiduciary duty has been alleged. The Greenberg booklet indicated that Greenberg Traurig, the law firm that represented Morgan Keegan in the underlying arbitration proceeding, had represented Maxim Group in a $60 million initial public offering, or IPO. MAM and Morgan Keegan objected to these exhibits on grounds of hearsay. "Hearsay" is defined by Rule 801(c), Ala. R. Evid., as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A hearsay statement may be either oral or written. Rule 801(a), Ala. R. Evid. Here, the Fund offered The Neutral Corner to establish that a prospective arbitrator should disclose litigation in which he or she was a party that involved the same allegations as those asserted in the arbitration proceeding. The Fund offered the Greenberg booklet to demonstrate that Maxim Group had an ongoing attorney-client relationship with Greenberg Traurig. As such, both documents constituted inadmissible hearsay and cannot be considered by this Court on appeal. 8. Summary of This Court's Holdings 44 1120532 In sum, the Court has determined that the Poerschke declaration is an insufficient authenticating source for the attached exhibits; that the trial court could have properly taken judicial notice of the Callawassie papers but could not have taken judicial notice of the Hagman order or the Antietam motion; that the trial court could have taken judicial notice of the class-action complaint and the docket sheet evidencing that Morgan Keegan and Maxim Group had been named as codefendants in securities litigation; that Exhibits M, Q1-Q8, R, T, U, V, W, X, AA, DD, and EE were admissible; and that The Neutral Corner and the Greenberg booklet were inadmissible. We now address the issue whether Julavits's and Kunis's failure to disclose certain facts as argued by the Fund created a reasonable impression of bias constituting an evident partiality on the part of the arbitrators. B. Arbitrators' Failure to Disclose The Fund argues on appeal that the judgment entered on the arbitration award is due to be vacated because Julavits and Kunis did not provide full disclosure as was required by the FINRA Rules. As stated above, the trial court found that both Julavits and Kunis failed to make disclosures required by the FINRA Rules and that the failure to make those disclosures 45 1120532 was "contrary to the spirit of all of the FINRA Rules and guidelines." After carefully reviewing the admissible evidence in this case, this Court agrees with the trial court's finding that arbitrator disclosure is the "cornerstone" of FINRA arbitration and that the arbitrator has a continuous and imperative duty to disclose any relationships, experiences, and background information "that may affect -- or even appear to affect -- the arbitrator's ability to be impartial." We further agree with the trial court's conclusion that Julavits and Kunis both failed to disclose certain information, as discussed in detail above, and that the failure to disclose this information was contrary to the FINRA Rules relating to arbitrator disclosure. C. Vacatur of Judgment Entered on Arbitration Award The Fund argues that it is entitled to have the judgment entered on the arbitration award vacated pursuant to the grounds provided in 9 U.S.C. § 10(a)(1) through (4), which provide that an arbitration award may be vacated: "(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; 46 1120532 "(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 "(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." Because we find dispositive the arguments as they relate to "evident partiality," 9 U.S.C. § 10(a)(2), we will address those arguments first. The Fund argues that the judgment entered on the arbitration award is due to be vacated because the failure by Julavits and Kunis to make the disclosures discussed above created a reasonable impression of bias constituting an "evident partiality" on the part of the arbitrators under 9 U.S.C. § 10(a)(2). After thoroughly surveying caselaw from various federal courts, this Court, in Waverlee Homes, Inc. v. McMichael, 855 So. 2d 493 (Ala. 2003), adopted the "reasonable impression of partiality" as the standard for determining whether evident partiality exists under 9 U.S.C. § 10(a)(2). Specifically, this Court stated: "We conclude that the weight of authority developed after Commonwealth Coatings [Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S. Ct. 337, 21 L. Ed. 2d 301 (1968),] requires a review of the offered evidence pursuant to the 'reasonable 47 1120532 impression of partiality' standard, using the criteria developed in the federal cases reviewed above. The appropriate approach for the trial court to take in assessing [a motion to vacate a judgment entered on an arbitration award based on allegations of 'evident partiality'] is to consider whether [the movant] makes a showing through admissible evidence that the court finds to be credible, that gives rise to an impression of bias that is direct, definite, and capable of demonstration, as distinct from a 'mere appearance' of bias that is remote, uncertain, and speculative." Waverlee Homes, 855 So. 2d at 508. Justice Murdock, writing for the Court in Lexington Insurance Co. v. Southern Energy Homes, Inc., 101 So. 3d 1190 (Ala. 2012), aptly explained this Court's adoption in Waverlee Homes of the "reasonable- impression-of-partiality" standard and what has become known as "nondisclosure" cases versus "actual-bias" cases: "In Waverlee Homes, this Court surveyed federal cases brought after the arbitrator had been named and after the arbitrator had made an actual award. 855 So. 2d at 503–08. In most, if not all, of these federal cases, the issue was whether the arbitrator had failed to make a pre-selection disclosure of facts that might have demonstrated bias or a conflict of interest on his part and whether this nondisclosure itself demonstrated an 'evident partiality' on the part of the arbitrator under 9 U.S.C. § 10(a)(2) so as to justify the vacatur of the resulting arbitration award. The opinion in one of these cases, Schmitz v. Zilveti, [20 F.3d 1043 (9th Cir. 1994)], provides a helpful explanation of the distinction between what have become known as 'nondisclosure' cases and 'actual bias' cases: 48 1120532 "'Appellants argue that Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968), requires us to reverse the district court. In Commonwealth Coatings, one arbitrator on a panel of three failed to disclose that he had engaged in periodic and significant business relations with one of the parties to the arbitration over the previous five or six years. Id. at 146, 89 S.Ct. at 338.... The party that lost the arbitration then challenged the award, asserting that the failure of this arbitrator to disclose his significant business relationship resulted in "evident partiality" under 9 U.S.C. § 10[(a)(2)], warranting vacatur of the award. "'The district court held that "the arbitrator ... was entirely fair and impartial," id. at 151 n., 89 S.Ct. at 340 n., and refused to vacate the award. Without disturbing the finding that the arbitrator was not biased, id. at 147–50 & 151 n., 89 S.Ct. at 338–40 & 340 n., the Supreme Court reversed and vacated the award. The Court held that an arbitrator's nondisclosure of facts showing a potential conflict of interest creates evident partiality warranting vacatur even when no actual bias is present. The Court tried to articulate a standard indicating what facts show evident partiality when not disclosed by an arbitrator. The Court described facts that must be disclosed as those that "might create an impression of possible bias," id. at 149, 89 S.Ct. at 339, those that show the "appearance of bias," id. at 150, 89 S. Ct. at 340, and those that indicate that arbitrators "might reasonably be thought biased against one litigant and favorable to another," id.' 49 1120532 "20 F.3d at 1045 (emphasis added). "After noting that two of its previous decisions had 'involved allegations of actual bias rather than a failure to disclose,' 20 F.3d at 1046, the Schmitz court additionally explained: "'How to apply Commonwealth Coatings in a nondisclosure case is an issue of first impression in the Ninth Circuit. Other courts facing the same issue have held that "evident partiality" is present when undisclosed facts show "a reasonable impression of partiality." [Middlesex Mut. Ins. Co. v.] Levine, 675 F.2d [1197] at 1201 [(11th Cir. 1982)]; see Sanko S.S. Co. v. Cook Indus., Inc., 495 F.2d 1260, 1263–64 (2d Cir. 1973).... Consistent with Commonwealth Coatings, courts examining nondisclosure cases have not required proof of actual bias in showing "evident partiality." See Levine, 675 F.2d at 1200–02; Sanko S.S. Co., 495 F.2d at 1263–64. "'.... "'Though Toyota of Berkeley [v. Automobile Salesman's Union, Local 1095, 834 F.2d 751 (9th Cir. 1987),] and [Sheet Metal Workers International Ass'n v.] Kinney Air[, 756 F.2d 742 (9th Cir. 1985),] provide some support for the proposition that Commonwealth Coatings establishes "reasonable impression of partiality" as a legal standard, both the facts and factual analyses of those cases are inapposite to the instant nondisclosure case. Both involve allegations of actual bias rather than evident partiality from failure to disclose. Toyota of Berkeley, 834 F.2d at 756–57; Kinney Air, 756 F.2d at 746. Moreover, both opinions distinguish their 50 1120532 facts from those of nondisclosure cases, including Commonwealth Coatings. Toyota of Berkeley, 834 F.2d at 756; Kinney Air, 756 F.2d at 746. "'Notwithstanding the factual dissimilarity of Toyota of Berkeley and Kinney Air with nondisclosure cases, both Toyota of Berkeley and Kinney Air employ the "reasonable impression of partiality" standard taken from Commonwealth Coatings, a nondisclosure case. Toyota of Berkeley, 834 F.2d at 756–57; Kinney Air, 756 F.2d at 746; see also Employers Ins. [of Wausau v. National Union Fire Ins. Co. of Pittsburgh], 933 F.2d [1481,] at 1481 [(9th Cir. 1991)]; [Sheet Metal Workers Int'l Ass'n, Local No. 162 v.] Jason Mfg.[, Inc.], 900 F.2d [1392] at 1392 [(9th Cir. 1990)]. That these actual bias cases apply the Commonwealth Coatings standard to allegations of actual bias is confusing. In an actual bias case, a court must find actual bias. Finding a "reasonable impression" of partiality is not equivalent to, nor does it imply, a finding of actual bias. Otherwise, the Commonwealth Coatings court could not have held that a reasonable impression of partiality was present when no actual bias was shown. "'The policies of 9 U.S.C. § 10 also support the notion that the standard for nondisclosure cases should differ from that used in actual bias cases. In a nondisclosure case, the integrity of the process by which arbitrators are chosen is at issue. Showing a "reasonable impression of partiality" is sufficient in a nondisclosure case because the policy of section 10(a)(2) instructs that the parties should choose their arbitrators intelligently. Commonwealth Coatings, 393 51 1120532 U.S. at 151, 89 S.Ct. at 340 (White, J., concurring). The parties can choose their arbitrators intelligently only when facts showing potential partiality are disclosed. Whether the arbitrators' decision itself is faulty is not necessarily relevant. But in an actual bias determination, the integrity of the arbitrators' decision is directly at issue. That a reasonable impression of partiality is present does not mean the arbitration award was the product of impropriety.' "20 F.3d at 1046–47 (emphasis added). "It is not clear whether Waverlee Homes, itself, was a 'nondisclosure' case or an 'actual bias' case. Although the facts as described in the opinion suggest an 'actual bias' case, the Court concluded its opinion with an endorsement of the 'reasonable impression' standard articulated in the federal 'nondisclosure' cases it had surveyed." Lexington Ins., 101 So. 2d at 1205-07. Thus, we apply the "reasonable-impression-of-partiality" standard enunciated in Waverlee to the facts of this "nondisclosure" case. The Fund presented evidence indicating a business relationship between Kunis's financial firm, Maxim Group; Morgan Keegan; and Greenberg Traurig. The Fund alleged: (1) that Maxim Group had been a co-underwriter with Morgan Keegan on at least 36 multi-million-dollar equity and debt issuances, (2) that Maxim Group and Morgan Keegan had been codefendants in lawsuits, including lawsuits filed by investors to recover 52 1120532 losses in securities underwritten by Maxim Group and Morgan Keegan; (3) that Maxim Group had an attorney-client relationship with Greenberg Traurig, the law firm representing Morgan Keegan in the arbitration proceeding, and Greenberg Traurig had represented Maxim Group in a number of underwritings; and (4) that Kunis failed to disclose Maxim Group's involvement with the investment products at issue in this case. The Fund argues that Kunis's failure to disclose the significant business relationship between Maxim Group, Morgan Keegan, and Greenberg Traurig created a reasonable impression of impartiality constituting an evident partiality on Kunis's part. MAM and Morgan Keegan argue that the Fund has failed to establish that Kunis was even aware of the facts relating to the existence of a business relationship and that Kunis's lack of knowledge relative to the existence of a business relationship precludes an finding of a reasonable impression of impartiality constituting a finding of evident partiality. The Fund counters with the argument that, where an arbitrator has a duty to investigate possible conflicts, the law will impose constructive knowledge of any undiscovered conflict upon the arbitrator where the arbitrator does nothing to 53 1120532 fulfill his or her duty to inform himself or herself of possible conflicts. MAM and Morgan Keegan rely on Gianelli Money Purchase Plan & Trust v. ADM Investor Services, Inc., 146 F.3d 1309 (11th Cir. 1998), in support of its position that actual knowledge of a potential conflict is necessary to establish a "reasonable impression of impartiality" constituting a finding of "evident partiality." In Gianelli, ADM Investor Services, Inc., a futures-commission merchant, and Basic Commodities, Inc., entered into an agreement under which ADM executed commodities trades for customers brought in by Basic. One of the clients Basic brought to ADM was Gianelli Money Purchase Plan and Trust. The Gianelli Trust lost approximately $100,000 in less than a year in the futures markets. Gianelli Trust claimed that Basic's president, Kent C. Kelley, caused those losses through mismanagement of its account. In an attempt to recoup its losses, Gianelli Trust filed a claim against ADM with the American Arbitration Association ("AAA"). It sought to hold ADM liable on an agency theory, asserting that it was liable for Kelley's wrongdoings and mismanagement. The parties jointly selected Keith Houck as the sole arbitrator. Houck had served as office manager for the law 54 1120532 firm of Gray, Harris & Robinson ("Gray Harris") since 1990. Before the arbitration proceeding, Gianelli Trust learned that Gray Harris had represented Kelley in a 1992 securities case. When Gianelli Trust asked about this, Houck asserted that he was unaware of the case, while Kelley falsely asserted that Gray Harris's representation of him was an isolated incident. Additionally, Houck signed an arbitrator's oath that stated that he had nothing to disclose. After receiving those assurances, Gianelli Trust accepted Houck as the sole arbitrator. Houck conducted the arbitration hearings and ultimately entered an award in favor of ADM, finding it not liable to Gianelli Trust. Gianelli, supra. Gianelli Trust subsequently discovered that Kelley had had frequent contact with Gray Harris. Specifically, Gray Harris helped Kelley form three companies and represented two others in which Kelley was involved in 1976; the firm also represented Kelley as an individual from 1977 to 1986. Gianelli Trust moved to vacate the arbitration award, contending that Houck, as an employee of Gray Harris, had displayed partiality to ADM. The district court granted the motion and vacated the arbitration award. Gianelli, supra. 55 1120532 In reversing the district court's judgment, the United States Court of Appeals for the Eleventh Circuit stated: "In vacating the arbitration award in this case, the district court relied heavily on Schmitz v. Zilveti, 20 F. 3d 1043 (9th Cir. 1994). In that [5] case, the Ninth Circuit found evident partiality where an arbitrator, who was also an attorney, did not investigate potential conflicts or disclose that his firm had performed legal work for one of the parties' corporate parents. See id. at 1048. Schmitz held that the arbitrator's failure to investigate could create a reasonable perception of partiality. See id. at 1048-49. "The district court found Schmitz to be closely analogous to this case. In particular, the court noted that, as in Schmitz, the arbitrator (Houck) was employed by a law firm (Gray Harris) that had a long-standing relationship with someone closely connected to one of the arbitrating parties (Kelley). Furthermore, the district court reasoned that had Houck investigated possible conflicts of interest as Schmitz requires, he would have discovered the previous work that Gray Harris had performed for Kelley, and disclosure of that relationship would have afforded Gianelli a more informed basis upon which to decide whether to proceed with Houck as arbitrator. Therefore, the district court, following Schmitz, concluded that it should vacate the arbitration award. "The problem with the district court's analysis is that Schmitz conflicts with the law of this The Schmitz decision will be discussed in detail, infra, 5 because the Fund relies on that decision in support of its argument that the law will impose constructive knowledge of any undiscovered conflict upon the arbitrator where the arbitrator has a duty to discover possible conflicts and does nothing to fulfill that duty. 56 1120532 Circuit. In Lifecare Int'l, Inc. v. CD Medical, Inc., 68 F.3d 429 (11th Cir. 1995), the arbitrator accused of 'evident partiality' became 'of counsel' to a law firm that had two contacts with CD Medical, including one 'for the purpose of obtaining representation in the instant dispute.' Id. at 434. This Court noted that even the most routine background check by the arbitrator would have brought this information to light. However, we also pointed out that there was no evidence that the arbitrator was actually aware of these past contacts. Because there was no evidence that the arbitrator had actual knowledge of the past contacts, we confirmed the arbitration award and rejected the proposition that the arbitrator had a duty to investigate the past contacts to avoid evident partiality. In the present case it was error for the district court to rely on Schmitz, because its holding that an arbitrator's failure to investigate past contacts with one of the parties may constitute 'evident partiality' is squarely at odds with the position we took in Lifecare. "Instead of following Schmitz, the district court should have applied the law of our Circuit, which is that an arbitration award may be vacated due to the 'evident partiality' of an arbitrator only when either (1) an actual conflict exists, or (2) the arbitrator knows of, but fails to disclose, information which would lead a reasonable person to believe that a potential conflict exists. See Lifecare, 68 F.3d at 433; [Middlesex Mut. Ins. Co. v.] Levine, 675 F.2d [1197] at 1202 [(11th Cir. 1982)] (party challenging arbitration award must establish reasonable impression of partiality that is 'direct, definite and capable of demonstration rather than remote, uncertain and speculative.') (internal quotes omitted). Whether these conditions have been met ordinarily requires a fact-intensive inquiry. See Lifecare, 68 F.3d at 435. "Performance of that inquiry here leads us to conclude that neither of the conditions for 'evident 57 1120532 partiality' exists in this case. The district court made a factual finding, supported by the evidence in the record, that Houck was not actually biased against Gianelli. Therefore, the first condition under which an award may be vacated for evident partiality, the existence of an actual conflict, was not present in this case. ".... "It is not entirely clear from the district court opinion whether it implicitly found that Houck was aware of any relationship Kelley had with Gray Harris other than the [prior securities case]. However, if the district court did make such an implicit finding, that finding is clearly erroneous. All of Kelley's contacts with Gray Harris, with the exception of the [securities] case, pre-date Houck's employment at the firm. There is nothing in the record to indicate that Houck knew of any connection between Kelley and Gray Harris prior to 1990, when Houck joined the firm. Although given abundant opportunity to do so, Gianelli, who has the burden of persuasion, has not pointed to any evidence suggesting that Houck was aware of any relationship between Kelley and Gray Harris other than the [securities] case. As a result, the only conclusion that the record will support is that Houck was unaware of any other relationship. Because Houck did not have actual knowledge of the information upon which the alleged 'conflict' was founded, the second 'evident partiality' condition is not present in this case." Gianelli, 146 F.3d 1312-13 (footnotes omitted). See also University Commons-Urbana, Ltd. v. Universal Constructors Inc., 304 F.3d 1331 (11th Cir. 2002). It appears that the Eleventh Circuit is the only court of appeals that has "adopted a per se rule that a finding of evident partiality is 58 1120532 precluded by an arbitrator's lack of 'actual knowledge of the information upon which [an] alleged "conflict" was founded.'" New Regency Prods., Inc. v. Nippon Herald Films, Inc., 501 F.3d 1101, 1109 (9th Cir. 2007)(quoting Gianelli, 13 F.3d at 1313). In Schmitz v. Zilveti, 20 F. 3d 1043 (9th Cir. 1994), a case surveyed by this Court and relied on in part in Waverlee Homes, an NASD arbitrator failed to disclose in his 6 arbitrator-disclosure forms that his law firm had represented the parent company of the prevailing party in the arbitration on at least 19 occasions during a 35-year period, with the most recent representation occurring approximately 21 months before the arbitration. The record revealed that the arbitrator had run a "conflict check" for the subsidiary company only, rather than for both the subsidiary company and the parent company, even though the arbitrator had reviewed documents that indicated that the entity participating in the arbitration was a subsidiary of the parent company. The NASD rules in effect at the time Schmitz was decided are identical The NASD was the predecessor to FINRA. 6 59 1120532 to the FINRA Rules applicable in this case. The NASD rules were summarized by the appellate court as follows: "[A]n arbitrator must disclose (1) '[a]ny direct or indirect financial or personal interest in the outcome'; (2) 'any ... financial, business, professional, family, or social relationships that are likely to affect impartiality or might reasonably create an appearance of partiality or bias'; and (3) any personal relationships with any party, its counsel, or witnesses. [NASD Code § 23(a)]. These relationships must be disclosed whether maintained, presently or previously, by the arbitrators or 'members of their families or their current employers, partners, or business associates.' Id. The NASD Code also requires arbitrators to make an investigation regarding potential conflicts of interest. NASD Code section 23(b) provides: 'Persons who are requested to accept appointment as arbitrators should make a reasonable effort to inform themselves of any interests or relationships described in Paragraph (a) above.'" Schmitz, 20 F.3d at 1044. The losing party to the arbitration sought to have the arbitration vacated pursuant to 9 U.S.C. § 10(a)(2), arguing that the arbitrator was "evidently partial." The federal district court held that a party seeking to vacate an arbitration award based on "evident partiality" must prove facts establishing a reasonable impression of evident partiality and that arbitrators are required to disclose only those facts of which they are aware at the time of the hearing. The court then found that because the arbitrator was 60 1120532 unaware of his law firm's conflict at the time of the arbitration hearing the movants had failed to meet their burden of proof. Thus, the district court held that no "evident partiality" was present. Schmitz, supra. In reversing the judgment of the district court and determining that the arbitration award was due to be vacated, the United States Court of Appeals for the Ninth Circuit concluded that the arbitrator was "evidently partial" as a result of his failure to disclose his law firm's prior representations of the prevailing party's parent company. In reaching this conclusion, the court stated that "'evident partiality' is present when undisclosed facts show a 'reasonable impression of partiality'" and that "nondisclosure cases [do not] require[] proof of actual bias in showing 'evident partiality.'" Schmitz, 20 F.3d at 1046. Additionally, the Schmitz court went further and addressed the issue of the arbitrator's lack of actual knowledge of the underlying undisclosed facts and concluded that a "reasonable impression of partiality" may exist even though an arbitrator lacks actual knowledge of underlying undisclosed facts, if the arbitrator has constructive 61 1120532 knowledge of those facts. Schmitz, 20 F.3d at 1049. Specifically, the court stated: "Appellants claim that [the arbitrator] should have disclosed his law firm's former legal representation of [the parent company], the owner of [subsidiary]. Appellants argue also that if [the arbitrator] did not know that [the parent company] was a client of his firm, he should have investigated. "The district court rejected both contentions, holding that [the arbitrator] was not aware of the conflict and had no duty to investigate. Some courts have considered an arbitrator's lack of knowledge as a factor in determining whether evident partiality was present. See, e.g., [Middlesex Mut. Ins. Co. v.] Levine, 675 F.2d [1197] at 1201–02 [(11th Cir. 1982)]; Overseas Private Inv. Corp. v. Anaconda Co., 418 F. Supp. 107, 109–12 (D.D.C. 1976). The district court in this case made this factor decisive. The district court's conclusion appears to be premised on the idea that no person could reasonably conclude that an arbitrator could act partially based on facts of which he was unaware. Anaconda, 418 F. Supp. at 112. This premise is Appellees' only argument on appeal regarding the evident partiality of [the arbitrator]. "Appellants have a better argument. Though lack of knowledge may prohibit actual bias, it does not always prohibit a reasonable impression of partiality. As Appellants argue, an arbitrator may have a duty to investigate independent of its Commonwealth Coatings duty to disclose. A violation of this independent duty to investigate may result in a failure to disclose that creates a reasonable impression of partiality under Commonwealth Coatings. For instance, the parties can expect a lawyer/arbitrator to investigate and disclose conflicts he has with actual parties to the arbitration. Close v. Motorists Mut. Ins. Co., 21 62 1120532 Ohio App. 3d 228, 486 N.E. 2d 1275 (1985) (holding that the failure to do so created a reasonable impression of partiality under Commonwealth Coatings). The NASD Code required [the arbitrator], a lawyer, to make such an investigation regarding the actual parties to this arbitration. In the typical lawyer/arbitrator's case, lack of knowledge of a conflict may preclude a finding of actual bias. However, a reasonable impression of partiality can form when an actual conflict of interest exists and the lawyer has constructive knowledge of it. 486 N.E.2d at 1278–79. That the lawyer forgot to run a conflict check or had forgotten that he had previously represented the party is not an excuse. See In re Siegal, 153 N.Y.S.2d 673 (Sup.Ct. 1956). Also, an arbitrator may not know facts of which he may have been suspicious or of which he was on notice which, if true, would create a reasonable impression of partiality if not investigated and disclosed. "Requiring arbitrators to make investigations in certain circumstances gives arbitrators an incentive to be forthright with the parties, honestly disclosing what arbitrators might otherwise have an incentive to hide. Commonwealth Coatings establishes that the parties rather than the arbitrators or the courts should be the judges of the partiality of arbitrators: "'In many cases the arbitrator might believe the business relationship to be so insubstantial that to make a point of revealing it would suggest he is indeed easily swayed, and perhaps a partisan of that party. But if the law requires the disclosure, no such imputation can arise. And it is far better that the relationship be disclosed at the outset, when the parties are free to reject the arbitrator or accept him with knowledge of the relationship and continuing faith in his objectivity, than to have the relationship 63 1120532 come to light after the arbitration, when a suspicious or disgruntled party can seize on it as a pretext for invalidating the award. The judiciary should minimize its role in arbitration as judge of the arbitrator's impartiality. That role is best consigned to the parties, who are the architects of their own arbitration process, and are far better informed of the prevailing ethical standards and reputations within their business.' "393 U.S. at 151, 89 S.Ct. at 340 (White, J., concurring) (footnote omitted). If the parties are to be judges of the arbitrators' partiality, duties to investigate and disclose conflicts must be enforced, even if later a court finds that no actual bias was present. See Close, 486 N.E.2d at 1278–79. We therefore decline to adopt a per se rule that no reasonable impression of partiality can be found absent a showing that the arbitrator knew the facts on which it is based. "In this case, [the arbitrator] had a duty to investigate the conflict at issue. Section 23(a) & (b) of the NASD Code requires arbitrators to 'make a reasonable effort to inform themselves of any' 'existing or past financial, business, [or] professional ... relationships [that they or their employer, partners, or business associates may have] that are likely to affect impartiality or might reasonably create an appearance of partiality or bias.' ... "[The arbitrator] ... had a duty under the NASD Code to make a reasonable effort to inform himself of his firm's representation of [the parent company]. [The arbitrator] did nothing to fulfill that duty. Thus, though he lacked actual knowledge, he had constructive knowledge of his firm's previous representation of [the parent company]. Given [the arbitrator's] constructive knowledge and the presence of the conflict, [the arbitrator's] 64 1120532 failure to inform the parties to the arbitration resulted in a reasonable impression of partiality under Commonwealth Coatings. See Close, 486 N.E.2d at 1278–79." Schmitz, 20 F.3d at 1048-49. The Schmitz decision espouses the majority view in the federal courts in determining whether an "evident partiality" exists under 9 U.S.C. § 10(a)(2) in the context of a failure- to-investigate/failure-to-disclose case. See generally New Regency Productions, supra. We believe the holding in Schmitz is the better view and conclude that the "reasonable- impression-of-partiality" standard constituting an "evident partiality" under 9 U.S.C. § 10(a)(2) may be satisfied even though an arbitrator lacks actual knowledge of the facts giving rise to the conflict of interest when the arbitrator was under a duty to investigate in order to discover possible conflicts and failed to do so. In such a situation the arbitrator will be deemed to have constructive knowledge of the conflict of interest, and the failure to disclose the conflict may result in a "reasonable impression of partiality." Schmitz, 20 F.3d at 1048-49. The arbitration proceeding in this case was governed by the FINRA Rules as agreed upon by the parties in their 65 1120532 contracts. Those agreed-upon rules deal with arbitration in a highly specialized field of law and finance and impose upon an arbitrator, both prospective and sitting, a stringent and ongoing duty to disclose potential conflicts. The FINRA arbitrator-disclosure requirements "strongly encourage[] arbitrators to make a wide variety of disclosures [and] ... when in doubt, always err in favor of making a disclosure," because meeting the disclosure requirement is part of an "arbitrator's overarching duty." Thus, it is within the context of the FINRA Rules that we must determine whether the Fund has demonstrated an evident partiality on the part of Kunis pursuant to 9 U.S.C. § 10(a)(2). We note that the FINRA Rules imposed upon Kunis the duty to "make a reasonable effort to learn of and ... disclose ... any circumstances which might preclude the arbitrator from rendering an objective and impartial determination in the proceeding, including" (1) "[a]ny existing or past financial, business, professional, family, social, or other relationships or circumstances with any party ... that are likely to affect impartiality or might reasonably create an appearance of partiality or bias"; and (2) "[a]ny such relationship or circumstances involving ... the arbitrator's current 66 1120532 employers, partners, or business associates." The trial court found in its order that "had a basic conflict check been conducted by Kunis, the relationships between [Maxim Group and Morgan Keegan], and possibly between [Maxim Group] and Greenberg Traurig, would have been revealed." Indeed, since 2002, Kunis had been a vice president and partner in Maxim Group, a relatively small investment firm. As an officer and partner in the firm, Kunis would have had a substantial interest in the firm's business dealings, including any litigation in which it was involved. Finally, we note that the evidence indicates that the business relationship present here between Maxim Group and Morgan Keegan was not fleeting and that the two firms "did more than trivial business" with each other. See Olson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 51 F.3d 157, 159 (8th Cir. 1995). Thus, we conclude, as did the trial court, that a cursory conflict check by Kunis would have revealed the business relationships between Maxim Group, Morgan Keegan, and Greenberg Traurig. The FINRA Rules imposed upon Kunis the duty to make a reasonable effort to discover the business relationship between Maxim Group, Morgan Keegan, and Greenberg Traurig, and he did nothing to satisfy this duty. Although Kunis may have 67 1120532 lacked actual knowledge of the business relationship between Maxim Group, Morgan Keegan, and Greenberg Traurig, he had constructive knowledge of the business relationship between those parties. Schmitz, 20 F.3d at 1048-49. Because Kunis had constructive knowledge of the business relationship between Maxim Group, Morgan Keegan, and Greenberg Traurig, and because of the presence of the conflict itself, Kunis's failure to disclose this relationship resulted in a reasonable impression of partiality. Waverlee Homes, supra, Schmitz, supra. Additionally, given the nature and extent of the business relationship between Maxim Group, Morgan Keegan, and Greenberg Traurig, as discussed in detail above, we conclude that the impression of bias arising from that relationship is direct, definite, and capable of demonstration. Waverlee Homes, supra. Accordingly, we conclude from the admissible evidence discussed above that the Fund has established an evident partiality on the part of Kunis under 9 U.S.C. § 10(a)(2) and that the Fund is entitled to have the judgment entered on the arbitration award vacated. Because we have found an evident partiality as to Kunis, we pretermit discussion as to whether the Fund demonstrated an evident partiality as to Julavits. 68 1120532 "A finding of evident partiality in one arbitrator generally requires vacatur of the arbitration award. As stated in Wheeler v. St. Joseph Hospital, 63 Cal.App.3d 345, 133 Cal.Rptr. 775 (1976): 'The arbitrators are not isolated from each other; they hear and decide the case as a panel after joint discussion, debate and deliberation. Each panel member has an opportunity to persuade the others.' 133 Cal.Rptr. at 793. Thus, notwithstanding a majority of an arbitration panel is required to enter any arbitration award, when one arbitrator is evidently partial, the panel's award must generally be suspect. This conclusion holds particularly when the other panel members vote with the evidently partial arbitrator, as will be the case in most awards that are later challenged." Schmitz, 20 F.3d at 1049. Conclusion We reverse the judgment of the trial court denying the Fund's motion to vacate the judgment entered on the arbitration award and remand the case for proceedings consistent with this opinion. Because we have found that evident partiality exists as to Kunis under 9 U.S.C. § 10(a)(2), we pretermit discussion of the remaining issues raised by the Fund. REVERSED AND REMANDED. Stuart, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. 69 1120532 Murdock, J., concurs specially.* Moore, C.J., concurs in the result. *Although Justice Murdock did not attend oral argument in this case, he has viewed a video recording of that oral argument. 70 1120532 MURDOCK, Justice (concurring specially). The main opinion notes that Morgan Keegan & Company, Inc., and Morgan Asset Management, Inc. ("MAM"), argue for the "affirmance of the trial court's order on an alternative ground that was presented to the trial court but that was not relied upon by the trial court." ___ So. 3d at ___. Quoting McMillan, Ltd. v. Warrior Drilling & Engineering Co., 512 So. 2d 14, 24 (Ala. 1986), the main opinion explains that the assertion of this "alternative ground" need not be by way of a cross-appeal. I agree. I write separately to add that I see nothing in McMillan, or the authorities cited therein, that in any way suggests that this Court could affirm a judgment on an alternative ground that is not, as we have so often put it, a "valid legal ground." See generally Pavilion Dev., L.L.C. v. JBJ P'ship, 979 So. 2d 24, 42-43 (Ala. 2007) (Murdock, J., concurring specially). That is, as an appellate court, we cannot affirm a judgment upon some alternative ground presented to, but not decided by, the trial court, unless it involves a pure question of law that we can decide in favor of the party that prevailed in the trial court, or some question of fact that we can decide in that party's favor as a matter of law, without giving rise to due-process 71 1120532 concerns. See Hamm v. Norfolk Southern Ry., 52 So. 3d 484, 491 (Ala. 2010); Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So. 2d 1013, 1020 (Ala. 2003); Gore v. White, 96 So. 3d 834, 844 (Ala. Civ. App. 2012); and Gartman v. Hill, 874 So. 2d 555, 559 (Ala. Civ. App. 2003). 72	April 3, 2015
2240d58e-5a57-4df2-a954-9273a34beb5e	Branch Banking & Trust Co. v. Nichols	N/A	1130631	Alabama	Alabama Supreme Court	Rel: 4/24/15 Modified on denial of reh'g: 7/10/15 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 ____________________ 1130631 ____________________ Branch Banking & Trust Company et al. v. Rex A. Nichols and Claudene Nichols Appeal from Baldwin Circuit Court (CV-10-900411) BRYAN, Justice. Branch Banking & Trust Company ("BB&T"), Rusty Winfree, and Todd Fullington (hereinafter collectively referred to as "the appellants") appeal a judgment entered by the Baldwin Circuit Court in favor of Rex A. Nichols ("Sonny") and Claudene Nichols ("Claudene") on the Nicholses' claims against 1130631 the appellants and on BB&T's counterclaim against the Nicholses. We reverse the circuit court's judgment and remand the cause to the circuit court for further proceedings. Facts and Procedural History In late 2005, Sonny began talking to Winfree about obtaining financing from Colonial Bank ("Colonial"), Winfree's employer, for the purchase of approximately 500 acres of real property in Stapleton, Alabama ("the Stapleton property"). The Nicholses intended to develop the Stapleton property into a subdivision. Both Sonny and Claudene had worked in the real-estate market in Baldwin County for several years before the events underlying this action. The Nicholses had a long- standing relationship with Colonial and had worked with Winfree on prior loans for real-estate-development projects. Sonny testified that he and Winfree were "business friendly" and that he treated Winfree like a confidant and trusted him to be honest with him. In December 2005, Sonny wrote Winfree a letter describing a development opportunity for the Stapleton property and requesting financing through Colonial for purchasing the Stapleton property. The letter did not set forth the 2 1130631 requested terms for the proposed financing, but Sonny testified that he had been talking to Winfree about structuring the loan as a "carried-interest" loan, the terms of which were to be similar to those Colonial had given the Nicholses when financing a prior development project ("the Sehoy project"). The Nicholses describe the loan for the Sehoy project as follows: "The loan to acquire and develop Sehoy was known as a 'carried interest loan,' on which interest accrues and is added to the principal balance of the loan. 'Development costs,' the money for constructing the streets and connected structures, are part of the loan balance. The bank is repaid by receiving 80-90 percent of the proceeds from lot sales." The Nicholses' brief, at 7.1 Around February 6, 2006, Sonny contacted Winfree and asked whether the requested financing for the Stapleton property had been approved. Sonny indicated that he needed to know whether the loan had been approved so that he could send $214,000 in earnest money as a down payment to purchase from Blue Sky Timber Properties, LLC ("Blue Sky"), 362 acres of the Stapleton property owned by Blue Sky. Sonny testified that The appellants note that "[t]he testimony concerning 1 terms such as 'carried interest' was admitted over objection. Even if true, [the appellants] submit that such evidence would not be material." Appellants' brief, at 10 n.5. 3 1130631 Winfree told him that the loan had been approved and that he could send the earnest money, which, Sonny states, was nonrefundable. Sonny paid the earnest money for the purchase of the 362 acres from Blue Sky. On February 13, Winfree informed Sonny that Colonial had not yet approved the loan for the Stapleton property, which included the 362 acres.2 In mid-February 2006, the Nicholses met with Winfree and Fullington, who was Winfree's supervisor at Colonial, to discuss the financing for the Stapleton property. Laura Hotard Scott, who worked as Sonny's executive assistant on development projects, also attended the meeting. Sonny testified that, at the meeting, Fullington apologized to the Nicholses, stating that Colonial could not make a carried- interest loan for the Stapleton property at that time but that, if the Nicholses would pay the interest on the loan for the first two years, Colonial would "put the interest from that property onto the development loan," i.e., it would carry The appellants argue that, although Sonny says that the 2 $214,000 earnest money was nonrefundable, the Nicholses' contract with Blue Sky was not effective until signed by Blue Sky, which, the appellants argue, did not occur until February 21. The Nicholses were informed on February 13 that the loan had not been approved. Thus, the appellants argue, the Nicholses had time to get their earnest money back from Blue Sky. 4 1130631 the interest on the loan going forward. Scott also testified that Fullington promised the Nicholses, if they would "do the initial purchase of the land and pay the interest for two years, that after that two-year period, [Colonial] would ... rework the loan with the interest and the development costs to proceed with the project." Fullington testified that he did not remember making that promise. On February 27, 2006, the Nicholses executed a loan agreement with Colonial, in which Colonial agreed to lend the Nicholses, "upon the terms and subject to the conditions herein set forth, a loan in the principal amount up to but not exceeding the sum of $2,734,515.00," which was to be "used by [the Nicholses] for business purposes only to purchase the [Stapleton] property." The loan agreement went on to provide that the loan would be "evidenced by and subject to the terms of a promissory note of even date herewith in a form satisfactory to [Colonial], executed by [the Nicholses], and any renewals, modifications or extensions thereof" and would be secured by, among other things, a mortgage on the Stapleton property. The promissory note and mortgage were also executed on February 27, 2006. 5 1130631 Section 8.02 of the loan agreement provided, in pertinent part: "All covenants, agreements, representations and warranties made herein or in connection herewith shall survive the execution and delivery hereof and shall continue in full force and effect so long as the Loan or other Liabilities, indebtedness or other obligations to [Colonial] are outstanding and unpaid, and each representation and warranty shall be deemed to have been reaffirmed at the time each advance is made hereunder." Section 8.09 of the loan agreement provided, among other things: "[The loan] agreement, together with the Note and the other Loan Documents, constitutes and embodies the entire agreement and understanding between the parties, supersedes all prior agreements, representations and understandings related to the subject matter hereof or thereof, and may not be modified or amended except by a written agreement executed by the [Nicholses] and [Colonial]. No oral promise, agreement, representation or statement made by [Colonial] may be relied upon, or create any liabilities of [Colonial] and shall not be binding or have any effect whatsoever unless reduced to writing and executed by [Colonial]." The promissory note provided, in pertinent part: "[The Nicholses] ... HEREBY PROMISE TO PAY, to the order of Colonial Bank, N.A. or its assigns ..., to such account or place as the holder hereof may designate in writing, the principal sum of TWO MILLION SEVEN HUNDRED THIRTY FOUR THOUSAND FIVE HUNDRED FIFTEEN and NO/100 UNITED STATES DOLLARS (US $2,734,515.00) or such lesser amount as shall be outstanding at maturity, together with interest on 6 1130631 the outstanding principal amount of this Note from the date hereof until such principal has been paid in full, at a variable rate per annum equal to the 30-day LIBOR Index plus 2.25 percent to be adjusted with a floor of 6.86%. [The Nicholses] shall pay interest monthly on the 27th day of each month commencing March 27, 2006 and the 27th day of each month thereafter. The outstanding principal amount under this Note, together with all unpaid interest and any other costs outstanding pursuant to the Loan Documents shall be due and payable on February 27, 2008 (the 'Maturity Date')." Using the loan funds, Sonny purchased the Stapleton property, and the Nicholses began paying interest on the loan, in accordance with the terms of the loan documents. Sonny testified that in late 2007, as the maturity date on the note approached, he began contacting Colonial regarding renewing the loan; he further testified that, around the same time, Winfree became slow to communicate with him. Sonny also testified that before the February 27, 2008, maturity date on the promissory note, he spoke to Fullington about renewing the loan, with Colonial carrying the interest going forward. The February 27 maturity date passed without any change being made to the terms of the loan. On March 11, 2008, the Nicholses were notified that Colonial would not carry the interest on the loan or provide additional funds for development of the property. On March [substituted p.7] 1130631 18, 2008, the Nicholses signed the first of several 90-day- extension agreements, in which they promised to continue paying interest pursuant to the terms of the original loan documents in exchange for extending the maturity date on the note. Sonny testified that, at the time he signed the loan- extension agreements, he was in severe financial distress because of Colonial's failure to carry the interest on the loan. On September 18, 2008, the Nicholses entered into another 90-day-extension agreement for repayment of the loan. The September 18 extension included both 'release' and 'covenant not to sue' provisions. The release provision of the September 18 extension provided, in pertinent part: "In consideration of the agreements of [Colonial] contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, [the Nicholses] ... hereby absolutely, unconditionally and irrevocably release[], remise[] and forever discharge[] [Colonial], and its successors and assigns, ... ([Colonial] and all such other Persons being hereinafter referred to collectively as the 'Releasees' and individually as a 'Releasee'), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever ... of every name 8 1130631 and nature, known or unknown, suspected or unsuspected, both at law and in equity, which [the Nicholses] ... may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstances, action, cause or thing whatsoever which arose or has arisen at any time on or prior to the day and date of this Agreement, including, without limitation, for or on account of, or in relation to, or in any way in connection with the Premises, ... the purchase thereof, the originator of any loan related to the Premises, ... the Loan Documents or this Agreement or transactions thereunder or related therein." Sonny argues that in late 2008 and early 2009 he made proposals to Colonial on how the Nicholses might reduce the loan balance. He also testified that he continued to discuss development of the Stapleton property with Colonial throughout 2008 and that Colonial's officers expressed concerns about whether a market existed for the planned development on the property. Sonny testified that he talked to Fullington about selling five-acre parcels on the Stapleton property. Sonny testified that Fullington said, "Show me there's a market," which, Sonny testified, he understood to mean that, if Sonny could show Colonial that a market existed for five-acre parcels, Colonial would lend the Nicholses additional money to develop the Stapleton property to serve that market. Fullington testified, however, that he made no promise to 9 1130631 Sonny on behalf of Colonial that if Sonny could demonstrate that a market existed for five-acre parcels on the Stapleton property, Colonial would lend the Nicholses additional money to develop that property. On June 5, 2009, the Nicholses and Colonial executed a "First Amendment to Loan and Security Agreement," in which Colonial agreed to extend the maturity date on the note for one year in exchange for a principal-reduction payment of $135,000 from the Nicholses. The parties renewed the promissory note with a new maturity date of June 5, 2010. Aside from a few specific additions unrelated to our analysis here, the other terms of the loan agreement and other loan documents remained in effect. Sonny again testified that the Nicholses executed the amended loan agreement because Colonial's failure to renew the loan to the carry the interest had put them in a distressed financial condition. Between June 10, 2009, and June 23, 2009, Sonny and his son obtained sales contracts for eight parcels of the Stapleton property, but Sonny testified that, when he showed those contracts to Fullington and asked Colonial to release the lots from the mortgage securing the promissory note on the 10 1130631 property, Fullington insisted that Sonny provide him with closing dates for those sales, not merely sales contracts. Sonny testified that he and Fullington reached an agreement that, as a condition to releasing the parcels from the mortgage, Colonial would receive 80% of the proceeds from the sale of parcels on the Stapleton property. Fullington testified that he agreed to ask Colonial about releasing the parcels for 80% of the sales proceeds but that Colonial did not immediately agree to that arrangement. Sonny testified that, after his meeting with Fullington, he spent $55,000 to have a plat created for the Stapleton property so that he would be able to close the sales. Colonial failed, and on August 14, 2009, the FDIC assumed control of its assets and liabilities. The FDIC sold many of Colonial's assets and liabilities to BB&T, including the Nicholses' loan. Fullington was hired by BB&T; Winfree was not. In October 2009, Fullington informed Sonny that BB&T would release lots from the mortgage in exchange for 90% of the sale proceeds. Sonny testified that because of the delay in getting the lots released from the mortgage, Sonny was 11 1130631 successful in closing only four of the sales for which he had initially obtained contracts. In early November 2009, BB&T informed the Nicholses that it would not lend them additional funds to develop the property. Sonny testified that this was the first time he had been informed that no development loan would be forthcoming. The Nicholses stopped making interest payments on the loan in November 2009. On March 10, 2010, the Nicholses sued the appellants and fictitiously named defendants, alleging fraud, reformation, negligence, wantonness, and breach of fiduciary duty against all appellants. Against BB&T, the Nicholses also alleged a claim of unjust enrichment and sought damages on a theory of promissory estoppel. The appellants separately moved the circuit court to dismiss the complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., alleging that the Nicholses had failed to state a claim upon which relief could be granted. BB&T also filed a counterclaim, alleging that the Nicholses had defaulted on their obligations under the June 5, 2009, promissory note and seeking damages related to that default. The appellants also moved to strike the Nicholses' demand for a jury trial on the basis that the Nicholses had 12 1130631 waived their right to a jury trial in the promissory note. The circuit court denied the motions to dismiss the complaint but granted the motion to strike the request for a jury trial. In July 2012, the Nicholses amended their complaint to add a claim alleging breach of contract against BB&T and to request a judgment declaring the parties' obligations to each other in light of BB&T's counterclaim. The appellants moved the circuit court for a summary judgment, alleging, among other things, that the Nicholses' claims were barred by the Statute of Frauds. The circuit court denied that motion. The appellants moved the circuit court to strike the first amended complaint, and the circuit court denied the motion. BB&T filed a supplemental motion for a partial summary judgment, alleging that the Nicholses' breach-of-contract claim, which had been added in the amended complaint, was barred by the Statute of Frauds, which motion was also denied. The circuit court held a trial on three separate days between October 2012 and September 2013. At the close of the Nicholses' evidence and again at the close of the appellants' evidence, the appellants moved for a judgment on partial findings, pursuant to Rule 52, Ala. R. Civ. P. Those motions 13 1130631 were denied. On November 5, 2013, the circuit court entered a judgment in favor of the Nicholses on their claims against the appellants, awarding them $642,000 against Winfree and $11,554,754.84 against Fullington and BB&T. The circuit court also found in favor of the Nicholses on BB&T's counterclaim against them. The circuit court did not provide in its judgment any findings of fact or conclusions of law, noting that no such findings or conclusions had been requested by the parties. Costs were taxed to the appellants. The appellants filed a motion to alter, amend, or vacate the circuit court's judgment and moved the circuit court to make specific findings of fact and to itemize the damages. On November 25, 2013, the appellants also moved for a stay of the judgment and a supersedeas bond. The stay and the bond were granted. The motion to alter, amend, or vacate was denied by operation of law. Issues The appellants allege several grounds as reasons for which, they argue, the circuit court erred in entering a judgment in favor of the Nicholses. Specifically, they argue that the Nicholses' claims are precluded under the Statute of 14 1130631 Frauds, that the circuit court erred by allowing parol evidence of the alleged oral promises that contradicted the written loan documents, and that the circuit court erred "by permitting the Nichols[es] to rely upon oral statements which were not sufficiently definite to be enforceable." Appellants' brief, at 4. The appellants also argue that the Nicholses' recovery is barred pursuant to the legal doctrine set forth in D'Oench, Dume & Co. v. FDIC, 315 U.S. 447 (1842), and the applicable statute of limitations and that the circuit court erred by failing to find that any reliance by the Nicholses on the alleged oral promises by the appellants was unreasonable as a matter of law. The appellants also argue that the circuit court erred by failing to enforce the release provisions in the loan documents. The appellants also argue that the circuit court erred "in admitting the testimony of expert witnesses who were not disclosed timely, who were incompetent to testify, or who were permitted to testify on matters of law" and by allowing the Nicholses to amend their complaint more than two years after initiating the action without seeking leave of the court or 15 1130631 otherwise showing good cause. Appellants' brief, at 6-7. Finally, BB&T argues that the circuit court erred in denying its counterclaim against the Nicholses. Standard of Review "Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. '"When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error."' Smith v. Muchia, 854 So. 2d 85, 92 (Ala. 2003) (quoting Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379 (Ala. 1996)). "'....' "... However, 'that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.' Ex parte Board of Zoning Adjustment of Mobile, 636 So. 2d 415, 417 (Ala. 1994)." Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010). Under the ore tenus standard, questions of law are reviewed de novo, see R&G, LLC v. RCH IV WB, LLC, 122 So. 3d 1253, 1256 (Ala. 2013) ("We review questions of law de novo."), and, "'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."'" 16 1130631 Merchants Bank v. Head, [Ms. 1121142, May 30, 2014] ___ So. 3d ___, ___ (Ala. 2014) (quoting New Props., L.L.C. v. Stewart, 905 So. 2d 797, 799 (Ala. 2004), quoting in turn Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So. 2d 375, 378 (Ala. 1992)). Analysis The appellants first argue that the circuit court erred in entering a judgment in favor of the Nicholses because "[t]he Alabama Statute of Frauds bars all of the Nichols[es]' claims as a matter of law." Appellants' brief, at 25. Alabama's Statute of Frauds provides: "In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing: ".... "(7) Every agreement or commitment to lend money, delay or forebear repayment thereof or to modify the provisions of such an agreement or commitment except for consumer loans with a principal amount financed less than $25,000 ...." § 8-9-2, Ala. Code 1975. 17 1130631 The Nicholses' breach-of-contract claim against BB&T is based on Fullington's alleged promises that Colonial would carry the interest on the loan after the initial two-year term and would lend the Nicholses additional money for development of the Stapleton property. No party disputes that such agreements are subject to the Statute of Frauds. The parties disagree, however, as to whether the existing agreements satisfy the requirement in § 8-9-2 that the agreements to carry interest on the loan and to lend additional money be memorialized in writing. The appellants argue that there are no written documents memorializing the alleged promises to carry the interest on the loan or to lend the Nicholses additional money to fund development of the Stapleton property. The Nicholses argue, in contrast, that § 8.02 of the loan agreement provides for the "survival" of "agreements ... made ... in connection" with the initial loan and that the mortgage contemplates the assumption of additional debt that would be secured by the property subject to the mortgage. The Nicholses also cite "memoranda signed by [Colonial]" that, they argue, "reflect 18 1130631 the essential terms of the agreement and the consideration." The Nicholses' brief, at 37. The Nicholses argue: "The [memoranda] indicate that the loan will be repaid from 'future development' of the land. Moreover, according to these memoranda, Sonny will 'hold the property for a period of at least two years before development.' The memoranda describe a 'maturity' date for the loan in two years, but other parts show that payment is not expected at that time. The documents show that the source of repayment is 'future development,' not to occur for at least two years." The Nicholses' brief, at 38. Citing Truck Rentals of Alabama, Inc. v. M.O. Carroll- Newton Co., 623 So. 2d 1106 (Ala. 1993), and City of Greenville v. Greenville Waterworks Co., 125 Ala. 625, 27 So. 764 (1900), the Nicholses argue that, in light of the loan agreement, the mortgage, and the memoranda, the "[a]ppellants are wrong to argue ... that there is no writing supporting any oral promise claimed by the Nichols[es]." The Nicholses' brief, at 38. However, the documents at issue in Truck Rentals and City of Greenville contained more than just the general language relied on by the Nicholses here. In Truck Rentals, this Court stated: "We agree that the documents taken together suffice to meet the requirement of the Statute of Frauds. The negotiated contract constitutes an 19 1130631 'agreement or some note or memorandum thereof expressing the consideration ... in writing,' and the invoices submitted by [Truck Rentals of Alabama ('TRA')] to M.O. Carroll[-Newton Co. ('M.O. Carroll')], as well as TRA's endorsements of checks submitted by M.O. Carroll, are sufficient under these circumstances to meet the requirement of the Statute of Frauds that the writing be 'subscribed by the party to be charged therewith.'" 623 So. 2d at 1112. In City of Greenville, we noted that an ordinance passed by Greenville's city council, which set out the terms of the agreement sought to be enforced in that case, was sufficient to comply with the Statute of Frauds. In contrast to Truck Rentals and City of Greenville, none of the documents cited by the Nicholses here includes any mention of carried interest on the loan or provides for an additional development loan for the Stapleton property. The general statements in the memoranda that repayment was anticipated through future development does not constitute an agreement to lend additional funds to enable that development. Contrary to the Nicholses' arguments, the alleged oral agreements to modify the loan after the initial two-year term so that the loan would carry interest going forward and to lend additional funds for development of the Stapleton property are not supported by writings sufficient to satisfy 20 1130631 the Statute of Frauds. See DeFriece v. McCorquodale, 998 So. 2d 465, 471 (Ala. 2008) ("[T]hese deeds contain no language that would indicate the Ernest Jr. and Nell actually made the misrepresentations they are accused of making; rather they are standard deeds conveying and partitioning property. 'Although a writing relied on to satisfy the Statute of Frauds need not be a complete contract, it must contain the essential terms of the alleged contract, "namely, an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement."'" (quoting Fausak's Tire Ctr., Inc. v. Blanchard, 959 So. 2d 1132, 1138 (Ala. Civ. App. 2006), quoting in turn Davis v. Barnfield, 833 So. 2d 58, 62 (Ala. Civ. App. 2002))). Therefore, the Nicholses' breach-of-contract claim based on those alleged agreements is barred under the Statute of Frauds. The Nicholses have also alleged several tort claims against the appellants. Specifically, they argue that Winfree and Fullington made fraudulent representations to the Nicholses to induce them to enter into the loan agreement and that BB&T was unjustly enriched by the interest and fees it collected on the loan after the first two years, when it 21 1130631 refused to carry interest on the loan going forward. They also argue that the appellants negligently and/or wantonly breached duties of ordinary care and good faith and breached fiduciary duties owed to the Nicholses in negotiating and making the loan because they made representations that they knew or should have known would induce the Nicholses to "commit substantial funds and enter into long term financial obligations based upon their representations and agreements," and that resulted in the Nicholses becoming "obligated on a loan under terms to which [they] never agreed." The Nicholses also argued that appellants negligently breached their duties of ordinary care and good faith by failing to lend them additional funds to enable development of the Stapleton property and sale of the subdivision lots.3 This Court has stated: "As a general rule, '[i]f the proof of a promise or contract, void under the statute of frauds, is essential to maintain the action, there may be no recovery.' Pacurib v. Villacruz, 183 Misc. 2d 850, 861, 705 N.Y.S. 2d 819, 827 (N.Y. Civ. Ct. 1999) (emphasis added); see also Dwight v. Tobin, 947 F.2d 455, 460 (11th Cir. 1991); McDabco, Inc. v. Chet Adams Co., 548 F. Supp. 456, 458 (D.S.C. 1982) (it is a 'well accepted doctrine that one cannot circumvent the Statute of Frauds by bringing an Apparently the claim seeking reformation was abandoned. 3 22 1130631 action in tort, when the tort action is based primarily on the unenforceable contract'); Weakly v. East, 900 S.W.2d 755 (Tex. Ct. App. 1995). This is so, because, '[i]f a plaintiff was allowed to recover the benefit of a bargain already barred by the statute of frauds, the statute of frauds would become meaningless.' Sonnichsen v. Baylor University, 47 S.W.3d 122, 127 (Tex. Ct. App. 2001). 'Thus, the statute of frauds bars a [tort] claim when a plaintiff claims as damages the benefit of the bargain that he would have obtained had the promise been performed.' Id. (emphasis added)." Holman v. Childersburg Bancorporation, Inc., 852 So. 2d 691, 699 (Ala. 2002). The Court in Holman went on to state: "In accord with the general rule, we hold that where, as here, an element of a tort claim turns on the existence of an alleged agreement that cannot, consistent with the Statute of Frauds, be proved to support a breach-of-contract claim, the Statute of Frauds also bars proof of that agreement to support the tort claim. Were the rule otherwise, the Statute of Frauds could be effectively avoided by the simple wording of the complaint." Holman, 852 So. 2d at 701. The Court went on to conclude that the Holmans' various tort claims failed as a matter of law because they all "turn[ed] on proof of an alleged oral promise" that was precluded by the Statute of Frauds. 852 So. 2d at 702. Like the tort claims in Holman, the Nicholses' tort claims all turn on proof of alleged representations or 23 1130631 promises that are invalid under the Statute of Frauds –- namely, that Colonial would modify the loan after the initial two-year term so that Colonial would carry the interest going forward and that Colonial would lend additional funds for development of the Stapleton property. Because those tort claims "turn[] on the existence of ... alleged agreement[s] that cannot, consistent with the Statute of Frauds, be proved to support a breach-of-contract claim, the Statute of Frauds also bars proof of [those] agreement[s] to support the tort claim[s]." Holman, 852 So. 2d at 701. Thus, the Nicholses' tort claims also fail as a matter of law. The Nicholses have also claimed damages under a theory of promissory estoppel, alleging that BB&T is estopped from "denying its obligations and not fulfilling its promises to fund the loan to develop the property" and from denying the Nicholses reimbursement "for the damage occasioned by [their] reliance on the promises made and the misrepresentations and wrongful acts of [Colonial]." This Court has stated: "The purpose of equitable estoppel and promissory estoppel is to promote equity and justice in an individual case by preventing a party from asserting rights under a general technical rule of law when his own conduct renders the assertion of such rights contrary to equity and good conscience. 24 1130631 First National Bank of Opp v. Boles, 231 Ala. 473, 479, 165 So. 586, 592 (1936). ".... "Except for the nature of the conduct on which the estoppel is based, the elements of equitable and promissory estoppel are essentially the same. "Promissory estoppel is defined in Bush v. Bush, 278 Ala. 244, 245, 177 So. 2d 568, 578 (1964): "'"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." Restatement of the Law of Contracts, § 90, page 110.' ".... "The basic elements of equitable estoppel are stated in Dobbs, Remedies § 2.3 (1973): "'An estoppel ... has three important elements. The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.'" 25 1130631 Mazer v. Jackson Ins. Agency, 340 So. 2d 770, 772-73 (Ala. 1976).4 The appellants argue that the Nicholses cannot recover on a promissory-estoppel theory because "promissory estoppel [cannot] be used to enforce an oral agreement that [is] void under the Statute of Frauds." Appellants' brief, at 41. We agree. This Court has stated: "[T]o the extent ... the defendants rely on the doctrine of promissory ... estoppel, their argument is foreclosed by the implications of Darby [v. Johnson, 477 So. 2d 322 (Ala. 1985),] and the clear holdings of our other cases. See, e.g., Hurst v. Thomas, 265 Ala. 398, [402,] 91 So. 2d 692[, 695] (1956) [('It is well-settled in Alabama that "an executory agreement which is void under the statute of frauds cannot be made effectual by estoppel merely because it has been acted on by the promisee, and has not been performed by the promisor."')]. Although allowing a plaintiff's reliance on nonfraudulent representations to abrogate the Statute of Frauds is a widespread phenomenon, ... Alabama has rejected this approach to date, and the plaintiffs make no compelling arguments based on statutory construction or public policy inviting our reconsideration of this position." The appellants argue that the Nicholses did not allege 4 equitable estoppel until their posttrial brief and that they "have no right to raise such a defense for the first time after trial." Appellants' brief, at 43. However, the appellants have not cited any authority in support of this argument. See discussion, infra. 26 1130631 Durham v. Harbin, 530 So. 2d 208, 213 (Ala. 1988). Pursuant to our decisions in Durham and Hurst v. Thomas, 265 Ala. 398, 91 So. 2d 692 (1956), the Nicholses' reliance on Winfree's and Fullington's alleged "representations, promises, and agreements" that Colonial would modify the loan after the initial two years to carry the interest going forward and would lend additional funds to develop the Stapleton property does not "abrogate the Statute of Frauds." Durham, 530 So. 2d at 213. Therefore, the Nicholses' promissory-estoppel claim fails as a matter of law. The appellants also note that, "[i]n their post-trial promissory estoppel argument, the Nichols[es] also discussed equitable estoppel even though it was not pleaded." Appellants' brief, at 43. The appellants argue that, to the extent an equitable-estoppel claim was properly raised, it is defeated by the Statute of Frauds. The Nicholses argue that, although "equitable estoppel will not ... remedy the breach of a contract," the Nicholses' brief, at 52, the doctrine of equitable estoppel "provides the trial court necessary authority to prevent abuse of the statute of frauds," id., at 27 1130631 53, and "applies here to preclude [the appellants] from asserting the statute of frauds as a defense." Id., at 52. However, the Nicholses' estoppel claim is based on their allegations that Fullington represented to them that "[Colonial] would advance the funds necessary to construct the subdivision and [to] carry the interest for the next two (2) years," that they accepted those representations, and that they relied on those representations in paying interest under the terms of the loan documents. The Nicholses also argue that they relied on Fullington's alleged representation that "if [the] Nichols[es] would 'show us there is a market ... we'll advance the funds'" for development of the Stapleton property. These allegations are in the nature of promissory, rather than equitable, estoppel, see Mazer, supra, and, for the reasons set forth previously, fail as a matter of law. For the foregoing reasons, we hold that the circuit court erred in entering a judgment in favor of the Nicholses on their claims against the appellants. Our decision in this regard pretermits consideration of the appellants' remaining arguments. 28 1130631 The appellants also argue that the circuit court erred in entering a judgment in favor of the Nicholses on BB&T's counterclaim, in which BB&T alleged that the Nicholses had defaulted on their obligations under the renewed promissory note. The appellants argue on appeal that the Nicholses "admit that they executed each loan document," appellants' brief, at 59-60, and that "the note includes their promise to repay [Colonial] the principal plus interest." Id., at 60. The appellants also argue that Colonial's interest in the renewed note was assigned to BB&T and that "[t]here was no material dispute regarding the assignment or balance of the [renewed] note." Id. The Nicholses do not dispute the terms or validity of the renewed note or that Colonial's interest in the renewed note was assigned to BB&T. Instead, they argue that "BB&T should not receive a money judgment on its promissory note when its own conduct has prevented repayment in the manner contemplated by the parties in the Loan Agreement" (i.e., development of the Stapleton property) and that "given the additional agreement made in connection with the 2006 Loan Agreement, to carry interest after the first two years, any money that might 29 1130631 be owing in the future is not yet due." The Nicholses' brief, at 72-73. However, the Nicholses have cited no authority in support of their argument that BB&T is estopped from seeking enforcement of the promissory note, and the argument that the Nicholses' obligations under the note have not yet matured is based on the alleged oral agreement to carry the interest after the initial loan term, which agreement we have stated is invalid under the Statute of Frauds. Under the terms of the renewed note, the Nicholses were obligated to make monthly interest payments until the note matured on June 5, 2010, at which time "all outstanding principal, costs, and any accrued and unpaid interest [would] be due and payable in full." The renewed note also provided that "[f]ailure by the [Nicholses] to pay this Note on demand, or if no demand, at Maturity or a failure by the [Nicholses] to pay any installment payment required to be paid by this Note when due" constituted default under the renewed note. It is undisputed that the Nicholses stopped making interest payments in November 2009 and that the Nicholses did not pay the note in full by the June 5, 2010, maturity date. Therefore, the Nicholses are in default on the promissory 30 1130631 note, and the circuit court erred in entering a judgment in the Nicholses' favor on BB&T's counterclaim. Conclusion For the foregoing reasons, we hold that the circuit court erred in entering a judgment in favor of the Nicholses on their claims against the appellants and on BB&T's counterclaim against them. The judgment is, therefore, reversed and the cause is remanded with instructions to the circuit court to enter a judgment in favor of the appellants on the Nicholses' claims against them and in favor of BB&T on its counterclaim against the Nicholses and to determine the damages to be awarded on the counterclaim. REVERSED AND REMANDED WITH INSTRUCTIONS. Moore, C.J., and Bolin, Parker, and Murdock, JJ., concur. Main, J., recuses himself. 31	April 24, 2015
1d061981-3eff-4def-a30a-5174fe834b91	Ex parte Jimmy Williams, Jr.	N/A	1131160	Alabama	Alabama Supreme Court	rel: 03/27/2015 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 ____________________ 1131160 ____________________ Ex parte Jimmy Williams, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jimmy Williams, Jr. v. State of Alabama) (Montgomery Circuit Court, CC-98-2385.60; Court of Criminal Appeals, CR-12-1862) STUART, Justice. 1131160 This Court issued the writ of certiorari to review the decision of the Court of Criminal Appeals that the rule announced by the United States Supreme Court in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455 (2012), does not apply retroactively to cases that became final before its pronouncement. We affirm. Facts and Procedural History In August 2000, Jimmy Williams, Jr., was convicted of murder made capital because it was committed during a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, an offense he committed when he was 15 years old. In accordance with the applicable law at the time of Williams's sentencing, see § 13A-6-2(c), Ala. Code 1975, Thompson v. Oklahoma, 487 U.S. 815, 817 (1988), the trial court sentenced Williams to life imprisonment without the possibility of parole, the only possible sentence and one that was mandatory. The Court of Criminal Appeals affirmed Williams's conviction and sentence. Williams v. State, 830 So. 2d 45 (Ala. Crim. App. 2001), writ quashed, 830 So. 2d 45 (Ala. 2002). The Court of Criminal Appeals issued its certificate of judgment in April 2002. 2 1131160 In June 2013, Williams petitioned the circuit court, see Rule 32, Ala. R. Crim. P., for a new sentencing hearing, asserting that under Miller, decided a year earlier, the mandatory sentence of life imprisonment without the possibility of parole to which he was sentenced in 2000 for an offense committed when he was 15 years old was unconstitutional and, consequently, that he was entitled to be resentenced based on the individualized sentencing factors discussed in Miller. Specifically, Williams alleged that, under Rule 32.1(a), a new sentence proceeding was required because, he said, his sentence of life imprisonment without parole was unconstitutional; that, under Rule 32.1(b), the trial court was without jurisdiction to impose the mandatory sentence of life imprisonment without the possibility of parole; and that, under Rule 32.1(c), his mandatory sentence of life imprisonment without parole was not authorized by law. The State moved to dismiss Williams's petition, asserting, among other reasons, that Miller did not apply retroactively to cases on collateral review, i.e., that Miller did not apply to cases that became final before its pronouncement. The 3 1131160 circuit court dismissed Williams's petition, and Williams appealed to the Court of Criminal Appeals. The Court of Criminal Appeals affirmed the circuit court's judgment, holding that Miller set forth a new rule of criminal procedure that did not apply to cases that had become final before its pronouncement and that, therefore, Williams was not entitled to a new sentencing hearing. Williams v. State, [Ms. CR-12-1862, April 4, 2014] ___ So. 3d ___ (Ala. Crim. App. 2014). Specifically, that court held that Miller did not apply retroactively and, consequently, that Williams's sentence was not unconstitutional and he was not entitled to a new sentencing hearing under Rule 32.1(a). Additionally, the Court of Criminal Appeals held that the trial court had jurisdiction to impose Williams's sentence and, therefore, that he was not entitled to relief under Rule 32.1(b) and that Williams's sentence to life imprisonment without parole was not illegal and, therefore, that Rule 32.1(c) did not provide a meritorious ground for relief. Standard of Review 4 1131160 In criminal cases, this Court reviews pure questions of law de novo. Ex parte Harrison, 61 So. 3d 986, 989-90 (Ala. 2010). Discussion In 2012, the United States Supreme Court addressed whether state statutes that mandate the imposition of a sentence of life imprisonment without the possibility of parole for a juvenile defendant convicted of a capital offense violated the Eighth Amendment to the United States 1 Constitution. Miller, 567 U.S. at ___, 132 S.Ct. at 2460. Specifically, the Supreme Court held that a statute mandating a sentence of life imprisonment without the possibility of parole for a juvenile defendant violated the Eighth Amendment's prohibition of cruel and unusual punishment. The Supreme Court further held that the sentencing of a juvenile defendant must be individualized and that the sentencer must consider the juvenile defendant's age, the attendant circumstances of youth, and the nature of the offense before For purposes of this opinion, a juvenile defendant is 1 defined as an individual who has been convicted of a capital offense, see § 13A-5-40, Ala. Code 1975, committed before the age of 18. 5 1131160 imposing a sentence. The Miller Court did not forbid the imposition of a sentence of life imprisonment without the possibility of parole on a juvenile defendant; rather, the Court stated that such a sentence would be a rarity. In reaching its decision the Miller Court considered two lines of precedent. First, it evaluated the line of cases holding that the Eighth Amendment's prohibition of cruel and unusual punishment categorically bans sentencing statutes that do not take into consideration the culpability of a class of offenders and the severity of the penalty imposed. See Graham v. Florida, 560 U.S. 48 (2010)(holding unconstitutional a sentence of life imprisonment without parole for juvenile offenders who committed a non-homicide offense); Roper v. Simmons, 543 U.S. 551 (2005)(holding unconstitutional a sentence of death for a defendant who is under the age of 18 at the time the underlying offense is committed); and Atkins v. Virginia, 536 U.S. 304 (2002)(holding unconstitutional a sentence of death for an intellectually disabled defendant). These cases addressed a specific type of punishment for an identifiable class of defendants, adopting "categorical bans on sentencing practices based on mismatches between the 6 1131160 culpability of a class of offenders and the severity of a penalty." Miller, 567 U.S. at ___, 132 S.Ct. at 2463. From Graham and Roper, the Supreme Court observed that the sentencing of a juvenile is different from the sentencing of an adult because a juvenile, in light of his or her age, lacks maturity, is vulnerable to negative influences and outside pressures, and is continuing to develop his or her character. The Supreme Court concluded that for these reasons "juveniles have diminished culpability and greater prospects for reform" and thus are "'less deserving of the most severe punishments.'" 567 U.S. at ___; 132 S.Ct. at 2464. The Miller Court then considered the line of cases requiring a sentencer to conduct individualized sentencing when determining whether to impose a sentence of death. See Woodson v. North Carolina, 428 U.S. 280 (1976)(plurality opinion)(holding that a mandatory death sentence for a first- degree-murder conviction that precluded consideration of the character and the record of the defendant and circumstances surrounding the offense violated the Eighth Amendment); Lockett v. Ohio, 438 U.S. 586 (1978)(holding that a statute mandating imposition of the death penalty for a capital-murder 7 1131160 conviction violated the Eighth Amendment because it prevented individualized consideration of mitigating circumstances); and Eddings v. Oklahoma, 455 U.S. 104, 105 (1982)(holding that the Eighth Amendment required individualized consideration of relevant mitigating circumstances including defendant's character and record before death sentence could be imposed). Recognizing that the Eighth Amendment required individualized sentencing for an adult defendant before the imposition of the most severe punishment of death and that the sentence of life imprisonment without the possibility of parole for a juvenile defendant is the equivalent of a death sentence for an adult defendant, the Supreme Court held in Miller that the Eighth Amendment compelled individualized sentencing before a sentence of life imprisonment without the possibility of parole could be imposed on a juvenile defendant. Merging the two lines of precedent –- establishing, first, that juvenile defendants are less culpable and more susceptible to reform than are adult defendants and, second, that individualized sentencing was required before the harshest punishment of life imprisonment without the possibility of parole could be imposed on juvenile defendants 8 1131160 -- the Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders." Miller, 567 U.S. at ___, ___, 132 S.Ct. at 2464, 2469. The Miller Court admonished: "[G]iven all we have said in Roper, Graham, and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between 'the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.' ... Although we do not foreclose a sentencer's ability to [impose a sentence of life imprisonment without parole] in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." 567 U.S. at ___, 132 S.Ct. at 2469. In accordance with Miller, this Court in Ex parte Henderson, 144 So. 3d 1262, 1284 (Ala. 2013), held that a trial court must consider numerous factors before sentencing a juvenile defendant convicted of a capital offense, stating: "We hold that a sentencing hearing for a juvenile convicted of a capital offense must now include consideration of: (1) the juvenile's chronological age at the time of the offense and the hallmark 9 1131160 features of youth, such as immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile's diminished culpability; (3) the circumstances of the offense; (4) the extent of the juvenile's participation in the crime; (5) the juvenile's family, home, and neighborhood environment; (6) the juvenile's emotional maturity and development; (7) whether familial and/or peer pressure affected the juvenile; (8) the juvenile's past exposure to violence; (9) the juvenile's drug and alcohol history; (10) the juvenile's ability to deal with the police; (11) the juvenile's capacity to assist his or her attorney; (12) the juvenile's mental-health history; (13) the juvenile's potential for rehabilitation; and (14) any other relevant factor related to the juvenile's youth. See generally Commonwealth v. Knox[, 50 A.3d 732 (Pa. Super. Ct. 2012)]." In his Rule 32 petition, Williams sought the benefit of the application of the rule announced in Miller and applied in Henderson. Because Williams's conviction for capital murder and his sentence of life imprisonment without the possibility of parole became final 11 years before the United States Supreme Court decided Miller, he is entitled to be resentenced if Miller applies retroactively to cases that became final before its pronouncement. Thus, the dispositive question before this Court is whether Miller is subject to retroactive application in cases on collateral review. In Whorton v. Bockting, 549 U.S. 406, 416 (2007), the Supreme Court provided that, when determining whether a rule 10 1131160 should be applied retroactively, a court must first determine whether the rule is a new rule or an old rule. The Supreme Court held that "an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review." 549 U.S. at 416. The Supreme Court defined a new rule as "'a rule that ... was not "dictated by precedent existing at the time the defendant's conviction became final."'" 549 U.S. at 416 (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990), quoting in turn Teague v. Lane, 489 U.S. 288, 301 (1989)). For a new rule to apply to cases that are already final, "the Court's holdings [must] logically permit no other conclusion than that the rule is retroactive." Tyler v. Cain, 533 U.S. 656, 669 (2001)(O'Connor, J., concurring). In Ex parte Harris, 947 So. 2d 1139, 1143-47 (Ala. 2005), this Court recognized that, in determining whether a new rule of constitutional law applies retroactively, Alabama had adopted the analysis provided by the United States Supreme Court in Teague v. Lane, 489 U.S. 288 (1989). Teague 2 In Danforth v. Minnesota, 552 U.S. 264 (2008), the 2 Supreme Court held that the Teague analysis for determining whether a new rule of constitutional law should be applied to cases on collateral review is not binding on state courts when 11 1131160 established that "a case announces a new rule when it breaks ground or imposes a new obligation on the States or Federal Government." 489 U.S. at 301. Teague provided that "new rules should always be applied retroactively to cases on direct review, but ... generally they should not be applied retroactively to criminal cases on collateral review." 489 U.S. at 303. The Teague Court reasoned that because collateral review is not a substitute for direct review and because the government has a legitimate interest in the finality of judgments, new rules of constitutional law should not be applied retroactively unless special circumstances exist. Teague set forth two exceptions to the general rule of nonretroactivity for new rules in criminal cases on collateral review: First, a new rule should be applied retroactively determining an issue under state law. Although Williams asks this Court to abandon the Teague analysis in favor of an independent analysis, no compelling reason has been presented to do so. As this Court recognized in Exxon Corp. v. Department of Conservation & Natural Resources, 859 So. 2d 1096, 1102 (Ala. 2002)(quoting Bolden v. Sloss–Sheffield Steel & Iron Co., 215 Ala. 334, 340, 110 So. 574, 580 (1925) (Somerville, J., dissenting)), the doctrine of 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.'" 12 1131160 when the new rule "places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,'" 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)(Harlan, J., concurring in the judgments in part and dissenting in part)); second, a new procedural rule should be applied retroactively on collateral review when the new rule "requires the observance of 'those procedures that ... are "implicit in the concept of ordered liberty."'" 498 U.S. at 311 (quoting Mackey, 401 U.S. at 692). The United States Supreme Court in Schriro v. Summerlin, 542 U.S. 348 (2004), provided further explanation of the Teague retroactivity analysis, observing that the key distinction in the analysis is whether the new rule of constitutional law is substantive or procedural. The Summerlin Court explained that a substantive rule is one that limits a criminal statute by interpreting its terms or "place[s] particular conduct or persons covered by the statute beyond the State's power to punish." 542 U.S. at 352. The Summerlin Court further explained with regard to punishment that a new substantive rule included a rule prohibiting a 13 1131160 certain category of punishment for a group of defendants because of their status or offense. 542 U.S. at 353. According to the Summerlin Court, such a rule is substantive and applies retroactively because the new rule carries a "'significant risk that a defendant stands convicted of "an act that the law does not make criminal"' or faces a punishment that the law cannot impose upon him." 542 U.S. at 352. Alternatively, the Summerlin Court explained that new procedural rules do not apply retroactively because they "merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." 542 U.S. at 352 (emphasis added). The Supreme Court reasoned that in light of "this more speculative connection to innocence," a new procedural rule is watershed and applies retroactively only when the fundamental fairness and accuracy of the criminal proceeding are implicated. 542 U.S. at 352. In other words, to be watershed, a new procedural rule must meet two requirements: "[I]nfringement of the rule 'seriously diminish[es] the likelihood of obtaining an accurate conviction,' [Teague v. Lane, 489 U.S. at 315] and ... the rule '"alter[s] our understanding of the bedrock 14 1131160 procedural elements essential to the fairness of a proceeding,"' id. at 311 (plurality opinion)(quoting Mackey [v. United States, 401 U.S. 667,] 693 [(1971)](Harlan, J., concurring in judgments in part and dissenting in part))." Tyler, 533 U.S. at 670 (O'Connor, J., concurring). With regard to the requirement that the new procedural rule "alter[s] our understanding of the bedrock procedural elements essential to the fairness of a proceeding," Teague, 489 U.S. at 315, the Supreme Court explained that the requirement "cannot be met simply by showing that a new procedural rule is based on a 'bedrock' right," nor is it sufficient "[t]hat a new procedural rule is 'fundamental' in some abstract sense." Whorton, 549 U.S. at 420-21. To meet this requirement the new procedural rule "must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding." 549 U.S. at 421. As the United States Court of Appeals for the Fourth Circuit recognized: "[T]he watershed-rule exception is 'extremely narrow'" and "the Supreme Court has never found a new procedural rule to be 'watershed' despite the fact that it has considered the question fourteen times." Johnson v. Ponton, [No. 13-7824, March 5, 2015] ___ F.3d ___, ___ (4th Cir. 15 1131160 2015)(citing Jennifer H. Berman, Comment Padilla v. Kentucky: Overcoming Teague's "Watershed" Exception to Non- Retroactivity, 15 U. Pa. J. Const. L. 667, 685 (2012)). In Summerlin, the Supreme Court considered whether the new rule of constitutional law pronounced in Ring v. Arizona, 536 U.S. 584 (2002), requiring that a jury, not a judge, find the necessary aggravating circumstance for imposition of the death penalty, applied retroactively to cases on collateral review. The Summerlin Court held that the new rule was procedural, stating that the rule only "altered the range of permissible methods for determining whether a defendant's conduct is punishable by death." 542 U.S. at 353. The Supreme Court then explained: "This Court's holding that, because [a state] has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court's making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive." 542 U.S. at 354. With these principles in mind, we now consider whether the rule announced in Miller applies retroactively to criminal cases that are final. 16 1131160 First, we consider whether Miller announced a new rule or an old rule. Williams's conviction became final in 2002; Miller was decided in 2012. Williams, the State, and the Court of Criminal Appeals agree that the Supreme Court created a new rule of constitutional law in Miller. We are in accord; at the time of Williams's conviction, precedent did not require the holding announced in Miller. Whorton, 549 U.S. at 416. Having acknowledged that the rule announced in Miller was a new rule, we proceed to determine whether that rule applies retroactively to cases on collateral review. Initially, we observe that a new rule of constitutional law pronounced by the United States Supreme Court is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive. Tyler, 533 U.S. at 663. The Supreme Court has not held that Miller is to be applied retroactively. In re Morgan, 713 F.3d 1365 (11th Cir. 2013). Williams argues that the Supreme Court's decision to apply Miller to Kuntrell Jackson, the petitioner on collateral review in the companion case to Miller, Jackson v. Hobbs, indicates the Supreme Court's intention that Miller be applied retroactively to cases on collateral review. We agree with 17 1131160 the Court of Appeals for the Fourth Circuit that "an express holding that a rule is retroactive, rather than mere application of the rule, is required to establish retroactivity, and the Court's application of the rule to Jackson did not amount to an express holding." Johnson, ___ F.3d at ___. The Fourth Circuit explained: "We observed in San–Miguel v. Dove[, 291 F.3d 257 (4th Cir. 2002),] that the Supreme Court does not establish a rule's retroactivity except through a holding to that effect. See 291 F.3d at 260. We derived this principle from Tyler v. Cain, in which Justice O'Connor, concurring in the judgment, explained that, where a petitioner relies on a 'single case' to establish retroactivity, the Supreme Court in that case must have 'expressly ... held the new rule to be retroactive on collateral review and applied the rule to that case.' 533 U.S. at 668 (O'Connor, J., concurring)(emphasis added). Because an express holding as to retroactivity is required for a single Supreme Court case to establish retroactivity, the Court's mere application of a new rule to a case on collateral review is insufficient. And because Miller's holding concerned only the life-without-parole sentencing process of juvenile homicide offenders, and not the retroactivity of the rule it announced, the Court's application of that rule to Jackson did not render it retroactive. "The Supreme Court has also demonstrated the principle that mere application of a new rule to a case on collateral review is itself insufficient to establish retroactivity. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court announced a new rule –- that counsel is ineffective where she fails to 'inform her client whether his plea carries a risk 18 1131160 of deportation,' id. at 374 –- and applied it to the case at bar, which presented a challenge on collateral review, see id. at 359–60. Though without a companion case, Padilla is analogous to Miller and Jackson together in two ways. First, Padilla announced a new rule and applied that rule to a case on collateral review. And second, its holding did not mention or concern retroactivity. Three years later, the Supreme Court held that the Padilla rule does not apply retroactively on collateral review. See Chaidez v. United States, ___ U.S. ___, ___, 133 S.Ct. 1103, 1113 (2013). Chaidez shows that the mere application of the Padilla rule in Padilla, without a holding as to retroactivity, was not enough to require application of that rule to other cases on collateral review. Similarly, in light of that example, we conclude that the Miller Court's application of the rule in Jackson was not enough to establish the rule's retroactivity." ___ F.3d at ___. The determination of whether Miller announced a substantive rule or a procedural rule is not easily answered. In Ex parte Maxwell, 424 S.W.3d 66, 72-74 (Tex. Crim. App. 2014), the Texas Court of Criminal Appeals provided the following general discussion of the competing arguments on whether the rule announced in Miller was substantive or procedural: "Those courts holding that Miller[ v. Alabama, 567 U.S. ___, 132 S.Ct. 2455 (2012),] is not retroactive strictly construe that first Teague [v. Lane, 489 U.S. 288 (1989),] exception -— a new substantive rule of law -— to apply only when the 19 1131160 new rule entirely removes a particular punishment from the list of punishments that may be constitutionally imposed on a class of defendants, not when a rule addresses the considerations for determining a particular sentence. These courts conclude that Miller does not satisfy the test for retroactivity because it does not categorically bar all sentences of life without parole for juveniles; Miller bars only those sentences made mandatory by an explicit sentencing scheme. It changed the permissible method -— the procedure —- by which the State could exercise its continuing power to punish juvenile homicide offenders by life without parole. Those courts state that Miller, though informed by the 'categorical ban' cases like Graham [v. Florida, 560 U.S. 48 (2010)], Roper [v. Simmons, 543 U.S. 551 (2005)], and Atkins [v. Virginia, 536 U.S. 304 (2002)], is more like Ring [v. Arizona, 536 U.S. 584 (2002)], Apprendi [v. New Jersey, 530 U.S. 466 (2000)], or Padilla [v. Kentucky], 559 U.S. 356 (2010)], because it is procedural -— simply requiring an additional sentencing procedure for juvenile offenders. These courts also downplay the importance of the Court's remand of Miller's companion case, Jackson v. Hobbs -— which came to the Court through Arkansas's state collateral- review process -— as constituting a ruling or determination on retroactivity because the Court did not specifically hold that Miller is retroactive on collateral review. "Conversely, those courts holding that Miller is retroactive have reasoned that it announced a substantive rule that prevents a 'significant risk that a juvenile faces a punishment that the law cannot impose on him.' They point to the Supreme Court's explanation of a 'new substantive rule' in Schriro v. Summerlin[, 542 U.S. 348 (2004)]: New substantive rules include 'constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish.' Miller places juveniles subject 20 1131160 to mandatory 'life without parole' statutes beyond the State's power to punish. It alters the range of outcomes of a criminal proceeding by prohibiting a mandatory sentence of life without parole for a juvenile murderer. Miller is categorical because it completely removes a particular punishment from the list of punishments that can be constitutionally imposed, that of mandatory life without parole." (Footnotes omitted.) See also In re Wilson, 233 Cal. App. 4th 544, 562-65, 182 Cal. Rptr. 3d 774, 787-90 (2015). As previously discussed, new substantive rules are to be applied retroactively to cases on collateral review. Examples of new rules with regard to sentencing that the Supreme Court has held are substantive and therefore apply retroactively to cases on collateral review include rules that categorically ban certain punishments for an identifiable class of defendants. See Atkins (holding unconstitutional the imposition of a death sentence on intellectually disabled defendants); Roper (holding unconstitutional the imposition of a death sentence on juvenile defendants); and Graham (holding unconstitutional the imposition of a life-imprisonment- without-parole sentence for a juvenile defendant convicted of a non-homicide offense). These cases, which categorically ban a specific type of punishment for an identifiable class of 21 1131160 defendants, pronounced new substantive rules that apply to cases on collateral review. The Court of Criminal Appeals in Williams's case conducted a thorough Teague analysis to determine whether Miller announced a new substantive rule. Williams, ___ So. 3d at ___. We agree with the Court of Criminal Appeals that the Supreme Court in Miller did not create a substantive rule. Miller does not place "'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,'" Teague, 489 U.S. at 311 (quoting Mackey, 401 U.S. at 692); Miller does not alter the range of conduct by a juvenile defendant that Alabama law may subject to a sentence of life imprisonment without the possibility of parole, Roper, 543 U.S. at 353; and Miller does not eliminate this State's ability to impose a sentence of life imprisonment without the possibility of parole on a juvenile defendant. Miller, 567 U.S. at ___, 132 S.Ct. at 2469. See also Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated by Atkins v. Virginia, 536 U.S. 304 (2002). Because Miller does not categorically ban a sentence of life without parole, there is not a significant risk that a juvenile defendant "faces a 22 1131160 punishment that the law cannot impose upon him." Summerlin, 542 U.S. at 352. Miller does not fall within the definition of a substantive rule as provided by the Supreme Court. In determining that Miller did not pronounce a substantive rule, we have considered Williams's argument that Miller created a substantive rule because it prohibits the imposition of a mandatory sentence of life imprisonment without parole, i.e., that Miller changed the law by providing a sentencing range broader than the range provided by statute and, consequently, Miller, by categorically banning a mandatory sentence and creating a new sentencing obligation, prevents "a significant risk that a [juvenile] ... faces a punishment that the law cannot impose on him." Summerlin, 542 U.S. at 352. The only sentence available for a juvenile defendant convicted of a capital offense following Roper and before Miller was life imprisonment without the possibility of parole. The "mandatory" component of sentencing a juvenile defendant precluded the consideration of factors in determining the sentence. In Ex parte Henderson, this Court discussed the sentence of life imprisonment without the possibility of parole for a juvenile defendant: 23 1131160 "Although the death penalty has been categorically banned, a sentence of life imprisonment without the possibility of parole is still possible for a juvenile homicide offender. However, it cannot be automatically imposed as a sentence on a juvenile homicide offender based on the heightened protections established for sentencing juveniles as set out in the Supreme Court's jurisprudence. ... It is the mandatory, determined at the outset, imposition of a sentence of life imprisonment without parole when sentencing juveniles that is outside constitutional boundaries. It is not the actual sentence of life imprisonment without parole that was barred in Miller. Instead, Miller requires that the sentence be reviewed for the possibility of parole. Miller's Eighth Amendment boundaries when sentencing a juvenile homicide offender now subject that sentence to the possibility of parole." 144 So. 3d at 1281 (emphasis added). The fact that before Miller was decided a juvenile defendant's sentence was mandatory, i.e., the sentencer had no discretion in the sentence to be imposed upon conviction, and that after Miller the sentencer now has discretion as to what sentence to impose does not create a substantive change in the law. Miller did not make a certain fact essential to the imposition of the sentence. "[T]he Miller Court invalidated a mandatory sentencing scheme for juveniles, but it did not categorically ban a sentence of life imprisonment without parole." 144 So. 3d at 1280. Miller does not preclude the imposition of a sentence of life imprisonment without the possibility of 24 1131160 parole on a juvenile defendant; therefore, we cannot agree with Williams that the Miller Court's requirement that the sentencing of juvenile defendants be individualized created a substantive change in the law. We have also considered Williams's argument that Miller's expansion of the range of possible sentences for juvenile defendants, resulting in a change in Alabama's sentencing scheme, substantively changed Alabama law. Admittedly, by expanding the range of punishments for juvenile defendants, Miller contains a substantive component; however, by definition a substantive rule is established when it prohibits the State from imposing a certain punishment on a class of defendants irrespective of the procedure used, not when it merely expands the range of possible sentences. Therefore, the expansion of the sentencing range for a juvenile defendant does not satisfy the definition of a substantive rule. In oral argument before this Court Williams urged that Atkins is analogous to Miller and that, because Atkins has been applied retroactively to cases on collateral review, Miller should likewise be applied retroactively. Williams 25 1131160 points out that even though the rule announced in Atkins has a procedural component, the rule has been determined to be substantive. In Atkins, the Supreme Court held that the imposition of a death sentence on an intellectually disabled defendant violated the Eighth Amendment's ban on cruel and unusual punishment and was therefore unconstitutional. The Supreme Court, however, left to the states the criteria for determining whether a defendant is intellectually disabled. The decision provided the states with discretion as to when Atkins applied and which defendants fell within Atkins. The Supreme Court, however, made clear that once a determination was made that a defendant was intellectually disabled, the state's discretion ended and the state could not impose a sentence of death. Thus, although Atkins provided the states some discretion in determining the applicability of Atkins to a case, once a state determined that Atkins applied and a defendant was intellectually disabled, the state's discretion ended. Atkins is a categorical rule in that, after a state has determined that a defendant is intellectually disabled, the state cannot impose a sentence of death on that defendant. 26 1131160 Miller, on the other hand, is not a categorical rule; it requires the states to conduct individualized sentencing before imposing a sentence on a juvenile defendant, and it does not foreclose the imposition on a juvenile defendant of a sentence of life imprisonment without the possibility of parole. In Miller, the Supreme Court held that states must conduct a fact-finding procedure to determine a juvenile defendant's culpability before imposing a sentence of life imprisonment without parole. States have no discretion in determining when and to which juvenile defendants Miller applies. Only after an individualized sentencing hearing has been conducted, in which the juvenile defendant can present mitigating evidence, may the state impose a sentence of life imprisonment without the possibility of parole. Miller provides states with discretion to determine the sentence. The Miller Court did not hold that the imposition of a sentence of life imprisonment without the possibility of parole on a juvenile defendant is unconstitutional; rather, it held that such a sentence is permissible if found appropriate after an individualized sentencing hearing at which are 27 1131160 considered the juvenile defendant's age, the attendant characteristics of youth, and the nature of the offense. Atkins is distinguishable from Miller. Unlike Atkins, which created a categorical ban of a certain punishment -- death -- for an identifiable group –- the intellectually disabled -- Miller created an individualized sentencing scheme, expanding the sentencing range for an identifiable group –- juvenile defendants. Atkins compels a single result, i.e., if a defendant is intellectually disabled, the state cannot impose a sentence of death; Miller compels multiple results, i.e., the state must conduct a sentencing procedure for juvenile defendants that may result in the imposition of a sentence within a range of sentences depending on the weight of the mitigating evidence presented by the juvenile defendant. For the foregoing reasons, we conclude that Miller did not create a substantive rule requiring retroactive application to cases on collateral review; rather, Miller set forth a procedural rule by proscribing the permissible methods by which states may exercise their continuing power to punish juvenile defendants by imposing a sentence of life 28 1131160 imprisonment without the possibility of parole. Because Miller changed the method by which a sentencer may impose a sentence for a juvenile defendant by requiring consideration of the juvenile defendant's age, other characteristics attendant to youth, and the nature of the offense, Miller created a rule of criminal procedure. See Johnson v. Ponton, ___ F.3d at ___ (holding that "[b]ecause only a 'certain process –- considering an offender's youth and attendant characteristics –- before imposing a particular penalty,' [Miller, 567 U.S. at ___, 132 S. Ct.] at 2471, is required after Miller, and because life without parole may still be imposed on juveniles so long as that process is carried out, Miller announced a procedural rule, and cannot qualify for the Teague exception for substantive rules"). See also In re Morgan, 713 F.3d at 1368 (holding that Miller did not create a substantive rule "'prohibiting a certain category of punishment for a class of defendants because of their status or offense'"; instead, "Miller changed the procedure by which a sentencer may impose a sentence of life without parole on a minor"). 29 1131160 Our analysis of whether Miller applies retroactively, however, does not end with the determination that Miller is not a substantive but a procedural rule; we now must determine whether Miller created a watershed rule of criminal procedure "'implicating the fundamental fairness and accuracy of the criminal proceeding,'" which, consequently, applies retroactively. Whorton, 549 U.S. at 417 (quoting Saffle v. Parks, 494 U.S. at 495). The only rule of criminal procedure the Supreme Court has identified that may qualify as watershed is the rule pronounced in Gideon v. Wainwright, 372 U.S. 335 (1963)(holding that the State must appoint counsel for any indigent defendant charged with a felony). Whorton, 549 U.S. at 419. The Whorton Court explained that the rule set forth in Gideon may be a watershed rule because the right to counsel is a bedrock procedural element of this country's legal system, critical in eliminating the risk of an unreliable verdict. The Gideon Court explained why the new rule requiring counsel for an indigent defendant constituted a "previously unrecognized bedrock procedural element that is 30 1131160 essential to the fairness of a proceeding," see Whorton, 549 U.S. at 421: "The Sixth Amendment provides, 'In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.'... ".... "'(The assistance of counsel) is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. ... The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not "still be done." Johnson v. Zerbst, 304 U.S. 458, 462 (1938). To the same effect, see Avery v. Alabama, 308 U.S. 444 (1940), and Smith v. O'Grady, 312 U.S. 329 (1941).' "... [I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide—spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to 31 1131160 counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama[, 287 U.S. 45 (1932)]: "'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.' 287 U.S., at 68—69." 372 U.S. at 339-345 (footnotes omitted). Miller's holding that statutes mandating the punishment of life imprisonment without the possibility of parole for 32 1131160 juvenile defendants are unconstitutional, albeit significant, is not watershed. Although Miller may change the sentencing procedure for a juvenile defendant with regard to the proportional relationship between the juvenile defendant's culpability and the severity of the punishment imposed, Miller does not employ "a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding." Whorton, 549 U.S. at 421. The courts have long recognized the principles of individualized sentencing. See Woodson, Penry, and Lockett. Application of the principles of individualized sentencing in the sentencing procedures for juvenile defendants does not "'alter[] our understanding of the bedrock procedural elements essential to the fairness of a proceeding.'" Whorton, 549 U.S. at 420 (quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990)). Miller altered the range of permissible methods for determining a juvenile defendant's sentence by requiring individualized sentencing and created the possibility that a juvenile defendant who previously could have been sentenced only to life imprisonment without the possibility of parole may now possibly receive a different sentence. This procedural change, although providing for 33 1131160 additional considerations before the imposition of a sentence on a juvenile defendant convicted of a capital offense, created a "speculative connection" to a possible different sentence. Similarly, the United States Supreme Court in Ring changed the procedure to be used in sentencing a convicted capital defendant, requiring a jury determination of any fact that would make a defendant "death eligible." Ring is not applied retroactively on collateral review. Just like Ring's change in sentencing procedure did not implicate the fundamental fairness of the criminal proceeding, Miller's change in sentencing procedure for juvenile defendants does not implicate the fundamental fairness of the criminal proceeding. In other words, Miller did not create a watershed rule of criminal procedure, i.e., one that "requires the observance of 'those procedures that ... are "implicit in the concept of ordered liberty,"'" Teague, 489 U.S. at 311 (quoting other cases). Therefore, Miller does not fit within this Teague exception. Having determined that Miller pronounced neither a substantive rule nor a watershed rule, we agree with the 34 1131160 Court of Criminal Appeals –- that the rule pronounced in Miller does not apply retroactively to cases on collateral review and that Williams's sentence is constitutional and he is not entitled to a new sentencing hearing under Rule 32.1(a). We now consider Williams's contention that the Court of Criminal Appeals erred in holding that he was not entitled to relief under Rule 32.1(b) and (c), Ala. R. Crim. P. In addition to pleading that he was entitled to a new sentencing hearing under Rule 32.1(a), Williams pleaded his request for a new sentencing hearing under Rule 32.1(b) and (c), Ala. R. Crim. P. In his petition, Williams argued that he was entitled to a new sentencing hearing because, he said, his sentence was illegal, Rule 32.1(c), and that, because his sentence was illegal, the trial court was without subject- matter jurisdiction to impose the sentence, Rule 32.1(b). In arguing that his sentence is illegal, Williams cites McClintock v. State, 773 So. 2d 1057 (Ala. Crim. App. 2000), and Ex parte Swearingen, 837 So. 2d 246 (Ala. 2001). In McClintock, the petitioner pleaded in a Rule 32 petition that his sentence to life imprisonment for his 1987 35 1131160 conviction for first-degree escape was illegal because, he said, one of the convictions used to enhance his sentence under the Habitual Felony Offender Act ("the HFOA") had been set aside. The Court of Criminal Appeals, recognizing that a conviction that had been set aside cannot be used to enhance another sentence and finding that, in fact, one of the convictions had been set aside and had been used to enhance his sentence for his 1987 conviction, held that the petitioner was entitled to a new sentencing hearing. In reaching its decision, the court considered, but rejected, the State's argument that the petitioner's sentence was legal because, even though the trial court had used an invalid conviction to enhance his sentence, the original sentence remained within the statutory range. The Court of Criminal Appeals reasoned that fundamental fairness required that a new sentencing hearing be conducted to "establish[] with certainty that the circuit court exercised the discretion allowed it" by the statutes in imposing the petitioner's sentence. 773 So. 2d at 1059. In Ex parte Swearingen, this Court held that the defendant, like the petitioner in McClintock, was entitled to 36 1131160 a new sentencing hearing even though his original sentence was within the statutory range. In Ex parte Swearingen, the trial court sentenced the defendant pursuant to a version of the HFOA that was no longer in effect. Believing that it was required to impose a mandatory sentence of life imprisonment, the trial court sentenced the defendant to life imprisonment when, at the time of the defendant's sentencing, a wide range of sentences was available for the trial court to impose. The State contended that, although the trial court was not required to sentence the defendant to life imprisonment, the sentence was legal because the sentence was within the statutory range under the amended HFOA. We disagreed, stating: "Merely because life imprisonment was within the statutory range available under the amended HFOA, given the wide sentencing range of 20 years' imprisonment to life imprisonment available to the trial court under the amended HFOA, we cannot say that the trial court would have sentenced [the defendant] to life imprisonment had the court applied the amended version of the HFOA. ... Fundamental fairness requires that [the defendant] receive a new sentencing hearing to establish with certainty that the trial court exercised the discretion allowed under the amended HFOA." 837 So. 2d at 249. 37 1131160 Williams urges that fundamental fairness, as it did in McClintock and Ex parte Swearingen, requires this Court to hold that he is entitled to a new sentencing hearing. McClintock and Swearingen, however, are distinguishable. In both of those cases, the trial courts relied on erroneous information in determining the sentences imposed. Here, the trial court did not rely on erroneous information. At the time of Williams's sentencing, the law required the trial court to impose on a juvenile defendant convicted of a capital offense a sentence of life imprisonment without the possibility of parole. Williams's sentence at the time it was imposed, unlike the sentences in McClintock and Ex parte Swearingen, was legal and in accordance with the law. A subsequent change in the law does not change that fact. Additionally, because we have determined that Miller does not apply to sentences imposed before its pronouncement, Williams's sentence is not illegal. Therefore, the decision of the Court of Criminal Appeals affirming the circuit court's judgment denying Williams a new sentencing hearing does not conflict with McClintock and Ex parte Swearingen. 38 1131160 When Williams, a juvenile defendant, was sentenced, the sentence of life imprisonment without the possibility of parole was the only sentence available. The mandatory imposition of a sentence for a juvenile defendant is no longer constitutional in light of Miller; however, Miller did not foreclose the imposition of a sentence of life imprisonment without parole for a juvenile defendant. Because Miller did not categorically forbid a sentence of life imprisonment without parole for a juvenile defendant and because Miller does not apply retroactively, Williams's sentence of life imprisonment without the possibility of parole is legal. The Court of Criminal Appeals did not err in holding that Rule 32.1(b) and (c) did not provide Williams grounds for relief. Conclusion Based on the foregoing, the judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Murdock, J., dissent. 39 1131160 MOORE, Chief Justice (dissenting). I agree with the Chief Justice of the United States Supreme Court that the decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455 (2012), represents "further judicial displacement of the legislative role in prescribing appropriate punishment for crime." 567 U.S. at ___, 132 S. Ct. at 2481 (Roberts, C.J., dissenting). As Chief Justice Roberts concluded: "Neither the text of the Constitution nor our precedent prohibits legislatures from requiring that juvenile murderers be sentenced to life without parole." 567 U.S. at ___, 132 S. Ct. at 2482. In a similar vein, Justice Thomas wrote: "The legislatures of Arkansas and Alabama, like those of 27 other jurisdictions, ... have determined that all offenders convicted of specified homicide offenses, whether juveniles or not, deserve a sentence of life in prison without the possibility of parole. Nothing in our Constitution authorizes this Court to supplant that choice." Miller, 567 U.S. at ___, 132 S. Ct. at 2483 (Thomas, J., dissenting) (emphasis added). Justice Alito, also dissenting in Miller, stated: "Nothing in the Constitution supports this arrogation of legislative authority." 567 U.S. at ___, 132 S. Ct. at 2487 (Alito, J., dissenting). 40 1131160 I agree with these sentiments. The "evolving standards of decency" trope, Trop v. Dulles, 356 U.S. 86, 101 (1958), to which the Supreme Court resorts as a justification for its ever expanding incursion upon the legislative prerogative of the states to prescribe punishment for crime has no basis in the Constitution. Instead, this amorphous and malleable judicially created standard of decision "invalidates a constitutionally permissible sentencing system based on nothing more than the Court's belief that 'its own sense of morality ... pre-empts that of the people and their representatives.'" Miller, 567 U.S. at ___, 132 S. Ct. at 2486-87 (Thomas, J., dissenting) (quoting Graham v. Florida, 560 U.S. 48, 124 (2010) (Thomas, J., dissenting)). Indeed, this premise ignores the possibility that standards of decency could "evolve" in the direction of increased punishment. "As judges we have no basis for deciding that progress toward greater decency can move only in the direction of easing sanctions on the guilty." Miller, 567 U.S. at ___, 132 S. Ct. at 2478 (Roberts, C.J., dissenting). I disagree with the Supreme Court's displacement of the authority of state legislatures and juries to strike the moral 41 1131160 balance in sentencing between showing mercy to the offender and protecting society from dangerous criminals. Nonetheless, if Miller is accepted as a proper exercise of the Supreme Court's appellate jurisdiction, I would not limit its application only to future cases and cases pending on direct review. The expanded sentencing range that Miller mandates is, in my view, a substantive change in sentencing law and not merely a new rule of procedure. Therefore, assuming the validity of the Miller rule for purposes of this case, I respectfully dissent from denying the petitioner the opportunity for collateral review of his sentence. 42	March 27, 2015
632ab2d9-4a04-46f6-a276-06e49554f430	Bynum v. City of Oneonta et al.	N/A	1130305	Alabama	Alabama Supreme Court	REL:02/27/2015 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 ____________________ 1130305 ____________________ Glenn Bynum and Larry Gipson v. City of Oneonta et al. Appeal from Blount Circuit Court (CV-13-900049) PER CURIAM. Glenn Bynum and Larry Gipson appeal from the trial court's order holding that certain amendments to § 28-2A-1 et seq., Ala. Code 1975, which statutes involve the sale of 1130305 alcoholic beverages in a municipality, were not unconstitutional. We reverse and remand. Facts and Procedural History In 1984, the legislature passed Act No. 1984-408, Ala. Acts 1984, codified at § 28-2A-1 et seq., Ala. Code 1975, which provided a procedure for municipalities having a population of 7,000 or more to hold an election to change the classification of the municipality from "dry" to "wet" or "wet" to "dry" regarding the sale of alcohol within the municipality. In 2009, the legislature passed Act No. 2009- 546, Ala. Acts 2009, which amended § 28-2A-1, Ala. Code 1975, to include smaller municipalities, i.e., municipalities having a population of 1,000 or more, except in three counties and which provides, in pertinent part, as follows: "(a) Any municipality having a population of 1,000 or more, excluding Clay, Randolph, and Blount Counties, may change its classification from dry to wet or wet to dry by a municipal option election ...." (Emphasis added.) Section 28-2A-3, Ala. Code 1975, was also amended by Act No. 2009-546. It now provides: "It is hereby declared the intention and the purpose of this article to permit an election by the 2 1130305 citizens of certain municipalities to determine the wet or dry status of such municipalities with regard to the sale, distribution, and consumption of alcoholic beverages within the corporate limits of such municipalities; and further that such election shall be provided only in those municipalities which can provide safeguards for the protection of the public welfare, health, peace, and morals of the people. In the furtherance of the protection of the public welfare, health, peace, and morals, the Legislature has determined that a population classification should be established to provide this method of municipal option election only in those municipalities with a population of 1,000 or more people within a county, excluding Clay, Randolph, and Blount Counties, it being the judgment of the Legislature that municipalities with a lesser population would be unable to support and maintain such protection where such municipality is located in a dry county, whereas a municipality of 1,000 or more population would have the resources and ability to support and maintain such safeguards." (Emphasis added.) The 2009 amendments also repealed § 28-2A-4, Ala. Code 1975, which had provided that municipalities with a population of at least 4,000 residents could hold an election to allow alcohol sales if any municipality in the same county with a population of 7,000 or more had voted to allow such sales pursuant to former § 28-2A-3. In the fall of 2012, Blount County held a referendum pursuant to § 28-2-1, Ala. Code 1975, to determine whether it would remain dry or would allow alcohol sales in the county. 3 1130305 Section 28-2-1 provides for the sale and distribution of alcoholic beverages within counties, and it applies to all 67 counties in Alabama. The referendum failed by 160 votes. The citizens of the City of Oneonta, which is located in Blount County and which has a population of 6,600 as of the last decennial census, voted overwhelmingly for the legal sale and distribution of alcohol in Blount County. Subsequently, the City of Oneonta (hereinafter "the City"), pursuant to § 28-2A- 1, as amended, sought to have a municipal election to determine if the City could allow the sale of alcoholic beverages within its municipal limits. On March 7, 2013, Brandon Neal, a resident of the City, filed a complaint challenging the City's right to hold an election under § 28- 2A-1 and seeking injunctive relief to prevent the City from spending funds on a "wet" or "dry" election. The City filed an answer and a counterclaim seeking a judgment declaring § 28-2A-1 unconstitutional because, the City argued, the exclusion of Clay, Randolph, and Blount Counties from its provisions was a violation of the Equal Protection Clause. 1 Pursuant to § 6-6-227, Ala. Code 1975, the attorney 1 general was notified of the constitutional challenge to the statutes; he filed an "acceptance and waiver" of his right to 4 1130305 On August 20, 2013, Bynum and Gipson, as pastors of churches located in the City, filed a motion to intervene in Neal's action, which the trial court granted. Following a stipulation of certain facts, the trial court entered an order granting the City's declaratory relief and concluding, among other things, that the exclusion of the three counties violated the Equal Protection Clause. However, the trial 2 court entered an order striking the phrase "excluding Clay, Randolph, and Blount Counties" from § 28-2A-1 and § 28-2A-3, as amended in 2009, and upheld the remainder of Article 1 of Chapter 2A. The trial court denied the plaintiffs' request for injunctive relief. Bynum and Gipson appealed.3 Standard of Review "'This 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, be heard. The trial court also addressed whether the 2009 2 amendments violated the prohibition that a local law may not be passed without advertisement and the prohibition against a law's having two subjects. On appeal, Bynum and Gipson opted not to address these grounds based on their belief that the passage by the legislature of the annual codification bill remedied these defects. We need not address the correctness of that belief. Neal is not a party to this appeal. 3 5 1130305 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." Continental Nat'l Indem. Co. v. Fields, 926 So. 2d 1033, 1034–35 (Ala. 2005). Additionally, "'[o]ur review of constitutional challenges to legislative enactments is de novo.' Richards v. Izzi, 819 So. 2d 25, 29 n. 3 (Ala. 2001). Additionally, acts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So. 2d 107, 110 (Ala. 1998). See also Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So. 2d 425, 428 (Ala. 1999)('In reviewing the constitutionality of a legislative act, this Court will sustain the act "'unless it is clear beyond reasonable doubt that it is violative of the fundamental law.'" White v. Reynolds Metals Co., 558 So. 2d 373, 383 (Ala. 1989)(quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944)).'). We approach the question of the constitutionality of a legislative act '"'with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.'"' Monroe v. Harco, Inc., 762 So. 2d 828, 831 (Ala. 2000)(quoting Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 159 (Ala. 1991), quoting in turn McAdory, 246 Ala. at 9, 18 So. 2d at 815). "Moreover, in order to overcome the presumption of constitutionality, ... the party asserting the unconstitutionality of the Act ... bears the burden 'to show that [the Act] is not constitutional.' Board of Trustees of Employees' Retirement Sys. of 6 1130305 Montgomery v. Talley, 291 Ala. 307, 310, 280 So. 2d 553, 556 (1973). See also Thorn v. Jefferson County, 375 So. 2d 780, 787 (Ala. 1979)('It is the law, of course, that a party attacking a statute has the burden of overcoming the presumption of constitutionality....')." State ex rel. King v. Morton, 955 So. 2d 1012, 1017 (Ala. 2006). Discussion Bynum and Gipson argue that the 2009 amendments to §§ 28-2A-1 and -3 are unconstitutional in that they intentionally excluded municipalities in three counties from the provisions of the amended statutes. They further argue that the trial court erred in severing the "excluding Clay, Randolph, and Blount Counties" language from §§ 28-2A-1 and -3 and that the trial court should have found § 28-2A-1 and § 28-2A-3, as amended, unconstitutional in their entirety instead of merely severing the offending portions. They argue that the legislature knowingly and intentionally violated the Equal Protection Clause when it excluded the three counties from the provisions of the statutes and that severability cannot be used to make §§ 28-2A-1 and -3, as amended, constitutional. 7 1130305 The City agrees that the legislature's exclusion of the three counties was unconstitutional. However, the City 4 argues that when the unconstitutional language is stricken, the remainder of § 28-2A-1 and § 28-2A-3, as amended in 2009, is enforceable. The City contends that severing the offending language would not undermine the manifest purpose of the 2009 amendments to §§ 28-2A-1 and -3 to allow smaller municipalities the option to allow the sale of alcoholic beverages within their municipal limits. We agree that the exclusion of the three counties from the provisions of § 28-2A-1 and § 28-2A-3 violates the Equal Protection Clause. Cf. State ex rel. Jeffers v. Martin, 735 So. 2d 1156 (Ala. 1999)(noting that, although the parties stipulated that part of a statute was unconstitutional, it was The City had argued that the 2009 amendments to §§ 28-2A- 4 1 and -3 violated the Equal Protection Clause because the fundamental right of voting was involved and that strict- scrutiny analysis was applicable. However, not every law that affects the right to vote is subject to strict-scrutiny analysis. Blevins v. Chapman, 47 So. 3d 227 (Ala. 2010). The legislative power to regulate the sale of liquor is nearly absolute. The legislature may regulate it as it sees fit or prohibit it entirely. Ebony Club, Inc. v. Simpson, 294 Ala. 421, 318 So. 2d 282 (1975). Bynum and Gipson argued that the rational-basis test should be applied to the equal-protection violation. The trial court applied both tests in its order. 8 1130305 not for the parties to determine the proper construction or interpretation of the statute). The State has a legitimate interest in regulating the sale and distribution of alcoholic beverages within its borders. Krupp Oil Co. v. Yeargan, 665 So. 2d 920 (Ala. 1995); Historic Warehouse, Inc. v. Alabama Alcoholic Beverage Control Bd., 423 So. 2d 211 (Ala. 1982). A statute that is rationally related to a legitimate state interest does not violate the Equal Protection Clause. Here, the exclusion of the 3 counties from the provisions of §§ 28- 2A-1 and -3 is not rationally related to the regulation of alcohol because no basis exists for the distinction between the 3 counties excluded and the 64 counties included by the 2009 amendments to those statutes allowing municipalities with 1,000 or more citizens to conduct an election to permit the sale of alcoholic beverages within their municipal limits. The pertinent issue before us is whether the trial court erred in severing the offending language from §§ 28-2A-1 and -3, as amended in 2009, and upholding the remainder of Article 1 of Chapter 2A. The parties recognize that Act No. 2009-546 does not contain a severability clause. The lack of a severability clause does not end our inquiry, however, because 9 1130305 "courts will strive to uphold acts of the legislature." City of Birmingham v. Smith, 507 So. 2d 1312, 1315 (Ala. 1987). "If a portion of a legislative enactment is determined to be unconstitutional but the remainder is found to be enforceable without it, a court may strike the offending portion and leave the remainder intact and in force." Id. "The inclusion of a severability clause is a clear statement of legislative intent to that effect, but the absence of such a clause does not necessarily indicate the lack of such an intent or require a holding of inseverability." Id. "'[T]he authority of a court to eliminate invalid elements of an act and yet sustain the valid elements is not derived from the legislature, but rather flows from powers inherent in the judiciary.'" Martin, 735 So. 2d at 1158 (quoting Norman J. Singer, Sutherland Statutory Construction § 44.08 (5th ed. 1992)). Section 1-1-16, Ala. Code 1975, provides: "If any provision of this Code or any amendment hereto, or any other statute, or the application thereof to any person, thing or circumstances, is held invalid by a court of competent jurisdiction, such invalidity shall not affect the provisions or application of this Code or such amendment or statute that can be given effect without the invalid provisions or application, and to this end, the provisions of this Code and such amendments and statutes are declared to be severable." 10 1130305 This Court regards § 1–1–16 as an expression of legislative intent regarding the general power and duty of the judiciary to sever and save statutory provisions not tainted by the unconstitutionality of provisions in the statute. In Smith, 507 So. 2d at 1316, we stated that, when the "legislature readopted provisions of Act [No. 677, Ala. Acts 1907,] as Article 3 of title 11, chapter 42, of the 1975 Code," it "made them subject to" the severability provision of § 1-1–16. In short, § 1–1–16 expressly "codifies" the judiciary's inherent authority to sever and save statutory provisions not tainted by the unconstitutionality of portions of the statutes. "The guiding star in severability cases is legislative intent." Beck v. State, 396 So. 2d 645, 658 (Ala. 1980). Where a statute is partly invalid, the court must be persuaded that the legislature intended that, if the invalid portion is stricken, the valid portion should survive. Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So. 2d 487 (1948). "One of the tests used to determine whether an act is or is not severable, so that a portion may be rejected, is that it ought not to be held wholly void unless the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion 11 1130305 that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional. Where the valid and invalid parts are so bound together that the invalid part is a material inducement to the valid portion, the whole is invalid. Union Bank & Trust Co. v. Blan, 229 Ala. 180, 155 So. 612 [(1934)], and cases cited; 6 Ruling Case Law page 125, section 123." A. Bertolla & Sons v. State, 247 Ala. 269, 271, 24 So. 2d 23, 25 (1945). Another principle of severability to guide us is set out in Martin, 735 So. 2d at 1159: "Under these well-established principles, the judiciary's severability power extends only to those cases in which the invalid portions are '"not so intertwined with the remaining portions that such remaining portions are rendered meaningless by the extirpation."' Hamilton v. Autauga County, 289 Ala. 419, 426, 268 So. 2d 30, 36 (1972)(quoting Allen v. Walker County, 281 Ala. 156, 162, 199 So. 2d 854, 860 (1967)). If they are so intertwined, it must '"be assumed that the legislature would not have passed the enactment thus rendered meaningless."' Id. In such a case, the entire act must fall. 2 [Norman J.] Singer, [Sutherland Statutory Construction] § 44.04, at 502 [(5th ed. 1992)]. Nevertheless, 'if the remaining portions of an Act are complete within themselves, sensible and capable of execution, the Act will stand.' Mitchell v. Mobile County, 294 Ala. 130, 134, 313 So. 2d 172, 174 (1975)." In City of Mobile v. Salter, 287 Ala. 660, 666–67, 255 So. 2d 5, 10 (1971), this Court quoted from Allen v. Louisiana, 103 U.S. 80, 83 (1880), as follows: 12 1130305 "'It is an elementary principle that the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected. "But," ... "if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them." ...'" In Opinion of the Justices No. 197, 284 Ala. 626, 227 So. 2d 396 (1969), the governor requested an advisory opinion on whether a proposed bill authorizing municipalities in dry counties to hold elections on whether to allow the sale of alcoholic beverages in those municipalities was constitutional. The proposed bill excluded certain counties from the operation of the bill by population classifications that were so narrowly drawn that 23 counties were excluded. In making exceptions, for example, the legislature established a population range of 21,900 to 22,000, which applied only to Franklin County, and a population range of 22,000 to 22,350, which applied only to Geneva County. 13 1130305 Four of the Justices opined that, as written, the proposed bill was unconstitutional but that the unconstitutional portions could be stricken and the remainder of the proposed bill would survive: "As indicated above, House Bill 342, as passed by the legislature, exempted certain counties from the operation of the bill, such exemptions being based on population classifications. We are not here concerned with the motives which prompted individual members of the legislature to vote as they did on the measure. The following from Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007, 1009, 103 A.L.R. 1208 [(1935)], cited with approval by this Court in James v. Todd, 267 Ala. 495, 103 So. 2d 19 [(1957)], appeal dismissed 358 U.S. 206, 79 S.Ct. 288, 3 L.Ed.2d 235 [(1958)], is applicable: "'The intention of the Legislature, to which effect must be given, is that expressed in the statute, and the courts will not inquire into the motives which influenced the Legislature or individual members in voting for its passage, nor indeed as to the intention of the draftsman or of the Legislature so far as it has not been expressed in the act. So in ascertaining the meaning of a statute the court will not be governed or influenced by the views or opinions of any or all of the members of the Legislature, or its legislative committees or any other person." Id., 267 Ala. at 506, 103 So. 2d at 28.' "It is a well-established rule in this State that a severability clause should be given effect where possible in order to save a legislative enactment. Allen v. Walker County, 281 Ala. 156, 14 1130305 199 So. 2d 854 [(1967)]; Wilkins v. Woolf, 281 Ala. 693, 208 So. 2d 74 [(1968)]; San Ann Tobacco Co. v. Hamm, 283 Ala. 397, 217 So. 2d 803 [(1968)]. Such a clause or provision in an act is to be given its full scope and effect. Shuttlesworth v. Birmingham Bd. of Ed. of Jefferson County, Alabama, 162 F.Supp. 372 [(N.D. Ala. 1958)], affirmed 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145 [(1958)]. "When that which we have declared unconstitutional is stricken, there remains an act complete in itself, sensible and capable of being executed. The striking of the invalid sections does not overthrow the entire act. Alabama Public Service Commission v. AAA Motor Lines, Inc., 272 Ala. 362, 131 So. 2d 172 [(1961)], cert. denied 368 U.S. 896, 82 S.Ct. 173, 7 L.Ed.2d 93 [(1961)]. "The severability clause in House Bill 342, declaring that the unconstitutionality or invalidity of any part of the Act shall not affect the part of the Act which remains, serves to assure this Court that the legislature intended that the Act should be divisible, and that the invalidity of any part thereof should not affect the validity of remaining portions of such Act. Opinion of Justices [No. 69], 247 Ala. 195, 23 So. 2d 505 [(1945)]. Therefore, our answer is that the unconstitutionality of the bill as presently written is overcome by the striking of the amendments thereto." 284 Ala. at 628-29, 227 So. 2d at 398-99. Two of the Justices issued a separate opinion, agreeing that the proposed bill was unconstitutional but opining that it was the clear intent of the legislature to exempt 23 counties from the operation of the proposed bill. The two Justices stated: 15 1130305 "It is both possible and probable that some representatives and senators voted for the bill on final passage because they thought they were secure in the knowledge that the county or counties they represented had been specifically excluded from the operation of the bill. The bill specifically exempts 23 counties, and the Legislature took the pains to enumerate them by population classifications, but under the majority opinion, a usual separability clause, which is general and not specific, is given more weight in ascertaining the intent of the Legislature than the detailed and specific provisions of Section 4 of the bill. "Thus, a general and customary sentence found in most legislative enactments is permitted to make constitutional a bill which all the justices participating in this opinion agree is a local bill and unconstitutional except for the separability clause. This would make the law effective in 23 counties whose legislative delegations thought had been removed from the bill's operation, and specifically contrary to the plain and announced intention of the Legislature that the bill did not affect these 23 counties. It is doubtful if ever before a separability section in a bill put a law into effect in over one-third of the counties in the state when the Legislature had plainly, specifically and intentionally excluded those counties from the operation of the bill. "To give effect to the separability clause by striking Section 4 would make the proposed law effective in many counties in which the Legislature specifically had exempted and thus a separability clause would be given more effect than the expressed intention of the Legislature in dealing with numerous counties of the state. "We have not been cited to, or have we found, any case in Alabama which holds that a separability clause in a bill can change it from a local bill to 16 1130305 a general bill. We do not think such a clause can nullify the effect of Section 111 of the Constitution. "It would be an anomaly if a general bill could be converted into a local bill by amendments, and after passage as amended, be reconverted into a general bill by invocation of a separability clause. Such a chameleon process in itself is a complete denial of the legislative intent and legislative processes." 284 Ala. at 629-30, 227 So. 2d at 399-400. The statute at issue in Hamilton v. Autauga County, 289 Ala. 419, 268 So. 2d 30 (1972), was enacted to stop the practice of paying sheriffs with commissions and fees they collected and pay them instead based on a standard salary schedule determined by county-population classifications. However, the statute created exceptions based on narrowly drawn population classifications that allowed sheriffs in certain counties to continue with the commission and fee system. The object of the statute -- the process of a sheriff's being paid by commissions and fees collected by the sheriff -- was the system for payment of sheriffs in every county of the State. The statute did not affect every county because of the narrowly drawn classifications exempting 24 counties. The act proposing the statute contained a 17 1130305 severability clause. The Hamilton Court found the four Justices' opinion in Opinion of the Justices No. 197, supra, to be persuasive, and it severed the unconstitutional provisions from the statute. The Court also noted that the sheriff's pay statute was enacted shortly after the Court released its advisory opinion in Opinion of the Justices No. 197. The Court in Hamilton stated: "It would appear that the legislature had a right to rely on the pronouncement of a majority of the justices in Opinion of the Justices [No. 197], upholding a severability clause identical to the one in [the sheriff's pay statute] and under an almost identical fact situation. "Since the conjecture is indulged that the legislature would not have enacted [the sheriff's pay statute] without these exceptions, may not the converse also be indulged -- that the legislature would not have accepted the amendments had it not relied on Opinion of the Justices [No. 197], supra, that the severability clause would save the act if the amendments were held unconstitutional?" 289 Ala. at 431, 268 So. 2d at 41. In King v. Campbell, 988 So. 2d 969 (Ala. 2007), a voter challenged the constitutionality of an act that amended a statute, creating an additional circuit court judgeship and providing for the initial filling of the newly created judgeship to be by appointment of the governor rather than by 18 1130305 election. The original act contained a severability clause. This Court held that the portion of the act that created an additional circuit court judgeship, requiring that the office be initially filled by a gubernatorial appointment, violated constitutional provisions requiring the election of all judges and that it was not valid under any other constitutional provisions providing for the governor to fill vacancies in any judicial office by appointment. "[I]n no instance has this Court ever upheld the authority of the governor to fill a 'vacancy' pursuant to a statute providing for appointment of the initial officeholder." 988 So. 2d at 981. The trial court in King concluded that the offending portion of the act could not be severed in that the appointment of the judge by the governor was a "consideration and an inducement to the subsequent election" for the judgeship. 988 So. 2d at 984. In addressing the severability issue, this Court stated: "We must determine whether we agree with the trial court's ultimate conclusion that 'the appointment was a consideration and inducement to a subsequent election.' Our review of an issue concerning the intent of the legislature is confined to the terms of the legislative act itself, unaided by the views of observers of or participants in the legislative process. City of Daphne v. City of 19 1130305 Spanish Fort, 853 So. 2d 933, 945 (Ala. 2003). We can look to '"the history of the times, the existing order of things, the state of the law when the instrument was adopted, and the conditions necessitating such adoption."' City of Birmingham v. Hendrix, 257 Ala. 300, 307, 58 So. 2d 626, 633 (1952)(quoting In re Upshaw, 247 Ala. 221, 223, 23 So. 2d 861, 863 (1945)). We can also look to an act's '"relation to other statutory and constitutional provisions, view its history and the purposes sought to be accomplished and look to the previous state of law and to the defects intended to be remedied."' Hendrix, 257 Ala. at 307, 58 So. 2d at 633 (quoting Birmingham Paper Co. v. Curry, 238 Ala. 138, 140, 190 So. 86, 88 (1939)). ".... "When we reject severability and strike down in its entirety an act that contains an invalid provision, we must be comfortable with the conclusion that a majority of the legislators voting in favor of the bill that became the act would prefer no statute at all to the alternative of eliminating only the provision that violates the constitution. In this context, the question posed would be: "'If the provision in the 2006 Act allowing the governor to appoint at some time after October 1, 2009, is struck down, are you content to allow that circumstance to nullify the separate provision of the 2006 Act repealing the election this year (2006) and replacing it with an election in 2010?' "Section 1 of the 2006 Act, in the first sentence, creates an additional judgeship. There follow two separate sentences. The first of these two sentences calls for filling the office by appointment 'on or after October 1, 2009.' The 20 1130305 second of these two sentences subjects the judgeship to election at the general election in 2010. The record of three previous postponements (1987, 1993, and 1999) of the time for filling the additional judgeship for the 29th Judicial Circuit is convincing evidence that the deferral of the commencement of the term from 2006 to a later date was not a secondary consideration wholly subordinate to the provision for commencement of the term by gubernatorial appointment. The answer to the hypothetical question whether the legislature would have been satisfied by the result of striking down the entire 2006 Act would therefore have to be an emphatic no. A legislator so polled would be cognizant of the fact that saving that part that is constitutional would permit subsequent enactment of a statute that passed constitutional muster while continuing to provide for a term beginning at a date other than in 2006, as was clearly intended by the 2006 Act, consistent with the will of three preceding legislatures. On the other hand, if we conclude that the will of the legislature would have been to see the entire 2006 Act fail by reason of constitutional infirmity as to only a portion of it and thus to allow an election to take place in 2006, we will have ignored the clearly expressed will of the legislature in that portion of the 2006 Act unaffected by constitutional infirmity. Such aggressive exercise of the power of judicial review is inconsistent with our obligations under the constitutional mandate for separation of powers. "As this Court stated in Springer[v. State ex rel. Williams, 229 Ala. 339, 157 So. 219 (1934)]: 'If the act thus deleted of the invalid part is competent to stand without the invalid part, and leaves an enactment complete within itself, sensible, and capable of being executed, it will stand, unless the two parts –- the valid and invalid –- are so inseparable as to raise the presumption that the Legislature would not have enacted the one without the other.' 229 Ala. at 343, 157 So. at 223. 21 1130305 Applying that standard to this case, the portion of Section 1 of the 2006 Act amending the provision in the 1985 Act, as last amended, which called for an election in 2006, and providing instead for an election in 2010 for a term of office to begin in 2011, clearly constitutes an enactment 'complete within itself, sensible, and capable of being executed.' "In summary, we conclude that it is more logical to presume that the legislature did not contemplate election of a third circuit judge in the 2006 election than it is to assume that, if the legislature knew that the office could not be filled by gubernatorial appointment on or after October 1, 2009, it would prefer the status quo before the 2006 Act of an election in 2006. This is especially so in light of the legislature's previous disposition to postpone repeatedly the effective date and of the availability to the legislature of the means to adjust further the effective date by subsequent legislation if we decline to sever and save. "We therefore cannot conclude that the primary intent of the legislature was to change the method of filling the judgeship from that of an election to appointment. The unconstitutional provision of the 2006 Act is not '"so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional.'" Newton v. City of Tuscaloosa, 251 Ala. [209] at 217, 36 So. 2d [487] at 493 [(1948)] (quoting A. Bertolla & Sons v. State, 247 Ala. 269, 271, 24 So. 2d 23, 25 (1945)). Nor can we find that the appointment clause and the deferral of the election to 2010 are 'so intertwined' that it must be assumed that the legislature would not have passed an act that, shorn of the offending provision, has become 'meaningless,' where, as here, the remaining portions of the 2006 Act are 'complete 22 1130305 within [themselves], sensible, and capable of execution.' State ex rel. Jeffers v. Martin, 735 So. 2d [1156] at 1159 [(Ala. 1999)]. That aspect of the 2006 Act deferring the onset of the term until January 2011 remains in effect, thereby amending the provision for an election in 2006 in the 1999 Act." 988 So. 2d at 984-86 (emphasis omitted; emphasis added). In the present case, it is clear that the legislature intended to omit the 3 counties from inclusion in Act No. 2009-546 allowing municipalities with a population of more than 1,000 to hold elections regarding the sale of alcohol in their municipal limits. It is also clear that the legislature did not include a severability clause in Act No. 2009-546. As noted above, the legislature has included a general severability provision in the Alabama Code, which this Court regards as an expression of legislative intent concerning the general power and duty of the judiciary to sever and save statutory provisions not tainted by the unconstitutionality of other provisions in the statute. However, the inclusion of a severability clause in a particular act is a clear statement of a legislative intent to sever unconstitutional provisions in that act while allowing the constitutional provisions to remain. The acts at issue in Opinion of the Justices No. 197, Hamilton, and King contained severability clauses as an 23 1130305 expression of legislative intent to sever, in contrast to Act No. 2009-546. Although this Court has inherent authority to sever and save statutory provisions not tainted by the unconstitutional portions of the statute as acknowledged in § 1-1-16, that authority extends only to those cases in which the invalid portions are not so intertwined with the remaining portions that the remaining portions are rendered meaningless by the extirpation of the offending portion. That is, are the valid and invalid provisions so inseparable that legal effect cannot be given to the remaining valid portion, standing alone, and can it be presumed that the legislature would not have enacted the valid portion without the invalid portion? Here, the constitutional issue is one of equal protection, the gravamen of which is the notion that there are two different clauses in the same enactment that treat 3 counties differently from 64 counties without a sufficient reason. For this Court to sever the provisions exempting the three counties from the statutes would be to presume that the legislature meant Act No. 2009- 546 to be applied to the three counties the legislature specifically excluded. It is not this Court's function to 24 1130305 speculate as to what the legislature might have intended by such an exclusion when the exclusion has no rationale. We recognize that municipalities with more than 1,000 residents in 64 counties have held elections on whether to sell alcohol. However, we must leave it to the legislature to redraft a constitutionally sound law. "[S]evering invalid portions of a statute--simply because the legislature prefers that course of action--creates the wrong set of incentives for legislatures. It overprotects the legislature's freedom to innovate at the cost of reducing its incentives to attend to constitutional norms ex ante (i.e., in drafting the legislation). If courts are willing to save a statute by severing on the legislature's say-so, even when that entails substantial rewriting, the legislature has much less of a reason or incentive to respect constitutional norms at the outset. Courts, not legislators, are tailoring statutes to conform to constitutional norms. Over time, the legislature may come to depend on the courts to fix statutes rather than doing the hard work necessary to enact a properly tailored statute in the first instance. Politically, legislators may prefer this arrangement, for it frees them to pass the statute they want, knowing that courts will save as much of their handiwork as they can. But this arrangement breeds an unhealthy dependency on courts and results in a loss of accountability. When courts substantially rewrite statutes to save them, the resulting work is as much that of the judiciary as of the legislature. That makes it hard to hold the legislature accountable for the statute that the judiciary puts in place." 25 1130305 David H. Gans, Severability as Judicial Lawmaking, 76 Geo. Wash. L. Rev. 639, 644 (April 2008)(footnote omitted). In conclusion, the exclusion of the 3 counties from the provisions of Act No. 2009-546 violated the Equal Protection Clause where the exclusion was not rationally related to the regulation of alcohol because no basis existed for excluding smaller cities within those 3 counties from participating in a "wet" or "dry" election and allowing smaller cities in the remaining 64 counties to do so. However, using severability to save Act No. 2009-546 was not permissible where it was obvious that the legislature excluded the three counties for no rational reason, and to edit Act No. 2009-546 by severing that language excluding the three counties would be to undermine the clear intent of the legislature. Accordingly, the judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Shaw, J., concur in the result. 26 1130305 MOORE, Chief Justice (concurring in the result). In my view, Act No. 2009-546, Ala. Acts 2009 ("the Act"), is invalid under the Alabama Constitution as an unadvertised local law. Accordingly, this Court need not reach the equal- protection or severability issues. However, I do agree with the main opinion that if those issues are addressed, the Act is unconstitutional in its entirety. Discussion In its final order dated November 1, 2013, the trial court addressed the question whether the Act violated the general-law/local-law provisions of the Alabama Constitution. As the trial court explained, the Act, as originally prefiled in the House of Representatives for the 2009 legislative session, was a general bill with statewide application. "A general law is a law which in its terms and effect applies either to the whole state, or to one or more municipalities of the state less than the whole in a class." Art. IV, § 110, Ala. Const. 1901. On March 12, 2009, however, the House amended the bill to exclude by name Blount, Clay, and Randolph Counties from its operation. After approval by both the House and the Senate and an override of a gubernatorial veto, the 27 1130305 bill, as amended, was enacted into law and became effective on May 14, 2009. The bill as enacted contained the three-county exclusion originally added by amendment in the House. Because in its final form the Act does not apply to the whole state or to an entire class of municipalities, it is a local law. "A local law is a law which is not a general law ...." Art. IV, § 110, Ala. Const. 1901. As the trial court noted, the "amendments took Act 2009-546 from being a general act to a local act by and through the exclusion of Randolph, Clay and Blount counties." The Alabama Constitution, however, prohibits the legislature from passing a local law that regulates alcohol "unless notice shall have been given as required in section 106 of this Constitution." Art. IV, § 104(31), Ala. Const. 1901. Section 106, Ala. Const. 1901, mandates that a local law not specifically excluded by § 104 must be advertised prior to its introduction as a bill in the legislature. "The courts shall pronounce void every ... local law which the journals [of each house of the legislature] do not affirmatively show was passed in accordance with the provisions of this section." Art. IV, § 106. 28 1130305 The trial court specifically found that the Act, a local law, was never advertised and that it thus violated § 106. The trial court also found, however, that, under the authority of Densmore v. Jefferson County, 813 So. 2d 844 (Ala. 2001), the subsequent codification of the Act before the filing of this action cured the constitutional infirmity. In Densmore, this Court affirmed "[t]he principle that all infirmities of legislative procedure in enacting an original act are cured when that act is incorporated into a code." 813 So. 2d at 851. The holding in Densmore, however, as it applies to the adoption of annual revisions to the Code by incorporation of legislation passed at the previous legislative session into a general codification act, is overbroad. In Ex parte Coker, 575 So. 2d 43 (Ala. 1990), this Court stated that the principle of curing otherwise unconstitutional enactments by recodification of the Code in which they are included applies only to the "process of adopting an entire Code" such as "the process by which the Codes of 1940, 1923, 1907, 1896, 1886, 1876, 1867, and 1852 were adopted." 575 So. 2d at 50. Thus, legislative action that adopts a Code in its entirety is far more than a 29 1130305 mere annual update that adds one or more replacement volumes and supplements to an existing Code. "[A] bill 'adopting' a Code was and is limited to the class known as such in the constitutional and legislative history of the state." Gibson v. State, 214 Ala. 38, 43, 106 So. 231, 235 (1925). The Code of 1975 is the last such Code that fits this description. The "codification" of Act No. 2009-546, however, under the annual-codification process adopted by the legislature to evade the strictures of Coker,5 is not an adequate Code revision for the purpose of curing constitutional defects. The Coker Court explained that the legislature's official adoption by statute of "successive cumulative supplements" is not the equivalent of adopting a new Code: "While there has been some revision, usually correction of grammatical or typographical errors, of the supplements in each of these acts, there is no indication that the manuscripts have undergone the systematic review by the legislature that is undertaken upon the adoption of a Code." 575 So. 2d at 51. "After this Court decided Coker, the legislature refined 5 the codification process and began the current practice of annually codifying legislation." Ex parte State Dep't of Revenue, 683 So. 2d 980, 982 (Ala. 1996). 30 1130305 The process of global revision, the creation of an entirely new and comprehensive state Code, "is also that process that the Court had in mind when it stated that '[a]ll infirmities of legislative procedure in enacting an original act are cured when that act is incorporated into a code and the code adopted by the legislature.'" Coker, 575 So. 2d at 50 (quoting Fuller v. Associates Commercial Corp., 389 So. 2d 506, 509 (Ala. 1980)). Thus, Densmore, which relies on this quotation from Fuller, see Densmore, 813 So. 2d at 850-51, is faulty when it purports to erase constitutional error in the enactment of statutes by the medium of the legislature's approval of annual supplements. The Fuller principle, as the Coker Court demonstrated, applied only to true historically recognized Code revisions, such as the 1975 Code and its predecessors. See Coker, 575 So. 2d at 50 (collecting cases). In my view, the trial court properly concluded that Act No. 2009-546 was unconstitutional as a local law that had not been advertised as required by §§ 104 and 106 of the Alabama Constitution. The trial court, however, considered itself bound by Densmore. "Act No. 2009-564 is fully within the long shadow of Densmore. This Court has no choice but to follow 31 1130305 Densmore, and in so doing, has no choice but to find that, though offending of Article IV, § 106, Act No. 2009-564's offense has been washed away by and through its codification." Even though Densmore was incorrectly decided, the trial court understandably considered itself bound by it. This Court, however, may correct its own errors.6 By what logic does a bill that is unconstitutional in its enactment suddenly become constitutional by being reenacted? The proposition is nonsensical. Do two wrongs make a right? The supposed repassage of an unadvertised local law under the guise of "codification" does not compensate for passing the local law without advertising the first time but simply perpetuates its unconstitutionality by passing it a second time without the necessary publication. Glenn Bynum and Larry Gipson want the entire Act declared unconstitutional. The City of Oneonta wants to save the Act by severing the three-county exclusion. I agree with Bynum and Gipson that the Act is unconstitutional in its entirety but primarily for different reasons than they advance in their briefs. The Act is I note that Act No. 2009-546 also violates § 111, Ala. 6 Const. 1901: "No bill introduced as a general law in either house of the legislature shall be so amended on its passage as to become a special, private or local law." 32 1130305 unconstitutional in its entirety because it was unconstitutionally enacted. The supposed "reenactment" of the Act as part of the annual revision of the Code, per Densmore, did not remedy its invalidity but instead perpetuated it. The reenactment, like the original enactment, was not advertised and thus also violated § 106. In my dissent in Densmore, I challenged the proposition that ordinary legislation could nullify provisions of the Constitution and stated that "the codification of an invalid statute cannot cure a constitutional defect." 813 So. 2d at 859 (Moore, C.J., dissenting). I also noted that "'an act of the legislature, repugnant to the constitution, is void.'" Id. at 860 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)). This Court is not empowered to disregard the Alabama Constitution. We erred in Densmore, and we should revisit that decision. Assuming the validity of Densmore (which I do not), I agree with the main opinion that this Court could not sever the exclusion language and then declare the rest of the Act constitutional. As Justices Merrill and Harwood stated in 33 1130305 Opinion of the Justices No. 197, 284 Ala. 626, 630, 227 So. 2d 396, 400 (1969): "It would be an anomaly if a general bill could be converted into a local bill by amendments, and after passage as amended, be reconverted into a general bill by invocation of a separability clause. Such a chameleon process in itself is a complete denial of the legislative intent and legislative processes." In this case, the Act has no severability clause, further undermining the proposition that the legislature, which deliberately excluded the three counties from the operation of the Act, somehow authorized this Court, under the rationale of preserving the Act's constitutionality, to rewrite the bill to include those counties. The four other Justices who provided a separate opinion in Opinion of the Justices No. 197, supra, noted that a severability clause "serves to assure this Court that the legislature intended that the Act should be divisible." 284 Ala. at 629, 227 So. 2d at 399. We have no such assurance in this case that would allow us to save the Act by rewriting it to exclude, contrary to the stated legislative intent, the three named counties. Further, to broaden an act by judicial surgery improperly overrides legislative intent: 34 1130305 "The rule ... is ... that if by striking out a void restrictive clause, the remainder of an act, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent and the whole act would be affected and made void by the invalidity of such part; and, if a clause which violates the Constitution cannot be rejected without causing the act to enact what the legislature never intended the whole statute must fall." Alabama Pub. Serv. Comm'n v. AAA Motor Lines, Inc., 272 Ala. 362, 372, 131 So. 2d 172, 180 (1961). See also Spraigue v. Thompson, 118 U.S. 90, 95 (1886) (noting that the "insuperable difficulty" in severing an illegal exception from a statute "is that, by rejecting the exceptions intended by the legislature ..., the statute is made to enact what confessedly the legislature never meant"). Under Alabama Public Service Commission, if we were to affirm the trial court's excision of the three-county- exception clause, we would necessarily broaden the scope of the Act "as to subject or territory." By so doing, we would run afoul of the principle of statutory construction that forbids such judicial alteration of a statute. See Wilkinson v. Stiles, 200 Ala. 279, 76 So. 45 (1917) (noting that striking "a clause expressly excepting cities of a population of 35,000 or more ... and uphold[ing] the rest of the act 35 1130305 would extend the law to every city in the state, although the Legislature said that it should not do so"). The leading treatise on statutory construction states: "Where an exception clause is unconstitutional, the substantive provision it qualifies cannot stand. This rule is essentially an issue of legislative intent, as courts cannot assume a legislature would have enacted a statute without the exceptions, and in any event are barred by the separation of powers principle from determining how the law's substantive provisions might otherwise have been modified had the legislature known the exceptions would be found unconstitutional." 2A Sutherland Statutory Construction § 47:11 (7th ed. 2014). "By far the most common fate of statutes containing unconstitutional exceptions is complete destruction." Note, The Effect of an Unconstitutional Exception Clause Upon the Remainder of a Statute, 55 Harv. L. Rev. 1030, 1030 (1942). Conclusion Because the Act is a local law that was not advertised as required by § 106 and, therefore, is unconstitutional under the Alabama Constitution, I see no need to reach out to discuss a federal equal-protection issue. Even if Densmore was properly decided, and the magic wand of annual recodification cured the Act's invalidity under the Alabama Constitution, the Act still fails in its entirety and may not be revived by 36 1130305 invoking a severability argument that contradicts the stated legislative intent. Because I agree with the main opinion in its severability analysis, but would decide this case instead on state constitutional grounds, I concur in the result. 37	February 27, 2015
3e00f5a1-0d97-4324-a72c-387556da50b6	Geeslin v. On-Line Information Services, Inc.	N/A	1120666	Alabama	Alabama Supreme Court	REL: 05/08/2015 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 _________________________ 1120666 _________________________ Kevin Geeslin v. On-Line Information Services, Inc., and Chief Justice Roy S. Moore Appeal from Montgomery Circuit Court (CV-12-901574) MURDOCK, Justice. Kevin Geeslin filed this action challenging a "convenience fee" and "token fee" charged in connection with his on-line electronic filing of a civil action –- fees 1120666 assessed in addition to the statutorily defined filing fee that were mandated by a September 6, 2012, administrative order issued by then Chief Justice Charles Malone. That order purported to make mandatory the on-line, or electronic, filing of all documents filed in civil actions in Alabama circuit courts and district courts by parties represented by an attorney. Alabama's on-line document-filing system, known as "AlaFile," requires credit-card payment of filing fees and charges users a "convenience fee" in addition to the filing fees. Geeslin filed this putative class action in the Montgomery Circuit Court, naming as defendants Chief Justice Malone in his official capacity and On-Line Information 1 Services, Inc. ("On-Line"), the company that manages and maintains the electronic-filing system for the Alabama Administrative Office of Courts ("AOC"). Geeslin alleges that Chief Justice Malone's order was unconstitutional and that the fees collected over and above the statutorily defined filing fee amounted to an illegal tax. Geeslin sought a judgment declaring the convenience fee and another "token fee" Chief Justice Roy Moore, upon assuming the office of 1 Chief Justice, was automatically substituted for Chief Justice Malone. See Rule 43, Ala. R. App. P. 2 1120666 unconstitutional and a refund of the fees paid by him and the other putative class members. The Chief Justice and On-Line moved to dismiss the complaint. The trial court granted the motion to dismiss, and Geeslin appeals. We affirm in part, reverse in part, and render a judgment for Geeslin on his declaratory-judgment claim. I. Background Before the issuance of Chief Justice Malone's administrative order of September 6, 2012, electronic filing was an optional method of filing in civil cases in Alabama circuit and district courts. Electronic filing in legal actions in Alabama is of relatively recent origin. On July 29, 2005, this Court issued an administrative order authorizing a pilot program for electronic filing for civil matters in certain Alabama counties. The order authorized the Administrative Director of Courts ("the ADC") to promulgate procedural rules for electronic filing and to issue any administrative directives necessary to implement the pilot program. Under the administrative regulations developed by the ADC, attorneys who participated in voluntary electronic filing could do so only by paying court fees associated with 3 1120666 electronically filed documents by credit card, for which they were charged an additional 4% "convenience fee." Because the electronic filing requiring this payment was voluntary, however, so too, in effect, was the convenience fee. 2 In connection with this Court's authorization of the pilot program, AOC began working with On-Line, a software- Section 41-1-60(a), Ala. Code 1975, provides that "any 2 officer or unit of state government required or authorized to receive or collect any payments [for] state government may accept a credit card payment of the amount that is due." Section 41-1-60 further provides: "(e) An officer or board or other body authorizing acceptance of credit card payments may impose a surcharge or convenience fee upon the person making a payment by credit card to wholly or partially offset, but not to exceed[,] the amount of any discount or administrative fees charged to state government. The surcharge or convenience fee shall be applied only when allowed by the operating rules and regulations of the credit card involved. When a party elects to make a payment to state government by credit card and a surcharge or convenience fee is imposed, the payment of the surcharge or convenience fee shall be deemed voluntary by the party and shall not be refundable." (Emphasis added.) Rule 41(A), Ala. R. Jud. Admin., permits payment of court fees by credit card and provides that "[t]he process for accepting payments by credit card must comply with § 41-1-60." Rule 41(B) provides that "[c]onvenience fees and other administrative fees levied for the privilege of paying assessments, fees, costs, fines, or forfeitures by credit card shall be taxed as costs when costs are taxed by the court." (Emphasis added.) 4 1120666 development company, to develop a system for electronic filing. On-Line and AOC eventually developed what is now known as AlaFile and also developed related document-storage and document-management systems. At all times relevant to this appeal, On-Line has provided software support and management and development services to AOC under the terms of a licensing and services agreement. In the agreement, On-Line is designated as a "limited agent of the AOC" for the purpose of collecting all charges and filing fees paid through use of AlaFile. On-Line collects all statutory filing fees and convenience fees as a limited agent of AOC and remits the statutory filing fees to AOC. The agreement entitles On-Line to retain the convenience fees. The pilot program was successful and eventually was expanded statewide so that all circuit and district courts could participate in electronic filing through AlaFile. Effective October 24, 2008, this Court amended Rule 5 of the Alabama Rules of Civil Procedure to recognize electronic filing as an optional means of filing and service in every county in Alabama. See Rule 5(b) and (e), Ala. R. Civ. P. Indeed, the Committee Comments to Amendments to Rule 5 5 1120666 Effective October 24, 2008, which were also approved by this Court, made clear that electronic filing was an "optional" means of filing and service. ("The additions to Rule 5(b) and Rule 5(e) recognize that electronic filing is now an optional means of filing and service in every county in Alabama." (Emphasis added.)) The administrative regulations concerning electronic filing developed by AOC continued to provide that users were to pay a 4% convenience fee above the filing fees and court costs paid. Furthermore, users of AlaFile can elect to store their payment information for future use. Users who elected to store such information were charged a $0.05 "token fee." This charge, however, is purely voluntary. See note 2, supra, and accompanying text. On September 6, 2012, Chief Justice Malone issued his administrative order purporting to direct that, effective October 1, 2012, all documents filed in civil actions in Alabama circuit courts or district courts by a party represented by an attorney must be filed electronically. The order reads as follows: 6 1120666 "IN THE SUPREME COURT OF ALABAMA "ADMINISTRATIVE ORDER "WHEREAS, pursuant to Article VI, Section 149, of the Constitution of Alabama, the Chief Justice of the Supreme Court of Alabama is the administrative head of the judicial system; and "WHEREAS, Section 12-2-30(b)(7), Code of Alabama 1975, authorizes and empowers the Chief Justice, '[t]o take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state'; and "WHEREAS, Section 12-2-30(b)(8), Code of Alabama 1975, authorizes and empowers the Chief Justice '[t]o take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated [in the law],' "IT IS THEREFORE ORDERED AND DIRECTED that effective October 1, 2012, all documents filed by any party represented by an attorney shall be filed electronically through the AlaFile application in all civil divisions of the circuit and district courts including: Circuit Civil (CV); District Civil (DV); Small Claims (SM); Domestic Relations (DR); and, Child Support (CS). Documents may still be filed in open court at the trial judge's discretion. If documents are filed in open court, the attorney filing the document is responsible for filing the document electronically through AlaFile on the same day. Additional details and instructions may be found in the 'Administrative Policies and Procedures for Electronic Filing in the Civil Divisions of the Alabama Unified Judicial System.' "Most documents that are filed in a case can be filed electronically. Document types that are not 7 1120666 available will be listed on the http://efile.alacourt.gov/ website and should be filed conventionally. As additional document types become available for electronic filing, the Administrative Director of Courts (ADC) may expand the scope of the mandate for electronic filing by directive. "A hardship exception allowing an attorney to file in paper may be obtained for an attorney who cannot file electronically due to exceptional circumstances. Requests for an exception should be submitted to the ADC for consideration and approval or disapproval by the ADC. "Effective October 1, 2012, all orders rendered by the judge assigned to a case in one of the civil divisions including: Circuit Civil (CV); District Civil (DV); Small Claims (SM); Domestic Relations (DR); and Child Support (CS) shall be rendered electronically by the judge through the AlacourtPlus application. "A hardship exception allowing a judge to file an order in paper may be obtained for a judge who cannot file electronically due to exceptional circumstances. Requests for an exception should be submitted to the Administrative Director of Courts for consideration and approval or disapproval jointly by the Administrative Director of Courts and the Chief Justice. ".... "This administrative order does not prevent the Presiding Judge of a Judicial Circuit from entering an administrative order requiring electronic filing of documents by attorneys or electronic filing of orders by judges in other divisions of the circuit or district courts in that Judicial Circuit, "Done this 6th day of September 2012. 8 1120666 "/s/ Charles R. Malone "CHARLES R. MALONE "CHIEF JUSTICE" Despite the fact that the mandatory nature of the order was contrary to this Court's previous recognition that the electronic filing was "optional," the order was issued solely on the basis of Chief Justice Malone's authority as Chief Justice, without the concurring vote of any other Justice. Geeslin alleges that after the effective date of Chief Justice Malone's order, he filed, through his attorney, a domestic-relations action in the St. Clair Circuit Court. Pursuant to the policy mandated by Chief Justice Malone's administrative order, Geeslin's action was filed electronically, and Geeslin paid a $194.00 filing fee, plus a "convenience fee" and a "token fee."3 On November 21, 2012, Geeslin filed this action against On-Line and Chief Justice Malone in his official capacity as Chief Justice. He sought, among other things, an injunction permanently restraini0ng the Chief Justice and On-Line from continuing to collect the convenience fee and the token fee. Geeslin's complaint alleges that the convenience fee of 3 4% was $13.84 and that the additional token fee was $0.05. We note that 4% of $194.00 is $7.76. 9 1120666 Count one of Geeslin's complaint sought a judgment under Alabama's declaratory-judgment act, § 6-6-220 et seq., Ala. Code 1975, declaring that the "convenience fee" and "token fee" paid by Geeslin constitute an illegal and unlawful taking. Geeslin subsequently amended count one to assert that the Chief Justice's order was without effect, because, he argued, the Chief Justice had no power to issue the administrative order unilaterally, i.e., without the concurring votes of the majority of the Supreme Court. Geeslin also requested that the case be certified as a class action and that he be named the representative of a class of similarly situated litigants who have been forced to pay the convenience and token fees. Geeslin demanded that all such payments be refunded to him and the other members of the putative class. In count two of his complaint, Geeslin alleged that the convenience fee and the token fee were collected in violation of his due-process rights as guaranteed by the Fourteenth Amendment to the United States Constitution, and he asserted a claim against Chief Justice Malone and On-Line under 42 U.S.C. § 1983. Geeslin requested that the court enter an 10 1120666 order requiring the Chief Justice and On-Line to "disgorge themselves of, restore, and refund" the fees Geeslin and the other members of the putative class had paid. The Chief Justice and On-Line jointly moved to dismiss Geeslin's complaint. As part of their motion, the Chief Justice and On-Line argued that Geeslin's State-law claim for money damages against the Chief Justice in his official capacity was barred by the doctrine of sovereign immunity. Likewise, Geeslin's § 1983 claim was barred, they argued, because the State of Alabama and its officials acting in their official capacities are not considered "persons" for the purposes of an action seeking damages under § 1983. On-Line argued that the State-law claim for money damages against On-Line, a limited State agent for the purpose of collecting the complained-of fees, was barred by the doctrine of State- agent immunity and that that part of the § 1983 claim seeking money damages against On-Line asserted in count two was barred by the doctrine of qualified immunity. The Chief Justice and On-line further argued that Geeslin's claims for money damages were also barred by the voluntary-payment doctrine. The Chief Justice and On-Line further argued that, to the extent Geeslin 11 1120666 sought injunctive relief, he had failed to allege or to plead the elements necessary for the court to issue an injunction under Rule 65, Ala. R. Civ. P., because, they argued, Geeslin had an adequate remedy at law -– he could have challenged or sought exemption from the fees in his underlying civil action. The Chief Justice and On-Line also correctly argued that Geeslin's request for declaratory relief concerning the propriety of the administrative order mandating electronic filing failed to state a claim against On-Line, which had no ability to create, amend, or repeal the administrative regulation in question. The Chief Justice and On-Line argued that the § 1983 claim was due to be dismissed because the collection of the convenience fee and the token fee did not deprive Geeslin of his due-process rights under the Federal Constitution. Finally, the Chief Justice argued that Geeslin's claims were due to be dismissed because, as a matter of law, the Chief Justice, as the administrative head of Alabama's unified judicial system, had the power to issue the September 6, 2012, order, and that the convenience fee and token fee were not illegal or unconstitutional taxes, but were "user fees" authorized by State law. Each of the above 12 1120666 arguments was briefed by the Chief Justice and On-Line and was argued before the trial court. The motion to dismiss was argued before the trial court on February 7, 2013. That same day the trial court entered an order granting the Chief Justice and On-Line's motion and dismissing Geeslin's complaint. II. Analysis On appeal, Geeslin argues that the trial court erred in dismissing the complaint because: (1) the Chief Justice, Geeslin argues, acting alone and without the concurring votes of a majority of the Supreme Court, lacked the authority to issue the September 6, 2012, administrative order; and (2) the convenience fee and token fee paid by users of AlaFile, he argues, constitute illegal and unconstitutional taxes. He makes these arguments, however, only in the context of his claim for a declaratory judgment, which involves only the Chief Justice. "In order to secure a reversal, 'the appellant has an affirmative duty of showing error upon the record.'" Alabama Dep't of Transp. v. Reid, 74 So. 3d 465, 469 (quoting Tucker v. Nichols, 431 So. 2d 1263, 1264 (Ala. 1983)). We therefore limit our review of the trial court's judgment to 13 1120666 the issue of the viability of Geeslin's declaratory-judgment claim. Geeslin's declaratory-judgment claim seeks a declaration that Chief Justice Malone's September 6, 2012, order was "illegal and unconstitutional ... because it was not concurred in by at least four additional Justices of the Supreme Court of Alabama." Geeslin contends that, because the order mandated the electronic filing in all civil actions in which a party was represented by counsel, the associated fees charged in addition to the filing fee were a "tax levied by judicial fiat." In response, the Chief Justice contends that Art. VI, § 149, Alabama Const. 1901, together with § 12-2-30(b)(7)-(8), Ala. Code 1975, give the Chief Justice broad administrative authority to issue the types of orders made the basis of this appeal. Furthermore, he argues that the "convenience fee" is not a "tax" and is expressly authorized by § 41-1-60, Ala. Code 1975, and Rule 41, Ala. R. Jud. Admin. We turn first to the Chief Justice's power to issue to the September 6, 2012, order without the concurrence of a majority of the Supreme Court. Section 149 establishes that "[t]he chief justice of the supreme court shall be the 14 1120666 administrative head of the judicial system." The Alabama 4 Code further defines the administrative authority of the Chief Justice. Section 12-2-30(b), Ala. Code 1975, provides that, among other things, "the Chief Justice is authorized and empowered": "(7) To take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state. "(8) To take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated in this section or elsewhere." Notwithstanding the above provisions, the Chief Justice's broad powers to effectuate his or her role as administrative head of the court system are not unlimited. Although the Alabama Constitution provides that the Chief Justice is the Section 149 provides: 4 "The chief justice of the supreme court shall be the administrative head of the judicial system. He shall appoint an administrative director of courts and other needed personnel to assist him with his administrative tasks. The chief justice may assign appellate justices and judges to any appellate court for temporary service and trial judges, supernumerary justices and judges, and retired trial judges and retired appellate judges for temporary service in any court. ..." 15 1120666 administrative head of the judicial system, the Constitution vests the Supreme Court with the power to promulgate rules governing the administration of all courts. Section 150, Ala. Const. 1901, provides: "The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts ...." Furthermore, the legislature, in § 12-2-19(a), Ala. Code 1975, expressly recognized that "the Supreme Court now has the initial primary duty to make and promulgate rules governing practice and procedure in all courts, as well as rules of administration for all courts ...." In Ex parte State ex rel. James, 711 So. 2d 952 (Ala. 1998), a three-Justice plurality discussed the Chief Justice's authority to act unilaterally. In that case, which concerned whether the Chief Justice had the power to order a circuit judge to remove a Ten Commandments display from his courtroom, the main opinion reasoned, in part, as follows: "Authority to issue such 'order as may be necessary [for] general supervision and control of courts of inferior jurisdiction,' is vested by Amendment 328, 6.02 [now § 140, Ala. Const. 1901 (Off. Recomp.)], in the Supreme Court. Similarly, it is the Supreme Court that is charged by Amendment 328, 6.08 [now § 147, Ala. const. 1901 (Off. Recomp.)], with 'adopt[ing] rules of conduct and canons of ethics ... for the judges of all courts of 16 1120666 this State.' Again, it is the Supreme Court that is charged by Amendment 328, 6.11 [now § 150, Ala. Const. 1901 (Off. Recomp.)], with the duty to 'make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts.' "The significance of the term 'supreme court' in 6.02, 6.08, and 6.11 is illustrated by Ala. R. App. P. 16(b), which provides: "'The concurrence of five justices in the determination of any cause shall be necessary ..., except when, by reason of disqualification the number of justices ... is reduced, in which event the concurrence of a majority of the justices sitting shall suffice; but, in no event, may a cause be determined unless at least four justices sitting shall concur therein.' "(Emphasis added.) Indeed, as a 'hornbook' principle of practice and procedure, no appellate pronouncement becomes binding on inferior courts unless it has the concurrence of a majority of the Judges or Justices qualified to decide the cause. Simply stated, action by the Chief Justice is not synonymous with action by the 'Court.'" 711 So. 2d at 963-64. The method by which filing and service must be accomplished is inherently a rule of practice, procedure, and administration, see Rule 5, Ala. R. Civ. P., the promulgation of which the Alabama Constitution vests solely in the Supreme Court. § 150, Ala. Const. 1901. Consistent with that understanding, a majority of this Court concurred to authorize 17 1120666 the use of electronic-document filing in the courts of this State and authorized the ADC to implement and administer the electronic-filing system. This Court, however, has never authorized mandatory electronic filing. To the contrary, in adopting the Committee Comments to the Amendments to Rule 5 of the Alabama Rules of Civil Procedure Effective October 24, 2008, this Court expressly recognized electronic filing as an "optional" means of filing and service. Chief Justice Malone's September 6, 2012, administrative order requiring mandatory electronic filing by all parties represented by an attorney in a civil action had the effect of modifying the existing rules of filing and service established by this Court. Accordingly, we hold that, in issuing the September 6, 2012, administrative order, the Chief Justice exceeded his administrative authority. That order shall no longer be of any force or effect. Based on the foregoing, we pretermit discussion of Geeslin's additional argument that the convenience fee and the token fee amount to unconstitutional "taxes." 18 1120666 III. Conclusion We affirm the judgment of dismissal as it relates to all claims against On-Line, to all claims seeking monetary relief and injunctive relief, and to the action asserted against the Chief Justice under § 1983. As to the declaratory-judgment claim against the Chief Justice, we reverse the trial court's judgment of dismissal and render a judgment in favor of Geeslin. AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED. Parker, Main, Wise, and Bryan, JJ., concur. Moore, C.J., recuses himself. 19	May 8, 2015
01dca4a9-5483-4760-acf6-26766fd22484	Ex parte Amber Bartlett.	N/A	1140441	Alabama	Alabama Supreme Court	Rel: 05/29/2015 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 ____________________ 1140440 ____________________ Ex parte University of South Alabama PETITION FOR WRIT OF MANDAMUS (In re: Azin Agah v. Amber Bartlett et al.) ____________________ 1140441 ____________________ Ex parte Amber Bartlett PETITION FOR WRIT OF MANDAMUS (In re: Azin Agah v. Amber Bartlett et al.) (Mobile Circuit Court, CV-11-901689) 1140440, 1140441 PER CURIAM. The University of South Alabama ("USA"), a state institution of higher learning, see § 16-55-1 et seq., Ala. Code 1975, contends that it is immune from civil actions and petitions this Court for a writ of mandamus directing the Mobile Circuit Court to dismiss it from an action filed by Azin Agah, a former USA employee. Additionally, Amber Bartlett, a student who worked under Agah's supervision in USA's research laboratory and a defendant in the same underlying action, petitions this Court for a writ of mandamus directing the Mobile Circuit Court to issue an order quashing the subpoena issued to Alabama Psychiatric Services, P.C. ("APS"), ordering production of her mental-health records. We grant the petitions and issue the writs. Facts and Procedural History On or about August 1, 2006, USA hired Agah, a cell biologist, as a tenure-track employee, to teach biochemistry and to research the abnormalities in the extracellular matrix and angiogenesis associated with the pathogenesis of scleroderma. In 2010, USA did not reappoint Agah based on alleged research misconduct. 2 1140440, 1140441 In 2011, Agah sued Bartlett and Julio F. Turrens, associate dean of the College of Allied Health Professions at USA and chairman of the two ad hoc committees that evaluated Agah, and other fictitiously named parties, alleging theft of electronic computer data and her research logbook and intentional and malicious interference with her contractual relationship with USA and seeking recovery of chattels in specie for the electronic data and her research logbook. In June 2012, Agah served a notice of intent to subpoena APS to obtain "all records pertaining to the care and treatment of Amber Leigh Bartlett." In July 2012, Bartlett objected to the subpoena, arguing that the records were subject to the psychotherapist-patient privilege, see Rule 503, Ala. R. Evid., and § 34-26-2, Ala. Code 1975. Bartlett and APS moved to quash the subpoena and for an order declaring that the records of APS with regard to Bartlett remain confidential. On August 9, 2012, the trial court denied the motion filed by Bartlett and APS to quash the subpoena and to enter a protective order and ordered the production of the documents for an in camera review. On August 14, 2012, Bartlett moved the trial court to reconsider its orders 3 1140440, 1140441 directing the production of her records from APS and denying a protective order. On March 21, 2013, Agah amended her complaint adding USA and others as defendants and adding various claims. The only claim in her amended complaint that specifically names USA as a defendant "seeks a declaratory judgment, injunctive relief, and monetary damages against USA for the breach by USA of [her] tenure track employment contract with USA." Against 1 Bartlett and the other "defendants" Agah alleged tortious interference with contractual rights, "tortious violation of [her] rights guaranteeing her substantive and procedural due process," suppression, defamation of character, intentional infliction of emotional distress, negligent infliction of emotional distress, administrative abuse of process, conversion and detinue, and invasion of privacy. She 2 In her answer to USA's petition for a writ of mandamus, 1 Agah states that she seeks no monetary damages from USA, that she requests only a judgment declaring that the express and implied tenure-track contractual requirements contained in the 2007 USA faculty handbook, which, she says, incorporated procedures provided in the Code of Federal Regulations when investigating alleged research misconduct, should have been applied during the investigation into her alleged research misconduct. To the extent that Agah's complaint can be read as 2 alleging these claims against USA also, as previously noted, 4 1140440, 1140441 requests a judgment of $10,000,000, an order appointing a special master to conduct a fair and impartial investigation into the allegations against her of research misconduct, and an order requiring the return of her research logbook undamaged. On August 13, 2013, before the trial court ruled on Bartlett's motion to reconsider, Agah issued a subpoena for Bartlett's mental-health records from APS. On August 14, 2013, Bartlett again moved the trial court to quash the subpoena and to enter a protective order. On August 30, 2013, USA moved to dismiss Agah's claims against it, arguing, among other grounds, that it had absolute immunity from civil actions under § 14 of the Alabama Constitution 1901. With its motion, USA submitted evidentiary support for the trial court's consideration. On January 28, 2015, the trial court entered an order denying USA's motion to dismiss and Bartlett's motion to in her answer to USA's petition for a writ of mandamus, Agah states that with regard to USA she requests only a declaratory judgment and in relief "[a]n order appointing a special master to conduct a fair and impartial investigation as to the allegations of research misconduct [against her] pursuant to Code of Federal Regulations, C.F.R. § 93.306; and make such report of findings to the Court." 5 1140440, 1140441 reconsider its order refusing to quash Agah's subpoena for her mental-health records from APS and to enter a protective order. On February 5, 2015, USA petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying its motion to dismiss and to enter an order, based on § 14 immunity, dismissing USA from Agah's action. On March 2, 2015, Bartlett petitioned this Court for a writ of mandamus directing the trial court to quash the subpoena issued to APS seeking production of her mental-health records. Standard of Review "'The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So. 2d 358, 360 (Ala. 1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002).' "Ex parte Davis, 930 So. 2d 497, 499 (Ala. 2005)." Ex parte Troy Univ., 961 So. 2d 105, 107-08 (Ala. 2007). Discussion Case no. 1140440 6 1140440, 1140441 USA contends in its petition that it is entitled to absolute immunity from the claims asserted against it in Agah's complaint; therefore, it says, it has a clear, legal right to a writ of mandamus directing the Mobile Circuit Court to dismiss USA from Agah's action. "A petition for a writ of mandamus is the proper vehicle by which to seek review of the denial of a motion to dismiss based on the ground of State immunity: "'The denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity. Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758, 761–62 (Ala. 2002).' "Ex parte Haralson, 853 So. 2d 928, 931 n. 2 (Ala. 2003)." Drummond Co. v. Alabama Dep't of Transp., 937 So. 2d 56, 57 (Ala. 2006). USA maintains that it is entitled, as a matter of law, to absolute immunity from Agah's action under § 14, Ala. Const. 1901. "[T]he State of Alabama shall never be made a defendant in any court of law or equity." Article I, § 14, Ala. Const. 1901. This Court has recognized that § 14 immunity has been extended to the "'state's institutions of higher learning' and 7 1140440, 1140441 has held those institutions absolutely immune from suit as agencies of the State." Ex parte Troy Univ., 961 So. 2d at 109 (quoting Taylor v. Troy State Univ., 437 So. 2d 472, 474 (Ala. 1983), and citing Hutchinson v. Board of Trs. of Univ. of Ala., 288 Ala. 20, 256 So. 2d 281 (1971), and Harman v. Alabama Coll., 235 Ala. 148, 177 So. 747 (1937)). Agah, in her answer filed in this Court, maintains that, because she seeks a declaratory judgment against USA concerning her employment contract and the rules and procedures used to investigate an allegation against her of research misconduct and because declaratory-judgment actions are excepted from § 14 immunity, USA is not entitled to immunity from her action. Agah's request for a declaratory judgment against USA, however, does not disqualify USA from § 14 immunity. The declaratory-judgment exception to § 14 sovereign immunity is applicable to actions against State officials, not to actions against the State or State agencies. As we explained in Ex parte Alabama Department of Finance, 991 So. 2d 1254, 1256-57 (Ala. 2008): "[C]ertain actions are not barred by § 14. There are six general categories of actions that do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their 8 1140440, 1140441 legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; (4) actions brought against State officials under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking construction of a statute and its application in a given situation; (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law. See 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)); Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So. 2d 831 (Ala. 2008) (holding that the exception for declaratory-judgment actions applies only to actions against State officials). As we confirmed in Harbert, these 'exceptions' to sovereign immunity apply only to actions brought against State officials; they do not apply to actions against the State or against State agencies. See Alabama Dep't of Transp., 990 So. 2d at 840-41." (Emphasis added.) Agah's declaratory-judgment action against USA does not fall within the declaratory-judgment exception to § 14 immunity. USA is a State institution of higher learning and, as a matter of law, is a State agency entitled to the absolute immunity of § 14. Therefore, USA has established that it has a clear legal right to the dismissal of the claims against it. 9 1140440, 1140441 Case no. 1140441 Bartlett contends that she has a clear, legal right to a writ of mandamus directing the trial court to enter an order quashing the subpoena issued to APS seeking the production of Bartlett's mental-health records. "'"Discovery matters are 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. Home Ins. Co. v. Rice, 585 So. 2d 859, 862 (Ala. 1991). Accordingly, mandamus will issue to reverse a trial court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions." "'Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). "'Moreover, this Court will review by mandamus only those discovery matters involving (a) the disregard of a privilege, (b) the ordered production of 'patently irrelevant or duplicative documents,' (c) orders effectively eviscerating 'a party's entire action or defense,' and (d) orders 10 1140440, 1140441 denying a party the opportunity to make a record sufficient for appellate review of the discovery issue. 872 So. 2d at 813–14. ...' "Ex parte Meadowbrook Ins. Group, Inc., 987 So. 2d 540, 547 (Ala. 2007)." Ex parte Mobile Gas Serv. Corp., 123 So. 3d 499, 504 (Ala. 2013). Accordingly, we must determine whether the trial court exceeded its discretion by disregarding a privilege when it refused to quash the subpoena and to enter a protective order. Rule 503, Ala. R. Evid., "Psychotherapist-Patient Privilege," provides, in pertinent part: "(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient's mental or emotional condition, including alcohol or drug addiction, among the patient, the patient's psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including member's of the patient's family. "(c) Who May Claim the Privilege. The privilege may be claimed by the patient, the patient's guardian or conservator, or the personal representative of a deceased patient. The person who was the psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient. 11 1140440, 1140441 "(d) Exceptions. "(1) Proceedings for Hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist has determined, in the course of diagnosis or treatment, that the patient is in need of hospitalization. "(2) Examination by Order of Court. If the court orders an examination of the mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise. "(3) Accused in Criminal Case. There is no privilege under this rule as to an accused in a criminal case who raises the defense of insanity. "(4) Breach of Duty Arising Out of Psychotherapist–Patient Relationship. There is no privilege under this rule as to an issue of breach of duty by the psychotherapist to the patient or by the patient to the psychotherapist. "(5) Child Custody Cases. There is no privilege under this rule for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure." Rule 510, Ala. R. Evid., provides that a party may waive a privilege by voluntarily disclosing or consenting to the disclosure of the privileged matter. 12 1140440, 1140441 In Ex parte Rudder, 507 So. 2d 411 (Ala. 1987), this Court recognized that the psychotherapist-patient privilege gives the patient the right to refuse to disclose confidential communications, including notes or records made by the psychotherapist, and to prevent others from disclosing confidential communications made during the assessment and/or treatment of the patient's mental condition. We stated that the psychotherapist-patient privilege rested on the need to "inspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing the physician from making public information that would result in humiliation, embarrassment, or disgrace to the patient, and [is] thus designed to promote the efficacy of the physician's advice or treatment. The exclusion of the evidence rests in the public policy and is for the general interest of the community." 507 So. 2d at 413. Acknowledging the public policy supporting the psychotherapist-patient privilege, this Court in Ex parte Pepper, 794 So. 2d 340, 343 (Ala. 2001), refused to create "an exception to the privilege applicable when a party seeks information relevant to the issue of the proximate cause of another party's injuries." In Ex parte Northwest Alabama Mental Health Center, 68 So. 3d 792, 799 (Ala. 2011), this Court refused to create "an exception to the privilege that 13 1140440, 1140441 would narrow those parameters by making the privilege inapplicable when a plaintiff establishes that privileged information is 'necessary' to proving a cause of action." Bartlett contends that the trial court exceeded its discretion in ordering the production of her APS records because, she says, those records are protected from production by the psychotherapist-patient privilege, the records do not fall within one of the recognized exceptions to the privilege, and she has not waived the privilege. In her answer to this Court, Agah appears to recognize that the requested records are subject to the psychotherapist-patient privilege. Agah does not address Bartlett's arguments that the production of those records for in camera review is improper; instead, she argues that the production of the records for in camera review is in accordance with Ex parte Etherton, 773 So. 2d 431 (Ala. 2000). 3 Agah also maintains that Bartlett's petition for a writ 3 of mandamus is untimely because, she says, the judgment Bartlett challenges, the denial of her motion to reconsider, was denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., 90 days after it was filed on August 14, 2012. She reasons that because Bartlett did not file her petition for a writ of mandamus until some two and a half years after the denial of the motion by operation of law, the petition is untimely. As this Court recognized in Ex parte Ferrari, [Ms. 1130679, Feb. 6, 2015] ___ So. 3d ___ (Ala. 2015), because a 14 1140440, 1140441 In Ex parte Etherton, this Court addressed the petitioner's request for a writ of mandamus directing the trial court to quash subpoenas for the production of his records relating to his treatment for chemical dependency. The petitioner maintained that the trial court exceeded the scope of its discretion in ordering the production of his records because, he said, the records were privileged under Rule 503, Ala. R. Evid., and he had not waived the privilege. This Court held that the trial court had not exceeded the scope of its discretion in ordering the production of the documents for an in camera review, permitting review of the documents to determine whether they were discoverable while protecting the petitioner from unauthorized disclosures. Justice Cook, with three Justices concurring, wrote in the main opinion that production of the documents for in camera review was proper because the records were perhaps the plaintiff's "only source of relevant evidence, or information that [would] lead to admissible evidence, in support of her trial court's order granting discovery is not a final order, a motion to reconsider that order is not a postjudgment motion under Rule 59, Ala. R. Civ. P., subject to Rule 59.1. Bartlett timely filed her petition following the trial court's denial of her motion to reconsider and for a protective order on January 28, 2015. 15 1140440, 1140441 claims." 773 So. 2d at 436. Justice Lyons, in a writing concurring in the result joined by three Justices, rejected the main opinion's creation of an exception authorizing the trial court to disclose records upon a showing of necessity and refused to apply that exception to the psychotherapist- patient privilege. Justice Lyons stated that production of the petitioner's records for in camera review, however, was proper because the materials before the Court indicated that some of the records might not be confidential communications protected by the psychotherapist-patient privilege and, consequently, would be discoverable. Agah's reliance on Ex parte Etherton is misplaced for several reasons. First, no writing in Ex parte Etherton received a majority of the votes; therefore, the reasoning in neither the main opinion nor Justice Lyons's special writing has precedential value. Moreover, even if the main opinion in Ex parte Etherton had precedential value, the materials before us do not establish that Agah demonstrated a showing of necessity for the production of Bartlett's mental- health records for in camera review. Furthermore, the materials before us do not establish that Agah demonstrated that 16 1140440, 1140441 Bartlett's mental-health records contained information outside the parameters of the privileged psychotherapist-patient communications that might be discoverable. Finally, this Court in Ex parte Northwest Alabama Mental Health Center, supra, specifically refused to create an exception to the psychotherapist-privilege "that would narrow those parameters by making the privilege inapplicable when a plaintiff establishes that privileged information is 'necessary' to proving a cause of action." 68 So. 3d at 799. For all these reasons, Ex parte Etherton has no application to this case. Because Bartlett has demonstrated that her mental-health records are privileged and because Agah has not demonstrated that the records fall within an exception to the privilege, that Bartlett waived the privilege, or that the records may contain information not protected by the privilege, Bartlett has established that the trial court exceeded the scope of its discretion in ordering the production of her mental-health records for in camera review. Conclusion USA and Bartlett have established that they have a clear, legal right to the relief they have requested. USA is 17 1140440, 1140441 entitled to absolute sovereign immunity from Agah's civil action, and we direct the trial court to enter a judgment of dismissal for USA. Bartlett is entitled to confidentiality of her mental-health records, and we direct the trial court to enter an order quashing Agah's subpoena for Bartlett's mental- health records from APS. 1140440 -- PETITION GRANTED; WRIT ISSUED. Moore, C.J., and Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Stuart, J., recuses herself. 1140441 -- PETITION GRANTED; WRIT ISSUED. Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., dissents. Stuart, J., recuses herself. 18	May 29, 2015
c2a292a3-a866-439f-9dd2-4fee561fe8a2	Ex parte Dental Referral Service, LLC.	N/A	1131411	Alabama	Alabama Supreme Court	REL:04/24/2015 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 ____________________ 1131411 ____________________ Ex parte Dental Referral Service, LLC PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Alabama Department of Labor v. Dental Referral Service, LLC) (Shelby Circuit Court, CV-11-291; Court of Civil Appeals, 2130338) BOLIN, Justice. The petition for the writ of certiorari is quashed. 1131411 In quashing the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT QUASHED. Stuart, Parker, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., and Murdock, J., concur specially. Wise, J., recuses herself. 2 1131411 MURDOCK, Justice (concurring specially). The Court today quashes the writ previously issued in this case, but notes that, in doing so, it "does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973)." ___ So. 3d at ___. I write separately to explain why I do not wish to be understood as agreeing with the rationale of the Court of Civil Appeals. I do not agree that Dental Referral Service, LLC, waived its claim to attorney fees in this particular case by relying only on the language of the statute that actually provides for and governs that claim, § 12-19-272, Ala. Code 1975. The language of that statute adequately explains the standard to be applied directly to the facts in a case such as this: "(a) Except as otherwise provided in this article, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys' fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part; 3 1131411 "(b) When a court determines reasonable attorneys' fees or costs should be assessed it shall assess the payment thereof against the offending attorneys or parties, or both, and in its discretion may allocate among them, as it determines most just, and may assess the full amount or any portion thereof to any offending attorney or party; "(c) The court shall assess attorneys' fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action or any part thereof, or asserted any claim or defense therein, that is without substantial justification, or that the action or any part thereof, or any claim or defense therein, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including but not limited to abuses of discovery procedures available under the Alabama Rules of Civil Procedure ...." Under the circumstances, the citation to § 12-19-272 is more than adequate to preserve the claim, even if the inclusion of case authority might have made for a better argument. 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." (Emphasis added.) Although in some circumstances citation to a statute without citation to any applicable case authority might amount to the presentation, as the Court of Civil Appeals held, of an "undelineated general proposition," 4 1131411 Alabama Department of Labor v. Dental Referral Service, LLC, [Ms. 2130338, Aug. 22, 2014] __ So. 3d __, __ (Ala. Civ. App. 2014), I do not find that to be the situation here. I see no waiver resulting from the fact that Dental Referral could not, or did not, find and cite to this Court some case or cases applying the governing language of § 12-19-272 to a case indistinguishable factually from the present case. Moore, C.J., concurs. 5	April 24, 2015
619b85f9-5e07-4dab-84b9-76af67d3ca5e	Ex parte Brandon Brown.	N/A	1140048	Alabama	Alabama Supreme Court	REL: 05/22/2015 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 ____________________ 1140048 ____________________ Ex parte Brandon Brown PETITION FOR WRIT OF MANDAMUS (In re: Allison Cupps, as administrator for the Estate of David A. Cupps, deceased, and as administrator for the Estate of Pamela Cupps, deceased v. Christopher Dale Mitchell et al.) (Jefferson Circuit Court, CV-12-455) STUART, Justice. 1140048 Brandon Brown, a police officer employed by the City of Fultondale, petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order denying his summary-judgment motion and to enter a summary judgment in his favor based on State-agent immunity and statutory immunity on claims filed against him by Allison Cupps, as administrator for the estate of David A. Cupps, deceased, and as administrator for the estate of Pamela Cupps, deceased. We grant the petition and issue the writ. Facts and Procedural History In April 2010, Officer Brown, who had received a be-on- the-lookout ("BOLO") from dispatch for a blue Mitsubishi Eclipse automobile, the occupants of which were suspected of having committed a theft, engaged in the pursuit of a blue Mitsubishi Eclipse that he saw leaving the area of the offense. Moments after Officer Brown ceased pursuit of the blue Mitsubishi Eclipse, Christopher Dale Mitchell, the driver of the blue Mitsubishi Eclipse, ran a red light at the intersection of Daniel Payne Drive and Coalburg Road and struck a vehicle being driven by Pamela Cupps in which David 2 1140048 Cupps was a passenger. Pamela Cupps was killed and David Cupps was injured. David Cupps, on behalf of himself and as administrator of Pamela Cupps's estate, sued Mitchell, Officer Brown, and others. With regard to Officer Brown, David Cupps alleged 1 that Officer Brown negligently and/or wantonly pursued Mitchell's vehicle by driving recklessly, that he negligently and/or wantonly pursued Mitchell's vehicle in violation of the City of Fultondale Police Department's pursuit policy and procedure, and that he violated § 32-5A-7(c), Ala. Code 1975,2 by operating his patrol vehicle in pursuit of another vehicle without the use of an audible signal. After the complaint was filed, David Cupps died; Allison Cupps, the administrator of the estates of David Cupps and Pamela Cupps, was substituted as the plaintiff. The defendants other than Mitchell and Officer Brown have 1 been dismissed from the action. Section 32-5A-7(c), Ala. Code 1975, states that the 2 statutory exemptions in that statute for emergency vehicles "shall apply only when such vehicle is making use of an audible signal meeting the requirements of § 32-5-213[, Ala. Code 1975,] and visual requirements of any laws in this state requiring visual signals on emergency vehicles." 3 1140048 Officer Brown moved for a summary judgment. In his motion, Officer Brown contended, among other arguments, that, because he was acting in the line and scope of his employment as a police officer for the City of Fultondale when he engaged in the pursuit of Mitchell's vehicle, he was entitled to the protections of State-agent immunity and statutory immunity under § 6-5-338, Ala. Code 1975, from the civil action. In support of his motion, Officer Brown attached an affidavit, in which he averred: "2. The information set forth in this affidavit is based upon personal knowledge and I am competent as to all matters stated herein. "3. My name is Brandon Brown, and at all times relevant to this matter, I was employed as a police officer for the City of Fultondale and was acting in the line and scope of my employment as a police officer. "4. On April 3, 2010, during the performance of my duties as a police officer for the City of Fultondale, I was working as a patrolman at the Promenade Shopping Center in Fultondale, Alabama. "5. During my shift, I received a radio dispatch warning officers to be on the lookout ('BOLO') for a blue Mitsubishi Eclipse, the occupant(s) of which were suspected of committing a crime at the Best Buy [electronics retail] store in the Promenade Shopping Center. I later learned the driver of the blue Mitsubishi Eclipse was the co- defendant Christopher Dale Mitchell. 4 1140048 "6. After the BOLO, I observed a blue Mitsubishi Eclipse coming from the general direction of the Best Buy. The vehicle then stopped in the middle of the road on Lowery Parkway. When I first saw the blue Eclipse, my emergency flashers were already activated, as I was conducting an interview with an individual in an unrelated matter. The blue Eclipse then made a U-turn on Lowery Parkway, and headed back south in the direction of the Best Buy. "7. Once the blue Eclipse made a U-turn, I got in my patrol vehicle and began to follow the Eclipse. The blue Eclipse did not stop and began to drive away. I then activated my emergency siren and accelerated in an attempt to catch the blue Eclipse, which was accelerating down Lowery Parkway away from my vehicle. "8. As the blue Eclipse passed Logan's restaurant on Lowery Parkway, it passed a vehicle on the left, causing the vehicle to swerve to the right, almost off the roadway. "9. The blue Eclipse continued on Lowery Parkway in the direction of Highway 31 at a high rate of speed. Due to the high rate of speed, the blue Eclipse nearly lost control at the intersection of Lowery Parkway and Highway 31, and ultimately executed a right turn on a red light, heading south. "10. While speeding south down Highway 31, the blue Eclipse straddled the center dividing line of the highway, and passed two vehicles, forcing one vehicle to swerve right and the other to swerve left. "11. After speeding south down Highway 31, the blue Eclipse made a right turn onto the Exit 266 on- ramp for Interstate 65 south. Just before entering the on-ramp, the blue Eclipse passed another vehicle exiting on the right, forcing that vehicle to swerve back onto Highway 31 to avoid a collision. 5 1140048 "12. Once the blue Eclipse merged onto Interstate 65 South, it had to temporarily reduce its speed due to traffic. I was able to close the distance between our vehicles, after which the blue Eclipse accelerated and wedged itself between a tractor trailer and another vehicle in an attempt to [elude] me. The tractor trailer had to slam on its brakes to keep from hitting the blue Eclipse. "13. After speeding down Interstate 65 South, the blue Eclipse took Exit 264 to Daniel Payne Drive. The blue Eclipse approached the intersection of Daniel Payne Drive and the I-65 exit ramp at a high rate of speed, and took a blind right hand turn on a red light. The blue Eclipse nearly sideswiped a green Volvo station wagon, causing the Volvo to slam on its brakes to prevent a collision. "14. While traveling at a high rate of speed, the blue Eclipse approached the intersection of Daniel Payne Drive and Trax Drive. The traffic light controlling the blue Eclipse's lane of travel was red, and there was traffic on the roadway. The combination of the red light and traffic prevented the blue Eclipse from advancing, so the vehicle swerved right, jumping over a curb into the grassy area to the right side of the roadway, and ran the red light at Trax Drive. "15. After the light turned green at Trax Drive, I was able to accelerate, but the blue Eclipse was well ahead of my position and pulling away. I then slowed my patrol vehicle down and began to prepare to turn around and return to my patrol area. "16. As I slowed my patrol vehicle, I was still able to see the blue Eclipse continuing to speed down Daniel Payne Drive approaching the intersection of Daniel Payne and Coalburg Road. The light controlling the blue Eclipse's lane direction of travel was red. 6 1140048 "17. The blue Eclipse sped toward the intersection of Daniel Payne Drive and Coalburg Road, and ran the red light controlling its lane of travel and struck a green sport utility vehicle ('SUV'), which I later learned was driven by Pamela Cupps with David Cupps as a passenger. At the time of the accident, I was approximately 350-400 yards away. "18. When I arrived at the scene of the accident at the intersection of Daniel Payne Drive and Coalburg Road, the green SUV had been spun across about 4 lanes of travel on Daniel Payne Drive. The green SUV was about 35 yards from where it had been traveling before being struck by the blue Eclipse. "[19]. At no time during my pursuit of the blue Mitsubishi Eclipse did my patrol vehicle get closer than within approximately 50 yards of the blue Eclipse. My patrol vehicle never made contact with the blue Eclipse or the vehicle driven by Pamela Cupps. "[20]. At all times during my pursuit of the blue Mitsubishi Eclipse I had my emergency lights and siren activated. "[21]. At no time during the pursuit did Mitchell cease his attempts to evade and elude my patrol vehicle." (Brown's petition - Exhibit E.) Cupps responded, arguing that a summary judgment for Officer Brown was not proper because, she said, genuine issues of material fact existed as to whether Officer Brown qualified for immunity. Specifically, she contended that genuine issues 7 1140048 of material fact existed as to whether during the pursuit of Mitchell's vehicle Officer Brown acted with due care, whether Officer Brown violated the City of Fultondale Police Department's pursuit policy and procedure, and whether Officer Brown proximately caused the injuries to David and Pamela Cupps. In support of her contentions, Cupps submitted excerpts from Officer Brown's testimony at Mitchell's criminal trial3 in which Officer Brown stated that during the pursuit of Mitchell's vehicle the traffic was heavy on several of the roads on which the pursuit took place; that Mitchell's vehicle caused several vehicles to run off the road; that he and Mitchell drove at speeds over the various speed limits; that, although Officer Brown turned off his siren when he was ordered to cease the pursuit, he had not turned off his emergency lights before Mitchell's vehicle collided with the Cuppses' vehicle; and that he was unaware of the police department's pursuit policy. With regard to the termination Mitchell was convicted of assault in the first degree and 3 reckless murder for the injuries to David Cupps and the death of Pamela Cupps. 8 1140048 of the pursuit and the accident, Cupps submitted the following from Officer Brown's testimony: "Q. All right. Now, tell us what happened when [Mitchell] got on Daniel Payne [Drive]? "A. When he came down to Daniel Payne off the on- ramp, the light was red. He ran that red light, took a right. There was a green Volvo station wagon he almost sideswiped. That station wagon had to slam on its brakes. And he continued on Daniel Payne westbound. ".... "Q. All right. Tell us what happened from that point forward. "A. There's a –- after you pass Daniel Payne red light, there's another intersection there at Trax Drive. The light was red. He was unable to go because of traffic, so he took a right, jumped onto the curb in the grassy area and passed, running the red light there. "Q. All right. And did he continue on? "A. Yes, sir. "Q. And what happened then? "A. I followed him there. I was able to get through as the light turned green and get through traffic and followed him past the truck stop. He continued to accelerate [at] an excessive speed. "Q. About how fast do you think –- how fast were you? "A. After the traffic, I got up to around 80. 9 1140048 "Q. Okay. And was he still in front of you? "A. He was well in front of me. He was running well over a hundred. "Q. Okay. And tell us what happened then. "A. At that time, I received a call from my sergeant to discontinue the chase, give a good direction of travel, so I slowed my patrol unit [down]. "Q. And you could still see his car traveling? "A. Yes. "Q. All right. And what did you notice? "A. I noticed he was heading for the intersection of Daniel Payne and Coalburg Road. I was continuing to watch him to see if he continued on Daniel Payne or took a right onto Coalburg Road. The light was red and he continued through that light striking a green SUV." Cupps also submitted excerpts from the deposition testimony of Sgt. Allen Evans and Lt. Phillip Mangina, police officers for the City of Fultondale and Officer Brown's supervisors. Sgt. Evans testified that Officer Brown had implied permission to continue the pursuit outside the corporate limits of Fultondale and that Officer Brown during training had signed a document saying that he had received a rules and regulations manual that contained the pursuit policy and that, by signing the document, Officer Brown had 10 1140048 acknowledged his duty to know the contents of the manual. Lt. Mangina testified that Officer Brown made the decision to pursue Mitchell's vehicle, that Officer Brown had the authority to decide to terminate the pursuit, and that during the pursuit Officer Brown was driving at speeds in excess of the various speed limits for the roads on which the pursuit was taking place. Lt. Mangina further testified that he did not believe that the department's pursuit policy and procedure required Officer Brown to receive specific approval to continue the pursuit outside the corporate limits of Fultondale and that he did not know if Officer Brown completed an incident/offense report regarding the pursuit. Cupps also submitted a copy of the City of Fultondale Police Department's pursuit policy and procedure. Officer Brown filed a reply to Cupps's filing in opposition to his summary-judgment motion, arguing that, because Cupps did not present substantial evidence that Officer Brown was acting outside the line and scope of his employment as a police officer for the City of Fultondale when he engaged in the pursuit of Mitchell's vehicle, no genuine issue of material fact existed in this regard and that he was 11 1140048 entitled to the protections of State-agent immunity and statutory immunity under § 6-5-338, Ala. Code 1975. In support of his reply, Officer Brown attached excerpts from the deposition testimony of Sgt. Evans, who stated that the initial BOLO did not adequately describe the criminal offense that had been committed to enable Officer Brown to determine whether the offense was a felony. Sgt. Evans further testified that he sent an officer to the Best Buy electronics retail store to learn more details about the offense to better determine the necessity of the pursuit and that he, Sgt. Evans, drove in the direction of the pursuit to provide Officer Brown with assistance, if needed. He explained that he instructed Officer Brown to cease the pursuit when he learned that Officer Brown was on Daniel Payne Drive because the pursuit was entering a congested area and, without more details of the offense, the risk of the safety to the public and to Officer Brown outweighed the necessity for immediate apprehension. He testified that until then, he believed that reasonable grounds existed for Officer Brown to continue the pursuit of Mitchell's vehicle. Officer Brown also submitted deposition testimony from Lt. Mangina, who agreed that it was 12 1140048 "fair to say that th[e] collision between Mr. Mitchell's vehicle and the vehicle driven by the Cuppses was as a result of Mr. Mitchell's operation of his vehicle." After conducting a hearing, the trial court denied Officer Brown's motion for a summary judgment. Standard of Review "'This Court has 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. Ex parte Purvis, 689 So. 2d 794 (Ala. 1996).... "'"'....'" "'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 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)).' "Ex parte Yancey, 8 So. 3d 299, 303–04 (Ala. 2008)." 13 1140048 Ex parte Jones, 52 So. 3d 475, 478–79 (Ala. 2010). "In reviewing a trial court's ruling on a motion for a summary judgment, we apply the same standard the trial court applied initially in granting or denying the motion. Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999). "'The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact.' "742 So. 2d at 184. '[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 Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)." Swan v. City of Hueytown, 920 So. 2d 1075, 1077–78 (Ala. 2005). Discussion Officer Brown contends that the trial court erred in denying his motion for a summary judgment because, he says, he demonstrated that he qualifies for § 6–5–338 immunity and State-agent immunity from civil actions and Cupps failed to 14 1140048 present substantial evidence creating a genuine issue of material fact as to whether Officer Brown is entitled to immunity. 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." In Suttles v. Roy, 75 So. 3d 90, 94 (Ala. 2010), this Court stated: "[P]eace officers are afforded immunity by Ala. Code 1975, § 6–5–338(a), and the test for State-agent immunity set forth in Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), as modified in Hollis v. City of Brighton, 950 So. 2d 300 (Ala. 2006) (incorporating the peace-officer-immunity standard provided in § 6–5–338(a) into the State-agent-immunity analysis found in Cranman). See Ex parte Kennedy, 992 So. 2d 1276 (Ala. 2008), and City of Birmingham v. Brown, 969 So. 2d 910, 916 (Ala. 2007)('Immunity applies to employees of municipalities in the same manner that 15 1140048 immunity applies to employees of the State.' (citing Cranman, supra)). Under that formulation, "'"[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 (quoting and modifying Cranman, 792 So. 2d at 405). In certain circumstances, a peace officer is not entitled to such immunity from an action seeking liability in his or her individual 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." 16 1140048 When a defendant raises the defense of State-agent immunity, the defendant bears the initial burden of showing that he or she qualifies for State-agent immunity. If the defendant satisfies that burden, the burden then shifts to the plaintiff to show that one of two exceptions to State-agent immunity is applicable. Ex parte City of Montgomery, 99 So. 3d 282, 291-94 (Ala. 2012). Officer Brown satisfied his initial burden of showing that he qualified for State-agent immunity. The materials before us establish that Officer Brown raised the defense of State-agent immunity in his summary-judgment motion. Officer Brown through his affidavit presented evidence indicating that he is a police officer employed by the City of Fultondale and that at the time he engaged in the pursuit of Mitchell's vehicle he was acting in the line and scope of his employment as a law-enforcement officer responding to a BOLO to apprehend and arrest an individual suspected of theft. Because the materials before us establish that Officer Brown is a "peace officer" for the purposes of § 6-5-338(a) and his alleged misconduct occurred "in performance of [a] discretionary function within the line and scope of his ... law enforcement 17 1140048 duties," see § 6-5-338(a), Officer Brown made a prima facie showing that he qualified for State-agent immunity, thus shifting the burden to Cupps to demonstrate that Officer Brown's conduct fell within one of the two exceptions to State-agent immunity. Cupps contends that Officer Brown is not entitled to State-agent immunity from her civil action because, she says, genuine issues of material fact exist as to whether, during the pursuit of Mitchell's vehicle, Officer Brown acted "'willfully, maliciously, fraudulently, in bad faith, beyond his ... authority, or under a mistaken interpretation of the law.'" Ex parte City of Montgomery, 99 So. 3d at 293 (quoting Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000)). Specifically, Cupps maintains that Officer Brown acted beyond his authority by violating the pursuit policy and procedure of the City of Fultondale Police Department when he failed to discharge his duties as required by a checklist regarding vehicle pursuit. See Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003)(recognizing that 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 18 1140048 pursuant to detailed rules or regulations, such as those stated on a checklist'" (quoting Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000))). First, Cupps contends that because Officer Brown admitted that he was unaware of the pursuit policy and procedure contained in the police department's rules and regulations manual and because Officer Brown had signed a statement acknowledging his receipt of the rules and regulations manual, which contained the pursuit policy and procedure, and agreeing that he would adhere to the manual, Officer Brown acted beyond his authority during the pursuit of Mitchell's vehicle, and his conduct thus does not qualify for State-agent immunity. Admittedly, Officer Brown's testimony at Mitchell's criminal trial that he was unaware of the City of Fultondale Police Department's pursuit policy and procedure is disturbing. However, the determination whether a State agent qualifies for immunity rests on whether the State agent acted beyond his or her authority by violating detailed rules and regulations, such as those on a checklist. A State agent's knowledge of the rules and regulations within which he or she performs his or her duties is not a material consideration; rather, the 19 1140048 determinative consideration is whether the State agent failed to "discharge duties pursuant to detailed rules and regulations." Ex parte Butts, 775 So. 2d at 178. Next, Cupps maintains that because, she says, Officer Brown violated the police department's pursuit policy and procedure during the pursuit of Mitchell's vehicle, genuine issues of material fact exist as to whether Officer Brown acted beyond his authority and thus is not entitled to State- agent immunity. We have reviewed the excerpts of the pursuit policy and procedure submitted by Cupps with her response to Officer Brown's petition. The purpose of the pursuit policy is "to establish guidelines and responsibilities for vehicle pursuits." The policy states, in pertinent part: "Vehicle pursuit is one of the most dangerous duties a police officer must perform. When a decision to pursue is made, the safety of all concerned must be considered. The seriousness of the offense must be weighed against the hazards of the health and welfare of citizens who might be affected by the chase. During pursuit, continuous balancing of the seriousness versus safety is mandatory. The Department expects an officer, or his supervisor, to terminate a pursuit whenever the risks to the safety of the officers or citizens outweigh the danger to the community if the offender is not caught. No task is of such importance as to justify the reckless disregard of the safety of innocent 20 1140048 persons. The principals of safety shall not become secondary." The procedure section provides, in pertinent part: "Vehicle pursuit is justified only when the officer knows or has reasonable grounds to believe the suspect is attempting to evade apprehension and the suspect, if allowed to escape, may present a danger to human life or cause serious injury to other people. Officers engaged in emergency vehicle operations shall use audible and visual emergency warning equipment (emergency light and siren). ".... "4. The primary unit may maintain pursuit as long as it is safe to do so; until directed to terminate the pursuit by a supervisor; the suspect is stopped; or a reasonable distance has been covered which may indicate the futility of continued pursuit. "5. The decision to abandon pursuit may be the most intelligent course of action. A pursuing officer must constantly question whether the seriousness of the offense justifies continued pursuit[;] in any case, a pursuit shall terminate under any of the following circumstances: "If, in the opinion of the pursuing officer or a supervisor, there is a clear and unreasonable danger to the officer or others created by the pursuit which outweighs the necessity for immediate apprehension ... ".... "7. When terminating a pursuit, the officer must advise dispatch that he/she is terminating 21 1140048 pursuit. The officer will also turn off his vehicle's emergency lights and sirens. ".... "Supervisor Responsibility ".... "2. The supervisor will direct the pursuit, approve or order alternative tactics, and maintain control until the pursuit is terminated. ".... "4. In the absence of adequate information from the primary [pursuit vehicle] or backup units, the supervisor will terminate the pursuit. ".... "Vehicle Operations, Tactics, Limitations and Prohibitions ".... "2. Property Crimes: Pursuits for property crimes will be based on the seriousness of the crime weighed against the danger to life posed by the offender and the danger posed by the pursuit itself. ".... "14. Boundary Limits: No officer will continue a pursuit initiated by this Department once the pursuit has reached the far corporate limits of an adjoining municipality without the specific approval of the supervisor. "Reporting and Critique 22 1140048 "1. At the conclusion of a pursuit, the primary unit officer will complete an Incident/Offense report of the pursuit." The police department's pursuit policy provides guidelines for engaging in, conducting, and terminating a pursuit. The procedure sets forth criteria by which decisions are made, and the procedure is qualified by the need to maintain the safety of the officer and the public. Although the procedure provides duties for an officer to perform when engaging in, conducting, and terminating a pursuit, a significant degree of discretion is left to the officer in the exercise of those duties. Because the policy provides that the procedure for all pursuits is subject to an officer's or the officer's supervisor's exercise of discretion with the safety of innocent parties being the primary focus, the policy and procedure constitute guidelines, not "detailed rules and regulations, such as those stated on a checklist" that must be followed by an officer. Ex parte Butts, 775 So. 2d at 178. Moreover, even if we were to conclude that the pursuit policy and procedure provide "detailed rules and regulations, such as those stated on a checklist," Cupps did not present substantial evidence creating a genuine issue of material fact 23 1140048 as to whether Officer Brown failed to follow the policy and procedure before, during, and/or after the pursuit of Mitchell's vehicle. Cupps urges that Officer Brown's testimony that he terminated the pursuit at the direction of his supervisor indicates that Officer Brown did not weigh the seriousness of the property offense allegedly committed by Mitchell against the dangers posed by the pursuit. As Cupps recognizes, this particular guideline requires an officer to exercise his discretion. Additionally, Officer Brown's testimony that he terminated the pursuit when ordered to do so does not demonstrate that Officer Brown did not exercise judgment during the pursuit; rather, it demonstrates that Officer Brown's supervisor acted in accordance with the duty imposed upon a supervisor and terminated the pursuit when he determined that the need for the safety of innocent parties outweighed the need for Mitchell's immediate apprehension. Next, Cupps urges that Officer Brown's testimony that he had turned off his siren but had not turned off his emergency lights before Mitchell's vehicle collided with Pamela Cupps's vehicle demonstrates that Officer Brown failed to follow the procedure requiring him to turn off his lights when 24 1140048 terminating a pursuit. Officer Brown's testimony establishes that, when ordered to cease the pursuit, he was traveling on Daniel Payne Drive amidst traffic and that Mitchell's vehicle hit Pamela Cupps's vehicle moments after Officer Brown was ordered to terminate the pursuit. When Officer Brown's testimony is considered in context and in light of the requirement in the pursuit policy that public safety be the paramount consideration, his testimony that he had not turned off his emergency lights before the accident occurred does not constitute substantial evidence that he failed to follow a procedure; rather, a fair reading of the testimony indicates that Officer Brown was in the process of following the procedure for terminating a pursuit, that he had turned off his siren but that, before he had an opportunity to complete the process by turning off his emergency lights and advising dispatch that he had terminated the pursuit, Mitchell's vehicle collided with Pamela Cupps's vehicle. Cupps also maintains that Officer Brown violated the pursuit policy and procedure by failing to secure specific permission from his supervisor to continue the pursuit beyond the "far corporate limits of an adjoining municipality" and by 25 1140048 not completing an incident/offense report of the pursuit. Cupps urges that the testimony of Sgt. Evans and Lt. Mangina support her contention. However, the portions of the deposition testimony of Sgt. Evans and Lt. Mangina Cupps has submitted with her response do not lend themselves to this conclusion. Neither Sgt. Evans nor Lt. Mangina testified that Officer Brown's pursuit of Mitchell's vehicle continued beyond the "far corporate limits of an adjoining municipality" to Fultondale. Additionally, both Sgt. Evans and Lt. Mangina testified that they did not believe that the pursuit procedure required Officer Brown to secure specific approval to continue the pursuit beyond the corporate limits of Fultondale. Lastly, Cupps contends that Officer Brown failed to create an incident/offense report, in violation of the pursuit policy and procedure. However, Lt. Mangina testified that he did not know whether Officer Brown had completed an incident/offense report. Thus, Cupps did not present substantial evidence that Officer Brown had violated this procedure. Cupps did not present substantial evidence that Officer Brown failed to perform his duties in accordance with the 26 1140048 pursuit policy and procedure; consequently, nothing before us demonstrates that Officer Brown acted beyond his authority by failing to follow "detailed rules and regulations, such as those stated on a checklist." Because Cupps did not present substantial evidence that Officer Brown failed to comply with the police department's pursuit policy and procedure, she did not create a genuine issue of material fact as to whether Officer Brown acted "'willfully, maliciously, fraudulently, in bad faith, beyond his ... authority, or under a mistaken interpretation of law'" in that regard. Ex parte City of Montgomery, 99 So. 2d at 294 (quoting Ex parte Cranman, 792 So. 2d at 405). Next, Cupps contends that the trial court properly denied Officer Brown's summary-judgment motion because, she says, Officer Brown's conduct violated § 32-5A-7, Ala. Code 1975, and a genuine issue of material fact exists as to whether that violation excepts him from State-agent immunity. According to Cupps, Officer Brown acted without due regard for the safety of others during the pursuit of Mitchell's vehicle by reaching a speed of 75 miles per hour in a 27-miles-per-hour speed zone; by continuing the pursuit when Mitchell was ignoring 27 1140048 various rules of the road, was engaging in reckless driving, and was causing other drivers to engage in defensive driving; by continuing the pursuit of Mitchell's vehicle on Daniel Payne Drive, driving at approximately 80 miles per hour; and by failing to turn off his emergency lights when he ended the pursuit. Cupps maintains that the totality of the circumstances of the pursuit "epitomizes a lack of due regard and a reckless disregard for the safety of others." Section 32-5A-7, Ala. Code 1975, provides: "(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; 28 1140048 "(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[, Ala. Code 1975,] 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 driver from the consequences of his reckless disregard for the safety of others." In Blackwood v. City of Hanceville, 936 So. 2d 495, 506- 07 (Ala. 2006), this Court explained: "[Section] 32–5A–7 not only authorizes the driver of an emergency vehicle to exercise the various privileges set forth in the statute, including exceeding the maximum speed limit when using acceptable audible and visual signals, it also provides specifically that the driver of the emergency vehicle exceeding the maximum speed limit may do so 'so long as he does not endanger life or property.' Section 32–5A–7(b)(3). Subsection (a) states that exercise of any of the privileges set forth in the statute is 'subject to the conditions herein stated.' Subsection (d) concludes the statement of privileges with the declaration that they 'shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard to the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.' Obviously, the conditions imposed by subsections 29 1140048 (b)(3) and (d) differ in degree from the audible- and visual-signals condition of subsection (c), in that the latter is an objectively 'absolute' restriction whereas the others are subjectively 'relative' restrictions. Nonetheless, the legislature saw fit to impose the restrictions in subsections (b)(3) and (d), and it is our obligation to determine the scope of those subsections .... [W]e agree that it is within a police officer's discretion to drive at a speed in excess of the speed limit when driving an authorized emergency vehicle on an emergency run because the legislature has clearly provided that the officer may do so. Williams [v. Crook], 741 So. 2d [1074,] 1077 [(Ala. 1999)]. The legislature has simultaneously declared, however, that an officer may do so only 'so long as he does not endanger life or property' and has further conditioned the exercise of that privilege by recognizing the officer's continuing 'duty to drive with due regard for the safety of all of the persons,' removing the protection of the privilege if the officer drives with 'reckless disregard for the safety of others.' "Obviously, the legislature did not intend § 32–5A–7(b)(3) simply to have a retrospective application, so that an emergency vehicle driver forfeits the privilege accorded by the statute any time he or she exceeds the speed limit and a wreck occurs that endangers life or property. Rather, it is clear that the legislature intended that this standard, along with the others specified in the statute, be applied from the perspective of a reasonably prudent emergency driver exercising his or her discretion under the prevailing circumstances." Cupps did not submit any evidence, much less substantial evidence, indicating that Officer Brown's pursuit of Mitchell's vehicle was unreasonable or that Officer Brown's 30 1140048 conduct endangered life or property and exhibited a reckless disregard for the safety of others. Cupps did present evidence indicating that Mitchell engaged in reckless driving and endangered the lives of others. None of her evidence, however, demonstrated that Officer Brown did not act as "a reasonably prudent emergency driver exercising his ... discretion under the prevailing circumstances." Blackwood, 936 So. 3d at 507. Because Cupps did not present substantial evidence that Officer Brown's actions were not in accordance with § 32–5A–7, Ala. Code 1975, she did not create a genuine issue of material fact as to whether Officer Brown was excepted from State-agent immunity for this reason. Lastly, Cupps contends that the trial court properly denied Officer Brown's summary-judgment motion because, she says, there are genuine issues of material fact as to whether Officer Brown acted without due regard for the safety of others and whether he proximately caused the collision between Mitchell's vehicle and Pamela Cupps's vehicle. Cupps reasons that because Officer Brown testified at Mitchell's criminal trial that during the pursuit he witnessed several vehicles engage in defensive driving to avoid collisions with 31 1140048 Mitchell's vehicle and that he witnessed Mitchell break several rules of the road by running red lights and driving recklessly, and because he admitted that both he and Mitchell exceeded the posted speed limits during the pursuit, Officer Brown's conduct proximately caused the collision between Mitchell's vehicle and Pamela Cupps's vehicle. Cupps's evidence, however, does not amount to substantial evidence creating a genuine issue of material fact as to whether Officer Brown acted without due regard for the safety of others and whether he proximately caused the collision between Mitchell's vehicle and Cupps's vehicle. "The mere fact that a police officer exceeds the maximum speed limit during a pursuit, ... does not present a genuine issue of material fact as to the liability of that officer for negligence. See § 32-5A-7 ... and Madison v. Weldon, 446 So. 2d 21 (Ala. 1984). ... [T]he rule regarding the conduct of a police officer in pursuit of an escaping offender is succinctly stated in Madison: "'"The rule governing the conduct of [a] police [officer] in pursuit of an escaping offender is that he must operate his car with due care and, in doing so, he is not responsible for the acts of the offender. Although pursuit may contribute to the reckless driving of the pursued, the officer is not obliged to allow him to escape."' (Emphasis added.) 32 1140048 "446 So. 2d at 28, quoting City of Miami v. Horne, 198 So. 2d 10 (Fla. 1967)." Doran v. City of Madison, 519 So. 2d 1308, 1314 (Ala. 1988). Although Cupps's evidence indicates that Officer Brown's high-speed pursuit may have contributed to Mitchell's reckless driving, Mitchell's actions, not Officer Brown's actions, were the proximate cause of the injuries to Pamela Cupps and David Cupps, and Cupps did not present substantial evidence creating a genuine issue of material fact as to that issue. Because Cupps did not present substantial evidence creating a genuine issue of material fact as to whether Officer Brown's actions fell within one of the exceptions to State-agent immunity, Officer Brown has established as a matter of law that he is entitled to State-agent immunity from Cupps's action. Conclusion For the foregoing reasons, we grant Officer Brown's petition for a writ of mandamus and direct the Jefferson Circuit Court to enter a summary judgment for Officer Brown. PETITION GRANTED; WRIT ISSUED. Moore, C.J., and Parker, Shaw, and Wise, JJ., concur. 33	May 22, 2015
7b8c2141-c097-44a3-ac90-858fcc7b15cc	Ex parte Scottsdale Insurance Company.	N/A	1140631	Alabama	Alabama Supreme Court		April 17, 2015
fa121e3a-e321-4d3d-8338-edc069e3ae52	Ex parte Gerald Van Jones.	N/A	1131479	Alabama	Alabama Supreme Court	REL: 02/27/2015 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 ____________________ 1131479 ____________________ Ex parte Gerald Van Jones PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Gerald Van Jones v. Gaynor Jones) (Montgomery Circuit Court, DR-97-168.03; Court of Civil Appeals, 2121046 and 2130709) STUART, Justice. 1131479 Gerald Van Jones, the father, contends that the Court of Civil Appeals erred in affirming the trial court's order awarding postminority educational support for his son, Garrette Jones. We reverse and remand. Facts and Procedural History The Montgomery Circuit Court entered a final judgment divorcing the father and Gaynor Jones, the mother, on January 8, 1998. During their marriage, the father and the mother had two children, Garrette and Gabrielle. In August 2011, the mother petitioned the trial court for postminority educational support for Garrette. After conducting a trial, the trial court entered an order on April 26, 2013, awarding the mother postminority educational support for Garrette. After the postjudgment motions were disposed, the father filed a timely notice of appeal with the Court of Civil Appeals on September 10, 2013. The Court of Civil Appeals on April 11, 2014, entered an order reinvesting the trial court with jurisdiction for 14 days for the sole purpose of entering an amount or percentage of postminority educational support. Jones v. Jones (2121046). On April 18, 2014, the trial court entered an 2 1131479 order requiring the father to pay 100% of Garrette's postminority educational support. The father, out of "an abundance of caution," then moved the Court of Civil Appeals for permission to appeal the April 18, 2014, order. The Court of Civil Appeals granted the father permission to appeal the April 18, 2014, order (case no. 2130709) and consolidated the father's two appeals. On September 12, 2014, the Court of Civil Appeals affirmed the trial court's judgment in both appeals, without an opinion, but with a dissent from Judge Thomas. Jones v. Jones, [Ms. 2121046 & 2130709, September 12, 2014] ___ So. 3d ___ (Ala. Civ. App. 2014). Judge Thomas, in her dissent, states: "I respectfully dissent as to the affirmance of the trial court's award of postminority educational support. On October 4, 2013, our supreme court released Ex parte Christopher, 145 So. 3d 60 (Ala. 2013), in which our supreme court expressly overruled Ex parte Bayliss, 550 So. 2d 986 (Ala. 1989). In overruling Bayliss, our supreme court specifically held that, "'[a]lthough [this] decision does not affect final orders of postminority educational support already entered, our overruling of Bayliss is applicable to all future cases. Further, this decision also applies to current cases where no final postminority-support order has been entered or where an appeal from a 3 1131479 postminority-support order is still pending.' "Christopher, 145 So. 3d at 72 (emphasis added). "... [A]t the time Christopher was decided, this case was on appeal in this court and no final judgment awarding postminority educational support had been entered. "As I explained in my special writing in Morgan v. Morgan, [Ms. 2120101, July 11, 2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2014) (Thomas, J., concurring in part and concurring in the result in part), the above-quoted language in Christopher plainly states that the holding in Christopher is applicable to any case in which an appeal of a postminority-educational-support order was pending at the time the supreme court's opinion in Christopher was released. Furthermore, our supreme court clearly stated that the holding in Christopher applied 'to current cases where no final postminority-support order has been entered.' ___ So. 3d at ___ (emphasis added). ... Therefore, based on the supreme court's holding in Christopher that 'the child-custody statute does not authorize a court in a divorce action to require a noncustodial parent to pay educational support for children over the age of 19,' ___ So. 3d at ___, I would reverse the judgment of the trial court ordering the father to pay postminority educational support." ___ So. 3d at ___. On November 20, 2014, this Court granted the father's petition for a writ of certiorari to determine whether the decisions of the Court of Civil Appeals affirming the trial court's order awarding postminority educational support for 4 1131479 Garrette conflicted with Ex parte Christopher, 145 So. 3d 60 (Ala. 2013). Standard of Review "'"On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. ..." Ex parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996).' "Ex parte Helms, 873 So. 2d 1139, 1143 (Ala. 2003). '"[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))." Ex parte C.L.C., 897 So. 2d 234, 236-37 (Ala. 2004). Discussion The father contends that the decision of the Court of Civil Appeals to affirm the trial court's order awarding the mother postminority educational support for Garrette conflicts with the following language in Ex parte Christopher, 145 So. 3d at 72: "Although today's decision does not affect final orders of postminority educational support already entered, our overruling of [Ex parte] Bayliss[, 550 So. 2d 986 (Ala. 1989),] is applicable to all future cases. Further, this decision also applies to current cases where no final postminority-support 5 1131479 order has been entered or where an appeal from a postminority-support order is still pending." According to the father, the Court of Civil Appeals erred in refusing to apply Ex parte Christopher in this case because, he says, the appeal of the trial court's order awarding postminority educational support for Garrette was pending in the Court of Civil Appeals when Ex parte Christopher was decided and, therefore, in accordance with Ex parte Christopher, the Court of Civil Appeals should have reversed the trial court's judgment. In Ex parte Christopher, this Court overruled Ex parte Bayliss, 550 So. 2d 986 (Ala. 1989), and held that the child-custody statute, § 30–3–1, Ala. Code 1975, did not authorize a trial court in a divorce action to require a noncustodial parent to pay educational support for a child who was over the age of 19. 145 So. 3d at 72. This Court further held that the decision in Ex parte Christopher would not affect final orders of postminority educational support but would apply to cases where an appeal of a postminority- educational-support order was pending at the time Ex parte Christopher was decided. 6 1131479 Because the trial court's order awarding postminority educational support was pending on appeal in the Court of Civil Appeals when Ex parte Christopher was decided, the Court of Civil Appeals erred in not applying Ex parte Christopher in this case. The father filed an appeal from the trial court's postminority-educational-support order on September 10, 2013. This Court decided Ex parte Christopher on October 4, 2013. Because this case was pending on appeal in the Court of Civil Appeals when Ex parte Christopher was decided, the Court of Civil Appeals erred by not applying the holding in Ex parte Christopher that a trial court does not have authority to order postminority educational support in this case and by not reversing the trial court's order. Because the judgment of the Court of Civil Appeals affirming the trial court's order conflicts with Ex parte Christopher, that judgment is reversed. 1 Conclusion Because resolution of this issue disposes of this case, 1 we pretermit discussion of the other issues raised by the father. 7 1131479 Based on the foregoing, the judgment of the Court of Civil Appeals is reversed and this case is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. Moore, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Murdock and Shaw, JJ., dissent. 8 1131479 MURDOCK, Justice (dissenting). I do not read the statement appearing at the end of the opinion in Ex parte Christopher, 145 So. 3d 60 (Ala. 2013), and quoted in the main opinion here, ___ So. 3d at ___, describing the applicability of Christopher to cases then pending on appeal as intending to free postminority- educational-support litigants from the effect of the well established principle regarding preservation of arguments described by the Court of Civil Appeals in Morgan v. Morgan, [Ms. 2120101, July 11, 2014] ___ So. 3d ___ (Ala. Civ. App. 2014). See ___ So. 3d at ___ (Shaw, J., dissenting and quoting Morgan v. Morgan). 9 1131479 SHAW, Justice (dissenting). I respectfully dissent. In Morgan v. Morgan, [Ms. 2120101, July 11, 2014] ___ So. 3d ___ (Ala. Civ. App. 2014), the Court of Civil Appeals addressed an argument in that case as to the applicability of Ex parte Christopher, 145 So. 3d 60 (Ala. 2013): "[C]hallenges to the interpretation of a statute, or challenges to the constitutionality of a law or decision (however Christopher is viewed), must first be raised in the trial court and cannot be raised for the first time on appeal: "'It is well settled that an issue cannot be raised for the first time on appeal. "'"The rule is well settled that a constitutional issue must be raised at the trial level and that the trial court must be given an opportunity to rule on the issue, or some objection must be made to the failure of the court to issue a ruling, in order to properly preserve that issue for appellate review. This Court succinctly stated this rule as follows: "'"'In order for an appellate court to review a constitutional issue, that issue must have been raised by the appellant and presented to and reviewed by the t r i a l c o u r t . 10 1131479 Additionally, in order to challenge the constitutionality of a statute, an appellant must identify and make specific arguments regarding what specific rights it claims have been violated.' "'"Alabama Power Co. v. Turner, 575 So. 2d 551 (Ala. 1991) (citations omitted)." "'Cooley v. Knapp, 607 So. 2d 146, 148 (Ala. 1992).' "1568 Montgomery Highway, Inc. v. City of Hoover, 45 So. 3d 319, 344–45 (Ala. 2010). "In this case, the husband did not place the wife on notice that he was challenging the authority of the trial court to enter a postminority-educational-support award in the trial court. Accordingly, the wife had no opportunity to assert opposing arguments, and the trial court had no opportunity to consider or rule on the issue. Applying Christopher to vacate the postminority-educational-support award in this case would cause an unanticipated, unrequested result, because the husband did not '"'challenge [an] existing rule[] of law ... in need of reform.'"' Christopher, 145 So. 3d at 72. Based on the issues framed within the trial court, parties determine what facts should be discovered, decide what evidence should be presented and the manner of its presentation, and decide whether to resolve all or a portion of the dispute without a trial. Confidence in the judicial system is promoted when issues are required to be fully developed and presented to the tribunal conducting the litigation process and determining the facts and the application of law to those facts. Accordingly, we interpret the 11 1131479 instruction from the supreme court to apply Christopher in cases still on appeal to those instances in which the issue concerning the trial court's authority to grant such support was properly raised in the trial court. That issue was not raised in this case, and, therefore, we conclude that Christopher does not apply to this action." Morgan, ___ So. 2d at ___.2 The record before this Court indicates that, like the appellant in Morgan, the father in the instant case did not challenge in the trial court the availability of postminority educational support under Alabama law. Therefore, he waived that issue, and it is not properly before us. Murdock, J., concurs. The appellant in Morgan sought certiorari review (case 2 no. 1131206). The certiorari petition, among other things, challenged the Court of Civil Appeals' holding that Christopher did not apply. This Court denied certiorari review as to that ground. The petition was granted on other grounds and is currently pending before this Court. 12	February 27, 2015
28757528-1eb8-4646-9b16-be8529a87cd9	J. Don Gordon Construction, Inc. v. Brown	N/A	1131129	Alabama	Alabama Supreme Court	Rel: 6/5/2015 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 ____________________ 1131129 ____________________ J. Don Gordon Construction, Inc., and Western Surety Company v. Ann Rankin Brown et al. Appeal from Baldwin Circuit Court (CV-10-901832) BRYAN, Justice. The defendants below, J. Don Gordon Construction, Inc. ("Gordon Construction"), and Western Surety Company ("Western Surety"), appeal from the Baldwin Circuit Court's judgment on an arbitration award entered against them. The defendants 1131129 argue that the award should be vacated for various reasons under § 10(a) of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("the FAA"). We affirm. Dr. Ann Rankin Brown is a veterinarian who has been practicing in Baldwin County for several years. Around 2006, Brown decided to open her own veterinarian practice, and she and her husband purchased property on which to build a clinic. Brown testified that she and her husband formed Gone to the Dogs, LLC, to take ownership of the property and that she formed Rankin Animal Clinic, PC, as the veterinary entity that would rent the clinic from Gone to the Dogs. Other testimony indicates that Gone to the Dogs did in fact own the property and that Rankin Animal Center rented the property. In November 2007, Brown contracted with Gordon Construction to build a clinic on the property. Western Surety later issued a performance bond on the building project. Construction on the clinic began in January 2008. During construction, disputes arose between Brown and Gordon Construction regarding the quality of the work, and the project lagged. Eventually construction was completed, and the clinic opened in December 2008. 2 1131129 In October 2010, Brown sued Gordon Construction and Western Surety in the circuit court, alleging breach of contract. Gordon Construction and Western Surety moved to compel arbitration, and the circuit court granted their motion, apparently without opposition from Brown. The parties chose local attorney Marion E. Wynne to decide the case ("the arbitrator"). The parties also adopted a letter agreement written by the arbitrator in which they agreed to certain arbitration terms. In March 2012, an amended complaint was filed naming as additional plaintiffs Gone to the Dogs and Rankin Animal Clinic, the two entities formed by Brown. Gordon Construction and Western Surety later filed an answer and counterclaim. The answer alleged, as an affirmative defense, that Gone to the Dogs and Rankin Animal Clinic were not parties to the construction contract and thus were not proper parties in the arbitration. Although Brown apparently remained a nominal plaintiff, comments made by the arbitrator during the proceedings indicated that he viewed Gone to the Dogs and Rankin Animal Clinic to be the real parties in interest. (For ease of discussion, we will sometimes refer to Brown, Gone to 3 1131129 the Dogs, and Rankin Animal Clinic as "the plaintiffs.") The arbitrator held hearings for 10 days over an extended period in 2012 and 2013. In May 2013, the arbitrator issued a partial award determining liability and awarding damages (primarily against Gordon Construction); the award also stated that the arbitrator would later consider an additional award of legal fees. In July 2013, Gordon Construction and Western Surety filed a motion with the arbitrator seeking his recusal, which the arbitrator promptly denied; that motion will be discussed in more detail below. In November 2013, the arbitrator issued a final award (1) awarding $157,750.80 to Gone to the Dogs and Rankin Animal Clinic against Gordon Construction; (2) awarding $91,272.40 to Gordon Construction against Gone to the Dogs and Rankin Animal Clinic (for a net award of $66,478.40 to Gone to the Dogs Rankin Animal Clinic against Gordon Construction); and (3) awarding $362,287 in legal fees, including attorney fees and expenses, to Gone to the Dogs and Rankin Animal Clinic against Western Surety. The defendants appealed the arbitration award to the circuit court, and the circuit court entered a judgment on the 4 1131129 award. See Rule 71B, Ala. R. Civ. P. (outlining the procedure for appealing an arbitration award). The defendants filed a postjudgment motion to vacate the award, which the circuit court denied. See id. The defendants then appealed to this Court. "'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. 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. Courts are only to ascertain whether there exists one of the specific grounds for vacation of an award. 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. 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].'" 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) (citations omitted)). "Under the FAA, courts may vacate an arbitrator's decision 'only in very unusual circumstances.' First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995). That limited judicial review, we have explained, 'maintain[s] arbitration's essential virtue of resolving disputes straightaway.' Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 588 (2008). ..." 5 1131129 Oxford Health Plans LLC v. Sutter, ___ U.S. ___, ___, 133 S. Ct. 2064, 2068 (2013). "The [FAA] does not provide a dispute settlement mechanism; it facilitates private dispute settlement. The standards for judicial intervention are therefore narrowly drawn to assure the basic integrity of the arbitration process without meddling in it." Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 681 (7th Cir. 1983). Section 10(a) of the FAA establishes very limited grounds upon which a court may vacate an arbitration award. Tucker v. Ernst & Young, LLP, 159 So. 3d 1263 (Ala. 2014). The defendants first argue that the award should be vacated under § 10(a)(4), which allows a court to vacate an arbitration award "where the arbitrators exceeded their powers." "'Section 10(a)(4) ... applies narrowly and only if the arbitrators decide an issue not submitted by the parties or grant relief not authorized in the arbitration agreement.'" Gower v. Turquoise Props. Gulf, Inc., [Ms. 1120045, Dec. 20, 2013] ___ So. 3d ___, ___ (Ala. 2013) (quoting Morgan Stanley & Co. v. Core Fund, 884 F. Supp. 2d 1229, 1231 (M.D. Fla. 2012) (emphasis omitted)). "[A]s long as the arbitrator is even arguably construing or applying the contract and acting 6 1131129 within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38 (1987). The defendants argue that the arbitrator exceeded his powers because, they say, he entered an award as to two entities, i.e., Gone to the Dogs and Rankin Animal Clinic, that were not parties to the construction contract containing the arbitration agreement. However, the record does not indicate that the defendants presented this argument during the arbitration proceedings, despite the fact that the two entities participated in the proceedings. As noted, Brown, who signed the contract, sued the defendants, who then compelled arbitration. An amended complaint was later filed naming as plaintiffs the two entities formed by Brown –– Gone to the Dogs and Rankin Animal Clinic. After the amended complaint was filed, the defendants did file an answer summarily alleging, as an affirmative defense, that Gone to the Dogs and Rankin Animal Clinic were not parties to the contract and thus were not proper parties to the arbitration. However, after that assertion, the record does not indicate 7 1131129 that the defendants ever presented a legal argument to the arbitrator that he lacked authority to determine the rights and obligations of the two entities formed by Brown. Only after the defendants received an unfavorable award did they present their legal argument in any meaningful way, first arguing it to the circuit court in their motion to vacate the judgment entered on the arbitration award. The record does not indicate that the arbitrator had a fair chance to consider this argument; thus, the defendants cannot now rely on it in seeking to have the award vacated. Cf. Tucker, 159 So. 3d at 1277 (declining to consider an argument regarding the arbitrability of an issue when the party failed to raise it to the arbitrator); and Environmental Barrier Co. v. Slurry Sys., Inc., 540 F.3d 598, 606 (7th Cir. 2008) (same). Regardless, the defendants' argument is unpersuasive. In arguing that the arbitrator lacked the authority to issue an award as to Gone to the Dogs and Rankin Animal Clinic, the defendants cite the general rule that an arbitrator may not determine the rights or obligations of nonsignatories to the arbitration agreement. See 25 Am. Jur. 2d Alternative Dispute Resolution § 60 (2007). However, that is only the general 8 1131129 rule; nonsignatories sometimes may properly participate in the arbitration. See id. (discussing exceptions to the general rule); and Ex parte Stamey, 776 So. 2d 85, 89 (Ala. 2000) (same). The arbitrator's comments during the proceedings indicate that he understood the two entities formed by Brown –– Gone to the Dogs and Rankin Animal Clinic –– to be the real parties in interest. The defendants essentially argue that the arbitrator misapplied the law by allowing those two entities into the arbitration. However, whether the arbitrator correctly made that decision is not properly before us; rather, our review is limited to whether the arbitrator had the authority to make that decision in the first place. Underlying legal error is not a ground for vacating an award. Gower, ___ So. 3d at ___ ("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."); and Cavalier Mfg., Inc. v. Gant, 143 So. 3d 762, 770 (Ala. 2013). If the parties submitted the issue, or the arbitration 9 1131129 agreement authorized the arbitrator to decide the issue, then the arbitrator did not exceed his or her authority in deciding the issue. Gower, ___ So. 3d at ___ (stating that § 10(a)(4) applies narrowly and only if the arbitrator decides an issue not submitted by the parties or grants relief not authorized in the arbitration agreement). The defendants do not address the key question whether the arbitrator had the authority to make the decision to allow Gone to the Dogs and Rankin Animal Clinic into the arbitration. Thus, we decline to consider this argument further. The defendants next argue that the arbitrator exceeded his powers because, they say, he failed to comply with the requirements of the letter agreement, which was written by the arbitrator. In the letter agreement, the parties agreed to certain arbitration terms. The defendants contend that the letter agreement indicates that the arbitrator agreed to issue an award consistent with the "appropriate" law. The defendants further contend that the arbitrator exceeded his powers because, they say, his award is inconsistent with Alabama contract law, which, the defendants say, is the "appropriate" law. 10 1131129 First, this argument was not made in the defendants' motion to vacate the arbitration award filed in the circuit court. We will not reverse a lower court's judgment based on an argument that was never presented to that court. Taylor v. Stevenson, 820 So. 2d 810, 814 (Ala. 2001). Moreover, the defendants read too much into the relevant provision of the letter agreement. That provision simply states that the arbitrator shall be compensated at a certain rate for "any time spent ... researching and reading legal opinions, appropriate cases, statutory case law and statu[t]es." The provision does not specify any standard the arbitrator was to apply. The defendants next make three arguments alleging "evident partiality" by the arbitrator. Section 10(a)(2) of the FAA provides that a court may vacate an arbitration award if there is "evident partiality" by the arbitrator. We first address the defendants' argument that the arbitrator's failure to disclose information about his legal work in two other cases shows his evident partiality. During the arbitration proceedings, attorney A. Clay Rankin represented the plaintiffs. At the time, Rankin was employed with Hand 11 1131129 Arendall, a large firm in Mobile. When the arbitration was initiated, another attorney with Hand Arendall was representing the City of Fairhope and its mayor in a case in the circuit court. The arbitrator served as cocounsel in that case, representing Fairhope and the mayor. Eventually a second Hand Arendall attorney joined that case as cocounsel. During the arbitration proceedings, another case was initiated in the circuit court involving Fairhope. The arbitrator and two Hand Arendall attorneys served as cocounsel for Fairhope in that case as well. Based on the arbitrator's nondisclosure of his involvement in the two circuit court cases, the defendants argued in their motion to vacate that there was evident partiality by the arbitrator. In response, the plaintiffs submitted, among other things, the arbitrator's affidavit. In his affidavit, the arbitrator testified that he has represented Fairhope for a number of years, that he served as cocounsel with some Hand Arendall attorneys when Rankin was with the firm, that he did not retain Hand Arendall and the firm did not retain him, that he did not work with or communicate with Rankin regarding the two circuit court cases in which he served as cocounsel with Hand Arendall attorneys, 12 1131129 that he had never worked with Rankin on a legal matter other than the present arbitration proceeding, and that he awarded in the arbitration award a "significantly less" amount in legal fees than those claimed by the plaintiffs. In alleging evident partiality based on the arbitrator's nondisclosure of information, the defendants apply and argue the wrong standard. The defendants, citing the plurality opinion in Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968), seem to argue that an arbitrator is evidently partial under § 10 if there is even "the appearance of bias." However, a majority of federal circuit courts –– and this Court in Waverlee Homes, Inc. v. Michael, 855 So. 2d 493 (Ala. 2003) –– have not read Commonwealth Coatings as imposing the less-stringent "appearance of bias" standard. See Positive Software Solutions, Inc. v. New Century Mortg. Corp., 476 F.3d 278, 282 (5th Cir. 2007), and cases cited therein; and Crouch Constr. Co. v. Causey, 405 S.C. 155, 167, 747 S.E.2d 482, 488 (2013). The correct standard under Waverlee Homes is whether there is a "reasonable impression of partiality," and the defendants have not met that standard. 13 1131129 In Waverlee Homes, this Court, citing several federal cases, concluded that evident partiality exists if there is a "reasonable impression of partiality." 855 So. 2d at 508. That is, "'[t]o demonstrate evident partiality under the FAA, the party seeking vacation has the burden of proving "that 'a reasonable person would have to conclude that an arbitrator was partial' to the other party to the arbitration."'" 855 So. 2d at 507 (quoting Consolidation Coal Co. v. Local 1643, United Mine Workers of America, 48 F.3d 125, 129 (4th Cir. 1995)). The alleged partiality must be "direct, definite, and capable of demonstration, as distinct from a 'mere appearance' of bias that is remote, uncertain, and speculative." 855 So. 2d at 508. "'Furthermore, the party asserting evident partiality "must establish specific facts that indicate improper motives on the part of the arbitrator."'" 855 So. 2d at 507 (quoting Consolidation Coal, 48 F.3d at 129). "An arbitrator's failure to disclose must involve a significant compromising connection to the parties." Positive Software, 476 F.3d at 283. This is strong language, and it sets the bar high for a party alleging evident partiality of an arbitrator. 14 1131129 In this case, the undisclosed facts do not establish a reasonable impression of partiality. The defendants cite no case finding the existence of evident partiality under facts similar to those here. On the other hand, courts have failed to find evident partiality on similar facts. For example, in Uhl v. Komatsu Forklift Co., 512 F.3d 294 (6th Cir. 2008), the United States Court of Appeals for the Sixth Circuit concluded there was no evident partiality where an arbitrator failed to disclose that the arbitrator and one party's attorney "several years [before the arbitration] ... were co-counsel on two cases and ... on six other cases [the arbitrator] represented the plaintiff while [the attorney] represented the intervening plaintiff." 512 F.3d at 307. The court described that relationship as "insignificant." Id. In this case, the fact that the subject relationship occurred while the arbitration was pending does make for a closer relationship in that regard than the relationship in Uhl. However, importantly, in Uhl the arbitrator worked directly with an arbitration party's attorney, while the arbitrator here simply served as cocounsel with other attorneys employed at the law firm where the plaintiffs' attorney was employed. In this case, the 15 1131129 arbitrator never worked with the attorney representing the plaintiffs in the arbitration. The relationship here appears to be no closer than the one found to be "insignificant" in Uhl. Similarly, in Ormsbee Development Co. v. Grace, 668 F.2d 1140, 1149-50 (10th Cir. 1982), an arbitrator did consulting work for companies that were represented by the law firm representing one of the parties in the arbitration. The United States Court of Appeals for the Tenth Circuit concluded that the arbitrator's nondisclosure of that information did not establish evident partiality. The court noted that the core of the movant's argument was that the arbitrator and the law firm had "similar clients," which is also true in this case of the arbitrator and Hand Arendall. 668 F.2d at 1150. The court further observed that arbitrators are not required to "'sever all their ties with the business world.'" Id. (quoting Commonwealth Coatings, 393 U.S. at 148). In this case, any relationship between the arbitrator and the plaintiffs was indirect and remote. "An arbitrator's failure to disclose must involve a significant compromising connection to the parties," Positive Software, 476 F.3d at 16 1131129 282-83, and such a connection is absent here. In the two circuit court cases, the arbitrator served as cocounsel with attorneys employed by the same law firm that employed the attorney representing the plaintiffs. The arbitrator had no direct relationship with the plaintiffs or their attorney, and there is no indication that the arbitrator had a financial interest related to the plaintiffs or Hand Arendall. Compare with Municipal Workers Comp. Fund, Inc. v. Morgan Keegan & Co., [Ms. 1120532, April 3, 2015] ___ So. 3d ___ (Ala. 2015) (finding evident partiality when an arbitrator failed to disclose substantial financial dealings involving a party); and Commonwealth Coatings, 393 U.S. at 146 (finding evident partiality when a business relationship between an arbitrator and a party was "repeated and significant"). The facts here simply do not demonstrate evident partiality with respect to the nondisclosures. In short, a reasonable person would not have to conclude, based on these facts, that the arbitrator was partial to the plaintiffs. Waverlee. The defendants also argue that the arbitrator displayed evident partiality by providing the affidavit in which he addressed the allegations that he was biased. The arbitrator 17 1131129 furnished the affidavit at the request of the plaintiffs, who submitted it in response to the defendants' motion to vacate the award. The defendants argue that the arbitrator, by providing the affidavit, violated provisions of a code of ethics for arbitrators prohibiting arbitrators from assisting in the enforcement of the award and prohibiting arbitrators from communicating with a party ex parte. We do not need to decide whether the arbitrator violated the code of ethics. Insofar as the defendants perhaps argue that the alleged violations require the award to be vacated, that argument is misplaced. Such codes "do not have the force of law" and "are not the proper starting point for an inquiry into an award's validity under [the FAA]." Merit Ins., 714 F.2d at 680. See also Positive Software, 476 F.3d at 285 n. 5; Montez v. Prudential Sec., Inc., 260 F.3d 980, 984 (8th Cir. 2001); and ANR Coal Co. v. Cogentrix of North Carolina, Inc., 173 F.3d 493, 499 (4th Cir. 1999). Insofar as the defendants argue that the content of the affidavit somehow indicates evident partiality, that argument also fails. Nothing in the affidavit suggests that the high threshold of evident 18 1131129 partiality has been met. The arbitrator was simply defending himself against the defendants' allegations of bias. The defendants also argue that the award of legal fees against Western Surety should be vacated because, they say, the arbitrator showed evident partiality by refusing to recuse himself and then levying the legal fees. In this final argument alleging evident partiality, the defendants challenge only that part of the award awarding legal fees. In making their argument, the defendants emphasize two things: the arbitrator's denial of their motion seeking his recusal and the arbitrator's later award of legal fees. In May 2013, the arbitrator issued a partial award determining liability and awarding damages and indicating that he would later consider an additional award of legal fees. Two months later, the defendants filed a motion with the arbitrator seeking his recusal, which the arbitrator promptly denied. The recusal motion was supported by the affidavit of Vince Boothe. In the affidavit, Boothe alleged that he owns 95% of Gordon Construction; this fact apparently was not revealed during the hearings. Boothe then referenced a recent trial in another case in which the arbitrator's daughter had accused 19 1131129 her ex-husband of domestic violence. Boothe testified that, on May 3, 2013 (about two weeks before the arbitrator issued the partial award), Boothe's son-in-law testified adversely to the position of the arbitrator's daughter in the trial of that case. Following the trial, the current husband of the arbitrator's daughter sent text messages to Boothe's daughter, accusing Boothe's son-in-law of lying under oath. The arbitrator's daughter's ex-husband then filed a motion seeking to have held in contempt the daughter's current husband, claiming that the text messages were inappropriate and tantamount to witness intimidation; that motion was attached to the motion seeking the arbitrator's recusal in this case. Based on those facts, the defendants unsuccessfully argued to the arbitrator that he should have recused himself instead of proceeding to determine the award of legal fees. The defendants also note certain testimony presented in the September 2013 hearing regarding legal fees, two months after the recusal motion was filed and denied. In that hearing, there was testimony presented that Boothe, among others, was an indemnitor to Western Surety regarding Western Surety's performance bond on the construction project. The 20 1131129 arbitrator then levied $362,287 in legal fees against Western Surety. The gist of the defendants' argument seems to be as follows. No later than July 2013, when the recusal motion was filed, the arbitrator was made aware of both (1) the situation involving his daughter, her husband, and members of Boothe's family and (2) evidence indicating that Boothe owned 95% of Gordon Construction, one of the parties to the arbitration proceeding. When the hearing regarding legal fees was held in September 2013, there was testimony presented indicating that Boothe, among others, was an indemnitor to Western Surety regarding Western Surety's performance bond. Then, in November 2013, the arbitrator levied $362,287 in legal fees against Western Surety, a total the defendants note is much greater than the damages awarded either to Brown's two entities ($157,75.80) or to Gordon Construction ($91,272.40). Thus, say the defendants, the arbitrator must have been partial in refusing to recuse himself and in awarding the legal fees. We are unpersuaded by the defendants' argument. The arbitrator's failure to recuse himself upon learning the 21 1131129 information about the domestic-violence case does not indicate evident partiality. The large award of legal fees against Western Surety –– an award the arbitrator testified was "significantly less" than the amount claimed by the plaintiffs –– does not indicate evident partiality, either. The defendants basically ask us to assume that the arbitrator was partial based on evidence indicating that members of Boothe's family and members of the arbitrator's family did not see eye- to-eye. The standard announced in Waverlee is too demanding for such an assumption; to prevail, the defendants must establish specific facts that indicate improper motives on the part of the arbitrator. The facts here fall short. The alleged partiality at most suggests a "'mere appearance' of bias that is remote, uncertain, and speculative" rather than "direct, definite, and capable of demonstration." Waverlee, 855 So. 2d at 508, 507. A reasonable person would not have to conclude that the arbitrator was partial given these facts. In closing, we emphasize that, under the FAA, our review of an arbitration award is very limited. The defendants have not established any of the limited grounds for vacating an 22 1131129 award under § 10(a) of the FAA. Accordingly, we affirm the circuit court's judgment affirming the arbitration award. AFFIRMED. Bolin, Parker, Shaw, Main, and Wise, JJ., concur. Moore, C.J., and Murdock, J., concur in the result. Stuart, J., recuses herself. 23	June 5, 2015
b9561305-a23f-4fc9-9016-f343e21585ba	Freeman v. Holyfield	N/A	1131370	Alabama	Alabama Supreme Court	REL: 04/17/2015 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 ____________________ 1131370 ____________________ James Freeman v. Dewayne Holyfield et al. Appeal from Jefferson Circuit Court (CV-14-42) MOORE, Chief Justice. James Freeman, the plaintiff below, a parolee whose earlier parole from a life sentence for murder was revoked, appeals the trial court's dismissal of his claims against the 1131370 City of Birmingham; Dewayne Holyfield, a police officer for 1 the City of Birmingham; Charles W. Edwards; and Alma Berry, alleging false arrest, false imprisonment, and conspiracy. For the reasons below, we affirm the trial court's order of dismissal. I. Facts Freeman was convicted of first-degree murder on April 25, 1975, and was sentenced to life in prison. He was granted parole on August 2, 1993. On July 10, 1995, Officer Holyfield responded to a complaint that a man was beating a female near 14th Avenue North in Birmingham. Officer Holyfield drove to that address and discovered a female whose neck had been scratched and whose eyes were blackened and swollen. She claimed that Freeman had attacked her. Based on this incident, a warrant was issued the next day for Freeman's arrest. He was Freeman never named the City of Birmingham as a 1 defendant, but he identifies the Birmingham Police Department as a mailing recipient of his pleadings. The City of Birmingham nevertheless participated in the lawsuit as if it were a defendant. In their brief to this Court, the City of Birmingham and Officer Dewayne Holyfield treat their pleadings and filings in the trial court as joint, as though the City of Birmingham were defending not just its own interests but the interests of Officer Holyfield as well. However, the record reveals that, in the trial court, the City of Birmingham and its attorney never purported to represent Officer Holyfield or to advance legal arguments on Officer Holyfield's behalf. 2 1131370 arrested and charged with "domestic assault" hours after the warrant was issued. As a result of Freeman's arrest, Edwards, then the executive director of the Alabama Board of Pardons and Paroles, initiated parole-revocation proceedings against Freeman. Berry was the parole-revocation hearing officer at the proceedings. After affording Freeman the opportunity to present evidence and to confront and examine witnesses, Berry found sufficient evidence to support the charge of domestic assault against Freeman. She recommended the revocation of Freeman's parole. A member of the Board of Pardons and Paroles (who is not a party to this action) subsequently adjudged Freeman guilty of domestic assault and revoked his parole. At the time his parole was revoked, no court had adjudged Freeman guilty of domestic assault. Freeman was incarcerated after the revocation of his parole, and he remained in prison until March 7, 2011, when he was again released on parole. During his period of imprisonment between 1995 and 2011, Freeman was denied parole six times, based in part, he alleges, on his having committed the offense of domestic assault, of which he had never been 3 1131370 convicted. On January 12, 2012, Freeman reported to the municipal court in Birmingham "to address the 1995 charge of 'domestic assault.'" He claims that, when he arrived at the municipal court, he learned for the first time that the 1995 charge was assault and battery and not domestic assault. Freeman filed the present action in the Jefferson Circuit Court on January 10, 2014, more than 18 years after the revocation of his parole in 1995 and 2 years, 11 months, and 29 days after he appeared in the municipal court in Birmingham and allegedly learned of the assault-and-battery charge against him. His complaint alleged false arrest, false imprisonment, and conspiracy by Edwards, Berry, and Officer Holyfield and sought damages in excess of $16 million. On March 6, 2014, Edwards and Berry moved the trial court to dismiss the claims against them or, in the alternative, to enter a summary judgment in their favor. On March 10, 2014, the trial court dismissed Freeman's claims against Edwards and Berry on statute-of-limitations grounds. On March 14, 2014, Freeman moved the trial court for an extension of time in which to respond to Edwards and Berry's motion to dismiss, although the trial court had already ruled on that motion. On 4 1131370 March 19, 2014, the trial court purported to grant Freeman a 20-day extension and then, that same day, vacated the extension as having been granted in error. On March 24, 2014, the City of Birmingham filed a motion to dismiss, alleging that Freeman's claims were barred by the applicable statutes of limitations and by the notice-of-claim statutes for municipalities. See § 11-47-23 and § 11-47-192, Ala. Code 1975. The trial court scheduled a hearing on the City of Birmingham's motion to dismiss for April 15, 2014, and later rescheduled the hearing for April 29, 2014. On April 9, 2014, Freeman filed what he styled as a "motion for rehearing" of the trial court's March 10, 2014, order dismissing his claims against Edwards and Berry. On April 21, 2014, Freeman filed a motion for a default judgment against Officer Holyfield in which he alleged that his original complaint had failed to name Officer Holyfield as a defendant and noted 2 that he had amended his complaint on February 13, 2014, "to include [Officer] Holyfield as an alias in an attempt to have [Officer Holyfield] served with the plaintiff's summons and complaint." Freeman attached to his motion for a default The original complaint did name Officer Holyfield as a 2 defendant. 5 1131370 judgment a "Notice of No Service" indicating that Officer Holyfield had not yet been served with the summons and complaint. Freeman claimed in his motion for a default judgment that Officer Holyfield "should be considered served" because Freeman's "summons and complaint was [sic] specifically addressed to [Officer Holyfield] ..., and someone from [Officer Holyfield's] office or department [subsequently] filed a motion with the court." However, the trial court's case-action-summary sheet indicates that Officer Holyfield had been personally served by the sheriff on February 24, 2012. On April 29, 2014, the trial court dismissed Freeman's claims against the City of Birmingham. The order of dismissal did not mention Officer Holyfield, even though Officer Holyfield, not the City of Birmingham, was the named defendant in the action. On June 6, 2014, Freeman filed a "Motion for 3 Rehearing," raising for the first time a 42 U.S.C § 1983 In their brief to this Court, the City of Birmingham and 3 Officer Holyfield allege that this April 29, 2014, order "granted the Motion to Dismiss Holyfield and the City." (Emphasis added.) However, the order states only that the "City of Birmingham's motion to dismiss is hereby granted." The motion itself, styled "City of Birmingham's Motion to Dismiss," never mentioned Officer Holyfield except to state, in its summary of the facts, that "[Freeman] claims he was arrested by Officer Dewayne Holyfield of BPD [Birmingham Police Department] in [sic] July 10, 1995." 6 1131370 civil-rights claim and requesting that the trial court reconsider its March 10, 2014, order that dismissed the claims against Edwards and Berry. The motion does not mention the April 29, 2014, order that dismissed the claims against the City of Birmingham. The trial court scheduled a hearing on Freeman's motion for rehearing for July 17, 2014. On July 14, 2014, Freeman filed a motion to vacate the March 10, 2014, order in favor of Edwards and Berry. On July 17, 2014, the trial court denied Freeman's motion for a rehearing and his motion to vacate the March 10, 2014, order, stating: "All defendants having been dismissed from this action; the case is hereby dismissed." On August 5, 2014, the trial court purported to grant Freeman's motion for a default judgment against Officer Holyfield only to immediately vacate that order as having been entered in error. On August 7, 2014, Freeman filed a notice of appeal. On November 12, 2014, this Court, noting that it was unclear whether there had been a final adjudication as to Officer Holyfield, remanded the case by order to the trial court. The order instructed the trial court 1) to determine whether to make the March 10, 2014, and April 29, 2014, orders final pursuant to Rule 54(b), 7 1131370 Ala. R. Civ. P.; 2) to determine whether another order of adjudication was appropriate; or 3) to do nothing, in which case the appeal would be dismissed as being from a nonfinal order. In response, the trial court entered the following order on November 14, 2014: "All claims made in the Complaint filed in this matter against the defendants, including Defendant Dewayne Holyfield, individually, are barred by the Statute of Limitations. Therefore, this action is dismissed with prejudice. ..." 4 We note that Freeman has never challenged the trial court's dismissal of the City of Birmingham as a defendant, either in the trial court or in his appellate briefs, nor did he ever name the City of Birmingham as a defendant. Therefore, we affirm the trial court's ruling dismissing the City of Birmingham, and we analyze its judgment regarding only the dismissal of Edwards, Berry, and Officer Holyfield. II. Standard of Review Officer Holyfield asks this Court in his brief to dismiss 4 Freeman's appeal as untimely. However, the trial court's order in response to our remand order made all its adjudications final for purposes of appeal on November 14, 2014. Therefore, there is no timeliness issue. 8 1131370 We review the trial court's grant of a motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P., by asking "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 [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. 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." Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993) (citations omitted). III. Discussion A. Dismissal of Edwards and Berry The trial court ruled that Freeman's claims against Edwards and Berry were barred by the applicable statutes of limitations. Those claims included false imprisonment, the statute of limitations for which, under § 6-2-34(1), Ala. Code 1975, is six years, and conspiracy, the statute of 5 limitations for which, under § 6-2-38(l), Ala. Code 1975, is Section 6-2-34(1) states: "The following must be 5 commenced within six years: ... Actions for any trespass to person or liberty, such as false imprisonment ...." 9 1131370 two years. The trial court also ruled that Freeman's false- 6 arrest claim was barred by the statute of limitations. Freeman fails to present any arguments regarding the statute of limitations applicable to his false-arrest claim; therefore, he has waived that issue, and we will not consider that issue. Ex parte Riley, 464 So. 2d 92, 94 (Ala. 1985) (noting that the failure by an appellant to argue an issue in his or her brief waives the issue and precludes it from being considered on appeal). "'"'The very basic and long settled rule of construction of our courts is that a statute of limitations begins to run in favor of the party liable from the time the cause of action "accrues." The cause of action "accrues" as soon as the party in whose favor it arises is entitled to maintain an action thereon.'"'" Wheeler v. George, 39 So. 3d 1061, 1084 (Ala. 2009)(quoting Ex parte Floyd, 796 So. 2d 303, 308 (Ala. 2001), quoting in turn Garrett v. Raytheon Co., 368 So. 2d 516, 518–19 (Ala. 1979)). Section 6-2-38(l) states: "All actions for any injury to 6 the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years." See Boyce v. Cassese, 941 So. 2d 932, 944 (Ala. 2006)(citing § 6-2-38 as the applicable statute of limitations for conspiracy). 10 1131370 "False imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty." § 6–5–170, Ala. Code 1975. A claim of false imprisonment accrues on the date of arrest. Jennings v. City of Huntsville, 677 So. 2d 228, 230 (Ala. 1996). See also Skinner v. Bevans, 116 So. 3d 1147, 1154 (Ala. Civ. App. 2012)("A false-imprisonment claim accrues on the date of arrest ...."). Therefore, Freeman's false-imprisonment claim accrued on his date of arrest on the charge of "domestic assault," i.e., on July 11, 1995. His false-imprisonment claim against Edwards and Berry was filed more than 18 years after his arrest in 1995, far outside the 6-year statute-of- limitations period.7 According to 51 Am. Jur. 2d Limitation of Actions § 7 7 (2011): "A primary purpose of a statute of limitations is to ensure timely notice to the defendant of a claim against him or her, to permit the defendant to take necessary steps to gather and preserve the evidence needed to defend against the suit, so that the defendant is not prejudiced by having an action filed against him or her long after the time the defendant could have prepared a defense against the claim. Statutes of limitation are intended to provide an adverse party a fair opportunity to defend a claim, as well as to preclude claims in which a party's ability to mount an effective defense has been lessened or defeated due to the 11 1131370 Freeman's conspiracy claim against Edwards and Berry likewise fails because "liability for civil conspiracy rests upon the existence of an underlying wrong and if the underlying wrong provides no cause of action, then neither does the conspiracy." Jones v. BP Oil Co., 632 So. 2d 435, 439 (Ala. 1993)(citing Allied Supply Co. v. Brown, 585 So. 2d 33, 36 (Ala. 1991), and Webb v. Renfrow, 453 So. 2d 724, 727 (Ala. 1984)). "Conspiracy 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). See also O'Dell v. State ex rel. Patterson, 270 Ala. 236, 240, 117 So. 2d 164, 168 (1959)("Where civil liability for a conspiracy is sought to be enforced, the conspiracy itself furnishes no cause of action. The gist of the action is not the conspiracy alleged but the wrong committed."). Freeman's conspiracy claim rests upon the underlying claim of false imprisonment, which is barred by the statute of limitations. Thus, his conspiracy passage of time." Freeman had ample time (almost two decades) to determine that the 1995 charge against him was assault and battery rather than domestic assault. His failure to do so denied Edwards and Berry of an opportunity to defend against Freeman's claims. 12 1131370 claim, being dependent on a barred claim, must fail. Accordingly, we affirm the judgment dismissing the claims against Edwards and Berry. B. Dismissal of Officer Holyfield The trial court identified the statutes of limitations as the grounds for dismissing the claims against Officer Holyfield. Freeman has not challenged that holding, although he could have requested to brief this issue following the trial court's return to our remand order. "[F]ailure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal." Ex parte Riley, 464 So. 2d at 94. Because Freeman has waived any challenge to the trial court's judgment in favor of Officer Holyfield on statute-of- limitations grounds, we affirm the judgment of the trial court dismissing Officer Holyfield. IV. Conclusion The trial court's judgment dismissing Freeman's claims against all defendants is hereby affirmed. AFFIRMED. Stuart, Bolin, Parker, Main, and Wise, JJ., concur. Murdock, Shaw, and Bryan, JJ., concur in the result. 13	April 17, 2015
2dac7ec9-e61f-489b-b889-ab986ed11028	Ex parte Steven Mark Morgan.	N/A	1131206	Alabama	Alabama Supreme Court	Rel: 06/05/2015 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 ____________________ 1131206 ____________________ Ex parte Steven Mark Morgan PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Steven Mark Morgan v. Cathy Renee Morgan) (Chilton Circuit Court, DR-10-194; Court of Civil Appeals, 2120101 and 2120390) PARKER, Justice. WRIT QUASHED. NO OPINION. 1131206 Stuart, Bolin, Shaw, Main, and Wise, JJ., concur. Moore, C.J., and Bryan, J., concur specially. Murdock, J., dissents. 2 MOORE, Chief Justice (concurring specially). On September 30, 2014, I dissented from this Court's order insofar as it denied the petition of Steven Mark Morgan ("the husband") for a writ of certiorari to review the Court of Civil Appeals' affirmance of the trial court's award of postminority support (Court of Civil Appeals case no. 2120101). In my view, the husband correctly argued in his petition that our decision in Ex parte Christopher, 145 So. 3d 60 (Ala. 2013), relieved him from having to pay postminority support for his daughter's college education. Although I concur in quashing the writ on the issue of the husband's pendente lite obligation (Court of Civil Appeals case no. 2120390), I write separately to explain why this Court should have granted certiorari review on the issue of postminority support.1 On September 9, 2013, the husband filed his opening brief in case no. 2120101 in the Court of Civil Appeals. On October The Court of Civil Appeals consolidated the husband's 1 appeal (case no. 2120101) with his petition for a writ of mandamus (case no. 2120390), which that court treated as an appeal. This Court, on September 30, 2014, denied the husband's petition for a writ of certiorari as to all grounds associated with case no. 2120101 and with all but one ground addressed in case no. 2120390. 3 1131206 4, 2013, this Court released its opinion in Ex parte Christopher. That opinion stated, in pertinent part: "Although today's decision does not affect final orders of postminority educational support already entered, our overruling of [Ex parte] Bayliss[, 550 So. 2d 986 (Ala. 1989),] is applicable to all future cases. Further, this decision also applies to current cases where no final postminority-support order has been entered or where an appeal from a postminority-support order is still pending." 145 So. 3d at 72 (emphasis added). In his reply brief in the Court of Civil Appeals, the husband argued that Ex parte Christopher mandated reversal of the trial court's order requiring him to pay postminority support for his daughter's college education. In its opinion the Court of Civil Appeals stated: "[W]e interpret the instruction from the supreme court to apply Christopher in cases still on appeal to those instances in which the issue concerning the trial court's authority to grant such support was properly raised in the trial court." Morgan v. Morgan, [Ms. 2120101, July 11, 2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2014). Because the husband had not argued in the trial court or in his opening brief to the Court of Civil Appeals that Ex parte Bayliss, 550 So. 2d 986 (Ala. 1989), should be overruled but only that the trial court had incorrectly applied Bayliss, the Court of Civil 4 1131206 Appeals "conclude[d] that Christopher does not apply to this action." ___ So. 3d at ___. Judge Thomas, writing separately in case no. 2120101, disagreed, noting that "the holding in Christopher is applicable to any case in which an appeal of a postminority-support order was pending at the time that decision was released." ___ So. 3d at ___ (Thomas, J., concurring in part and concurring in the result in part). Judge Thomas concluded: "[B]ased upon the plain language used by our supreme court, this court must reverse that portion of the Chilton Circuit Court's divorce judgment ordering the husband to pay postminority educational support ...." ___ So. 3d at ___. As Judge Thomas correctly explained, the Court of Civil Appeals nullified the plain language of Ex parte Christopher, which stated: "[T]his decision also applies ... where an appeal from a postminority-support order is still pending." 145 So. 3d at 72. As the husband argued in his petition for a writ of certiorari, Ex parte Christopher did not require a noncustodial parent to raise a challenge to the authority of Bayliss in the trial court for a pending appellate case to 5 1131206 benefit from the overruling of Bayliss. The husband, in the trial court and on appeal, challenged the order that he pay postminority support within the context of Bayliss, the then governing precedent. When the substantive law applicable to that order changed while his case was pending on appeal, he was entitled, by the specific language of Ex parte Christopher, to invoke that change. The decision in Ex parte Christopher is an application of "[t]he general rule ... that a case pending on appeal will be subject to any change in the substantive law." Alabama State Docks Terminal Ry. v. Lyles, 797 So. 2d 432, 438 (Ala. 2001). In Ex parte Jones, [Ms. 1131479, Feb. 27, 2015] ___ So. 3d ___ (Ala. 2015), this Court addressed the same issue regarding the applicability of Ex parte Christopher that the husband raised in his petition in this case. We stated in Jones: "Because the trial court's order awarding postminority educational support was pending on appeal in the Court of Civil Appeals when Ex parte Christopher was decided, the Court of Civil Appeals erred in not applying Ex parte Christopher in this case." ___ So. 3d at ___. Unfortunately, the husband's 6 1131206 petition seeking review of this issue was denied on September 30, 2014, five months before we decided Jones. I see no reason why the husband, especially in the light of Jones, should be denied review on the issue of postminority support. For that reason, I dissented from this Court's order of September 30, 2014, insofar as it denied certiorari review on that issue. Bryan, J., concurs. 7	June 5, 2015
b929d91a-c92a-4f80-8ae8-6d9f659d1bb7	Ex parte Christopher Floyd	N/A	1130527	Alabama	Alabama Supreme Court	REL: 05/29/2015 Modified on denial of reh'g: 08/21/2015 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 ____________________ 1130527 ____________________ Ex parte Christopher Anthony Floyd PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Christopher Anthony Floyd v. State of Alabama) (Houston Circuit Court, CC-04-1670; Court of Criminal Appeals, CR-05-0935) 1130527 STUART, Justice.1 This Court issued a writ of certiorari to determine whether the following holdings of the Court of Criminal Appeals in Christopher Anthony Floyd's appeal from his capital-murder conviction are proper: that the Houston Circuit Court ("the trial court") did not err in holding that the State provided valid race- and gender-neutral reasons for its exercise of its peremptory strikes during jury selection, that the trial court did not err by refusing to admit into evidence all of Floyd's statements made to law-enforcement officers, and that the trial court did not err in denying Floyd's motion for a new trial based on newly discovered evidence. We affirm. Facts and Procedural History In 2005 Floyd was convicted of the murder of Waylon Crawford. The murder was made capital because it was committed during a robbery, see § 13A–5–40(a)(2), Ala. Code 1975. Floyd was sentenced to death. In selecting the jury for Floyd's case, the prosecutor and Floyd's counsel exercised This case was originally assigned to another Justice on 1 this Court; it was reassigned to Justice Stuart on January 5, 2015. 2 1130527 a total of 36 peremptory challenges. The State used its 18 challenges to remove 10 of 11 African-American veniremembers and 12 of 18 female veniremembers. Floyd's counsel removed one African-American and seven female veniremembers. The jury consisted of six white male jurors, six white female jurors, two alternate white male jurors and one alternate African- American female juror. Floyd did not object to the jury based on Batson v. Kentucky, 476 U.S. 79 (1986)(prohibiting racial discrimination in jury selection), or J.E.B. v. Alabama, 511 U.S. 127 (1994)(prohibiting gender discrimination in jury selection). On direct appeal, the Court of Criminal Appeals held that the record indicated that the prosecutor's use of his peremptory challenges created a prima facie case of discrimination under both Batson and J.E.B. That court remanded the case for the trial court to conduct a Batson/J.E.B. hearing. Floyd v. State, [Ms. CR-05-0935, Sept. 28, 2007] ___ So. 3d ___ (Ala. Crim. App. 2007). On remand, the trial court conducted a hearing and required the prosecutor, Gary Maxwell, to provide 2 Maxwell stated that he selected the jury for the State 2 with the exception of one juror, who, although he had 3 1130527 explanations for the exercised peremptory challenges. Before providing explanations for his peremptory challenges, the prosecutor explained his general practice in selecting a jury for a capital case: "In a capital murder case where voir dire is extensive, and ordinarily the process lasts a day or longer, I try to rate each and every juror initially on gut reaction. If you will look at State's Exhibit 1 there, in black outside of a lot of the juror's names, I will write 'Okay.' I will write just a dash for a minus. I might write a plus, being –- minuses are bad gut reaction, pluses are a good gut reaction. Okay is just okay. All right. "Also, in doing so –- I do that when the clerk is calling the names of the jurors and asking them to stand. Now, also, as is the Court's practice –- when I say the Court, the list that we have, I will put a 'B' outside of the names of those who are black. I do that not only from the appearance in court but from the jury list that's propounded by the clerk's office.[3] ".... reservations about her serving in light of her responses to questions about capital murder, the district attorney directed not be removed by a State peremptory challenge. The record indicates that the court provided at least 3 three types of strike lists for the State and the defense to use during jury selection. One strike list provided each veniremember's name with an assigned juror number; another strike list included each veniremember's name, juror number, date of birth, sex, race, and address, and a third strike list provided each veniremember's name, juror number, date of birth, sex, race, occupation, employer, partial address, spouse's name, and spouse's employer. 4 1130527 "I have done this same procedure, the initial gut reaction rating system, for over 30 years. It's proven to be pretty accurate, I think. Then as questioning proceeds –- I adjust those ratings based on responses or lack of responses to the questions, questions the Court asks, questions the State asks, and the questions that the defendant propounds as to whether I feel they would favor the State or the defense, on their demeanor, the way they answer the questions, and not just the answer to the questions, the answer or again their failure to respond. "Now, ... I do that second rating system basically in red. I may go back, I may change a minus to a plus. I may change a plus to a minus. "Ultimately, I try to strike those most likely to lean towards the defense, not on race. I consider such factors as their age, their place of employment or lack of employment, their physical ability based on appearance, and/or responses to the questions that the Court propounds or the attorneys propound or on their failure to respond to questions. If they appear to be having a hard time understanding the Court's instructions or questions or those questions of the attorneys, I take that into consideration. If they do not pay attention, if they daydream, act as if they are bored or just don't care, I take that into consideration in this second rating system. "In my rating system, for example, Juror [no. 30/]J.B., who was struck by the defense, I [4] considered to be an excellent juror for the State. The State refers to prospective jurors using initials, 4 e.g., "Juror J.B."; Floyd uses numbers, e.g., "Juror no. 30." For purposes of this opinion, the first time a prospective juror is referenced in a discussion, we will identify the juror by both number and initials. Thereafter, we will refer to that juror using initials. 5 1130527 And I think you can see that on my list out there, that there is a plus beside [Juror no. 30/J.B.'s] name. "The State seeks jurors who are stable members of the community and due to the complexity of a capital murder case, we prefer jurors who have had jury experience and who have rendered a guilty verdict in the past. We prefer jurors who have jobs or education that requires concentration and attention to detail and also analysis. "A juror's demeanor or body language, his lack of eye contact with attorneys when they are asking questions can be a factor especially when he appears disinterested or shows more animosity towards the prosecution or law enforcement. "So that's just a basic background of what I do in preparation for striking the jury." After explaining his methodology for selecting a jury, the prosecutor offered the following reasons for his exercised peremptory strikes of African-Americans and females: Prospective juror no. 28/P.B.: The prosecutor stated that he struck P.B., an African-American female, because P.B. had 32 bad-check cases, her probation had been revoked, and she was in the same age range as Floyd. Prospective juror no. 43/J.B.: The prosecutor stated that he struck J.B., an African-American male, because J.B. had two convictions for harassment and had approximately 12 traffic tickets with the City of Dothan. Prospective juror no. 59/M.C.: The prosecutor stated that he struck M.C., an African-American female, because M.C. initially indicated that she could not 6 1130527 vote for the death penalty and was personally opposed to capital punishment, and because she vacillated when questioned by the trial court. Prospective juror no. 38/K.B.: The prosecutor stated that he struck K.B., an African-American male, because K.B. had been convicted of disorderly conduct, because he knew a potential witness who was rumored to have been involved in the commission of the offense charged, and because a member of law enforcement had indicated that he would be a bad juror for the State. Prospective juror no. 46/T.C.: The prosecutor stated that he struck T.C., an African-American female, because T.C. had six convictions and her brother had felony convictions, because during voir dire she questioned the veracity of testimony from members of law enforcement, and because of her familiarity with members of the district attorney's office as a result of that office's prosecution of her and her brother. Prospective juror no. 57/A.C.: The prosecutor stated that he struck A.C., an African-American female, because A.C. had been convicted of theft and negotiating worthless negotiable instruments. Prospective juror no. 60/L.C.: The prosecutor stated that he struck L.C., an African-American female, because he believed that L.C. was "too familiar with everybody involved" in the case because she knew the defense attorneys, members of the district attorney's office, and the forensic pathologist who performed the autopsy on the victim. He further explained that he believed L.C.'s expressed religious beliefs would impact her ability to sit in judgment of the accused. Prospective juror no. 19/D.B.: The prosecutor stated that he struck D.B., an African-American female, because she was inattentive during voir dire. The 7 1130527 prosecutor further stated that D.B. failed to make eye contact with members of the prosecution team, but at times during voir dire nodded in agreement with defense counsel. Prospective juror no. 58/I.C.: The prosecutor stated that he struck I.C., an African-American female, because I.C. did not respond to any questions during voir dire and the prosecution did not know anything about her. Prospective juror no. 51/R.C.: The prosecutor stated that he struck R.C., an African-American female who ultimately served as an alternate juror, because R.C. was 77 years of age and he had concerns, based on her demeanor during voir dire and the length and complexity of the case, that she would be able to serve as a juror. Prospective juror no. 5/T.M.A.: The prosecutor stated that he struck T.M.A., a Caucasian female, because of her age. He further stated that, although he could not provide a specific reason, his initial impression of T.M.A. was that she would not be a good juror for the State and because of "the age part." Prospective juror no. 23/R.B.: The prosecutor stated that he struck R.B., a Caucasian female, because his initial impression of R.B. was that she would not be a strong juror for the State and she did not respond to any questions during voir dire. Prospective juror no. 35/S.B.: The prosecutor stated that he struck S.B., a Caucasian female, because, although his initial impression was that she would be an "okay" juror for the State, S.B. did not respond to any questions during voir dire and appeared to be close to Floyd's age. 8 1130527 Prospective juror no. 70/K.D.: The prosecutor stated that he struck K.D., a Caucasian female, because K.D. was approximately the same age as Floyd. The prosecutor further stated that, based on his notes and rating system, he had determined that prospective jurors no. 8/M.W.A., no. 32/L.J.B., and no. 42/R.S.B, Caucasian females who ultimately served on the jury, would be good jurors for the State and that prospective jurors no. 18/K.P.B. and no. 62/M.D., Caucasian females, and prospective juror no. 30/J.B., an African-American female, each of whom was struck by the defense, would have also been good jurors for the State. The prosecutor explained that, during the selection process, he noticed that the defense was using its peremptory strikes to remove veniremembers who were not similar in age to Floyd. He stated that, after he had removed veniremembers that he believed would not be good jurors for the State, he challenged veniremembers in the age group the defense was trying to seat on the jury, i.e, those similar in age to Floyd. The prosecutor offered into evidence his strike list that provided the names and numbers of the veniremembers, upon 9 1130527 which he had made notations about each of the veniremembers; a list showing each veniremember's prior jury service and any criminal charges; and the strike list that contained information about the veniremembers, including race, sex, occupation, etc., and upon which members of law enforcement had made notations about various veniremembers and whether those veniremembers would be good jurors for the State. To rebut the prosecutor's reasons and to show that the prosecutor engaged in actual, purposeful discrimination, Floyd argued that the reasons offered by the prosecutor for his strikes were pretextual and a sham because, he said, the Houston County district attorney's office had in the past engaged in discrimination during the jury-selection process. In support of his argument, Floyd named five cases in which convictions from the Houston Circuit Court had been reversed based on the State's having exercised its peremptory challenges in a discriminatory manner. He further argued 5 that, although the prosecutor claimed that a number of the removed veniremembers or their family members had criminal Floyd did not argue that Maxwell had selected the juries 5 for the State in any of the cases in which the defendant's conviction had been reversed. 10 1130527 convictions, many of those convictions were not in the record and/or were unavailable for verification by the defense; that the prosecutor failed to ask follow-up questions during voir dire of veniremembers who had been struck to associate the reason provided to this case; that the prosecutor's exercise of his peremptory strikes based on the race-neutral reason of age was disingenuous because the prosecutor used age as a reason to strike veniremembers ranging from age 28 years old to 77 years old; and that, although the prosecutor stated that he struck African-American veniremembers based on traffic tickets and opinions they had regarding the death penalty, the prosecutor did not strike two similarly situated Caucasian veniremembers. In support of his argument, Floyd submitted a legal memorandum listing various cases in Houston County involving Batson objections, including five cases in which an appellate court had reversed convictions based on a Batson violation; a copy of defense counsel's strike list; and a strike list providing additional information about the various veniremembers, including date of birth, sex, race, occupation, etc. 11 1130527 After the hearing, the trial court entered a written order finding that the prosecutor had proffered race- and gender-neutral reasons for exercising his peremptory strikes. On return to remand, the Court of Criminal Appeals upheld the trial court's finding that the State had provided race- and gender-neutral reasons for its use of its peremptory strikes, considered the other issues presented on direct appeal, and affirmed Floyd's conviction and sentence. Floyd v. State, [Ms. CR-05-0935, August 29, 2008] ___ So. 3d ___ (Ala. Crim. App. 2007) (opinion on return to remand). On certiorari review, this Court held that on remand the trial court had failed to comply with the order of the Court of Criminal Appeals that it provide specific findings concerning the reasons proffered by the prosecutor for striking African-American and/or female veniremembers and that the Court of Criminal Appeals had erred in assuming the role of the trial court and finding that the State's reasons for striking prospective jurors no. 5/T.M.A. and no. 58/I.C. were nondiscriminatory. Ex parte Floyd, [Ms. 1080107, September 28, 2012] ___ So. 3d ___, ___ (Ala. 2012). This Court reversed the judgment of the Court of Criminal Appeals and 12 1130527 remanded the case for that court to remand the case with directions for the trial court "to make necessary findings of fact and conclusions of law on the following issues: whether the State's offered reasons for striking the African-American jurors it struck were race neutral; whether the State's offered reasons for striking the female jurors it struck were gender neutral; and 'whether the defendant has carried his burden of proving purposeful discrimination.'" Ex parte Floyd, ___ So. 3d at ___. Pursuant to this Court's order, the Court of Criminal Appeals remanded the case with instructions that the trial court make the necessary findings of fact and conclusions of law. Floyd v. State, [Ms. CR-05-0935, December 14, 2012] ___ So. 3d ___ (Ala. Crim. App. 2012). The trial court on second remand entered an order, making specific findings of fact with regard to the State's proffered reasons for striking African- American and female veniremembers and finding that Floyd had not demonstrated that the prosecutor had engaged in actual, purposeful discrimination on the basis of race or gender during the jury-selection process. The trial court rejected Floyd's claims that the prosecutor had violated Batson and J.E.B. during the jury-selection process and found that the prosecutor had proffered race- and gender-neutral reasons for 13 1130527 his peremptory strikes and that Floyd had not satisfied his burden of proving that the prosecutor's reasons had been pretextual or sham or that the prosecutor had engaged in actual, purposeful discrimination during the jury-selection process. On return to second remand, the Court of Criminal Appeals affirmed Floyd's conviction and sentence, holding that the trial court's judgment was not clearly erroneous because the record supported the trial court's conclusion that the prosecutor had presented facially race- and gender-neutral reasons for his strikes, that the prosecutor's reasons were not pretextual or sham, and that Floyd had not satisfied his burden of proving that the prosecutor engaged in actual, purposeful discrimination against African-American and female veniremembers during the jury-selection process. Floyd v. State, [Ms. CR-05-0935, November 8, 2013] ___ So. 3d ___, ___ (Ala. Crim. App. 2012) (opinion on return to second remand). This Court has now granted certiorari review to consider whether the Court of Criminal Appeals properly upheld the trial court's denial of Floyd's Batson and J.E.B. claims, the trial court's refusal to admit into evidence all of Floyd's 14 1130527 statements made to law-enforcement officers, and the trial court's denial of Floyd's motion for a new trial based on newly discovered evidence Standard of Review On certiorari review, this Court does not accord the legal conclusions of an intermediate appellate court a presumption of correctness. Therefore, this Court applies de novo the standard of review that was applicable in the intermediate appellate court. Ex parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996). Discussion Floyd contends that the judgment of the Court of Criminal Appeals upholding the trial court's finding that the State's reasons for striking I.C. and T.M.A. were race- and gender- neutral and that he did not satisfy his burden of proving that the prosecutor engaged in actual, purposeful discrimination during the jury-selection process conflicts with Batson and J.E.B. Floyd's contention that the trial court erred in not finding a Batson or J.E.B. violation focuses on the second and third step in a Batson/J.E.B. inquiry. In the second step of 15 1130527 the inquiry, the party against whom the prima facie case has been established, i.e., the nonmoving party, has the burden of proving that its reasons for its peremptory challenges were race or gender neutral. Ex parte Branch, 526 So. 2d 609, 623 (Ala. 1987). The nonmoving party must provide "a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory." Ex parte Branch, 526 So. 2d at 623. The nonmoving party's reason, however, does not have to equal the reason for a strike for cause; rather, the nonmoving party's explanation must be facially valid. Ex parte Branch, 526 So. 2d at 623. "Within the context of Batson, a 'race-neutral' explanation 'means an explanation based on something other that the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reasons offered will be deemed race neutral.' Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). 'In evaluating the race-neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.' Id. '[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within the trial judge's province."' Hernandez, 500 U.S. at 365, 111 S. Ct at 1969." 16 1130527 Allen v. State, 659 So. 2d 135, 147 (Ala. Crim. App. 1994). After the trial court determines that the nonmoving party has provided facially valid race- and gender-neutral reasons for its peremptory challenges, the burden then shifts to the moving party to prove that the nonmoving party has engaged in actual, purposeful discrimination. During this third step of the Batson/J.E.B. inquiry, the trial court evaluates the persuasiveness of the nonmoving party's reasons to determine whether the nonmoving party has engaged in purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995). The trial court's determination of the moving party's showing of intent to discriminate is "a pure issue of fact subject to review under a deferential standard." Hernandez v. New York, 500 U.S. 352, 364 (1991). As this Court explained in Ex parte Branch: "[T]he trial judge must make a sincere and reasonable effort to evaluate the evidence and explanations based on the circumstances as he knows them, his knowledge of trial techniques, and his observation of the manner in which the prosecutor examined the venire and the challenged jurors. People v. Hall, 35 Cal. 3d 161, 672 P.2d 854, 858, 197 Cal.Rptr. 71 (1983); see also [People v.] Wheeler, 22 Cal. 3d [258] at 281, 583 P.2d [748] at 764, 148 Cal. Rptr. [890] at 906 [(1978)]. 17 1130527 "In evaluating the evidence and explanations presented, the trial judge must determine whether the explanations are sufficient to overcome the presumption of bias. Furthermore, the trial judge must be careful not to confuse a specific reason given by the state's attorney for his challenge, with a 'specific bias' of the juror, which may justify the peremptory challenge: "'The latter, a permissible basis for exclusion of a prospective juror, was defined in Wheeler as "a bias relating to the particular case on trial or the parties or witnesses thereto." Wheeler, 22 Cal. 3d at 276, 148 Cal. Rptr. at 902, 583 P.2d at 760. ...' "Slappy [v. State], 503 So. 2d [350] at 354 [(Fla. Dist. Ct. App. 1987)]. The trial judge cannot merely accept the specific reasons given by the prosecutor at face value, see Hall, 35 Cal. 3d at 168, 672 P.2d at 858–59, 197 Cal. Rptr. at 75; Slappy, 503 So. 2d at 356; the judge must consider whether the facially neutral explanations are contrived to avoid admitting acts of group discrimination." 526 So. 2d at 624. An appellate court may reverse the trial court's determination that the nonmoving party's peremptory challenges were not motivated by intentional discrimination, the third consideration in a Batson/J.E.B. inquiry, only if that determination is clearly erroneous. Ex parte Branch, 526 So. 2d at 625. Whether the nonmoving party engaged in actual, purposeful discrimination involves consideration of not only 18 1130527 the nonmoving party's credibility, but also the veniremember's demeanor, and such determinations rest on the trial court's firsthand observations. As the United States Supreme Court stated in Hernandez, when determinations rest upon credibility and demeanor, they rest "'peculiarly within a trial judge's province.'" Hernandez, 500 U.S. at 365 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). With regard to Floyd's claim that the prosecutor, the nonmoving party in this case, purposefully excluded African- Americans from his jury, Floyd focuses on the prosecutor's exercise of a peremptory challenge to remove prospective juror no. 58/I.C. from the venire. The prosecutor, when asked to provide reasons why he exercised a peremptory challenge to remove I.C. from the venire, stated that he removed I.C. because he did not know much about her in that she had been omitted from the State's strike lists and because she did not respond to questions. The trial court found these reasons to be race neutral, see Jackson v. State, 686 So. 2d 429, 431 (Ala. Crim. App. 1996)(holding that nonresponsiveness to questioning can be a race-neutral reason), and State v. Harris, 184 Ariz. 617, 620, 911 P.2d 623, 626 (Ariz. Ct. App. 19 1130527 1995)(finding the prosecutor's proffered reason that she lacked knowledge about the veniremember to be race neutral). The trial court further found that Floyd did not satisfy his burden of proving that the prosecutor's reasons were pretextual or sham and that he engaged in actual, purposeful discrimination in the jury-selection process. Floyd maintains that the reasons offered by the prosecutor for his strikes of African-Americans and females do not adequately rebut the inference of actual, purposeful discrimination because, he says, those reasons are pretextual or sham. He argues that I.C.'s alleged lack of responsiveness to questions is pretextual or sham and is not supported by the record because during group voir dire I.C., as did a Caucasian veniremember, responded to questions as requested by the questioner by either raising or not raising her hand. See Ex parte Branch, 526 So. 2d at 625 (holding that disparate treatment of veniremembers with the same characteristics or who answer questions in the same manner suggests that the reason for striking one over the other is pretextual or sham). Similarly, he further argues that the prosecutor's lack of knowledge about I.C. is pretextual or sham because the 20 1130527 prosecutor did not engage in additional voir dire with I.C. to learn more about her. Ex parte Bird, 594 So. 2d 676, 683 (Ala. 1991)("[T]he failure of the State to engage in any meaningful voir dire on a subject of alleged concern is evidence that the explanation is a sham and a pretext for discrimination."). This Court, in light of the deference to be accorded the trial court in its determination of whether Floyd satisfied his burden of proving that the prosecutor engaged in actual, purposeful discrimination, cannot conclude from the record that the trial court's holding that Floyd did not satisfy his burden of proving that the prosecutor engaged in actual, purposeful discrimination is clearly erroneous. We cannot agree with Floyd that the prosecutor engaged in disparate treatment because he used a peremptory challenge to remove I.C. and did not use a peremptory challenge to remove prospective juror no. 21/A.B., a Caucasian male. The record indicates that the prosecutor, who relied heavily upon his impressions and knowledge of the veniremembers in the exercise of his peremptory challenges, knew little about I.C. because she was omitted from his strike lists. The record further 21 1130527 indicates that the prosecutor from his strike lists knew that A.B. had not served previously on a jury and that he did not have a criminal history. Under the facts of this case, these known facts about A.B. negate the evidence of any disparate treatment of I.C. and A.B. Additionally, the prosecutor's admission of his lack of knowledge about I.C. when proffering reasons for the exercise of the peremptory challenge does not require the conclusion that the prosecutor engaged in actual, purposeful discrimination. This Court in State v. Bui, 627 So. 2d 855 (Ala. 1992), agreed with the United States Court of Appeals for the Fifth Circuit that the "'"[f]ailure by a prosecutor to explain every peremptory strike of black jurors is not necessarily fatal to the prosecutor's ability to rebut a prima facie case ...."'" State v. Bui, 627 So. 2d at 859 (quoting United States v. Forbes, 816 F. 2d 1006, 1011 n. 7 (5th Cir. 1987), quoting in turn Unites States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986)). Here, the prosecutor admitted that I.C. had been inadvertently omitted from his strike lists and that, consequently, he had little information about her. In light of the prosecutor's explanation of the process he used 22 1130527 in striking a jury, the prosecutor's candor that he knew nothing about I.C., his stated reluctance to seat a juror he did not believe was good for the State, and the deference accorded the trial court in making credibility determinations concerning the prosecutor, we cannot hold that the trial court's finding that Floyd did not satisfy his burden of proving that the prosecutor engaged in actual, purposeful discrimination in the selection of the jury in this regard is clearly erroneous. Floyd's contention that the prosecutor purposefully excluded females from the jury focuses on the prosecutor's exercise of a peremptory challenge to remove prospective juror no. 5/T.M.A. from the venire. According to Floyd, the trial court accepted at face value the prosecutor's proffered reason of her age for the removal of T.M.A. from the jury. He maintains that because the prosecutor did not connect T.M.A.'s age to the case, the reason is pretextual or sham and evidences actual, purposeful discrimination on the part of the prosecutor. See Ex parte Branch, 526 So. 2d at 624 (providing [substituted p. 23] 1130527 that a guideline for determining whether a prosecutor's reason for an allegedly discriminatory strike was valid or sham includes "'an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically'" (quoting Slappy v. State, 503 So. 2d 350, 355 (Fla. Dist. Ct. App. 1987))). See also Ex parte Brooks, 695 So. 2d 184, 190 (Ala. 1997)(recognizing that "age, employment status, and marital status are not sufficiently race-neutral reasons for a peremptory strike, if the prosecutor gives that reason as the sole basis for the strike, where that reason is unrelated to the case"). The record, however, does not support Floyd's argument that the prosecutor engaged in disparate treatment because the record establishes that the prosecutor did relate the reason of age to the case. The record establishes that Floyd, a Caucasian, was 33 years old and that T.M.A. was 48 years old at the time of the trial. At the Batson/J.E.B. hearing, the prosecutor stated that he struck T.M.A. because he believed she was within the age range of the juror the defense was trying to seat. A review of the prosecutor's strikes indicates that, after he struck veniremembers he believed 24 1130527 would not be good jurors for the State, he exercised his peremptory challenges to remove veniremembers whose ages were in Floyd's age range in an effort to prevent the defense from seating the type juror it believed would be pro-defense. Thwarting the defense's objective in jury selection is a race- neutral reason, and we cannot conclude based on the record before us that the trial court's finding that Floyd did not satisfy his burden of proving that the prosecutor engaged in actual, purposeful discrimination by striking T.M.A. is clearly erroneous. This Court has reviewed the record in light of Floyd's contention that the State did not provide race- and/or gender- neutral reasons for striking prospective juror no. 59/M.C., prospective juror no. 19/D.B., prospective juror no. 60/L.C., prospective juror no. 23/R.B., prospective juror no. 35/S.B., and prospective juror no. 70/K.D. The record, however, supports the trial court's conclusion that the State proffered race- and/or gender-neutral reasons for its peremptory challenges of those jurors. See Whatley v. State 146 So. 3d 437, 456 (Ala. Crim. App. 2010) (noting that, "'"[a]lthough a juror's reservations about the death penalty need not be 25 1130527 sufficient for a challenge for cause, his view may constitute a reasonable explanation for the exercise of a peremptory strike."'" (quoting Dallas v. State, 711 So. 2d 1101, 1104 (Ala. Crim. App. 1997), quoting in turn Johnson v. State, 620 So. 2d 679, 696 (Ala. Crim. App. 1992)), and finding a juror's demeanor to be a race-neutral reason); Smith v. State, 838 So. 2d 413 (Ala. Crim. App. 2002) (finding a juror's religious/moral conviction against sitting in judgment to be a race-neutral reason); Jackson, supra (finding a juror's nonresponsiveness to be a race-neutral reason); and Sanders v. State, 623 So. 2d 428, 432 (Ala. Crim. App. 1993)(recognizing that age can provide a race-neutral reason). Additionally, in light of the deference accorded to the trial court in determining whether a prosecutor's reasons are pretextual or sham, we cannot hold that Floyd satisfied his burden of proving that the prosecutor engaged in actual, purposeful discrimination. "Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will 'largely turn on evaluation of credibility.' 476 U.S., at 98, n. 21. In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be 26 1130527 believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' Wainwright v. Witt, 469 U.S. 412, 428 (1985), citing Patton v. Yount, 467 U.S. 1025, 1038 (1984)." Hernandez v. New York, 500 U.S. at 364. Nothing before this Court establishes that the trial court's finding that Floyd did not satisfy his burden of proving that the prosecutor engaged in actual, purposeful discrimination in the selection of the jury is clearly erroneous. "'[A] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Because this Court does not have a firm conviction from the record before us that the prosecutor committed a Batson or J.E.B. violation during the selection of Floyd's jury, Floyd has not established that the decision of the Court of Criminal Appeals affirming the trial court's finding that no Batson or J.E.B. 27 1130527 violation occurred in the selection of his jury conflicts with prior caselaw. Next, Floyd contends that the decision of the Court of Criminal Appeals upholding the trial court's refusal to admit into evidence all of Floyd's statements to law-enforcement officers conflicts with Rule 801(c), Ala. R. Evid. Specifically, Floyd argues that the trial court exceeded the scope of its discretion by refusing to admit into evidence all the statements he made to law-enforcement officers because, he says, those statements were admissible nonhearsay statements and their preclusion from evidence inhibited the jury's ability to evaluate the credibility and reliability of his September 27, 2004, statement, which was admitted into evidence, and prevented him from presenting a complete defense. On September 27, 2004, Floyd admitted to law-enforcement officers that he shot Waylon Crawford. The trial court admitted Floyd's confession into evidence. During the 12-year investigation of the offense, Floyd made several other statements to law-enforcement officers. In those statements, Floyd either denied participation in the offense or provided 28 1130527 information about the offense to law-enforcement officers that differed from the statement he had made on September 27, 2004. The State filed a motion in limine asking the trial court to prevent Floyd from making any reference either directly or indirectly to any statement he had made to law-enforcement officers or to the contents of the statement unless the State notified the Court and the defense that it intended to introduce that statement. The trial court granted the motion and refused to admit any evidence regarding any of the statements Floyd made to law-enforcement officers other than evidence concerning the statement he made on September 27, 2004. "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). Rule 802, Ala. R. Evid., provides: "Hearsay is not admissible except as provided by these rules or other rules adopted by the Supreme Court of Alabama or by statute." Rule 801(c), defines hearsay as "a statement other than one made by the declarant while testifying at the trial or hearing, 29 1130527 offered in evidence to prove the truth of the matter asserted." Generally, "'[t]he declarations of the accused made after the commission of the crime, are not admissible in his favor unless they constitute a part of the res gestae or are introduced by the State.'" Wilsher v. State, 611 So. 2d 1175, 1186 (Ala. Crim. App. 1992) (quoting Harrell v. State, 470 So. 2d 1303, 1306 (Ala. Cr. App. 1984)). In Miller v. State, 441 So. 2d 1038, 1039 (Ala. Crim. App. 1983), the Court of Criminal Appeals addressed a defendant's attempt to admit into evidence a statement he had made to law-enforcement officers in an effort to present his testimony without being subjected to cross-examination. That court stated: "'A "self-serving declaration" is a statement made out of Court which is favorable to the interest of the declarant. Unless, for some recognized reason, it comes within the exception to the general rule, such a declaration is not admissible in evidence when tendered by the favored party, if not a part of the res gestae. The prime objection to this character of proof is that it does violence to the hearsay rule. Further, it opens the door to the introduction of untrustworthy declarations and permits a party to manufacture his own evidence.'" Miller, 441 So. 2d at 1039 (quoting Jarrell v. State, 35 Ala. App. 256, 50 So. 2d 767 (1950)). 30 1130527 Floyd contends that the trial court erred in refusing to admit into evidence all of his statements to law-enforcement officers because, he says, the statements are not hearsay. He maintains that he did not offer the statements to prove the truth of the contents of the statements; rather, he says, he offered the statements for the sole purpose of proving that he made other statements and that those other statements are inconsistent with his September 27, 2004, confession. However, to achieve Floyd's objective for admitting the other statements into evidence –- proving that his September 27, 2004, confession was unreliable in light of the inconsistency of that statement with other statements he had made to law- enforcement officers -- Floyd offered the other statements to prove "the truth of the matter asserted" in each statement, i.e., that he did not commit the offense. Thus, Floyd's statements, other than his confession, which was submitted into evidence by the State, made to law-enforcement officers were hearsay, and the trial court did not exceed the scope of its discretion by refusing to admit them into evidence. The judgment of the Court of Criminal Appeals upholding the trial court's refusal to admit all statements Floyd made to law- 31 1130527 enforcement officers into evidence does not conflict with Rule 801(c), Ala. R. Evid. 6 Lastly, Floyd contends that the decision of the Court of Criminal Appeals that the trial court did not err in denying his motion for a new trial based on newly discovered evidence conflicts with Ex parte Heaton, 542 So. 2d 931 (Ala. 1989). Specifically, Floyd contends that the trial court exceeded the scope of its discretion in denying his motion for a new trial because, he says, the evidence satisfied all the requirements for a new trial. At trial Floyd maintained that Paul Wayne Johnson, not he, had committed the offense and that Johnson, by threatening to harm Floyd and his family, had pressured him into confessing that he committed the offense. After Floyd had been convicted and sentenced, Dorothy Dyson, a friend of Floyd's family, came forward stating that on the night Crawford was murdered she saw Johnson and that his shirt was Because Floyd's statements made to law-enforcement 6 officers, other than his confession, were inadmissible hearsay; do not fall within an exception to the hearsay rule, see Rules 803 and 804, Ala. R. Evid.; and were not by definition not hearsay, see Rule 801(d), Ala. R. Evid., we pretermit discussion of the other grounds of conflict Floyd raises in this regard. 32 1130527 covered with blood. In light of this newly discovered evidence, Floyd moved for a new trial, arguing that the evidence supported the defense's theory that Johnson, not he, committed the offense. The trial court, after conducting a hearing at which Dyson testified, entered an order questioning Dyson's credibility and denying Floyd's motion for a new trial. "'"The appellate courts look with disfavor on motions for new trials based on newly discovered evidence and the decision of the trial court will not be disturbed absent abuse of discretion." Further, "this court will indulge every presumption in favor of the correctness" of the trial judge's decision. The trial court is in the best position to determine the credibility of the new evidence.' "Isom v. State, 497 So. 2d 208, 212 (Ala. Crim. App. 1986) (citations omitted). To establish a right to a new trial based on newly discovered evidence, the petitioner must show the following: (1) that the evidence will probably change the result if a new trial is granted; (2) that the evidence has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching. ... While all five requirements ordinarily must be met, the law has recognized that in certain exceptional circumstances, even if the newly discovered evidence is cumulative or impeaching, if it appears probable from looking at the entire case that the new 33 1130527 evidence would change the result, then a new trial should be granted." Ex parte Heaton, 542 So. 2d at 933 (emphasis added; some citations omitted). "The granting of a new trial on the basis of newly discovered evidence 'rests in the sound discretion of the trial court and depends largely on the credibility of the new evidence.' Robinson v. State, 398 So. 2d 144 (Ala. Crim. App.)[,] cert. denied, 389 So. 2d 151 (Ala. 1980). The trial court is the factfinder in a hearing on a motion for new trial. One condition of the trial court's granting a new trial based on newly discovered evidence is that the court must believe the evidence presented at the hearing. Seibert v. State, 343 So. 2d 788 (Ala. 1977)." McDonald v. State, 451 So. 2d 440, 442 (Ala. Crim. App. 1984)(emphasis added). Applying the guidelines for granting a new trial in light of newly discovered evidence set forth in Ex parte Heaton and McDonald to the facts of this case, we conclude that the trial court did not exceed the scope of its discretion in denying Floyd's motion for a new trial. At the end of Dyson's testimony, the trial court questioned Dyson to address its concerns about the credibility of her testimony. The record indicates that the trial court's concerns were not abated by Dyson's responses. Because "a condition to the granting of a 34 1130527 new trial on the basis of newly discovered evidence is that the trial court must believe the evidence presented," McMillian v. State, 594 So. 2d 1253, 1264 (Ala. Crim. App. 1991), and the record indicates that Dyson's testimony did not satisfy this criteria, this Court cannot conclude that the trial court exceeded the scope of its discretion by denying Floyd's motion for a new trial based on newly discovered evidence. Dowdy v. Gilbert Eng'g Co., 372 So. 2d 11, 12 (Ala. 1979) ("A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision." (citing Premium Serv. Corp. v. Sperry & Hutchinson, Co., 511 F.2d 225 (9th Cir. 1975)). The decision of the Court of Criminal Appeals affirming the trial court's denial of Floyd's motion for a new trial does not conflict with Ex parte Heaton and the applicable caselaw. Conclusion Based on the foregoing, the judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. 35 1130527 Moore, C.J., and Bolin, Parker, Main, and Bryan, JJ., concur. Murdock, J., dissents. Shaw and Wise, JJ., recuse themselves.* *Justice Shaw and Justice Wise were members of the Court of Criminal Appeals when that court considered this case. 36 1130527 MURDOCK, Justice (dissenting). Christopher Anthony Floyd argues, among other things, that the trial court erred in not admitting statements he made to police that were inconsistent with his out-of-court confession to police. He contends that the excluded statements tend to prove that his confession was not credible and that their exclusion prevented him from presenting a complete defense. The main opinion rejects this contention with the reasoning that the proffered statements were inadmissable hearsay because "to achieve Floyd's objective for admitting the other statements into evidence –- proving that his September 27, 2004, confession was unreliable in light of the inconsistency of that statement with other statements he had made to law-enforcement officers -- Floyd [necessarily sought to introduce] the other statements to prove 'the truth of the matter asserted' in [those statements]." ____ So. 3d at ___. Given the unique circumstances of this case and the content of many of those other statements, I am not persuaded that the stated rationale for upholding their exclusion -- that "Floyd [necessarily sought] ... to prove the 'truth of 37 1130527 the matter asserted'" in them -- is correct. Even if the trial court erred in excluding the subject statements on the ground now urged by Floyd, however, this ground was not raised below, and I cannot conclude that the exclusion of the statements represents plain error. That said, after reviewing the record in this case as it now stands following a second remand, I have substantial concerns regarding the so-called Batson/J.E.B. challenges to prospective jurors no. 5/T.M.A. and no. 58/I.C., and I therefore respectfully must dissent.7 For the reason expressed in my special writing in 7 Ex parte Floyd, [Ms. 1080107, September 28, 2012] ___ So. 3d ___, ___ (Ala. 2012) (Murdock, J., concurring in the result), I continue to be concerned about the appropriateness of allowing Batson challenges to be made in capital cases for the first time on appeal. As I noted in Ex parte Floyd, however, the State has not objected to this procedure in the present case, and, as a result, I and the other members of this Court have been placed in the position of assessing the Batson issues as best we can under the circumstances. 38	May 29, 2015
f84e288a-21e0-4270-b237-ec0d085ff74d	Ex parte Tanya Butts.	N/A	1140438	Alabama	Alabama Supreme Court	Rel: 6/5/2015 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 ____________________ 1140438 ____________________ Ex parte Tanya Butts PETITION FOR WRIT OF MANDAMUS (In re: Gaines C. McCorquodale and Lizann Pezent v. Tanya Butts) (Clarke Circuit Court, CV-14-00007) BRYAN, Justice. Tanya Butts petitions this Court for a writ of mandamus directing the Clarke Circuit Court to stay the proceedings in 1140438 the underlying civil case until a criminal case pending against her is completed. Butts contends that a stay in the civil case is necessary to protect her constitutional right against self-incrimination. We deny the petition. Gaines C. McCorquodale and Butts each own a one-half interest in Hometown Hospice, Inc. ("Hometown"), a hospice business located in Jackson. In July 2014, McCorquodale sued Butts, asserting claims based on allegations that Butts had misappropriated funds belonging to Hometown. The complaint 1 sought money damages and injunctive relief. Also in July 2014, the trial court entered a preliminary injunction prohibiting Butts from any involvement in the operation of Hometown. On August 5, 2014, Butts filed an answer and counterclaims alleging, among other things, breach of fiduciary duty, libel, and conversion. In her answer, Butts also petitioned for the dissolution of Hometown pursuant to § 10A-2-14.30 et seq., Ala. Code 1975 (allowing the appropriate Lizann Pezent was a co-plaintiff in the civil case 1 against Butts; her claims, however, concern a separate business from Hometown, in which she, McCorquodale, and Butts each owned a one-third interest. Pezent's claims are not the subject of this mandamus petition. 2 1140438 circuit court to dissolve a corporation). In petitioning for dissolution, Butts asserted that she and McCorquodale were "deadlocked" in the operation of the corporation. McCorquodale later elected to purchase Butts's shares of Hometown in lieu of dissolution, in accordance with § 10A-2- 14.34, Ala. Code 1975. Because McCorquodale elected to purchase Butts's shares, it became necessary to determine the value of Hometown. However, the parties were unable to agree on the value, and McCorquodale consequently asked the trial court to determine Hometown's value. See § 10A-2-14.34(d). At that point, the immediate focus of the civil case became determining the value of Hometown for purposes of § 10A-2- 14.34. The trial court scheduled a hearing for January 28, 2015, to determine the value of Hometown. Both sides conducted discovery in the weeks leading up to the scheduled hearing. On January 15, 2015, Butts was indicted on several counts of theft of property relating to her involvement with Hometown. On January 26, 2015, Butts filed a motion seeking (1) to continue the valuation hearing set for January 28 and (2) to stay the entire civil case pending the resolution of 3 1140438 the criminal case against her. Butts contended that she was entitled to the stay based on her right against self- incrimination. McCorquodale opposed the motion both as to a continuance and a stay. The trial court held the valuation hearing as scheduled on January 28. Butts, concerned about the possibility of waiving her right against self-incrimination in the criminal case, chose not to testify or to present evidence at the hearing. McCorquodale presented expert evidence regarding the value of Hometown, and Butts's attorney cross-examined his expert. The trial court asked Butts's attorney if he wanted to present a valuation expert, but he declined. At the end of the hearing, the trial court concluded that it had received sufficient evidence to decide the valuation issue and stated that it would decide that issue within a week to 10 days. However, the trial court also stated that it would hold another valuation hearing if Butts wanted to produce an expert before it made its valuation decision. The trial court did not rule on the larger question whether the remainder of the civil case –– other than the valuation issue –– should be stayed pending the resolution of the criminal case. 4 1140438 About a week after the valuation hearing and before the trial court issued any order regarding the valuation, Butts petitioned this Court for a writ of mandamus directing the trial court to stay the proceedings in the civil case (including the valuation of Hometown) until the resolution of the criminal case. Butts also sought a stay of the civil case pending our resolution of the mandamus petition; we issued a stay on February 12, 2015. "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)." Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998). Butts argues that, to protect her right against self- incrimination, the trial court must stay all proceedings in the civil case until the criminal case is completed. In support of that argument, Butts cites her right against self- incrimination guaranteed by both the Fifth Amendment to the United States Constitution and Art. I, § 6, Ala. Const. 1901. 5 1140438 The right against self-incrimination guaranteed by Art. I, § 6, is coextensive with that guaranteed by the Fifth Amendment. Ex parte Ebbers, 871 So. 2d 776, 786 (Ala. 2003); and Hill v. State, 366 So. 2d 318, 322 (Ala. 1979). The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." That right against compelled self-incrimination applies to both criminal cases and civil cases. Lefkowitz v. Cunningham, 431 U.S. 801 (1977). A court addressing whether a civil case should be stayed pending the completion of a criminal case should consider: "(1) whether the civil proceeding and the criminal proceeding are parallel, see Ex parte Weems, 711 So. 2d 1011, 1013 (Ala. 1998); (2) whether the moving party's Fifth Amendment protection against self-incrimination will be threatened if the civil proceeding is not stayed, see Ex parte Windom, 763 So. 2d 946, 950 (Ala. 2000); and (3) whether the requirements of the balancing test set out in Ex parte Baugh, 530 So. 2d [238,] 244 [(Ala. 1988)], and Ex parte Ebbers, 871 So. 2d 776, 789 (Ala. 2003), are met." Ex parte Rawls, 953 So. 2d 374, 378 (Ala. 2006). "A court has the discretion to stay civil proceedings, to postpone civil discovery, or to impose protective orders and conditions in the face of parallel criminal proceedings against one of the 6 1140438 parties when the interests of justice seem to require." Ex parte Ebbers, 871 So. 2d at 787-88 (thoroughly discussing the right against self-incrimination in civil cases); see also G. Ray Kolb, Jr., and William L. Pfeifer, Jr., Assertion of the Fifth Amendment Privilege Against Self-Incrimination in Civil Proceedings, 67 Ala. Law. 40 (2006) (summarizing Alabama caselaw). Butts argues that she is entitled to a stay in the civil case simply because she has been indicted for theft of property. That is, she seems to argue that there is a bright- line rule in which an indictment would automatically cause a stay to issue in the civil case. However, that is not the standard. In making her argument, Butts cites Ex parte Oliver, 864 So. 2d 1064, 1067 (Ala. 2003), in which this Court stated: "In light of the return of the indictment [for assault arising from an auto accident] against Oliver and the need to guarantee Oliver's Fifth Amendment privilege, our caselaw, see Ex parte White, 551 So. 2d 923 (Ala. 1989), and its progeny, requires that a stay of the civil proceedings [including negligence and wantonness claims based on the accident] be issued to guarantee Oliver's Fifth Amendment privilege. Oliver, however, has not presented this change in circumstance –– the return of the indictment,[ which occurred during the pendency of the mandamus petition in this Court and] 7 1140438 which creates an imperative duty for the trial court to stay the civil proceedings –– to the trial court." Butts reads too much into this language. Ex parte Oliver did not eliminate the need –– discussed three years later in Ex parte Rawls, supra –– to consider other factors besides whether an indictment has issued. See also Ex parte Flynn, 991 So. 2d 1247 (Ala. 2008) (citing Ex parte Rawls's three- part statement of the law); Ex parte Dinkel, 956 So. 2d 1130 (Ala. 2006) (same); Ex parte S.B., [Ms. 2131018, Sept. 30, 2014] ___ So. 3d ___ (Ala. Civ. App. 2014) (same); Ex parte Salter, 87 So. 3d 1211 (Ala. Civ. App. 2012) (same); and R.M. v. Elmore Cnty. Dep't of Human Res., 75 So. 3d 1195 (Ala. Civ. App. 2011) (same). Ex parte Oliver suggests that, once Oliver was indicted during the pendency of the mandamus petition in this Court, the totality of the circumstances rendered a stay unavoidable. In that case, the civil claims and the criminal charges neatly paralleled, and it seemed very likely that Oliver's right against self-incrimination would be threatened if he were to testify in the civil case. In this case, a distinction may be made between the proceedings to determine the value of Hometown pursuant to § 8 1140438 10A-2-14.34 and the remainder of the civil case, including the claims alleging that Butts had misappropriated funds from Hometown. The January 28 hearing concerned only the valuation of Hometown. In her January 26 motion, Butts sought both to continue the January 28 hearing and to stay the entire civil case pending the resolution of the criminal case. Regarding the valuation issue, the trial court proceeded with the January 28 hearing and indicated that it would determine the value of Hometown shortly after the hearing. Although the trial court, by holding the January 28 hearing, denied the motion insofar as it sought a continuance of that hearing, it did not rule on the broader issue whether the remainder of the civil case should be stayed. Thus, it is helpful to separate the valuation proceedings from remainder of the civil case and to address the issues related to each in turn. Using the framework recited in Ex parte Rawls, we first address whether the valuation proceedings parallel the criminal proceedings in which Butts was charged with theft. In arguing that the proceedings are not parallel, McCorquodale cites Ex parte Weems, 711 So. 2d 1011 (Ala. 1998), which is illustrative. 9 1140438 "In Ex parte Weems, this Court held that the trial judge did not err in denying the motion to stay discovery in a civil action because the civil and criminal actions were not parallel proceedings. In Weems, the ex-wife hired a private investigator to determine if her telephone line had been tapped after she was awarded the marital home in the divorce settlement. While the investigator was on the property, the ex-husband came onto the property and shot the investigator in the arm; the investigator then shot the ex-husband. The ex-husband was indicted for assault with intent to murder as a result of shooting the investigator. The ex-husband then sued his ex-wife, alleging negligent hiring and supervision of the private investigator. The trial court refused to grant the ex-husband a stay in his civil proceeding because it found that the criminal action involved a determination as to whether the ex-husband shot the investigator with intent to murder, while the civil action involved a determination as to whether the ex-wife was negligent in her hiring and supervising of the investigator." Ex parte Rawls, 953 So. 2d at 378-79. In denying the mandamus petition seeking to stay the civil case in Ex parte Weems, this Court stated: "We conclude that the two actions are not parallel proceedings. They are related only to the extent that [the ex-husband] is a party in each action. The two cases do not involve the same act. "The criminal action involves a determination whether [the ex-husband] assaulted [the investigator] with the intent to murder. The civil action involves a determination whether [the ex- wife's attorney] and [the ex-wife] negligently hired or negligently supervised [the investigator]. [The ex-husband] cites Ex parte Baugh, 530 So. 2d 238 10 1140438 (Ala. 1988), for the proposition that a trial judge must stay a civil proceeding until parallel criminal proceedings are resolved. Baugh was different from this present situation because, as stated above, the cases involved here are not parallel proceedings. In Baugh, the civil proceeding and the criminal proceeding were based on the same act –– an alleged slander." 711 So. 2d at 1013. See also Milton Pollack, Parallel Civil and Criminal Proceedings, 129 F.R.D. 201, 203 (S.D.N.Y. 1989) ("Some civil issues are irrelevant to related criminal proceedings. For example, the issue of damages for wrongful death would not arise in most related criminal negligence prosecutions; in such a case, a stay of the civil proceedings on the issue of damages would rarely be appropriate."). In Ex parte Weems, the inquiry involving the attempted murder and the inquiry involving the claims of negligent hiring and negligent supervision did not overlap. Similarly, in this case the narrow question of Hometown's value is distinct from the question whether Butts ever stole funds from Hometown. The purpose of the valuation hearing was simply to determine the value of Hometown at a given time for purposes of McCorquodale's election to purchase Butts's shares of Hometown pursuant to § 10A-2-14.34; the criminal charges against Butts were not relevant to that determination. At the 11 1140438 valuation hearing, McCorquodale did not present any evidence regarding Butts's alleged theft. The hearing was not hampered by the lack of evidence about the alleged theft: the trial court opined that it had sufficient evidence to decide the valuation issue. Moreover, the distinction between those different issues is highlighted by the relevant dates for valuing Hometown. Section 10A-2-14.34(d), Ala. Code 1975, provides that the value of the shares of a corporation shall be determined as of the day before the petition for dissolution or another date the court deems appropriate under the circumstances. At the hearing, evidence was presented regarding Hometown's value on two dates: August 4, 2014, i.e., the day before Butts filed the petition for dissolution, and January 28, 2015, i.e., the day of the hearing. Before the earlier of those dates, the trial court had enjoined Butts from any involvement in the operation of Hometown. The indictment does not mention the dates of the alleged theft, but the materials before us do not indicate that Butts allegedly misappropriated funds from the business after she was enjoined from being involved in Hometown's operation. As McCorquodale's attorney noted at the 12 1140438 valuation hearing, whatever Butts may have done before August 4 (the earlier of the two proposed valuation dates) was irrelevant to determining Hometown's value on that date or on January 28. That is, how Hometown achieved its ultimate value is not important. Thus, a determination of the value of Hometown under § 10A-2-14.34 is not a parallel proceeding to the criminal theft charges against Butts. The second issue for consideration enumerated in Ex parte Rawls, i.e., whether Butts's protection against self-incrimination will be threatened if the valuation proceeding continues, is essentially answered by our answer to the parallel-proceeding question. Because the relevant inquiries for the two proceedings are different, her right against self-incrimination is not threatened by the valuation proceeding. This conclusion obviates the need to discuss the third issue in Ex parte Rawls, i.e., the balancing of factors discussed in Ex parte Baugh and Ex parte Ebbers. See Ex parte Ebbers, 871 So. 2d at 786-87 (stating that the holding in Ex parte Weems that the civil and criminal proceedings were not actually parallel obviated any need for a weighing process). The trial court did not exceed its discretion by holding the 13 1140438 valuation hearing, and the trial court would not exceed its discretion by determining Hometown's value while the criminal case is pending. We next address whether the remainder of the civil case, i.e., the claims based on the alleged misappropriation of funds and Butts's counterclaims, should be stayed pending the resolution of the criminal case. It seems evident that there is significant overlap between the remaining issues in the civil case and the criminal case. However, the trial court never ruled on Butts's motion insofar as it sought to stay that part of the civil case. Based on the trial court's comments at the January 28 valuation hearing, it appears that the only issue the trial court decided was whether to proceed with the valuation matter. Butts filed the mandamus petition in this Court just a few days after the valuation hearing and before the trial court ruled on whether to stay the remainder of the civil case; we note also that the trial court did not implicitly deny that request and that there is no indication that the trial court refused to rule on it. Because the trial court did not actually rule on whether to stay the remainder of the civil case and because there is no indication that the 14 1140438 trial court simply refused to rule on that issue, the trial court has not refused to perform an imperative duty. See Ex parte Empire Fire & Marine Ins., 720 So. 2d at 894 (stating that mandamus relief is appropriate only when the trial court has refused to perform an imperative duty). Thus, a writ of mandamus would not be appropriate at the current time; the trial court needs to be given an opportunity to decide the issue. See Ex parte Affinity Hosp., LLC, 85 So. 3d 1033, 1038 (Ala. Civ. App. 2011) (declining to grant mandamus relief when the trial court had not yet ruled on a motion, noting that there was no indication that the trial court had refused to perform an imperative duty). We deny the mandamus petition. Butts is not entitled to a stay of that part of the civil case determining the value of Hometown in accordance with § 10A-2-14.34. Because the trial court has not yet ruled on whether the remaining parts of the civil case should be stayed pending the resolution of the criminal case against her, mandamus relief is not presently appropriate on that issue. We anticipate that, upon the issuance of this opinion, the trial court will consider, within a reasonable time, Butts's motion to stay the remainder 15 1140438 of the civil case, other than the valuation determination. We lift the stay of the underlying civil case this Court issued on February 12, 2015. PETITION DENIED; STAY LIFTED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. 16	June 5, 2015
44e5a985-ab3a-4ba6-b426-e92f80cb807d	Westphal v. Northcutt III	N/A	1140153	Alabama	Alabama Supreme Court	Rel: 06/05/2015 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 _________________________ 1140153 _________________________ Keith Westphal and Joyce Osborn Wilson v. J. David Northcutt III, DMD; Bobby R. Wells, DMD; Stephen R. Stricklin, DMD; Thomas T. Willis, DMD; Sam J. Citrano, Jr., DMD; William Chesser, DMD, and Sandra Kay Alexander, RDH, in their official capacities as members of the Alabama Board of Dental Examiners Appeal from Jefferson Circuit Court (CV-13-901678) MAIN, Justice. Keith Westphal and Joyce Osborn Wilson filed this lawsuit against David Northcutt III, DMD, Bobby R. Wells, DMD, Stephen 1140153 R. Stricklin, DMD, Thomas T. Willis, DMD, Sam J. Citrano, Jr., DMD, William Chesser, DMD, and Sandra Kay Alexander, RDH, in their official capacities as members of the Alabama Board of Dental Examiners (hereinafter referred to collectively as "the Dental Board"). Westphal and Wilson sought a judgment declaring unconstitutional the portion of the Alabama Dental Practice Act, § 34-9-1 et seq., Ala. Code 1975, that makes it unlawful for anyone other than a duly licensed dentist to perform teeth-whitening services and sought a permanent injunction forbidding future enforcement of the prohibition in the Act on teeth-whitening services performed by non-dentists. The parties submitted cross-motions for a summary judgment, and the Jefferson Circuit Court entered a summary judgment in favor of the Dental Board and against Westphal and Wilson. Westphal and Wilson appeal. We affirm. I. Facts and Procedural History Teeth bleaching, commonly known as "teeth whitening," is a procedure that temporarily lightens the color of a person's teeth by application of a peroxide-based solution. Traditionally, consumers had the option of "professional grade" teeth-whitening services provided by licensed dentists 2 1140153 or "consumer grade" over-the-counter teeth-whitening products sold at local pharmacies. Non-dentist entrepreneurs have also entered the teeth-whitening market, offering teeth-whitening services in salons, spas, or mall kiosks. Generally, non- dentist teeth-whitening providers assist the customer, either directly or indirectly, in applying the whitening solution and typically use a light source to accelerate the whitening effects. Although the sale of teeth-whitening products directly to consumers is largely unregulated, the advent of non-dentist teeth-whitening services has met with resistence from some state dental boards, which have argued that teeth-whitening services constitute the practice of dentistry and, as such, should be performed only by licensed dentists. See, e.g., North Carolina State Bd. of Dental Exam'rs v. Federal Trade Comm'n, ___ U.S. ___, 135 S.Ct. 1101 (2015); Martinez v. Mullen, 11 F.Supp.3d 149 (D. Conn. 2014). In White Smile USA, Inc. v. Board of Dental Examiners of Alabama, 36 So. 3d 9 (Ala. 2009), we were confronted with just such a controversy. In that case we determined that the non-dentist teeth- whitening services at issue there constituted the "practice of 3 1140153 dentistry" as that phrase was then defined by § 34-9-6, Ala. Code 1975. In 2011 the legislature amended § 34-9-6 to expressly include teeth bleaching or whitening within the practice of dentistry. Thus, Alabama law now prohibits non- dentists from offering teeth-whitening services. The Alabama Board of Dental Examiners is responsible for enforcing Alabama's Dental Practice Act. § 34-9-40(a). By statute, the Board consists of six dentists and one dental hygienist. Westphal and Wilson each desire to operate a teeth- whitening business in Alabama. Neither Westphal nor Wilson, however, is a licensed dentist, and neither has any dental training. Westphal canceled plans to expand his North Carolina-based teeth-whitening business into Alabama when he learned such a business was prohibited by the Dental Practice Act. Wilson stopped offering teeth-whitening services upon receipt of a cease and desist letter from the Dental Board. On April 30, 2013, Westphal and Wilson filed this action against the Dental Board seeking a judgment declaring that the Alabama Dental Practice Act violated various provisions of the Alabama Constitution and also requesting a permanent injunction forbidding enforcement of the Dental Practice Act 4 1140153 to the extent it forbade teeth whitening by anyone other than a dentist. Following completion of discovery, the parties filed cross-motions for a summary judgment on August 8, 2014. In support of their respective motions for a summary judgment, the parties submitted the testimony of Westphal and Wilson as well as reports from their retained experts. Westphal testified that he has operated Natural White LLC in North Carolina since 2012 and that, if successful in the litigation, he would offer the same services in Alabama that he offers in his North Carolina business. He testified that when customers come to his business they are given an explanation of the products Natural White sells and of the process of teeth whitening. Natural White's services involve the use of a whitening-pen applicator manufactured by BeamingWhite . The pen uses a 16% hydrogen-peroxide solution. TM Natural White uses a "BeamingWhite Teeth Whitening Guide" to instruct its employees in the use of BeamingWhite products. The guide warns that "16% hydrogen [peroxide] is a very strong gel and therefore is NOT suitable for home use, where customers will use it without your supervision and may hurt themselves." (Bold typeface and capitalization in original.) 5 1140153 The guide further warns that teeth whitening should not be performed on pregnant women or on people who have poor tooth enamel or decalcification, who have periodontal disease, gingivitis, or gums in poor condition, who wear braces, who recently had oral surgery, who have decaying teeth, exposed roots, or open cavities, or who have a history of allergies to peroxide products. Westphal testified that customers are asked to review and to sign a general customer-information form affirming that they do not have any condition that would contraindicate whitening. Westphal stated that he does not take a medical history or ask his customers about any allergies they might have. Customers are told that not all causes of tooth discoloration will respond to peroxide-based whitening and that they should whiten their teeth only if they have healthy teeth, but Natural White employees never attempt to diagnose the underlying cause of any tooth discoloration or to determine whether a customer's teeth are actually healthy. Westphal testified that, based on the manufacturer's recommendation, Natural White does not offer teeth-whitening 6 1140153 services to minors under the age of 14 or to women who indicate that they are pregnant. According to Westphal, after the customer has reviewed the information form and consented to the whitening process, he or she sits down in a reclining chair. A Natural White employee puts on disposable gloves and opens a prepackaged whitening kit. Each kit contains a single-use lip-and-cheek retractor and a 16% hydrogen-peroxide teeth-whitening pen. The customer is instructed on how to put the retractor in place. Natural White employees tell each customer that gum sensitivity sometimes occurs when whitening teeth and offer them the option of self-applying a single-use Vitamin E stick to their gums before applying the teeth-whitening gel. When the customer is ready to begin the whitening process, a Natural White employee opens the disposable whitening pen. Westphal testified that in his North Carolina business he uses the whitening pen to apply the whitening gel directly to the customer's teeth approximately 60-80% of the time; the remainder of the time the customer applies it. He testified, however, that he does not intend to apply the gel to customers in Alabama. Rather, customers in Alabama will be 7 1140153 instructed to apply the whitening gel to their own teeth. After the gel is applied, the customer is given a pair of tinted glasses and a Natural White employee positions a low- powered LED light in front of his or her mouth. The employee then turns the light on and sets the timer for 15 minutes. Once the whitening session is complete, a Natural White employee slides the light away, and the customer removes the lip-and-cheek retractor. The customer is given a small cup of water to rinse his or her mouth, and the cup, along with the retractor, is discarded. The customer looks at the mirror to check the results. If the customer chooses to further whiten his or her teeth, Natural White offers up to two additional 15-minute sessions. Westphal testified that, after each customer, a Natural White employee cleans the tinted glasses, the LED light, and the reclining chair with an ammonia-based cleaner. Further, the gloves worn by the Natural White employee are discarded after each use. Wilson previously operated a teeth-whitening business in Alabama. Wilson began offering teeth-whitening services to customers at her cosmetology salon. In 2006, Wilson sold her salon and formed BEKS Inc., d/b/a BriteWhite Whitening Systems 8 1140153 ("BriteWhite"), a company that sells peroxide-based teeth- whitening products and equipment. The BriteWhite whitening system is an LED-based teeth-whitening system that BriteWhite designed and produces. The device consists of a base housing its internal components and an extension that plugs into the base and is fitted with a mouthpiece containing small, integrated LED lights. To market BriteWhite and its products, Wilson traveled to salons and spas to perform teeth-whitening services and to demonstrate use of the system. In performing teeth-whitening services, Wilson first had customers review and sign a general information form. Wilson never examined the customer's mouth to determine if there was some medical reason not to perform the whitening procedure. Nor did she ever attempt to diagnose the underlying cause of any tooth discoloration or to determine whether a customer's teeth were actually healthy. The customer was instructed to sit in a reclining chair. Wilson or her employee put on single-use disposable gloves and would wrap a single-use plastic barrier sleeve over the mouthpiece of the BriteWhite unit. The whitening gel used by BriteWhite was a 35% carbamide-peroxide teeth-whitening gel, which contained the 9 1140153 equivalent of 12% hydrogen peroxide. Wilson testified that she discovered that the most effective method of applying the gel was to have the customer apply it directly to his or her own teeth using a single-use applicator brush and then to insert the mouthpiece. Once the mouthpiece was inserted, the blue LED lights built into the mouthpiece were turned on for a 20-minute cycle. After the session was complete, the customer would remove the mouthpiece and discard the used barrier sleeve. The customer would then rinse his or her mouth with a small cup of water, and the cup was also discarded. Wilson or her employee would use a disinfecting cleaner to clean the equipment and the reclining chair after each session. In support of their motion for summary judgment, Westphal and Wilson submitted a report from their expert, Dr. Martin Giniger, a licensed dentist with a Ph.D. in Biomedical Science and extensive experience in the field of peroxide-based teeth whitening. Giniger stated that peroxide-based teeth whitening is generally regarded as safe and effective and that any potential side effects are mild and temporary. Giniger stated that about 50% of people experience temporary sensitivity of 10 1140153 the teeth or minor soft-tissue irritation following teeth whitening. He stated that that sensitivity is believed to be the result of dehydration of the teeth and tissues caused by the bleaching gels when held against the teeth but that those effects are typically mild and invariably transient. He stated that there are no reports that people who undergo non- dentist-provided teeth-bleaching experience a greater or more severe incidence of sensitivity than do those who undergo bleaching provided by dentists or by self-application of over- the-counter products. Furthermore, although Giniger noted that higher concentrations of carbamide peroxide may cause soft-tissue irritation, he stated that reported literature finds that all soft-tissue irritation abates within days of teeth bleaching and that no study has shown adverse long-term effects of teeth whitening on oral soft tissue. Giniger also noted that hydrogen peroxide and carbamide peroxide have been found to result in minor reversible enamel- surface changes. He states, however, that studies have shown that such changes are "no different from those that occur after drinking a glass of orange juice, and [that] any decalcification is quickly reversed when teeth are exposed to 11 1140153 saliva." Giniger further stated that there was little evidence of any possible systemic side effects from the use of hydrogen peroxide or carbamide peroxide in teeth whitening. According to Giniger, although studies have shown adverse effects at repeated high exposures, no adverse effects are likely from the small level of hydrogen peroxide used in teeth whitening. Additionally, Giniger testified that other ingredients used in teeth whitening –- water, glycerine, Carbopol, sodium hydroxide, sodium acid pyrophosphate, sodium saccharin, flavorings -– are also considered safe even if accidentally ingested. Giniger also stated that the LED light systems used for teeth whitening are low-powered, comparable to a consumer flashlight, and not harmful. Finally, Giniger stated that the risks of non-dentist teeth whitening are the same as those of unregulated teeth- whitening products sold directly to consumers for home use. Certainly, he testified, those risks are much less than the risks associated with tongue piercing, which requires no oversight by a licensed dentist. The Dental Board submitted expert testimony of Dr. Kenneth Tilashalski, a licensed dentist and a professor at the 12 1140153 University of Alabama at Birmingham School of Dentistry. Tilashalski stated that it is recognized in the dental profession that certain preexisting conditions could render a whitening procedure ineffective or even harmful to an individual's oral health. He stated that many oral conditions preclude the use of bleaching agents. He stated that, in determining whether a teeth-whitening treatment is appropriate for a consumer, the practitioner should consider the consumer's tooth-decay history, tooth sensitivity, oral mucosal disorders, existence of restorations and/or prostheses, and any underlying reason(s) for tooth discoloration. Tilashalski notes that non-dentist practitioners lack the educational foundation in oral health care, anatomy, and physiology to make an informed decision on whether teeth whitening is appropriate for a particular customer. Next, Tilashalski stated that teeth-whitening procedures present the potential for sanitation and infection risks. Tilashalski stated that, in any setting involving mucosal membranes, any number of pathogens, microbes, viral particles, and/or bacteria that are subject to contact, droplet, or 13 1140153 airborne transmission may be present. He contended that the lack of formal health-care training by non-dentist teeth- whitening practitioners may lead to poor practices regarding sanitation, causing adverse consequences to both customers and employees. Tilashalski further contended that the "specialized support and advice" offered by non-dentist teeth-whitening practitioners provides an illusion of professional expertise and supervision without the benefits of a trained dentist. Tilashalski opined that customers who visit non-dentist teeth- whitening practitioners might be less likely to visit a dentist because of a faulty belief that they are periodically being seen by a professional who would notify them of any oral problems requiring treatment. Tilashalski also noted the variety of products and procedures used by non-dentist practitioners in the teeth- whitening business. Practitioners use a variety of chemical compounds of varying strengths and composition. There are different methods for applying the chemicals to the teeth, and variations exist in the duration and frequency of treatments. According to Tilashalski, the significant variations among the 14 1140153 products and procedures used in non-dentist teeth whitening create uncertainty and risk that a product may be used, or used in a way, that is harmful to the consumer. Finally, Tilashalski noted that numerous studies have demonstrated adverse effects of bleaching compounds on dental restorations, including increased surface roughness, marginal breakdown, decreases in tooth-to-restoration-bonds strength, and the release of metallic ions and possibly increased exposure to mercury. The Dental Board also presented the testimony of Dr. Michael Maniscalco, a dentist who has practiced in Birmingham since 1981. Maniscalco has performed peroxide-based teeth whitening since 1983. He testified that he always conducts a pre-treatment examination in order to confirm that a patient does not have health problems or injuries that would make teeth whitening inappropriate. He testified that he has personally witnessed peroxide burns of the lips and gums and cases of extreme sensitivity to the whitening agents. It is undisputed that teeth-whitening services performed by non-dentists are usually cheaper than teeth-whitening services performed by dentists. Two members of the Board of 15 1140153 Dental Examiners, Northcutt and Willis, both charge as much as $600 for teeth-whitening services. Maniscalco charges between $450 and $650 for in-office teeth whitening. Westphal, on the other hand, charges between $79 and $129. The Board of Dental Examiners has never received a complaint that any person was harmed by any teeth-whitening procedure performed in Alabama. The Jefferson Circuit Court conducted a hearing on the cross-motions for a summary judgment on September 4, 2014. On October 3, 2014, the circuit court entered an order granting the Dental Board's motion for a summary judgment and denying Westphal and Wilson's motion for a summary judgment and entered a judgment in favor of the Dental Board and against Westphal and Wilson on all claims. The circuit court concluded that, given the undisputed facts, the restriction in the Dental Practice Act providing that teeth whitening can be performed only by dentists does not violate the Alabama Constitution. Westphal and Wilson appealed. II. 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 16 1140153 957, 958 (Ala. 1992). 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, Ala. R. Civ. P. Westphal and Wilson do not argue that there is any genuine issue of material fact that precludes a summary judgment in this case; they argue that, under the undisputed facts, the Dental Board is not entitled to a judgment as a matter of law and that, therefore, the summary judgment is improper. This case concerns a constitutional challenge to Alabama's statutory prohibition of teeth-whitening services as performed by non-dentists. "This Court's review of constitutional challenges to legislative enactments is de novo." Northington v. Alabama Dep't of Conservation & Natural Res., 33 So. 3d 560, 564 (Ala. 2009).1 "'[A]cts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So. 2d 107, 110 (Ala. 1998). See also Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So. 2d 425, 428 (Ala. 1999) ("In reviewing the The principle quoted from Northington expresses the 1 general principle that this Court considers de novo pure questions of law and the application of law to settled facts. Smith's Sports Cycles, Inc. v. American Suzuki Motor Corp., 82 So. 3d 682, 684 (Ala. 2011). 17 1140153 constitutionality of a legislative act, this Court will sustain the act '"unless it is clear beyond reasonable doubt that it is violative of the fundamental law."'" White v. Reynolds Metals Co., 558 So. 2d 373, 383 (Ala. 1989) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944))). We approach the question of the constitutionality of a legislative act "'"with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of government."'" Monroe v. Harco, Inc., 762 So. 2d 828, 831 (Ala. 2000) (quoting Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 159 (Ala. 1991), quoting in turn McAdory, 246 Ala. at 9, 18 So. 2d at 815). "'Moreover, in order to overcome the presumption of constitutionality, ... the party asserting the unconstitutionality of the Act ... bears the burden "to show that [the Act] is not constitutional." Board of Trustees of Employees' Retirement Sys. of Montgomery v. Talley, 291 Ala. 307, 310, 280 So. 2d 553, 556 (1973). See also Thorn v. Jefferson County, 375 So. 2d 780, 787 (Ala. 1979) ("It is the law, of course, that a party attacking a statute has the burden of overcoming the presumption of constitutionality....").' "State ex rel. King v. Morton, 955 So. 2d 1012, 1017 (Ala. 2006)." State v. Lupo, 984 So. 2d 395, 397-98 (Ala. 2007). III. Analysis 18 1140153 In White Smile, decided before the amendment to the Dental Practice Act that is the subject of this appeal, this Court was presented with the question whether the Dental Practice Act prohibited a teeth-whitening business similar to those sought to be operated by Westphal and Wilson. We summarized the issue as follows: "Article 34, Chapter 9, Ala. Code 1975, regulates the practice of dentistry in Alabama. Section 34-9-3 requires the licensing of dentists, and § 34-9-43 grants the Board the authority to regulate the professional activities of dentists in Alabama. Section 34-9-6 defines the practice of dentistry, stating: "'Any person shall be deemed to be practicing dentistry who performs, or attempts or professes to perform, any dental operation or dental service of any kind, gratuitously or for a salary, fee, money or other remuneration paid, or to be paid, directly or indirectly, to himself, or to any person on his behalf, or to any agency which is a proprietor of a place where dental operations or dental services are performed....' "(Emphasis added.) Section 34-9-6 then lists 10[, now 12,] other activities that constitute the practice of dentistry under Chapter 9. The ultimate issue in this action is whether the sale of LightWhite with in-store application ... is the practice of dentistry within the meaning of § 34-9- 6." 19 1140153 36 So. 3d at 13. Under similar, but not identical, facts to those currently before us, we concluded in White Smile that the teeth-whitening service at issue there constituted the "practice of dentistry" as that term was then defined by § 34- 9-6. In 2011, the legislature amended § 34-9-6, removing any further doubt as to whether teeth-whitening services were included within the practice of dentistry. Section 34-9-6 now reads, in part: "Any person shall be deemed to be practicing dentistry who does any of the following: ".... "(12) Professes to the public by any method to bleach human teeth, performs bleaching of the human teeth alone or within his or her business, or instructs the public within his or her business, or through any agent or employee of his or her business, in the use of any tooth bleaching product." Thus, unlike the question before the Court in White Smile, the question before us is not whether non-dentist teeth whitening falls within the practice of dentistry –- it clearly does under § 34-9-6(12). Rather, the question is whether, by extending dentistry's occupational-licensing regime to include teeth-whitening services such as those sought to be offered by Westphal and Wilson, the legislature has violated Westphal's 20 1140153 and Wilson's due-process rights under the Alabama Constitution. Westphal and Wilson contend that the professional- licensing requirement that prohibits the operation of their teeth-whitening businesses violates the due-process guarantees of Art. I, §§ 6 and 13, Alabama Constitution of 1901. 2 Specifically, they contend that the statute that prohibits non-dentists from performing teeth-whitening services is an unreasonable and arbitrary exercise of the police power. Westphal and Wilson also assert that the prohibition of 2 non-dentist teeth-whitening services violates the equal- protection guarantees they contend are contained in §§ 1, 6, and 22, Alabama Constitution of 1901. As to the issue whether the Dental Practice Act violates §§ 1, 6, and 22, either separately or collectively, it was incumbent on Westphal and Wilson to make specific arguments regarding how the Act violated those sections. Westphal and Wilson, however, make only one specific reference to §§ 1, 6, and 22 in the introductory portion of their brief and make no specific arguments concerning the purported equal protection conferred by these provisions or how it has been violated –- failing even to quote any portion of the constitutional provisions. Moreover, their arguments appear to rely chiefly on the overbreadth doctrine, which we have held falls within the due- process protections of the Alabama Constitution. Given the lack of contextual analysis to support their "equal protection" argument, we decline to address it. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008). Westphal and Wilson do not assert any violation of the Equal Protection Clause of the United States Constitution. 21 1140153 This Court has long held that "[t]he power of a reasonable regulation of the professions or occupations where the services [are] to be rendered to the public is justified under the police power of government." State ex rel. Bond v. State Bd. of Med Exam'rs, 209 Ala. 9, 10, 94 So. 295, 296 (1923). Nevertheless, "[i]n the exercise of this power, the prohibition or test contained in the statute, ordinance, or rule should be enacted, ordained, or adopted with reference to the object to be attained and as not unduly to interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations or professions." Id. This Court has held that the right to due process under the Alabama Constitution is violated when a statute, regulation, or ordinance imposes unnecessary and unreasonable restraints upon the pursuit of useful activities. In addressing whether a statute, regulation, or ordinance is unreasonable, this Court applies the doctrine of overbreadth. "'The doctrine of overbreadth recognizes that a state legislature may have a legitimate and substantial interest in regulating particular behavior, but "that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 22 1140153 479, 488, 81 S. Ct. 247, 252, 5 L. Ed. 2d 231 (1960) [quoting Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967)]. Historically, the overbreadth doctrine has been used by the federal courts to prevent a chilling effect on First Amendment freedoms. ... However, the overbreadth doctrine under the Alabama Constitution has been applied in due process cases not involving First Amendment freedoms. See Ross Neely Express, Inc. v. Alabama Department of Environmental Management, 437 So. 2d 82 (Ala. 1983).' "[Friday v. Ethanol Corp.,] 539 So. 2d [208] at 215 [(Ala. 1988)]. In Ross Neely Express, Inc. v. Alabama Department of Environmental Management, 437 So. 2d 82 (Ala. 1983), this Court stated: "'Statutes and regulations are void for overbreadth if their object is achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. ...' "437 So. 2d at 85. "'This Court has also recognized that the right to due process under the Alabama Constitution is violated when a statute, regulation, or ordinance imposes restrictions that are unnecessary and unreasonable upon the pursuit of useful activities in that they do not bear some substantial relation to the public health, safety, or morals, or to the general welfare, the public convenience, or to the general prosperity.' "Friday v. Ethanol Corp., 539 So. 2d at 216 (citing Ross Neely Express, Inc., 437 So. 2d at 84-86; City of Russellville v. Vulcan Materials Co., 382 So. 2d 23 1140153 525, 527-28 (Ala. 1980); Leary v. Adams, 226 Ala. 472, 474, 147 So. 391 (1933); Baldwin County Bd. of Health v. Baldwin County Elec. Membership Corp., 355 So. 2d 708 (Ala. 1978)). "'"The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary."' Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984) (quoting Berman v. Parker, 348 U.S. 26, 33, 75 S. Ct. 98, 99 L. Ed. 27 (1954)). If an ordinance is '"fairly debatable, a court will not substitute its judgment for that of the municipal government body acting in a legislative capacity."' City of Russellville v. Vulcan Materials Co., 382 So. 2d at 526 (quoting City of Birmingham v. Norris, 374 So. 2d 854, 856 (Ala. 1979)). ..." Scott & Scott, Inc. v. City of Mountain Brook, 844 So. 2d 577, 594-95 (Ala. 2002). Further, this Court has explained: "'The validity of a police power regulation ... primarily depends on whether under all the existing circumstances, the regulation is reasonable, and whether it is really designed to accomplish a purpose properly falling within the scope of the police power. Crabtree v. City of Birmingham, 292 Ala. 684, 299 So. 2d 282 (1974).... Otherwise expressed, the police power may not be employed to prevent evils of a remote or highly problematical character. Nor may its exercise be justified when the restraint imposed upon the exercise of a private right is disproportionate to the amount of evil that will be corrected. Bolin v. State, 266 Ala. 256, 96 So. 2d 582, conformed to in 39 Ala. App. 161, 96 So. 2d 592 (1957).' 24 1140153 "Statutes and regulations are void for overbreadth if their object is achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. See Zwickler v. Koota, 389 U.S. 241 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967)." Ross Neely Express, Inc. v. Alabama Dep't of Envtl. Mgmt., 437 So. 2d 82, 84-85 (Ala. 1983) (quoting City of Russellville v. Vulcan Materials Co., 382 So. 2d 525, 527 (Ala. 1980)). In State v. Lupo, supra, this Court held that the Alabama Interior Design Consumer Protection Act, which required professional licensing of all persons performing the "practice of interior design," was unconstitutional. The legislative act at issue in Lupo broadly defined the practice of interior design to include such things as selecting paint colors and pillows for a sofa. Applying the doctrine of overbreadth to the facts of that case, we concluded that "the Act '"impose[d] restrictions that [were] unnecessary and unreasonable upon the pursuit of useful activities"' and that those restrictions '"[did] not bear some substantial relation to the public health, safety, or morals, or to the general welfare, the public convenience, or to the general prosperity."'" 984 So. 2d at 406 (quoting Scott & Scott, 844 So. 2d at 594, quoting 25 1140153 in turn Friday v. Ethanol Corp., 539 So. 2d 208, 216 (Ala. 1988)). Consequently, we held that the Interior Design Consumer Protection Act violated the due-process protections of the Alabama Constitution. In this case, there can be no dispute that the practice of dentistry, generally speaking, relates to the public health and is, therefore, a legitimate subject of the State's police power. Moreover, teeth whitening is unquestionably a dental 3 treatment. In White Smile we held that teeth-whitening services similar to those at issue here were "dental services." 36 So. 3d at 14 ("The commonly accepted definition of 'dental service' is ... a helpful act or useful labor of or relating to the teeth."). Indeed, the record shows that Section 34-9-2, Ala. Code 1975, provides, in part: 3 "The Legislature hereby declares that the practice of dentistry and the practice of dental hygiene affect the public health, safety, and welfare and should be subject to regulation. It is further declared to be a matter of public interest and concern that the dental profession merit and receive the confidence of the public and that only qualified dentists be permitted to practice dentistry and only qualified dental hygienists be permitted to practice dental hygiene in the State of Alabama. All provisions of this chapter relating to the practice of dentistry and dental hygiene shall be liberally construed to carry out these objects and purposes." 26 1140153 peroxide-based teeth bleaching was initially developed and performed by dentists. Teeth-whitening services, then, fall naturally within the sphere of dentistry. The legislature, 4 moreover, has expressly provided that teeth whitening falls within the "practice of dentistry," and a presumption of constitutionality attaches to this legislative pronouncement. See, e.g., State ex rel. King v. Morton, 955 So. 2d 1012, 1017 (Ala. 2006). In light of this presumption, we cannot say that the inclusion of teeth-whitening services, like those offered by Westphal and Wilson, within the definition of the practice of dentistry in the Dental Practice Act is not reasonably related to public health, safety, or general welfare. Teeth whitening is a form of dental treatment that requires the application of a chemical bleaching agent directly to the customer's teeth. The evidence in the record indicates that the procedure is relatively safe but that it is not without potential adverse effects. There is evidence indicating that some people have suffered peroxide burns of the lips and gums as a result of We express reluctance to opening the door for judicial 4 determinations as to what particular procedures or services within an accepted field of professional practice might be safely carved out for performance by laymen. 27 1140153 exposure to bleaching compounds; others experience, albeit temporarily, mild to moderate tooth sensitivity or irritation of the soft tissue in the mouth. The materials before us indicate that teeth whitening is inappropriate for people with particular dental conditions, conditions a layman may not be able to recognize or diagnose. Moreover, teeth-whitening compounds may damage dental restorations or prostheses; alternatively, they may have no effect on restorations, resulting in color mismatching of teeth. Teeth whitening may not be effective as to some types of discoloration. Furthermore, tooth discoloration may be caused by an underlying condition or disease, which a non- dentist likely would not detect. In such cases, teeth whitening might serve to mask an underlying condition and delay necessary treatment. Therefore, it is not unreasonable to conclude that pretreatment examination and subsequent assessment of each teeth-whitening consumer's situation by a professional dentist could reduce the risk of the adverse effects of teeth whitening, could help consumers avoid ineffective or unnecessary treatments, and could diagnose and treat underlying conditions. Finally, teeth-whitening 28 1140153 services involve contact with the mucosal membranes of the mouth, which raises concerns of sanitation and infection -– areas in which dentists receive specialized education and training. These concerns and others do not appear trivial. Given the deferential standard of review in a statutory challenge, we cannot say that provision that includes teeth-whitening services within the scope of the practice of dentistry, thus limiting the performance of those services to licensed dentists, violates the due-process protections of the Alabama Constitution. Finally, we note that Westphal and Wilson also raise a number of public-policy arguments in support of their contention that non-dentists should be permitted to offer teeth-whitening services. For example, they argue that limiting teeth-whitening services to licensed dentists, who typically charge more than non-dentists for the services, increases the cost of teeth whitening for consumers. They argue that the primary effect of the prohibition on non- dentist teeth whitening is economic protectionism in favor of dentists. They also note that other activities unregulated by 29 1140153 the Board of Dental Examiners, like oral piercing, pose a vastly greater threat to public health and safety than does teeth whitening. Whatever the merits of these arguments, "[i]n passing on the validity of a statute it must be remembered that the legislature, except insofar as specifically limited by the state and federal constitutions, is all-powerful in dealing with matters of legislation; ... [and] that all questions of propriety, wisdom, necessity, utility and expediency in the enactment of laws are exclusively for the legislature, and are matters with which the courts have no concern." Surtees v. VFJ Ventures, Inc., 8 So. 3d 950, 983 (Ala. Civ. App. 2008)(quoting Jansen v. State ex rel. Downing, 273 Ala. 166, 168, 137 So. 2d 47, 48 (1962)). IV. Conclusion For the foregoing reasons, we hold that the requirement in the Dental Practice Act that teeth-whitening services be performed by licensed dentists does not violate the due- process protections of the Alabama Constitution of 1901. Accordingly, the judgment of the circuit court is affirmed. AFFIRMED. Moore, C.J., and Stuart, Bolin, Murdock, Wise, and Bryan, JJ., concur. Parker and Shaw, JJ., concur in the result. 30	June 5, 2015
3476618f-6828-4ca1-b7f7-3a7ad1b4d8c4	Ex parte University of South Alabama	N/A	1140440, 1140441	Alabama	Alabama Supreme Court	Rel: 05/29/2015 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 ____________________ 1140440 ____________________ Ex parte University of South Alabama PETITION FOR WRIT OF MANDAMUS (In re: Azin Agah v. Amber Bartlett et al.) ____________________ 1140441 ____________________ Ex parte Amber Bartlett PETITION FOR WRIT OF MANDAMUS (In re: Azin Agah v. Amber Bartlett et al.) (Mobile Circuit Court, CV-11-901689) 1140440, 1140441 PER CURIAM. The University of South Alabama ("USA"), a state institution of higher learning, see § 16-55-1 et seq., Ala. Code 1975, contends that it is immune from civil actions and petitions this Court for a writ of mandamus directing the Mobile Circuit Court to dismiss it from an action filed by Azin Agah, a former USA employee. Additionally, Amber Bartlett, a student who worked under Agah's supervision in USA's research laboratory and a defendant in the same underlying action, petitions this Court for a writ of mandamus directing the Mobile Circuit Court to issue an order quashing the subpoena issued to Alabama Psychiatric Services, P.C. ("APS"), ordering production of her mental-health records. We grant the petitions and issue the writs. Facts and Procedural History On or about August 1, 2006, USA hired Agah, a cell biologist, as a tenure-track employee, to teach biochemistry and to research the abnormalities in the extracellular matrix and angiogenesis associated with the pathogenesis of scleroderma. In 2010, USA did not reappoint Agah based on alleged research misconduct. 2 1140440, 1140441 In 2011, Agah sued Bartlett and Julio F. Turrens, associate dean of the College of Allied Health Professions at USA and chairman of the two ad hoc committees that evaluated Agah, and other fictitiously named parties, alleging theft of electronic computer data and her research logbook and intentional and malicious interference with her contractual relationship with USA and seeking recovery of chattels in specie for the electronic data and her research logbook. In June 2012, Agah served a notice of intent to subpoena APS to obtain "all records pertaining to the care and treatment of Amber Leigh Bartlett." In July 2012, Bartlett objected to the subpoena, arguing that the records were subject to the psychotherapist-patient privilege, see Rule 503, Ala. R. Evid., and § 34-26-2, Ala. Code 1975. Bartlett and APS moved to quash the subpoena and for an order declaring that the records of APS with regard to Bartlett remain confidential. On August 9, 2012, the trial court denied the motion filed by Bartlett and APS to quash the subpoena and to enter a protective order and ordered the production of the documents for an in camera review. On August 14, 2012, Bartlett moved the trial court to reconsider its orders 3 1140440, 1140441 directing the production of her records from APS and denying a protective order. On March 21, 2013, Agah amended her complaint adding USA and others as defendants and adding various claims. The only claim in her amended complaint that specifically names USA as a defendant "seeks a declaratory judgment, injunctive relief, and monetary damages against USA for the breach by USA of [her] tenure track employment contract with USA." Against 1 Bartlett and the other "defendants" Agah alleged tortious interference with contractual rights, "tortious violation of [her] rights guaranteeing her substantive and procedural due process," suppression, defamation of character, intentional infliction of emotional distress, negligent infliction of emotional distress, administrative abuse of process, conversion and detinue, and invasion of privacy. She 2 In her answer to USA's petition for a writ of mandamus, 1 Agah states that she seeks no monetary damages from USA, that she requests only a judgment declaring that the express and implied tenure-track contractual requirements contained in the 2007 USA faculty handbook, which, she says, incorporated procedures provided in the Code of Federal Regulations when investigating alleged research misconduct, should have been applied during the investigation into her alleged research misconduct. To the extent that Agah's complaint can be read as 2 alleging these claims against USA also, as previously noted, 4 1140440, 1140441 requests a judgment of $10,000,000, an order appointing a special master to conduct a fair and impartial investigation into the allegations against her of research misconduct, and an order requiring the return of her research logbook undamaged. On August 13, 2013, before the trial court ruled on Bartlett's motion to reconsider, Agah issued a subpoena for Bartlett's mental-health records from APS. On August 14, 2013, Bartlett again moved the trial court to quash the subpoena and to enter a protective order. On August 30, 2013, USA moved to dismiss Agah's claims against it, arguing, among other grounds, that it had absolute immunity from civil actions under § 14 of the Alabama Constitution 1901. With its motion, USA submitted evidentiary support for the trial court's consideration. On January 28, 2015, the trial court entered an order denying USA's motion to dismiss and Bartlett's motion to in her answer to USA's petition for a writ of mandamus, Agah states that with regard to USA she requests only a declaratory judgment and in relief "[a]n order appointing a special master to conduct a fair and impartial investigation as to the allegations of research misconduct [against her] pursuant to Code of Federal Regulations, C.F.R. § 93.306; and make such report of findings to the Court." 5 1140440, 1140441 reconsider its order refusing to quash Agah's subpoena for her mental-health records from APS and to enter a protective order. On February 5, 2015, USA petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying its motion to dismiss and to enter an order, based on § 14 immunity, dismissing USA from Agah's action. On March 2, 2015, Bartlett petitioned this Court for a writ of mandamus directing the trial court to quash the subpoena issued to APS seeking production of her mental-health records. Standard of Review "'The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So. 2d 358, 360 (Ala. 1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002).' "Ex parte Davis, 930 So. 2d 497, 499 (Ala. 2005)." Ex parte Troy Univ., 961 So. 2d 105, 107-08 (Ala. 2007). Discussion Case no. 1140440 6 1140440, 1140441 USA contends in its petition that it is entitled to absolute immunity from the claims asserted against it in Agah's complaint; therefore, it says, it has a clear, legal right to a writ of mandamus directing the Mobile Circuit Court to dismiss USA from Agah's action. "A petition for a writ of mandamus is the proper vehicle by which to seek review of the denial of a motion to dismiss based on the ground of State immunity: "'The denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity. Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758, 761–62 (Ala. 2002).' "Ex parte Haralson, 853 So. 2d 928, 931 n. 2 (Ala. 2003)." Drummond Co. v. Alabama Dep't of Transp., 937 So. 2d 56, 57 (Ala. 2006). USA maintains that it is entitled, as a matter of law, to absolute immunity from Agah's action under § 14, Ala. Const. 1901. "[T]he State of Alabama shall never be made a defendant in any court of law or equity." Article I, § 14, Ala. Const. 1901. This Court has recognized that § 14 immunity has been extended to the "'state's institutions of higher learning' and 7 1140440, 1140441 has held those institutions absolutely immune from suit as agencies of the State." Ex parte Troy Univ., 961 So. 2d at 109 (quoting Taylor v. Troy State Univ., 437 So. 2d 472, 474 (Ala. 1983), and citing Hutchinson v. Board of Trs. of Univ. of Ala., 288 Ala. 20, 256 So. 2d 281 (1971), and Harman v. Alabama Coll., 235 Ala. 148, 177 So. 747 (1937)). Agah, in her answer filed in this Court, maintains that, because she seeks a declaratory judgment against USA concerning her employment contract and the rules and procedures used to investigate an allegation against her of research misconduct and because declaratory-judgment actions are excepted from § 14 immunity, USA is not entitled to immunity from her action. Agah's request for a declaratory judgment against USA, however, does not disqualify USA from § 14 immunity. The declaratory-judgment exception to § 14 sovereign immunity is applicable to actions against State officials, not to actions against the State or State agencies. As we explained in Ex parte Alabama Department of Finance, 991 So. 2d 1254, 1256-57 (Ala. 2008): "[C]ertain actions are not barred by § 14. There are six general categories of actions that do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their 8 1140440, 1140441 legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; (4) actions brought against State officials under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking construction of a statute and its application in a given situation; (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law. See 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)); Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So. 2d 831 (Ala. 2008) (holding that the exception for declaratory-judgment actions applies only to actions against State officials). As we confirmed in Harbert, these 'exceptions' to sovereign immunity apply only to actions brought against State officials; they do not apply to actions against the State or against State agencies. See Alabama Dep't of Transp., 990 So. 2d at 840-41." (Emphasis added.) Agah's declaratory-judgment action against USA does not fall within the declaratory-judgment exception to § 14 immunity. USA is a State institution of higher learning and, as a matter of law, is a State agency entitled to the absolute immunity of § 14. Therefore, USA has established that it has a clear legal right to the dismissal of the claims against it. 9 1140440, 1140441 Case no. 1140441 Bartlett contends that she has a clear, legal right to a writ of mandamus directing the trial court to enter an order quashing the subpoena issued to APS seeking the production of Bartlett's mental-health records. "'"Discovery matters are 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. Home Ins. Co. v. Rice, 585 So. 2d 859, 862 (Ala. 1991). Accordingly, mandamus will issue to reverse a trial court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions." "'Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). "'Moreover, this Court will review by mandamus only those discovery matters involving (a) the disregard of a privilege, (b) the ordered production of 'patently irrelevant or duplicative documents,' (c) orders effectively eviscerating 'a party's entire action or defense,' and (d) orders 10 1140440, 1140441 denying a party the opportunity to make a record sufficient for appellate review of the discovery issue. 872 So. 2d at 813–14. ...' "Ex parte Meadowbrook Ins. Group, Inc., 987 So. 2d 540, 547 (Ala. 2007)." Ex parte Mobile Gas Serv. Corp., 123 So. 3d 499, 504 (Ala. 2013). Accordingly, we must determine whether the trial court exceeded its discretion by disregarding a privilege when it refused to quash the subpoena and to enter a protective order. Rule 503, Ala. R. Evid., "Psychotherapist-Patient Privilege," provides, in pertinent part: "(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient's mental or emotional condition, including alcohol or drug addiction, among the patient, the patient's psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including member's of the patient's family. "(c) Who May Claim the Privilege. The privilege may be claimed by the patient, the patient's guardian or conservator, or the personal representative of a deceased patient. The person who was the psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient. 11 1140440, 1140441 "(d) Exceptions. "(1) Proceedings for Hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist has determined, in the course of diagnosis or treatment, that the patient is in need of hospitalization. "(2) Examination by Order of Court. If the court orders an examination of the mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise. "(3) Accused in Criminal Case. There is no privilege under this rule as to an accused in a criminal case who raises the defense of insanity. "(4) Breach of Duty Arising Out of Psychotherapist–Patient Relationship. There is no privilege under this rule as to an issue of breach of duty by the psychotherapist to the patient or by the patient to the psychotherapist. "(5) Child Custody Cases. There is no privilege under this rule for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure." Rule 510, Ala. R. Evid., provides that a party may waive a privilege by voluntarily disclosing or consenting to the disclosure of the privileged matter. 12 1140440, 1140441 In Ex parte Rudder, 507 So. 2d 411 (Ala. 1987), this Court recognized that the psychotherapist-patient privilege gives the patient the right to refuse to disclose confidential communications, including notes or records made by the psychotherapist, and to prevent others from disclosing confidential communications made during the assessment and/or treatment of the patient's mental condition. We stated that the psychotherapist-patient privilege rested on the need to "inspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing the physician from making public information that would result in humiliation, embarrassment, or disgrace to the patient, and [is] thus designed to promote the efficacy of the physician's advice or treatment. The exclusion of the evidence rests in the public policy and is for the general interest of the community." 507 So. 2d at 413. Acknowledging the public policy supporting the psychotherapist-patient privilege, this Court in Ex parte Pepper, 794 So. 2d 340, 343 (Ala. 2001), refused to create "an exception to the privilege applicable when a party seeks information relevant to the issue of the proximate cause of another party's injuries." In Ex parte Northwest Alabama Mental Health Center, 68 So. 3d 792, 799 (Ala. 2011), this Court refused to create "an exception to the privilege that 13 1140440, 1140441 would narrow those parameters by making the privilege inapplicable when a plaintiff establishes that privileged information is 'necessary' to proving a cause of action." Bartlett contends that the trial court exceeded its discretion in ordering the production of her APS records because, she says, those records are protected from production by the psychotherapist-patient privilege, the records do not fall within one of the recognized exceptions to the privilege, and she has not waived the privilege. In her answer to this Court, Agah appears to recognize that the requested records are subject to the psychotherapist-patient privilege. Agah does not address Bartlett's arguments that the production of those records for in camera review is improper; instead, she argues that the production of the records for in camera review is in accordance with Ex parte Etherton, 773 So. 2d 431 (Ala. 2000). 3 Agah also maintains that Bartlett's petition for a writ 3 of mandamus is untimely because, she says, the judgment Bartlett challenges, the denial of her motion to reconsider, was denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., 90 days after it was filed on August 14, 2012. She reasons that because Bartlett did not file her petition for a writ of mandamus until some two and a half years after the denial of the motion by operation of law, the petition is untimely. As this Court recognized in Ex parte Ferrari, [Ms. 1130679, Feb. 6, 2015] ___ So. 3d ___ (Ala. 2015), because a 14 1140440, 1140441 In Ex parte Etherton, this Court addressed the petitioner's request for a writ of mandamus directing the trial court to quash subpoenas for the production of his records relating to his treatment for chemical dependency. The petitioner maintained that the trial court exceeded the scope of its discretion in ordering the production of his records because, he said, the records were privileged under Rule 503, Ala. R. Evid., and he had not waived the privilege. This Court held that the trial court had not exceeded the scope of its discretion in ordering the production of the documents for an in camera review, permitting review of the documents to determine whether they were discoverable while protecting the petitioner from unauthorized disclosures. Justice Cook, with three Justices concurring, wrote in the main opinion that production of the documents for in camera review was proper because the records were perhaps the plaintiff's "only source of relevant evidence, or information that [would] lead to admissible evidence, in support of her trial court's order granting discovery is not a final order, a motion to reconsider that order is not a postjudgment motion under Rule 59, Ala. R. Civ. P., subject to Rule 59.1. Bartlett timely filed her petition following the trial court's denial of her motion to reconsider and for a protective order on January 28, 2015. 15 1140440, 1140441 claims." 773 So. 2d at 436. Justice Lyons, in a writing concurring in the result joined by three Justices, rejected the main opinion's creation of an exception authorizing the trial court to disclose records upon a showing of necessity and refused to apply that exception to the psychotherapist- patient privilege. Justice Lyons stated that production of the petitioner's records for in camera review, however, was proper because the materials before the Court indicated that some of the records might not be confidential communications protected by the psychotherapist-patient privilege and, consequently, would be discoverable. Agah's reliance on Ex parte Etherton is misplaced for several reasons. First, no writing in Ex parte Etherton received a majority of the votes; therefore, the reasoning in neither the main opinion nor Justice Lyons's special writing has precedential value. Moreover, even if the main opinion in Ex parte Etherton had precedential value, the materials before us do not establish that Agah demonstrated a showing of necessity for the production of Bartlett's mental- health records for in camera review. Furthermore, the materials before us do not establish that Agah demonstrated that 16 1140440, 1140441 Bartlett's mental-health records contained information outside the parameters of the privileged psychotherapist-patient communications that might be discoverable. Finally, this Court in Ex parte Northwest Alabama Mental Health Center, supra, specifically refused to create an exception to the psychotherapist-privilege "that would narrow those parameters by making the privilege inapplicable when a plaintiff establishes that privileged information is 'necessary' to proving a cause of action." 68 So. 3d at 799. For all these reasons, Ex parte Etherton has no application to this case. Because Bartlett has demonstrated that her mental-health records are privileged and because Agah has not demonstrated that the records fall within an exception to the privilege, that Bartlett waived the privilege, or that the records may contain information not protected by the privilege, Bartlett has established that the trial court exceeded the scope of its discretion in ordering the production of her mental-health records for in camera review. Conclusion USA and Bartlett have established that they have a clear, legal right to the relief they have requested. USA is 17 1140440, 1140441 entitled to absolute sovereign immunity from Agah's civil action, and we direct the trial court to enter a judgment of dismissal for USA. Bartlett is entitled to confidentiality of her mental-health records, and we direct the trial court to enter an order quashing Agah's subpoena for Bartlett's mental- health records from APS. 1140440 -- PETITION GRANTED; WRIT ISSUED. Moore, C.J., and Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Stuart, J., recuses herself. 1140441 -- PETITION GRANTED; WRIT ISSUED. Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., dissents. Stuart, J., recuses herself. 18	May 29, 2015
88f859e4-2899-485b-b0b2-7803a78da659	Ex parte Gudel AG.	N/A	1131341	Alabama	Alabama Supreme Court	REL:05/29/2015 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 _________________________ 1131341 _________________________ Ex parte Güdel AG PETITION FOR WRIT OF MANDAMUS (In re: Robert Rutledge and Cindy Rutledge v. Smart Alabama, LLC, et al.) (Crenshaw Circuit Court, CV-13-900016) SHAW, Justice. Güdel AG ("Güdel"), one of several defendants below, petitions this Court for a writ of mandamus directing the 1131341 Crenshaw Circuit Court to vacate its order denying Güdel's motion to dismiss the personal-injury claims filed against it by Robert Rutledge ("Robert") and Cindy Rutledge ("Cindy") and to enter an order dismissing the Rutledges' claims on the basis of a lack of in personam jurisdiction. We grant the petition and issue the writ. Facts and Procedural History In February 2013, Robert sued Smart Alabama, LLC ("SAL"), an automotive-parts manufacturer located in Crenshaw County, seeking to recover worker's compensation benefits in connection with an alleged work-related injury Robert suffered in November 2011 while in SAL's employ. More specifically, Robert's complaint alleged that, while he was attempting to enter a doorway on a stamping-press unit the cable on the overhead, roll-up door to the unit broke, and Robert was hit by the door and was knocked to the floor. The door apparently came down on Robert's leg, resulting in a crushing injury and, ultimately, an amputation. In November 2013, Robert amended his original complaint to add a count pursuant to Alabama's Extended Manufacturer's Liability Doctrine as well as negligence and wantonness 2 1131341 claims. In addition, the amended complaint added both Hyundai WIA ("Hyundai") and Güdel, as well as several fictitiously named entities, as defendants. The amended complaint alleged 1 that Güdel, a foreign corporation headquartered in Switzerland, "designed, built, manufactured, tested and sold [the] subject machine/equipment that is the subject matter of [the Rutledges'] lawsuit." Güdel, in February 2014, moved, pursuant to Rule 12(b)(2), Ala. R. Civ. P., to dismiss the claims against it for lack of personal jurisdiction on grounds that Güdel was subject to neither general nor specific jurisdiction in Alabama. See Elliott v. Van Kleef, 830 So. 2d 726, 730 (Ala. 2002) ("'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 that are unrelated to the cause of action and that are both "continuous and systematic." ... Specific contacts, which give rise to specific jurisdiction, consist of the defendant's Robert's amendment also added his wife, Cindy, as an 1 additional named plaintiff; Cindy's claims are based on a loss-of-consortium theory of recovery. 3 1131341 contacts with the forum state that are related to the cause of action.'" (quoting Ex parte Phase III Constr., Inc., 723 So. 3d 1263, 1266 (Ala. 1998) (Lyons, J., concurring in the result))). Güdel's motion alleged that it did not, as the Rutledges' contended, manufacture the subject stamping-press unit. Instead, Güdel asserted that it merely "supplied to Hyundai ... a component system of the machine," namely "a ['Transfer Automation System,' to serve as the] control system for the conveyor system running through the press," which was 2 wholly designed and manufactured in Switzerland before being sold to Hyundai, a Korean entity. Güdel's motion was further supported by affidavit testimony and authority aimed at establishing the limited extent of Güdel's contacts with Alabama, including, but not limited to, testimony indicating that it had not conducted any systematic and/or continuous business activities in Alabama; that it was not licensed to do business in Alabama; and that it had no registered agent for service of process in Alabama. Thus, Güdel contended, to be According to Güdel, the Transfer Automation System is, 2 in essence, a conveyor system, which system Güdel more particularly describes as a "3-axis servo transfer system and destacker," that is used to move sheets of metal through the press. 4 1131341 subjected to suit in Alabama violated "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). See, e.g., Frye v. Smith, 67 So. 3d 882, 892 (Ala. 2011) ("[T]he critical question with regard to the nonresident defendant's contacts is whether the contacts are such that the nonresident defendant '"should reasonably anticipate being haled into court"' in the forum state." (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 486 (1985), quoting in turn World- Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980))). In its motion, Güdel did admit that, after shipping the conveyor system to SAL pursuant to Hyundai's instructions, it "provided assistance to Hyundai" with respect to the installation of the conveyor system, including sending a representative to the SAL facility to assist in installation of the system and to train SAL employees with regard to its operation; however, Güdel denied participating in any way with the installation of the overhead door by which Robert was allegedly injured. The accompanying affidavit testimony asserted that Güdel's automation system is in no way connected to nor does it control the operation of the cable and overhead 5 1131341 door that Robert alleges caused his injury. Thus, Güdel contended, it both lacked the systematic and continuous contacts with Alabama that would support a finding of general jurisdiction and, because its product indisputably did not cause Robert's injuries, there was no basis for a finding of specific jurisdiction. In opposition to Güdel's motion, the Rutledges countered that Güdel, which both shipped parts directly to Alabama and sent employees to install and train in the use of those parts, had minimum sufficient contacts to support personal jurisdiction in Alabama, given that its contacts with the State were, according to the Rutledges, directly "related to the action against Güdel." Alternatively, the Rutledges asserted that Güdel's motion was "premature" in that additional "jurisdictional discovery" was necessary, and that, assuming that discovery "determine[d] that Güdel['s] involvement [was] not related to [Robert's] injuries," the Rutledges would voluntarily dismiss Güdel as a defendant to the action. In an order, which did not include the findings on which the ruling was based, the trial court denied Güdel's 6 1131341 motion to dismiss. In response, Güdel filed this petition for a writ of mandamus. Standard of Review "'[A] petition for a writ of mandamus is the proper device by which to challenge the denial of a motion to dismiss for lack of in personam jurisdiction. See Ex parte McInnis, 820 So. 2d 795 (Ala. 2001); Ex parte Paul Maclean Land Servs., Inc., 613 So. 2d 1284, 1286 (Ala. 1993). "'An appellate court considers de novo a trial court's judgment on a party's motion to dismiss for lack of personal jurisdiction.'" Ex parte Lagrone, 839 So. 2d 620, 623 (Ala. 2002) (quoting Elliott v. Van Kleef, 830 So. 2d 726, 729 (Ala. 2002)). Moreover, "[t]he plaintiff bears the burden of proving the court's personal jurisdiction over the defendant." Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir. 2002).' "Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So. 2d 519, 525 (Ala. 2003). "'"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 complaint not controverted by the defendant's affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir. 1990), and 7 1131341 '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. 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) (emphasis added; footnote omitted). Discussion In its petition, Güdel argues that the trial court erred in concluding that it had jurisdiction over Güdel. More 8 1131341 specifically, Güdel, citing Ex parte Excelsior Financial, Inc., 42 So. 3d 96 (Ala. 2010), contends that the Rutledges failed to refute Güdel's prima facie demonstration that, contrary to the allegations in the Rutledges' complaint, Güdel does not have sufficient contacts with the State of Alabama to subject it to the jurisdiction of the trial court. We agree. As set out in Ex parte McNeese Title, LLC, 82 So. 3d 670, 673 (Ala. 2011), "[j]urisdiction over out-of-state defendants is acquired pursuant to Rule 4.2(b), Ala. R. Civ. P., which provides, in pertinent part: "'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 other words, '[t]his rule extends the personal jurisdiction of Alabama courts to the limit of due process under the United States and Alabama Constitutions.' Hiller Invs., Inc. v. Insultech Group, Inc., 957 So. 2d 1111, 1115 (Ala. 2006). Under this rule, the exercise of jurisdiction is appropriate so long as the out-of-state defendant has '"some minimum contacts with this state [so that] ... it is fair and reasonable to require the person to come to this state to defend an action."' Dillon Equities v. Palmer & Cay, Inc., 501 So. 2d 9 1131341 459, 461 (Ala. 1986) (quoting former Rule 4.2(a)(2)(I), Ala. R. Civ. P.)." This Court has also stated: "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 of the defendant's contacts with the forum state 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, 10 1131341 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). "'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). This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of the "'unilateral activity of another person or a third person.'" Burger King, 471 U.S. at 475, 105 S. Ct. 2174, quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984).' "In Burger King the United States Supreme Court explained: "'[I]t 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 11 1131341 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 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.' "471 U.S. at 475-76, 105 S. Ct. 2174 (internal quotations and citations omitted). In the words of Quill Corp. v. North Dakota, 504 U.S. 298, 307, 112 S. Ct. 1904, 119 L. Ed. 2d 91 (1992), 'if a foreign corporation purposefully avails itself of the benefits of an economic market in the forum State, it may subject itself to the State's in personam jurisdiction even if it has no physical presence in the State.'" Ex parte Georgia Farm Bureau Mut. Auto. Ins. Co., 889 So. 2d 545, 550-51 (Ala. 2004). Further, "'[i]f there are substantial contacts with the state, for example a substantial and continuing business, and if the cause of action arises out of the business done in the state, jurisdiction will be sustained. If there are substantial contacts with the state, but the cause of action does not arise 12 1131341 out of these contacts, jurisdiction may be sustained. But if there is a minimum of contacts, and the cause of action arises out of the contacts, it will normally be fair and reasonable to sustain jurisdiction. If there is a minimum of contacts and the cause of action does not arise out of the contacts, there will normally be no basis of jurisdiction, since it is difficult to establish the factors necessary to meet the fair and reasonable test.'" View-All, Inc. v. United Parcel Serv., 435 So. 2d 1198, 1201 (Ala. 1983) (quoting 2 J. Moore, Federal Practice ¶ 4.25, pp. 4-258 through 4-267 (2d ed. 1982)) (emphasis added). As Güdel notes in its petition, the Rutledges appear to concede, because the accident giving rise to the Rutledges' complaint clearly did not arise from continuous and systematic general business contacts by Güdel with Alabama, that the only potential basis for establishing personal jurisdiction over Güdel would, of necessity, have to be specific personal jurisdiction. See Ex parte Georgia Farm Bureau, 889 So. 2d at 550-51 ("'"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. ... 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 13 1131341 state."'" (quoting Ex parte Phase III Constr., Inc., 723 So. 2d at 1266)). Here, the Rutledges' complaint alleges that Güdel designed, manufactured, and sold the stamping-press unit that, they say, caused Robert's injuries. In their answer to Güdel's petition, the Rutledges maintain that those facts support a "colorable claim of jurisdiction" against Güdel. Contrary to those assertions, Güdel's evidentiary submissions -- specifically the affidavit testimony of Kurt Haldi, "a Member of Management for Güdel" -- establishes that "Güdel ... did not design, build, or manufacture the Press Machine or any part that is related to the overhead roll-up doors." Instead, Güdel manufactured the control system for conveyors running through the stamping-press unit. The Rutledges fail to dispute Güdel's contention or to substantiate the jurisdictional allegations in their complaint with their own evidentiary submissions establishing jurisdiction. In fact, the Rutledges' sole response to Güdel's petition for a writ of mandamus is their continued insistence that Güdel's dismissal efforts are premature and that jurisdictional discovery is required. As the Rutledges argue, this Court in Ex parte 14 1131341 Bufkin, 936 So. 2d 1042 (Ala. 2006), embraced a permissive rule sustaining a plaintiff's right to conduct jurisdictional discovery when the plaintiff has alleged particular facts suggesting the possible existence of the requisite contacts with the forum state and when the basis for the plaintiff's claim of jurisdiction is not facially frivolous. 936 So. 2d at 1048. As Bufkin notes, however, although the standard for permitting jurisdictional discovery is "quite low," the plaintiff requesting jurisdictional discovery "'must offer the court "more than conjecture and surmise in support of [the] jurisdictional theory,"'" and a request for discovery that is predicated "'"upon 'bare,' 'attenuated,' or 'unsupported' assertions of personal jurisdiction"'" is due to be denied. 936 So. 2d at 1047 (quoting Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So. 2d 459, 468 (Ala. 2003), quoting in turn Anderson v. Sportmart, Inc., 179 F.R.D. 236, 242 (N.D. Ind. 1998)). Here, the Rutledges may have, as they contend, alleged facts supporting a colorable claim of jurisdiction. Our analysis, however, does not end there –- especially in circumstances where the facts purportedly establishing a colorable claim of jurisdiction were directly controverted by 15 1131341 the evidentiary submissions subsequently offered by the defendant in support of a dismissal request. Specifically, this Court, in Excelsior Financial, explained: "'The plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant. Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226 (Ala. 2004).' 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 complaint not controverted by the defendant's affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and Cable/Home 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 16 1131341 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. 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) (emphasis added; footnote omitted)." 42 So. 3d at 103. See also Ex parte Edgetech I.G., Inc., 159 So. 3d 629, 632-33 (Ala. 2014); Ex parte DBI, Inc., 23 So. 3d 635, 642–43 (Ala. 2009). As was the case in Excelsior Financial, the moving defendant, namely Güdel, argues that it made a prima facie evidentiary showing that the trial court lacked both general and specific personal jurisdiction over it and that the Rutledges did not satisfy their burden of then substantiating 17 1131341 the jurisdictional allegations of their complaint. See 3 Covington Pike Dodge, supra. The Rutledges, too, appear to concede their failure to counter Haldi's testimony, but attribute that failure to a lack of discovery. Despite this claim, however, the Rutledges fail to explain why, in the months following the filing of Robert's original complaint, the subsequent amendment thereto, and their response to Güdel's motion to dismiss, they could not, at the very least, 4 obtain an affidavit from Robert or from another SAL employee experienced with operating the subject stamping-press unit, indicating that a malfunction of Güdel's product could have either caused or contributed to the failure of the overhead door that ultimately caused Robert's injury. Further, the Rutledges fail to allege that they were deprived of adequate Güdel's evidentiary submissions also disprove any 3 contention that the product, which it allegedly manufactured and placed into the "stream of commerce," was responsible for Robert's claimed injuries. See Asahi Metal Indus. Co. v. Superior Court of California, Solano Cnty., 480 U.S. 102 (1987). Robert's original complaint was filed on February 27, 4 2013, and amended on November 22, 2013. Güdel's motion to dismiss was filed on February 28, 2014; the Rutledges' response thereto was filed on March 28, 2014; and the trial court's order denying Güdel's motion to dismiss was entered on July 18, 2014. 18 1131341 opportunity to discover evidence to support their claim that the trial court had personal jurisdiction over Güdel or even to outline what, if any, discovery efforts they have undertaken. In fact, as Güdel notes, the Rutledges fail to identify any discovery efforts undertaken by them in an effort to disprove Güdel's claims, and they do not explain why they were unable to obtain that discovery in time to properly rebut Güdel's motion to dismiss. See Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So. 2d at 468 ("A request for jurisdictional discovery must offer the court 'more than conjecture and surmise in support of [the] jurisdictional theory.'" (quoting Crist v. Republic of Turkey, 995 F. Supp. 5, 13 (D. D.C. 1998))). Here, the Rutledges' only jurisdictional allegations are that Güdel manufactured, designed, or sold the stamping-press unit, that Güdel assisted with its installation, and that Güdel provided training with respect to its operation. Güdel has, however, successfully demonstrated by unrefuted evidence that the portion of the stamping-press unit it either manufactured, designed, or installed is in no way connected to Robert's injuries. The Rutledges merely "speculate[] ... that 19 1131341 ... discovery could uncover evidence indicating that [Güdel's limited contacts were in some way related to the door's malfunction] despite [Güdel's] clear evidence to the contrary." Covington Pike Dodge, Inc., 904 So. 2d at 233. Because Güdel's evidence disproved the factual allegations asserted in the Rutledges' complaint that would establish specific jurisdiction and constituted a prima facie showing that no specific jurisdiction existed, the Rutledges were required to substantiate their jurisdictional allegations with affidavits or other competent evidence –- which they indisputably failed to do. Covington Pike Dodge, Inc., 904 So. 2d at 232. Further, the Rutledges' "bare allegations" that additional discovery could possibly reveal evidence establishing personal jurisdiction are insufficient to entitle the Rutledges to further discovery on the jurisdictional issue. 904 So. 2d at 233. Having determined that the Rutledges failed to rebut Güdel's assertion that its limited contact with Alabama is wholly unrelated to the Rutledges' claims, we conclude that it offends "'traditional notions of fair play and substantial justice'" to subject Güdel to 20 1131341 personal jurisdiction. See Elliott, 830 So. 2d at 731 (quoting Brooks v. Inlow, 453 So. 2d 349, 351 (Ala. 1984), quoting in turn International Shoe Co. v. Washington, 326 U.S. at 316). Conclusion In consideration of the foregoing, we hold that the trial court exceeded its discretion in determining that it possessed personal jurisdiction over Güdel. Accordingly, Güdel has established a clear legal right to the dismissal of the claims against it; therefore, we grant the petition and direct the trial court to vacate its order denying Güdel's motion to dismiss and to dismiss the Rutledges' claims against Güdel. PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Parker, Murdock, and Wise, JJ., concur. Bryan, J., concurs in the result. Moore, C.J., dissents. 21	May 29, 2015
ca1b3924-1659-4d3f-8dac-5c44c1da9bad	IBI Group, Michigan, LLC v. Outokumpu Stainless USA, LLC	N/A	1131456	Alabama	Alabama Supreme Court	REL: 05/08/2015 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 ____________________ 1131456 ____________________ IBI Group, Michigan, LLC, f/k/a Giffels, LLC v. Outokumpu Stainless USA, LLC, f/k/a ThyssenKrupp Stainless USA, LLC, and ThyssenKrupp Steel USA, LLC, f/k/a ThyssenKrupp Steel and Stainless USA, LLC Appeal from Mobile Circuit Court (CV-13-902002) STUART, Justice. IBI Group, Michigan, LLC, f/k/a Giffels, LLC ("Giffels"), appeals the order of the Mobile Circuit Court ordering it to arbitrate its claims against Outokumpu Stainless USA, LLC, 1131456 f/k/a ThyssenKrupp Stainless USA, LLC ("OTK"), and ThyssenKrupp Steel USA, LLC, f/k/a ThyssenKrupp Steel and Stainless USA, LLC ("TK Steel") (OTK and TK Steel are hereinafter referred to collectively as "the steel companies"), pursuant to an arbitration provision in the contracts at the center of this dispute. We affirm. I. On September 5, 2007, Giffels and TK Steel entered into a contract pursuant to which Giffels agreed to provide architectural and engineering services to TK Steel in association with the construction of the cold rolling mill at a steel-processing facility in Calvert. Approximately 10 months later, on June 27, 2008, Giffels entered into another contract with OTK's predecessor to provide similar services in association with the construction of a melt shop at the same facility. Both contracts contained identical provisions regarding the resolution of any disputes that might arise from the contracts, which stated: "Any dispute arising out of or related to the contract[s] shall be subject to mediation, arbitration or the institution of legal or equitable proceedings at the sole discretion of [the steel companies]." 2 1131456 The contracts contained further provisions outlining certain guidelines that would apply to mediation, arbitration, and legal proceedings, including the following provision: "Unless otherwise agreed by the parties, during the arbitration proceedings discovery shall be available and shall be conducted in accordance with the rules of discovery set forth in the U.S. Federal Rules of Civil Procedure in effect at such time." Thereafter, disputes arose between Giffels and the steel companies regarding the work performed by Giffels under both contracts, and, on March 14, 2012, the steel companies sued Giffels in the United States District Court for the Southern District of Alabama ("the federal district court") alleging two counts of breach of contract and seeking compensatory damages in excess of $7.5 million. On March 29, 2012, and June 13, 2012, the steel companies filed amended complaints asserting additional claims. Giffels subsequently filed its answer to the steel companies' complaint and asserted its own counterclaims alleging that the steel companies owed it money for work performed under the two contracts. Giffels also moved to strike the steel companies' jury demand on the basis 3 1131456 of a provision in the contracts expressly waiving the right to a jury trial in any litigation stemming from the contracts. Thereafter, the steel companies filed an answer to Giffels's counterclaims and withdrew their jury demand. On August 24, 2012, the steel companies and Giffels held the discovery-planning conference required by Rule 26(f), Fed. R. Civ. P. On September 10, 2012, the federal district court conducted a scheduling conference, and the parties then commenced discovery, with each party serving discovery requests upon the other. Giffels asserts that it incurred over $80,000 in expenses just in preparing the initial disclosures required by Rule 26(a)(1), Fed. R. Civ. P. On June 4, 2013, the federal district court, sua sponte, entered an order questioning whether federal jurisdiction was proper in this case. The steel companies responded by filing an amended complaint in which they further described their basis for claiming that federal jurisdiction was appropriate under 28 U.S.C. § 1332 based on the parties' alleged complete diversity of citizenship; Giffels subsequently filed an amended answer in which it asserted that both its sole member and the sole member of OTK's predecessor were incorporated in 4 1131456 Delaware, which fact, if true, would defeat diversity jurisdiction. See, e.g., Rolling Greens MHP, L.P. v. Comcast 1 SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) ("[A] limited liability company is a citizen of any state of which a member of the company is a citizen."). The steel companies moved to strike Giffels's amended answer, arguing that Giffels's claim that its sole member was incorporated in Delaware was contradicted by publicly available records maintained by the Michigan Secretary of State; however, after Giffels filed a response again indicating that, notwithstanding any other records the steel companies might have, its sole member was a Delaware corporation, the federal district court ordered Giffels to file documentation of its jurisdictional claim. Giffels filed the requested proof on July 29, 2013. On July 31, 2013, the steel companies moved the federal district court to stay the litigation, noting that it had initiated arbitration proceedings with the American "[F]or purposes of determining the existence of diversity 1 jurisdiction, the citizenship of the parties is to be determined with reference to the facts as they existed at the time of filing." Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 569-70 (2004). 5 1131456 Arbitration Association that same day pursuant to the provisions in the contracts stating that disputes regarding those contracts were subject to arbitration at the sole discretion of the steel companies. However, that same day, Giffels filed a complaint in the Mobile Circuit Court ("the trial court") asserting as state-law claims the same counterclaims it had asserted in the federal district court. On August 5, 2013, the steel companies filed an answer and counterclaims in the state-court action while simultaneously moving the state court to stay the state-court proceedings and compel arbitration. On August 7, 2013, the federal district court formally dismissed the federal action for lack of subject-matter jurisdiction without ruling on the steel companies' request to stay the federal-court action pending the completion of arbitration proceedings. Thereafter, Giffels notified the trial court that it opposed the steel companies' attempt to compel arbitration, arguing that the contracts afforded the steel companies no right to select arbitration once they had made an initial choice to attempt to resolve their claims via litigation or, in the alternative, that the steel companies had substantially 6 1131456 invoked the litigation process to the prejudice of Giffels, thus waiving any right they may have had to arbitration under the contracts. The parties subsequently filed multiple additional briefs with the trial court regarding those issues, and, on September 20, 2013, the trial court conducted a hearing on the issues. The parties continued to file briefs on the issues following the hearing, and it was not until July 7, 2014, that the trial court entered an order granting the steel companies' motion to compel arbitration and ordering the parties to complete arbitration by May 1, 2015. The parties then jointly moved the trial court to alter, amend, or vacate its order only to the extent it set a deadline for the completion of arbitration inasmuch as they were continuing to negotiate regarding ongoing operational difficulties at the Calvert facility and it was possible those negotiations might eventually lead to the resolution of some of the claims asserted in this action. On August 12, 2014, the trial court 2 Giffels noted in the joint motion to alter, amend, or 2 vacate that it was not conceding that the trial court's order granting the steel companies' motion to stay the action and compel arbitration was proper, or waiving its right to subsequently appeal that order. 7 1131456 revised its order as the parties requested, and, on September 16, 2014, Giffels filed its notice of appeal to this Court. II. The trial court's order granting the steel companies' motion to stay the state-court litigation pending the completion of arbitration effectively compelled Giffels to resolve its claims against the steel companies, and the steel companies' counterclaims against it, in arbitration as opposed to state court. The standard of review we apply to an order granting a motion to compel arbitration is well settled: "We conduct a de novo review of a trial court's order compelling arbitration. Smith v. Mark Dodge, Inc., 934 So. 2d 375, 378 (Ala. 2006). "'The party seeking to compel arbitration must first prove both that a contract calling for arbitration exists and that the contract evidences a transaction involving interstate commerce.... Once this showing has been made, the burden then shifts to the nonmovant to show that the contract is either invalid or inapplicable to the circumstances presented.' "Smith, 934 So. 2d at 378." Ritter v. Grady Auto. Grp., Inc., 973 So. 2d 1058, 1060-61 (Ala. 2007). All parties agree that the governing contracts involve interstate commerce; the only issue before this Court 8 1131456 is whether the arbitration provisions in those contracts allowing the steel companies to decide, at their "sole discretion," whether a dispute arising out of or related to those contracts would be subject to mediation, arbitration, or litigation were rendered "'inapplicable to the circumstances presented,'" Ritter, 973 So. 2d at 1061, once the steel companies initially elected to resolve the dispute in litigation and subsequently, Giffels alleges, substantially invoked the litigation process, thereby prejudicing Giffels. III. Giffels's first argument is that, although its contracts with the steel companies allowed the steel companies to unilaterally decide whether any dispute between them and Giffels would be resolved via arbitration or litigation, once the steel companies made that decision, the decision was irrevocable. We note that Giffels is not arguing that any time a party initiates litigation that party is barred from thereafter exercising a contractual right to arbitrate, as this Court has previously indicated otherwise. See, e.g., Conseco Fin. Corp.–Alabama v. Salter, 846 So. 2d 1077, 1081 (Ala. 2002) ("Conseco initiated this action; however, the mere 9 1131456 filing of a pleading does not constitute a waiver of the right to compel arbitration."). Rather, Giffels is arguing that the specific terms of the arbitration provisions in this case prevent the steel companies from selecting arbitration after initially selecting litigation as a means of resolving a dispute. Giffels articulates this argument as follows in its brief: "[The steel companies] initiat[ed] a legal proceeding in federal district court, thereby exercising [their] right and selecting litigation as the chosen vehicle for dispute resolution. Nothing in the contract allowed [the steel companies] to later alter [their] selection. Once [the steel companies] selected litigation, the express language of the contract provided that litigation would be the method of dispute resolution for the case. [The steel companies] thereby waived any right to compel arbitration by exercising [their] contractual discretion to initiate litigation." Giffels's brief, p. 16. The steel companies argue that the language of the arbitration provisions does not limit their right to select how disputes will be resolved and that, in fact, the clear language of the provisions indicates that they might utilize more than one of the three listed methods to resolve any dispute. In resolving a dispute regarding the meaning of an arbitration provision, "this Court applies the ordinary 10 1131456 state-law principles governing contracts." Title Max of Birmingham, Inc. v. Edwards, 973 So. 2d 1050, 1054 (Ala. 2007). Accordingly, we must interpret the terms of the provisions according to their clear and plain meaning. Id. The arbitration provisions at issue in this case provide that "[a]ny dispute arising out of or related to the contract[s] shall be subject to mediation, arbitration or the institution of legal or equitable proceedings at the sole discretion of [the steel companies]." Giffels argues that the use of the disjunctive "or" in the provisions indicates that the steel companies' choice is mutually exclusive, that is, the steel companies can choose either arbitration or litigation and once they choose one the other is no longer an option. The steel companies, however, argue that "or" is not always used as a disjunctive, but is sometimes used as a conjunctive as well, and that Giffels is effectively reading the word "either" into the arbitration provisions when that word does not appear in those provisions. In Smith v. Hutson, 262 Ala. 352, 78 So. 2d 923 (1955), this Court addressed the meaning of the word "or," stating: "Our decision must turn on the meaning and effect of the word 'or' .... Numerous decisions 11 1131456 from the courts of this country have dealt with this word. 30 Words and Phrases 33. From them we find that it has three common usages: (1) as a disjunctive, (2) as a conjunctive, (3) as an introductory or connective word to an appositive, e.g., 'a fiddle or violin.' But we note that in the best considered opinions the primary use of the word is deemed to be as a disjunctive. 30 Words and Phrases 63, 67. Most cases which construe 'or' to mean 'and' do so to reconcile an ambiguity, rectify an obvious mistake, or carry out the clear meaning of the party or parties who used the word. 30 Words and Phrases 39. See Harris v. Parker, 41 Ala. 604, 615 [(1868)]. Some confusion exists in the cases where courts apparently think that the mere use of the word 'or' creates an ambiguity, so they change it to 'and' to clarify matters. The practice creates more confusion in the law than it alleviates. ".... "We are moved to hold that the word 'or' is a disjunctive unless the context in which it was used shows clearly that the contrary was intended and that the petition was not subject to the asserted demurrer." 262 Ala. at 352, 78 So. 2d at 923-24 (emphasis added). In this case, it is apparent from the context that the term "or" was not intended as a disjunctive, but rather as a conjunctive. Importantly, the arbitration provisions here authorized the steel companies to choose between three options: "mediation, arbitration or the institution of legal 12 1131456 ... proceedings." As the steel companies explain in their brief, the inclusion of mediation as an option is meaningful: "Here, a construction under which [the steel companies] ha[ve] a single and irrevocable choice of the dispute resolution method –– either mediation or arbitration or litigation –– is untenable. This becomes clear when considering the ramifications of that construction should [the steel companies] choose mediation. Resolution of a dispute in mediation is inherently voluntary; parties are not bound to settle a dispute in mediation. See Black's Law Dictionary 841 (9th ed. 2009) (defining mediation as '[a] method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution'). Giffels's construction makes no sense because, if [the steel companies] were to elect mediation, Giffels could simply refuse to settle the dispute at mediation. If [the steel companies] could not then elect a new method of dispute resolution, [they] would have no ability to seek any relief at all. "Therefore, the only reasonable construction is that [the steel companies] could select mediation and, if mediation failed, select again between arbitration and litigation. Based on the plain language of the contract, there is no principled reason to treat litigation or arbitration differently. If [the steel companies] can select mediation and then 'change [their] mind,' [they] can also select litigation and then 'change [their] mind.' "[The steel companies'] initial election to subject these disputes to a failed federal litigation is directly analogous to a failed mediation. [The steel companies'] first election of litigation in a federal forum was thwarted when it became clear that the federal district court lacked 13 1131456 subject-matter jurisdiction. Thus, just as [they] could have done had [they] elected mediation and that mediation failed, [the steel companies] elected an alternative method to resolve the parties' disputes: arbitration." The steel companies' brief, pp. 31-32. We agree that the language of the arbitration provisions does not preclude the steel companies from now seeking to resolve their dispute with Giffels in arbitration. That language contemplates the availability of multiple dispute- resolution methods, and, when the steel companies' initial choice for resolving this dispute failed, they were permitted to make another choice. Certainly, no one would argue that, had the steel companies initially selected mediation and had mediation failed, the parties would be required to commence new mediation proceedings in a different forum ad infinitum until mediation was successful, and the arbitration provisions provide no basis upon which to treat arbitration or litigation differently from mediation. Thus, this case is distinguishable from Triarch Industries, Inc. v. Crabtree, 158 S.W.3d 772, 777 (Mo. 2005), the case Giffels primarily relies upon, in which the Supreme Court of Missouri concluded that, "[h]aving elected to commence litigation, [a party] no longer 14 1131456 had a contractual right to compel arbitration." The arbitration provision in Crabtree provided: "Any controversy or claim arising out of this contract or the breach thereof may, at Seller's option, be referred to non-binding mediation under rules of Seller's choice. If mediation does not result in settlement of the dispute, (or if Seller does not elect to pursue mediation), Seller shall have the right to refer the dispute to binding arbitration under rules of its choice, or to commence litigation." 158 S.W.3d at 773. This provision expressly stated that, when mediation was not pursued (and it was not in that case), the seller could choose to refer the dispute to arbitration "or" to commence litigation. Presented with this simple binary choice, the Missouri court correctly held "or" to be disjunctive. Unlike in the instant case, there was no 3 context indicating otherwise. See Smith, 262 Ala. at 352, 78 So. 2d at 924 ("[T]he word 'or' is a disjunctive unless the The Supreme Court of Missouri further noted that the 3 party seeking arbitration in Triarch, "[o]nce faced with [the defendant's] counterclaim and discovery requests, ... apparently regretted that choice [to litigate] and wanted to refer the dispute to binding arbitration instead." 158 S.W.3d at 777. In contrast, the steel companies elected to pursue arbitration only after it became clear that the federal district court lacked subject-matter jurisdiction to hear the steel companies' dispute with Giffels and would be dismissing the action. 15 1131456 context in which it was used shows clearly that the contrary was intended ...."). The other cases cited by Giffels in support of its argument that the steel companies had no right to select arbitration once they initiated litigation are also distinguishable based on the specific language used in the arbitration provisions in those cases. In DVI Capital Co. v. Zelph (No. 232732, July 22, 2003) (Mich. Ct. App. 2003) (not selected for publication in the Northwestern Reporter), the Court of Appeals of Michigan held that a plaintiff could not select arbitration after initiating litigation, reasoning: "The guaranties at issue give plaintiff the 'option' to resolve claims arising out of the guaranties 'either (a) by arbitration ... or (b) in any state or federal court in the State of Michigan.' We conclude that the trial court's construction of the choice of forum clause violates the express terms of the contract by giving plaintiff the right to make one selection and make another selection. The terms 'either ... or' do not mean 'and' or 'both' and do not imply limitless choices. The terms denote a selection of one alternative." (Footnotes omitted.) The inclusion of the word "either" in the arbitration provision was crucial to the Michigan court's analysis, and it cited the following definition of that term from Random House Webster's College Dictionary (1995): 16 1131456 "'Either' is defined as 'one or the other of two.' It is also defined as 'a coordinating conjunction that, when used with or, indicates a choice.'" (Note 7.) Of course, the word "either" is absent from the arbitration provisions agreed upon by the steel companies and Giffels. Moreover, in Satcom International Group PLC v. Orbcomm International Partners, L.P., 49 F. Supp. 2d 331, 338 (S.D.N.Y. 1999), the other case cited by Giffels, the United States District Court for the Southern District of New York held that a plaintiff could not move a dispute to arbitration after commencing litigation because the contract did not "permit a party to make the choice between litigation and arbitration a second time for the same dispute, or to jump back and forth between the two options for dispute resolution at its whim or when it meets with an adverse ruling." However, the arbitration provision in Satcom was structured differently from the ones in this case, and it lacked any context that might allow such a choice. Moreover, it bears repeating that the steel companies are not attempting to remove a case to arbitration on a whim or after receiving an adverse ruling in a court action; rather, the steel companies 17 1131456 are now seeking to resolve their dispute with Giffels in arbitration only after the federal district court indicated that it would not decide the matter because it lacked subject-matter jurisdiction –– the dispute must move to a new forum regardless of anything the steel companies did. The 4 clear language of the arbitration provisions agreed to by the steel companies and Giffels indicates that the provisions intended to endow the steel companies with the power to decide in what forum disputes arising out of the contracts would be resolved; accordingly, we conclude that the steel companies' contractual right to select arbitration was still effective when it became necessary to select a new forum. IV. Giffels next argues that, even if its contracts with the steel companies gave the steel companies the right to select arbitration following the dismissal of its action by the federal district court, they nevertheless have waived that We further note that any concern that a party will abuse 4 a contractual right to select arbitration by exercising it only when it becomes displeased with the course of litigation is generally mitigated by the principle, discussed infra, that a party waives its right to arbitration by substantially invoking the litigation process to the detriment of the opposing party. 18 1131456 right by substantially invoking the litigation process and thereby prejudicing Giffels. This Court has stated: "'It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the litigation process and thereby substantially prejudices the party opposing arbitration. Whether a party's participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process, and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration. No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case.' "Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897, 899 (Ala. 1995). "'In order to demonstrate that the right to arbitrate a dispute has been waived, the party opposing arbitration must demonstrate both (1) that the party seeking arbitration substantially invoked the litigation process, and (2) that the party opposing arbitration would be substantially prejudiced by an order requiring it to submit to arbitration.' "SouthTrust Bank v. Bowen, 959 So. 2d 624, 633 (Ala. 2006) (some emphasis omitted). 'Because there is a strong federal policy favoring arbitration, waiver of the right to compel arbitration is not lightly 19 1131456 inferred, and the party seeking to prove waiver has a "heavy burden."' Aurora Healthcare, Inc. v. Ramsey, 83 So. 3d 495, 500 (Ala. 2011) (quoting Paragon Ltd. v. Boles, 987 So. 2d 561, 564 (Ala. 2007)). 'Additionally, as this Court has consistently noted: "[T]here is a presumption against a court's finding that a party has waived the right to compel arbitration."' Bowen, 959 So. 2d at 633 (quoting Eastern Dredging & Constr., Inc. v. Parliament House, L.L.C., 698 So. 2d 102, 103 (Ala. 1997))." Anderton v. Practice-Monroeville, P.C., [Ms. 1121417, September 26, 2014] ___ So. 3d ___, ___ (Ala. 2014). As an initial matter, we note that the parties disagree with regard to what extent the steel companies actually invoked the litigation process. Giffels argues that all the actions taken by the steel companies in the federal-district-court action are relevant; the steel companies argue that the instant state-court action is a different proceeding entirely and that in this action they have filed only pleadings and motions regarding their right to arbitrate the underlying dispute. However, it is ultimately unnecessary for us to address this issue because Giffels, as the party attempting to establish waiver, has the burden of establishing both that the steel companies substantially invoked the litigation process and that Giffels would be substantially prejudiced by now being 20 1131456 required to submit to arbitration. As explained below, Giffels has not demonstrated the required prejudice, and we accordingly hold, on that basis, that there has been no waiver of the right to arbitrate even if we were to assume that the steel companies had substantially invoked the litigation process. In its brief to this Court, Giffels summarized its argument that it would be substantially prejudiced if it were now required to submit to arbitration: "As a result of these actions, [i.e., the steel companies' actions in the federal district court,] Giffels was substantially prejudiced. First, the institution of legal proceedings required Giffels to file its compulsory counterclaim in federal court. Further, in order to comply with the exacting time limits for disclosures in federal court, Giffels expended over $80,000 for document production. Giffels was also required to expend time and money in responding to more than one complaint, and to fight the jurisdictional issue in opposition to [the steel companies'] tenacious assertion of federal court jurisdiction. "All of these actions resulted in the expenditure of time and money that would not have occurred, or would have at least been substantially lessened if [the steel companies] had not first initiated litigation, pursued it for over a year and a half, and then, despite Giffels's opposition, filed a demand for arbitration. [The steel companies'] actions have gone so far as to force Giffels to respond to both the litigation and the arbitration filed by [the steel companies], as 21 1131456 despite Giffels's objections the arbitration proceeding has moved forward." Giffels's brief, p. 40. Thus, Giffels argues generally that it expended a great deal of time and money with regard to the pleadings filed in the federal district court and additional filings necessary to address the jurisdictional issue raised by that court, as well as additional time and money in association with the ongoing arbitration and the dispute over whether arbitration was proper. It further specifically argues that it expended over $80,000 in order to comply with the initial discovery requirements applicable in federal court by virtue of Fed. R. Civ. P. 26(a)(1). In Aurora Healthcare, Inc. v. Ramsey, 83 So. 3d 495, 500- 02 (Ala. 2011), this Court considered similar arguments made by a party attempting to establish the substantial-prejudice prong of the arbitration-waiver test: "Beginning our analysis with the second question –– whether the opposing party would be substantially prejudiced –– we conclude that [the appellee] has failed to carry her 'heavy burden' of establishing substantial prejudice caused by the defendants' belated invocation of the arbitration agreement. [The appellee] stated in her opposition to the defendants' motion to compel arbitration that she had 'incurred considerable attorney fees and expenses as a result of the Defendants' participation in the litigation process.' [The 22 1131456 appellee] stated that her counsel's activities included 'preparing discovery and responses to discovery, ... legal research, ... phone conferences and making court appearances in Wilcox and Jefferson County Circuit Courts.' "The circuit court's June 23, 2010, order likewise states that [the appellee] had conducted 'legal research; argument in opposition to transferring venue; preparing and filing a petition for writ of mandamus with the Alabama Supreme Court [related solely to venue]; responding to several motions to dismiss and strike; preparing and filing an Amended Complaint; preparing discovery and responding to discovery; participating in phone conferences; and ... making court appearances.' These assertions are not supported by any factual evidence in the record. "In Hales v. ProEquities, Inc., 885 So. 2d 100 (Ala. 2003), this Court stated the factors most significant in determining whether the party opposing arbitration will be prejudiced if ordered to arbitrate. One factor is whether '"the party seeking arbitration allows the opposing party to undergo the types of litigation expenses that arbitration was designed to alleviate."' 885 So. 2d at 105–06 (quoting Morewitz v. West of England Ship Owners Mut. Prot. & Indem. Ass'n, 62 F.3d 1356, 1366 (11th Cir. 1995)). Another is whether the party seeking arbitration '"took advantage of judicial discovery procedures not available in arbitration."' Hales, 885 So. 2d at 106 (quoting Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n. 7 (2d Cir. 1968)). "In its June 23, 2010, order, the circuit court reproduced a timeline of events that was initially produced by [the appellee] in her filing in opposition to the motion to compel arbitration. The timeline purportedly demonstrates the extent to which the defendants substantially invoked the litigation process. The timeline shows that much of 23 1131456 [the appellee's] costs were incurred litigating the issue of venue. The incurring of those costs, however, cannot constitute prejudice in light of this Court's holding that '[a] defendant has the right to have the proper venue established before it has any obligation to move to compel arbitration.' Thompson v. Skipper Real Estate Co., 729 So. 2d 287, 292 (Ala. 1999). "The litigation activities conducted between April 2006, when the case was transferred to the Jefferson Circuit Court, and November 2006, when the motion to compel arbitration was filed, were primarily discovery oriented. The Code of Procedure of the National Arbitration Forum, expressly incorporated into the arbitration agreement allegedly executed by [the appellee] ..., at Rule 6 requires arbitrating parties to submit available documents in support of, or in opposition to, all claims. Little, if any, discovery appears to have been conducted of the sort that suggests that the defendants '"took advantage of judicial discovery procedures not available in arbitration."' Hales, 885 So. 2d at 106 (quoting Carcich, 389 F.2d at 696 n. 7). See also Ryan's Family Steakhouse, Inc. v. Kilpatric, 966 So. 2d 273, 284 (Ala. Civ. App. 2006) (noting that participating in discovery permitted under rules specified in the arbitration agreement between the parties does not constitute prejudice). ... "The record reflects that much of [the appellee]'s time expended in litigation after November 2006 was devoted to opposing arbitration. Expenses incurred by the party opposing arbitration are not considered prejudicial. A holding to the contrary would result in the absurdity that every party opposing arbitration can immediately allege prejudice on the mere ground that the party opposed it. 24 1131456 "[The appellee's] motion in opposition to arbitration presented only conclusory assertions that she had incurred litigation costs. Her motion was not accompanied by an affidavit or by any other evidence in support of the allegation that she would be prejudiced by being compelled to arbitrate her claims. [The appellee] did not even allege how many hours her counsel had spent in litigation matters or the amount of fees or expenses incurred in such matters. Alabama caselaw shows that a party alleging prejudice is unlikely to prevail without presenting supporting evidence. See, e.g., SouthTrust Bank v. Bowen, 959 So. 2d [624,] 633 [(Ala. 2006)] (holding that the plaintiff opposing arbitration failed to meet his 'heavy burden' when he provided no evidence supporting his allegation that he would be prejudiced by being compelled to arbitrate). See also Ex parte Greenstreet, Inc., 806 So. 2d 1203, 1209 (Ala. 2001) ('If [a] party presents no evidence in opposition to a properly supported motion to compel arbitration, then the trial court should grant the motion to compel arbitration.'). Thus, in Ryan's Family Steakhouse, Inc. v. Kilpatric, 966 So. 2d at 284, the court found no prejudice where the record contained no evidence supporting the allegations of the plaintiff, who opposed arbitration, that she had expended significant time and resources responding to discovery propounded by the party seeking arbitration." (Footnotes omitted.) Like the appellee in Aurora Healthcare, Giffels has made general assertions that it expended time and money on litigation activities; however, with one exception, it has failed to quantify or submit specific evidence of that time and expense. "Alabama caselaw shows that a party alleging prejudice is unlikely to prevail without presenting 25 1131456 supporting evidence." 83 So. 3d at 501. Moreover, to the extent Giffels urges us to consider as evidence of prejudice the time and expense that were presumably spent litigating the jurisdictional and arbitration issues, Aurora Healthcare and the cases cited therein indicate that incurring costs in association with litigating the issue of proper venue or the issue of arbitration itself cannot constitute prejudice that would support an ultimate finding of waiver. Id. The only specific evidence submitted by Giffels to support its claim of prejudice is an affidavit and invoices establishing that Giffels incurred approximately $80,000 in expenses to digitize and copy records that were part of its initial disclosure to the steel companies in the federal action pursuant to Rule 26(a)(1), Fed. R. Civ. P. Indeed, it is apparent that Giffels's claim of prejudice relies almost entirely on this evidence. At the hearing held by the trial 5 Giffels has also made a general argument that it has been 5 prejudiced by the steel companies' delayed invocation of their right to compel arbitration based simply on the time that has elapsed since litigation of the dispute began. However, Giffels fails to explain how the passage of time alone has prejudiced it. We further note that this Court has previously affirmed orders compelling arbitration in which the parties engaged in litigation for a longer period than in this case. See, e.g., Jericho Mgmt., Inc. v. Fidelity Nat'l Title Ins. Co. of Tennessee, 811 So. 2d 514, 515 (Ala. 2001) (affirming 26 1131456 court on the steel companies' motion to stay the litigation and compel arbitration proceedings, Giffels's attorney effectively stated as much, saying: "Now, [the steel companies' attorney] talked about the second factor that is to be addressed is the prejudice argument. Judge, the prejudice here is very clear. And we have discussed in our brief that it is Giffels's contention that the prejudice actually arises from complying with the initial disclosure requirement of the federal rules." In its reply brief filed with this Court, Giffels also referred to this $80,000 expense as "the one overwhelming cost to Giffels that occurred in this case [that] cannot be minimized." Giffels's reply brief, p. 32. However, while $80,000 may be a substantial expense, it is not clear that Giffels would be prejudiced in any way if now forced to submit to arbitration, because the disclosures required by the Federal Rules of Civil Procedure would presumably still be required in arbitration based on the provision in the contracts stating that, "[u]nless otherwise agreed by the parties, during the arbitration proceedings discovery shall be available and shall be conducted in accordance with the rules order compelling arbitration in which appellee did not move to compel arbitration until 19 months after commencement of litigation). 27 1131456 of discovery set forth in the U.S. Federal Rules of Civil Procedure in effect at such time." Aurora Healthcare, 83 So. 3d at 501, and Ryan's Family Steakhouse, Inc. v. Kilpatric, 966 So. 2d 273, 284 (Ala. Civ. App. 2006), clearly indicate that time and money expended on discovery while in litigation will not be considered evidence of prejudice if that same discovery would be permitted in arbitration based on rules specified in the relevant arbitration provision. That is precisely the case here –- discovery completed in both the federal-district-court action and the arbitration proceedings was/is governed by the Federal Rules of Civil Procedure. 6 Citing Paw Paw's Camper City, Inc. v. Hayman, 973 So. 2d 344 (Ala. 2007), Giffels nevertheless argues that it is possible that an arbitrator would have modified the discovery requirements and that its expenses might have accordingly been lessened if the steel companies had moved to compel One might argue that Giffels would suffer more prejudice 6 if this dispute is resolved in the trial court, because the Alabama Rules of Civil Procedure do not contain an initial- disclosure requirement equivalent to Rule 26(a)(1), Fed. R. Civ. P. Thus, if this dispute is ultimately tried in the trial court, the identified $80,000 might have been spent in vain. 28 1131456 arbitration earlier. In Paw Paw's Camper City, this Court stated: "Having found that there has been a substantial invocation of the litigation process, we now address the issue of prejudice. The [plaintiffs] point out that '[t]he pure cost to the plaintiffs, just for the [four] depositions, has been more than $1650.' The sellers criticize the [plaintiffs'] statement that they have expended $9,400 in this litigation for its lack of specificity in identifying additional costs that would not have been incurred in arbitration. The sellers hypothesize in their brief to this Court that 'the minimal discovery which was conducted prior to [the sellers'] seeking to compel arbitration would also have been conducted in arbitration.' The sellers offer no authority for the proposition that we may take judicial notice of their speculation that an arbitrator in this proceeding would have allowed the same degree of discovery that took place in the Mobile Circuit Court before the sellers filed their motion to compel arbitration, and we decline to do so. For all that appears, the arbitrator would have exercised its discretion in favor of allowing no discovery." 973 So. 2d at 349. Thus, the Paw Paw's Camper City Court declined to speculate that an arbitrator would allow the same discovery the trial court had allowed, and Giffels urges us to do the same now. However, Giffels fails to recognize a crucial difference in the instant case; namely, that the arbitrator is required by the terms of the arbitration provisions to manage discovery pursuant to the Federal Rules 29 1131456 of Civil Procedure –– just as was the federal district court in the previous litigation. Indeed, the contracts agreed to by Giffels and the steel companies provide that "[a]ny refusal to allow such discovery [i.e., discovery permitted by the Federal Rules of Civil Procedure,] shall be specifically enforceable in court by the aggrieved party, and the arbitration proceeding shall be stayed pending resolution of the court proceeding." Thus, we do not need to speculate whether the arbitrator in this case would have required the initial disclosures as the federal district court did because the Federal Rules of Civil Procedure that required those disclosures would guide the process in both forums, in marked contrast to the arbitrator in Paw Paw's Camper City, who apparently was not bound by any guidelines and accordingly had discretion to declare there would be no discovery at all. This case is therefore clearly more akin to Aurora Healthcare, 83 So. 23 at 501, in which the discovery conducted in pre- arbitration litigation was essentially the same as would be permitted by the applicable National Arbitration Forum's Code of Procedure, and Ryan's Family Steakhouse, 966 So. 2d at 284, in which the discovery conducted in pre-arbitration litigation 30 1131456 was also specifically allowed under rules set forth in the arbitration agreement. In sum, it is clear that the steel companies have not taken advantage of discovery procedures in litigation that would not have been available to them in arbitration and that Giffels's expenses related to the initial disclosures are not the type of litigation expenses that arbitration would have alleviated. See Hales v. ProEquities, Inc., 885 So. 2d 10, 105-06 (Ala. 2003) (noting that sufficient prejudice to infer waiver has been found when parties avail themselves of judicial discovery procedures not available in arbitration or when opposing parties have been forced to incur litigation expenses that arbitration was designed to avoid). This Court has previously stated that "[i]n interpreting an arbitration provision, 'any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.'" Dunes of GP, L.L.C. v. Bradford, 966 So. 2d 924, 927 (Ala. 2007) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 31 1131456 (1983) (emphasis omitted; emphasis added)). In light of this principle and the heavy burden borne by Giffels, we cannot conclude, even assuming for the sake of argument that the steel companies substantially invoked the litigation process by commencing litigation in the federal district court and seeking arbitration only after it became clear that the federal district court lacked subject-matter jurisdiction, that Giffels would be substantially prejudiced if required to proceed in arbitration. Accordingly, we hold that the steel companies have not waived their right to arbitration and that the trial court's order staying the action until arbitration was completed was proper. V. Giffels initiated this action in the trial court after the steel companies commenced arbitration proceedings once it became apparent that the action the steel companies had initiated in the federal district court involving the same contractual dispute would be dismissed for lack of subject- matter jurisdiction. The trial court thereafter granted the steel companies' motion to stay the action pending the completion of arbitration, and Giffels appealed, arguing that, 32 1131456 under the circumstances, the steel companies either had no right to compel arbitration or had waived that right. However, the language of the arbitration provisions in the contracts executed by the parties gave the steel companies the broad right to select arbitration as a method to resolve any disputes based on those contracts, and, because Giffels has failed to demonstrate substantial prejudice as a result of the steel companies' actions, we hold that the steel companies did not waive their right to proceed in arbitration. Accordingly, the order of the trial court sending the case to arbitration and staying all proceedings pending the completion of the arbitration of the claims presented in this action is affirmed. AFFIRMED. Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Murdock and Shaw, JJ., concur in the result. Moore, C.J., dissents. 33 1131456 MURDOCK, Justice (concurring in the result). I cannot agree that the term "or" was not intended to have its plain and ordinary meaning as a disjunctive. The steel companies could select only one method of resolving a dispute at a time. Nonetheless, I concur in the result simply because nothing in the arbitration provisions prevented the steel companies from altering their choice of dispute resolution, provided that their previous choice and actions had not constituted a waiver of their right to do so. No such waiver occurred in this case. As the main opinion notes, the standard for such a waiver is "'"whether the participation bespeaks an intention to abandon the right in favor of the judicial process, and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration."'" ___ So. 3d at ___ (quoting Anderton v. Practice-Monroeville, P.C., [Ms. 1121417, Sept. 26, 2014] ___ So. 3d ___, ___ (Ala. 2014), quoting in turn Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897, 899 (Ala. 1995)). Particularly in light of the contractual agreement that, even in arbitration, the parties would be entitled to 34 1131456 engage in conventional discovery consistent with the Federal Rules of Civil Procedure, the discovery undertaken in this case in no way bespeaks an intention to forever abandon any resort to an arbitration process and certainly did not subject the other party to any delays, expenses, or efforts to which it would not have otherwise been subjected (i.e., there was no "prejudice"). 35	May 8, 2015
8d5d5d38-6700-4014-930c-74ce3cafa187	Advisory Opinion No. 392	N/A	392	Alabama	Alabama Supreme Court	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, 2015 ____________________ OPINION OF THE JUSTICES ____________________ No. 392 OPINION ISSUED SEPTEMBER 30, 2015 The Honorable Robert Bentley Governor of Alabama Alabama State Capitol Montgomery, Alabama 36130 Dear Governor Bentley: We have received your letter of September 23, 2015, in which you request an advisory opinion on the following constitutional questions: "1. Do any provisions of Act 2015-540 [the general appropriations bill for fiscal year 2016,] Opinion of the Justices No. 392 violate sections 42 and 43 of the Alabama Constitution, impermissibly enroaching upon the powers of the executive branch? "2. Does item 1 and/or 4, above, of Act 2015-540 [regarding how agencies are to handle reductions in appropriations] violate section 213 of the Alabama Constitution, if the relevant appropriations are insufficient to pay for the services provided? "3. Do any provisions of Act 2015-540, stated above [in the Governor's letter], violate section 71 of the Alabama Constitution by including matters in the general appropriations bill in addition to appropriations?" We respectfully decline your request for an advisory opinion. QUESTIONS DECLINED. Respectfully Submitted, /s/ Roy S. Moore Roy S. Moore Chief Justice /s/ Lyn Stuart Lyn Stuart /s/ Michael F. Bolin Michael F. Bolin /s/ Tom Parker Tom Parker 2 Opinion of the Justices No. 392 /s/ Greg Shaw Greg Shaw /s/ A. Kelli Wise A. Kelli Wise /s/ Tommy Bryan Tommy Bryan Associate Justices 3	September 30, 2015
d8e10eb4-14c7-4f72-8664-7da77ae94704	Ex parte Terry Bland.	N/A	1140704	Alabama	Alabama Supreme Court	Rel: 5/15/15 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 ____________________ 1140704 ____________________ Ex parte Terry Bland PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Terry Bland v. State of Alabama) (Montgomery Circuit Court, CC-91-140.92; Court of Criminal Appeals, CR-14-0181) BRYAN, Justice. WRIT DENIED. NO OPINION. Bolin, Murdock, and Main, JJ., concur. Moore, C.J., concurs specially. 1140704 MOORE, Chief Justice (concurring specially). Terry Bland petitions this Court to review the Court of Criminal Appeals' affirmance, by unpublished memorandum, of the circuit court's denial of his most recent Rule 32, Ala. R. Crim. P., petition for postconviction relief. Bland v. State (No. CR-14-0181, March 6, 2015), ___ So. 3d ___ (Ala. Crim. App. 2015)(table). Bland challenges his October 9, 1991, conviction for murder and his sentence of life imprisonment without the possibility of parole. He argues that the circuit court lacked the jurisdiction to sentence him under the Alabama Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA"), by enhancing his sentence using two prior convictions for which, he says, he was pardoned. I concur with the decision of this Court to deny Bland's petition for a writ of certiorari because, in my view, the petition fails to meet the requirements set forth in Rule 39, Ala. R. App. P. I write separately to note that, if Bland's allegations about his being pardoned for the convictions used to enhance his sentence are true and if he can demonstrate that this claim has not been addressed in proceedings related to an earlier petition, Bland may be entitled to the relief he 2 1140704 is seeking. This Court has held that "pardoned convictions cannot be used to enhance [a] sentence under the [HFOA]." Ex parte Casey, 852 So. 2d 175, 181 (Ala. 2002). Moreover, the 1 Court of Criminal Appeals, citing the principle that "'an allegedly illegal sentence may be challenged at any time,'" Henderson v. State, 895 So. 2d 364, 365 (Ala. Crim. App. 2004)(quoting Rogers v. State, 728 So. 2d 690, 691 (Ala. Crim. App. 1998)), has held that a full pardon for prior convictions removes those convictions from consideration for purposes of the HFOA and, hence, that any sentence based on those convictions is illegal and thus void, because it exceeds the trial court's jurisdiction. Henderson, 895 So. 2d at 365. In light of the foregoing, Bland may still challenge the allegedly illegal sentence on the ground that it was, according to Bland, illegal because it relied on convictions for which Bland claims he was pardoned and therefore void. I dissented in Casey and did not write; my dissent, 1 however, was not based on that holding. 3	May 15, 2015
4698d541-aee6-4723-8047-33fa565daa11	Ex parte Louis Murray.	N/A	1131010	Alabama	Alabama Supreme Court	REL: 02/27/2015 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 ____________________ 1131010 ____________________ Ex parte Louis Murray PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Louis Murray v. State of Alabama) (Montgomery Circuit Court, CC-83-462.64; Court of Criminal Appeals, CR-12-1534) STUART, Justice. WRIT QUASHED. NO OPINION. 1131010 Bolin, Parker, Shaw, Main, and Wise, JJ., concur. Stuart, J., concurs specially. Moore, C.J., and Bryan, J., dissent. 2 1131010 STUART, Justice (concurring specially). I concur with this Court's decision to quash the writ of certiorari. I write to explain my reasoning. In April 2013, Louis Murray filed his fifth Rule 32, Ala. R. Crim. P., petition for postconviction relief, attacking his sentence for his 1983 conviction for first-degree robbery, which had been enhanced pursuant to the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975, in light of the State's proof that Murray had three prior felony convictions, to life imprisonment without the possibility of parole. In his Rule 32 petition, Murray alleged, among other grounds, that his sentence was illegal because, he said, the trial court had improperly enhanced his sentence by applying a 1975 robbery conviction for which, he alleged, he had been pardoned. The circuit court summarily dismissed the petition; Murray appealed to the Court of Criminal Appeals. The Court of Criminal Appeals determined that the circuit court had erred by not conducting an evidentiary hearing on Murray's claim that his sentence was illegal, and it remanded the case by order for the circuit court to conduct an evidentiary 3 1131010 hearing to address Murray's claim that his sentence was illegal. Accordingly, on remand the circuit court conducted an evidentiary hearing. At the hearing, Murray testified that in July 1980 the Alabama Board of Pardons and Paroles ("the Board") had granted him a full pardon, including the restoration of his civil and political rights, for his 1975 robbery conviction. In support of his testimony, Murray introduced into evidence a copy of a document entitled "Certificate Granting Restoration of Civil and Political Rights." Murray also submitted the affidavit of Sarah Still, a pardon-unit manager with the Board. In her affidavit, Still averred that she had attempted to find Murray's file to verify the authenticity of the "Certificate Granting Restoration of Civil and Political Rights" but that she had been unable to locate the file. The circuit court also admitted into evidence the facsimile cover sheet for Still's affidavit. The cover sheet states: "Please see the attached pardon certificate on Willie James Brown, aka Louis Murray, AIS# 109980. [He] was pardoned on a 1975 Montgomery Co. robbery case. The pardon did not have any restrictions." 4 1131010 At the hearing, Murray argued that the pardon he received in 1980 forgave not only the 1975 robbery conviction named in the certificate granting the restoration of his civil and political rights, but also his convictions that occurred before the 1975 conviction, i.e., a 1966 felony receiving- stolen-property conviction and a 1974 felony grand-larceny conviction. Additionally, Murray maintained, because he had also been pardoned for the 1966 and 1974 felony convictions, those convictions could not be used to enhance his sentence for his 1983 conviction. Murray further contended that his 1981 conviction for being a felon in possession of a pistol, see § 13A-11-72(a), Ala. Code 1975, could not be used to enhance his sentence for the 1983 conviction because, he said, the 1980 pardon had eradicated the legal effect of the felony convictions (the robbery and larceny convictions) upon which the 1981 conviction was based. In response, the State argued that, even if Murray had been pardoned for the 1975 robbery conviction, that pardon did not preclude the use for sentence-enhancement purposes of convictions entered before the 1975 robbery conviction. The State introduced into evidence a certified copy of Murray's 5 1131010 1975 robbery conviction as well as certified copies of three other felony convictions attributable to Murray -- a 1966 receiving-stolen-property conviction, a 1974 grand-larceny conviction, and a 1981 conviction for possession of a pistol after having been convicted of a crime of violence. Each of those convictions were entered before Murray's 1983 conviction, the sentence for which was at issue during the hearing. Following the hearing, the circuit court issued an order finding that the Board had granted Murray a pardon for his 1975 robbery conviction and that that conviction had been improperly used to enhance Murray's sentence for his 1983 conviction. The circuit court further found that Murray was not entitled to relief from the sentence of life imprisonment without the possibility of parole imposed pursuant to his 1983 conviction because, it determined, even without the 1975 conviction Murray had three prior felony convictions that could have been used to enhance his sentence. On return to remand, the Court of Criminal Appeals affirmed the circuit court's judgment by an unpublished memorandum. Murray v. State (No. CR-12-1534, April 25, 2014), 6 1131010 ___ So. 3d ___ (Ala. Crim. App. 2014)(table). This Court granted certiorari review to determine the effect of the pardon for Murray's 1975 robbery conviction, i.e., whether the pardon of that conviction precluded the use for sentence- enhancement purposes of convictions preceding the 1975 robbery conviction. 1 In my opinion, the circuit court and the Court of Criminal Appeals properly determined that Murray was not entitled to a new sentencing hearing. To obtain the requested relief of a new sentencing hearing, Murray had to establish by a preponderance of the evidence that the pardon of his 1975 robbery conviction also pardoned his "prior disqualifying convictions." Murray did not meet this burden. 2 Murray's contention that use of his 1981 felon-in- 1 possession-of-a-pistol conviction to enhance his sentence was improper is not properly before us. Murray's argument challenges the propriety of the felon-in-possession-of-a- pistol conviction. Such an argument must be made in a Rule 32 petition challenging that conviction, and a determination that that conviction is invalid must be made before a determination that the use of that conviction to enhance his 1983 sentence was improper can be made. Sanford v. State, 784 So. 2d 1080, 1082 n.2 (Ala. Crim. App. 2000)("A Rule 32 petition can challenge only one conviction or the convictions that arose out of one proceeding. LeBlanc v. State, 609 So. 2d 9 (Ala. Crim. App. 1992)."). Rule 32.3, Ala. R. Crim. P., provides that a petitioner 2 shall have the burden of "proving by a preponderance of the 7 1131010 The Board's authority to act is governed by § 15-22-36, Ala. Code 1975, which states, in pertinent part: "(a) In all cases, except treason and impeachment and cases in which sentence of death is imposed and not commuted, as is provided by law, the Board of Pardons and Paroles shall have the authority and power, after conviction and not otherwise, to grant pardons and paroles and to remit fines and forfeitures. "(b) Each member of the Board of Pardons and Paroles favoring a pardon, parole, remission of a fine or forfeiture, or restoration of civil and political rights shall enter in the file his or her reasons in detail, which entry and the order shall be public records, but all other portions of the file shall be privileged. "(c) No pardon shall relieve one from civil and political disabilities unless specifically expressed in the pardon. ..."3 (Emphasis added.) "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 evidence facts necessary to entitle the petitioner to relief." Although § 15-22-36 has been amended several times since 3 1980, when Murray received his pardon for the 1975 robbery conviction, with the exception of several minor changes in capitalization and punctuation, the quoted portion of the statute remains unchanged. 8 1131010 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))." DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275–76 (Ala. 1998). A plain reading of § 15-22-36 reveals that the legislature vested in the Board the authority to grant an individual a pardon, a parole, the remission of a fine or forfeiture, or the restoration of civil and political rights. The use of the conjunction "or" in § 15-22-36(b) indicates that the legislature viewed each act by the Board as separate and distinct. In § 15-22-36(c), the legislature has specifically provided that, if the Board grants a pardon, the pardoned individual's civil and political rights are not restored by that pardon unless the pardon includes language expressly restoring those rights. Additionally, nothing in the language of § 15-22-36 indicates that the Board's restoration of civil and political rights to an individual who 9 1131010 has been convicted of an offense means that the Board thereby grants a pardon for that particular conviction. Indeed, treating the Board's restoration of an individual's civil and political rights as necessarily including a pardon for the particular conviction would ignore the fact that, under § 15- 22-36(b) and (c), the restoration of a person's civil and political rights and a pardon are separate and distinct matters. Cf. Harrison v. Wigington, 269 Ga. 388, 389, 497 S.E.2d 568, 569 (1998)(recognizing that the authority of the Georgia Board of Pardon and Paroles "to grant pardons is an entirely separate and distinct power from its authority to remove disabilities imposed by law"). Unfortunately, it appears that this Court, in its election-contest caselaw, has used the term "pardon" as a blanket expression for different acts of the Board. For example, in Hogan v. Hartwell, 242 Ala. 646, 649, 7 So. 2d 889, 890 (1942), an election-contest case, this Court, when interpreting the import of the Board's act of restoring "'all Alabama Civil and Political Rights,'" labeled the Board's act as a "pardon" rather than identifying the specific act of the Board and refining its analysis to that specific act. 10 1131010 Likewise, in State ex rel. Sokira v. Burr, 580 So. 2d 1340 (Ala. 1991), another election-contest case, this Court again used the blanket term "pardon" when analyzing the import of the Board's grant of a "Certificate of Discharge from Parole with Restoration of Civil and Political Rights."4 In Ex parte Casey, 852 So. 2d 175 (Ala. 2002), this Court was asked to determine the import of the Board's grant of a pardon that included the restoration of the individual's civil and political rights. After considering the holding in Burr, that a "pardon," which included language expressly restoring an individual's civil and political rights, restored the individual's civil and political privileges taken away by the felony conviction, removing all legal incapacities resulting from that conviction, this Court held that a full and unconditional pardon for a specific conviction that included a reference to "all prior disqualifying convictions" precluded the use of the specific conviction named in the pardon as well as the use of all convictions received before the named conviction for sentence-enhancement purposes under the An appellate court can take judicial notice of the record 4 of other appellate proceedings before the same court. Veteto v. Swanson Servs. Corp., 886 So. 2d 756, 764 n. 1 (Ala. 2003). 11 1131010 Habitual Felony Offender Act. The record in Ex parte Casey 5 unequivocally established that the Board had granted Casey a pardon that included the restoration of his civil and political rights. This Court held that the language in the pardon certificate established that the Board's grant of a pardon had "blotted out" Casey's guilt with respect to the named 1968/1969 convictions as well as any "prior disqualifying convictions" and that any legal disabilities resulting from those convictions had been removed. 852 So. 2d at 181. This Court stated that the pardon made Casey "a new and innocent man" and, consequently, that any convictions entered before the 1968/1969 convictions named in the pardon certificate could not be used for sentence-enhancement purposes. Id. In my opinion, for the holding in Ex parte Casey to apply in this case and for Murray to establish that he was entitled to a new sentencing hearing, Murray was required to present evidence demonstrating that the Board granted a pardon for his I recognize the principle of stare decisis and that Ex 5 parte Casey is precedent. However, I adhere to my dissent in Ex parte Casey; I believe that the case was wrongly decided and should be overruled. 12 1131010 1975 robbery conviction and that the pardon included a reference to "all prior disqualifying convictions." Here, the circuit court found that the Board granted Murray a pardon for his 1975 robbery conviction. However, unlike Ex parte Casey, in which the circuit court admitted into evidence a document that unequivocally stated that Casey had been pardoned for his 1968/1969 forgery convictions and for "all prior disqualifying convictions," the record in this case does not include any evidence of the legal effect of the pardon with regard to Murray's prior convictions. The circuit court did not find, and none of the evidence admitted at the hearing established, that the Board's grant of a pardon for Murray's 1975 robbery conviction included forgiveness for Murray's convictions that precede his 1975 robbery conviction. I cannot agree with the dissent that an unverified statement, which generally is inadmissible under the Alabama Rules of Evidence, by a pardon- unit manager satisfies Murray's burden of proof and supports reversal of the circuit court's judgment. Therefore, the circuit court properly held that Murray was not entitled to a new sentencing hearing. 13 1131010 Moreover, I cannot agree with the dissent that the Board's act of restoring Murray's civil and political rights is equivalent to a pardon by the Board. The certificate of restoration of political and civil rights admitted into evidence does not contain any language establishing that the Board granted Murray a pardon for the 1975 robbery conviction and that the pardon included language forgiving "all prior disqualifying convictions." Indeed, the only time the word "pardon" is used in the certificate admitted into evidence is to identify the issuing party, the "State Board of Pardons and Paroles." Because nothing in the record establishes by a preponderance of the evidence that Murray's pardon for the 1975 robbery conviction requires the preclusion of the use for sentence-enhancement purposes of convictions preceding the 1975 robbery conviction, the circuit court did not err in refusing to conduct a new sentencing hearing. Furthermore, I cannot interpret this Court's caselaw to require that any and all acts by the Board are pardons that "blot out" an individual's guilt. In both Hogan and Burr, the Court focused on the implication of the restoration of an individual's civil and political rights with regard to the 14 1131010 individual's eligibility to run for public office. These cases should not be read to mean that any and all acts of the Board are pardons or that any and all acts of the Board "blot out" individuals' guilt for the named convictions as well as any prior disqualifying convictions, making the individuals "new and innocent" men or women. To the extent that Hogan and Burr can be interpreted to hold that any and all acts by the Board are "pardons," those cases should be overruled. 15 1131010 MOORE, Chief Justice (dissenting). This Court granted Louis Murray's petition for a writ of certiorari to review whether the 1980 pardon for his 1975 robbery conviction also made his earlier felony convictions unavailable as predicate acts for sentence enhancement under the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA"), and for purposes of a felon-in-possession-of-a- pistol conviction, § 13A-11-72(a), Ala. Code 1975. Because I have determined, as explained below, that Murray's sentence was illegal, I dissent from this Court's order quashing the writ. I. Background In 1983 Murray, then 37 years old, was convicted of armed robbery. See Murray v. State, 453 So. 2d 774 (Ala. Crim. App. 1984). Finding that Murray had three prior felony convictions, the trial court sentenced him under the HFOA to life imprisonment without the possibility of parole. Now 68 years 6 old, Murray seeks review of the denial of his fifth Rule 32, At the time of Murray's sentencing in 1983, the HFOA 6 provided that a defendant who had been previously convicted of three felonies and who then was convicted of a Class A felony "must be punished by imprisonment for life without parole." § 13A-5-9(c)(3), Ala. Code 1975. 16 1131010 Ala. R. Crim. P., petition for postconviction relief. His argument that his sentence is illegal is sufficient to avoid the Rule 32 bars of untimeliness and successiveness. Rule 32.2(b) and (c). "[A] challenge to an illegal sentence is jurisdictional and can be raised at any time." Ginn v. State, 894 So. 2d 793, 796 (Ala. Crim. App. 2004). At the time of Murray's 1983 armed-robbery conviction, he had four prior felony convictions: receiving stolen property (1966); grand larceny (1974); robbery (1975); and being a felon in possession of a pistol (1981). The "Certificate Granting Restoration of Civil and Political Rights" to Murray, dated July 14, 1980, reads as follows: "It having been made to appear to the Alabama State Board of Pardons and Paroles that [Murray] was convicted in Montgomery County [in 1975] of robbery, was sentenced to a term of Ten (10) years and was released from incarceration on February 19, 1979, and the term of the maximum sentence has now expired, and "It further appearing to the Board from the official report of the Parole Supervisor which is a part of the record in this case, and with no further information to the contrary, that the above named has so conducted himself since release as to demonstrate his reformation and to merit restoration of civil and political rights; 17 1131010 "NOW, in compliance with the authority vested in the State Board of Pardons and Paroles by the Constitution and the laws of the State of Alabama to restore civil and political rights, it is "ORDERED that all disabilities resulting from the above stated conviction and all prior disqualifying convictions be and they are hereby removed and the civil and political rights of the above named are restored." (Capitalization in original; emphasis added.) Murray argues that the 1980 pardon of his 1975 robbery conviction eliminated that conviction as a predicate act for enhanced sentencing. Because the three remaining felonies would still support his enhanced sentence, he further argues that language in the restoration-of-rights certificate exonerated him from all prior felony convictions, not just the 1975 conviction specifically identified in that document. He thus argues that he would have only one prior felony conviction for sentence-enhancement purposes -- the 1981 conviction for being a felon in possession of a pistol. He further argues that the 1981 conviction was improper because the 1980 certificate fully restored his civil rights, including the right to carry a firearm. Thus, as Murray stated in the circuit court: "I stand before Judge Reese today as a first offender felon." 18 1131010 At the time Murray was sentenced for the 1983 first- degree robbery conviction, the sentencing range for first- degree robbery, a Class A felony, § 13A-8-41(c), Ala. Code 1975, was imprisonment for life or for 10 to 99 years. § 13A- 5-6(1), Ala. Code 1975. If a firearm or deadly weapon were used in the commission of the robbery, the minimum sentence was 20 years. § 13A-5-6(4), Ala. Code 1975. Murray thus argues that his sentence of life imprisonment without the possibility of parole is illegal. Alternatively, he argues that, even if the restoration-of-rights certificate is not viewed as a pardon of anything other than the 1975 conviction, the restoration of his civil rights, which applied to "all prior disqualifying convictions," removed the underpinnings of his felon-in-possession-of-a-pistol conviction, thus entitling him, at a minimum, to be resentenced on the basis of two prior felony convictions -- the 1966 and 1974 convictions -- rather than three.7 The phrase "and all prior disqualifying convictions" is 7 not meaningless boilerplate. Other pardons have omitted this phrase. For instance, in a 1991 case, this Court construed a certificate that stated: "'Ordered that all disabilities resulting from the above stated conviction be and they are hereby removed and the civil and political rights of the above named are restored.'" State ex rel. Sokira v. Burr, 580 So. 2d 1340, 1341 (Ala. 1991). That certificate, unlike the one in 19 1131010 II. Analysis A. Effect of the 1980 Pardon on Prior Convictions Murray's "Certificate Granting Restoration of Civil and Political Rights" does not specifically use the word "pardon." However, the circuit court, the Court of Criminal Appeals, and the State of Alabama as the appellee all construe Murray's restoration certificate, which specifically identifies his 1975 robbery conviction, as a pardon for that conviction. In its remand order of October 25, 2013, the Court of Criminal Appeals noted that Sarah Still, the pardon-unit manager with the Alabama Board of Pardons and Paroles, had transmitted a facsimile to the Montgomery County District Attorney's office "stating that Murray had received a pardon for his 1975 conviction and that '[t]he pardon did not have any restrictions.'" In that facsimile, the pardon-unit manager 8 this case, made no mention of removing disabilities from "all prior disqualifying convictions." See also United States v. Swanson, 947 F.2d 914, 915-16 (11th Cir. 1991) (holding that a restoration certificate that also applied to "any prior disqualifying convictions" restored political and civil rights not only for the conviction specified in the certificate but also for a prior conviction). The Court of Criminal Appeals noted that "'pardoned 8 convictions cannot be used to enhance [a] sentence under the Habitual Felony Offender Act.'" Remand Order (quoting Ex parte Casey, 852 So. 2d 175, 181 (Ala. 2002)). 20 1131010 specifically identified the "Certificate Granting Restoration of Civil and Political Rights" as a "pardon certificate." The facsimile states: "Please see the attached pardon certificate on Willie James Brown, aka Louis Murray, AIS #109,980. S[ubject] was pardoned on a 1975 Montgomery Co. robbery case. The pardon did not have any restrictions." This cover sheet from the manager of the pardon unit uses the word "pardon" three times to describe Murray's "Certificate Granting Restoration of Civil and Political Rights." In its order of November 20, 2013, denying on remand Murray's petition for a new sentencing hearing, the circuit court stated: "Petitioner's earlier conviction for Robbery was Pardoned and cannot be used for HFOA purposes." In its subsequent unpublished memorandum of April 25, 2014, on return to remand, the Court of Criminal Appeals stated that Murray had introduced into evidence in his remand hearing "a copy of that pardon." The only such document in the record is the restoration certificate. The Court of Criminal Appeals further stated that the circuit court's finding that Murray had received a full pardon for his 1975 robbery conviction "is supported by the record, and we agree that Murray's 1975 21 1131010 robbery conviction was fully pardoned and was improperly used for sentence enhancement under the [HFOA]." The State concurs: "The trial court and the Alabama Court of Criminal Appeals correctly held that Murray's pardoned conviction, the 1975 robbery conviction, could not be used to enhance his sentence ...." State's brief, at 9 (emphasis added). The interpretation that a restoration certificate operates as a pardon finds further support in two controlling opinions of this Court. In Hogan v. Hartwell, 242 Ala. 646, 649, 7 So. 2d 889, 890 (1942), this Court was interpreting "the order of the State Board of Pardons and Paroles restoring to said Hartwell 'all Alabama Civil and Political Rights.'" Responding to the argument that "there was no pardon and that restoration of [appellee's] civil rights was without foundation," the Court stated that "this argument overlooks the broad and comprehensive meaning of the word 'pardon' as found in the authorities to the effect that it is a declaration on record by 'the chief magistrate of a state or country that a person named is relieved from the legal consequences of a specific crime.'" 242 Ala. at 650, 7 So. 2d 22 1131010 at 891. This statement is consistent with the proposition that a restoration certificate operates as a pardon. 9 In State ex rel. Sokira v. Burr, 580 So. 2d 1340, 1341 (Ala. 1991), this Court interpreted a certificate that contained restoration language identical to that in Murray's certificate. The certificate in Burr was not styled as a pardon, but instead was entitled "Certificate of Discharge from Parole with Restoration of Civil and Political Rights."10 This Court referred to that document as a "certificate of pardon," Burr, 580 So. 2d at 1341, and stated that "the pardon, expressly restoring all of Burr's civil and political rights, returned to him each civil and political privilege taken away by his felony conviction." 580 So. 2d at 1345 (emphasis added). Thus, under this Court's precedents and also under the facts of this case, Murray's restoration certificate pardoned In 1980, the Board may have given Murray a certificate 9 restoring rights rather than one also expressly pardoning the offense because he had already served his sentence and thus had no need for relief from the penalty of imprisonment. The certificate at issue in Burr is in the record on 10 appeal in that case, which is available on microfilm at the Alabama State Law Library. 23 1131010 not only his 1975 robbery conviction, but also, as stated in the certificate, "all prior disqualifying convictions." B. The Felon-in-Possession-of-a-Pistol Conviction Even if Murray's restoration certificate is construed merely to restore civil rights and not to operate as a pardon, he is still entitled to have his felon-in-possession-of-a- pistol conviction disregarded for HFOA purposes. Because the restoration certificate did restore Murray's civil and political rights, including removing "disabilities resulting from ... all prior disqualifying convictions," he was legally entitled to be in possession of a firearm a year after the restoration certificate was executed when he was convicted of being a felon in possession of a pistol. The right to bear arms is a civil right protected under both the state and federal constitutions. See Art. I, § 26, Ala. Const. 1901; Amend. II, U.S. Const. "Under Alabama law, then, the Board's restoration to [Murray], without express limitation, of 'all civil and political rights' means exactly what it says: It nullifies 'any and all legal incapacities,' including the right to possess firearms." United States v. Swanson, 947 F.2d 914, 918 (11th Cir. 1991) (footnote 24 1131010 omitted). By contrast the "Certificate of Restoration of Civil Rights" at issue in James v. United States, 19 F.3d 1, 2 (11th Cir. 1994) "expressly grant[ed] the restoration of civil rights 'except the specific authority to possess or own a firearm.'" Interpreting Alabama law, the United States Court of Appeals for the Eleventh Circuit logically concluded that James's "restoration of civil rights excluded the right to possess firearms." Id. In Sanders v. State, 854 So. 2d 143 (Ala. Crim. App. 2002), a case on all fours with this one on the felon-in- possession-of-a-pistol issue, the Court of Criminal Appeals considered a Rule 32 petition that sought reversal of a 1983 felon-in-possession-of-a-pistol conviction that was based upon a 1969 robbery conviction for which Sanders had been pardoned in 1979. Sanders's felon-in-possession conviction arose from a guilty plea, as did Murray's. Finding that Sanders's claim was jurisdictional and thus not time-barred, the Court of Criminal Appeals remanded the case for an evidentiary hearing "regarding Sanders's allegation that the court was without jurisdiction to accept his guilty plea for possessing a pistol as a violent offender where, before the indictment for the 25 1131010 offense of possession of a pistol, the Board had formally reinstated Sanders's civil and political rights following his 1969 conviction." 854 So. 2d at 145. The Sanders court also noted that the "possession-of-a-pistol conviction" could not be used for enhancement purposes under the HFOA because the "1969 robbery conviction could not be used as a predicate offense." 854 So. 2d at 144 n.3. Sanders relied upon United States v. Fowler, 198 F.3d 808 (11th Cir. 1999), which states: "Alabama law empowers the State Board of Pardons and Paroles to restore the right of a person convicted of a crime of violence to possess a firearm. Without an express limitation on the certificate restoring civil and political rights to Fowler, under Alabama law the restoration of civil and political rights restores the firearm rights limited by § 13A-11-72(a)[, Ala. Code 1975]." 198 F.3d at 811 (emphasis added). Murray's counsel argued this point as follows at the circuit court hearing on Murray's Rule 32 petition: "[T]his restoration of rights and full pardon with no restrictions at a minimum allowed [Murray] -- it pardoned his 1975 conviction for which it was for and also restored his right to carry a firearm, which would negate his later conviction for carrying a firearm." 26 1131010 Because Murray's felon-in-possession-of-a-pistol conviction was invalid and his 1975 robbery conviction was pardoned, the 1983 sentencing court had only two prior felonies with which to enhance Murray's sentence: grand larceny (1974) and receiving stolen property (1966). As Murray's counsel argued at the remand hearing in the circuit court: "So it would remove at a minimum those two convictions and leave him with a maximum of two felony convictions." Under the HFOA in effect at that time, the trial court could have sentenced Murray based on two prior felonies to life imprisonment or a fixed term of at least 99 years. § 13A-5- 9(b)(3). In that event he would have been eligible for parole.11 III. Conclusion The special concurrence seeks to avoid this conclusion 11 by stating that Murray must bring a new and separate Rule 32 proceeding to challenge the legality of his 1981 felon-in- possession-of-a-pistol conviction. See ___ So. 3d at ___ n.1. In this proceeding, however, Murray is challenging his 1983 sentence, which depended for its legality upon the validity of the 1981 felon-in-possession conviction. Thus, that conviction is properly at issue in this case. The determination of its validity requires no additional facts but depends completely on the interpretation of the 1980 certificate, which is the issue before us in this case. 27 1131010 The circuit court, the Court of Criminal Appeals, the pardon-unit manager, and the State of Alabama all concede that Murray received a pardon for his 1975 robbery conviction. The only plausible reading of the record is that the "Certificate Granting Restoration of Civil and Political Rights" is also Murray's pardon certificate. The "and all prior disqualifying convictions" language in that certificate thus eliminates both the 1966 conviction for receiving stolen property and the 1974 conviction for grand larceny as predicate acts for both HFOA purposes and for the felon-in-possession-of-a-pistol statute. Accordingly, Murray, who is serving a sentence of life imprisonment without the possibility of parole, is entitled to be resentenced "as a first offender felon" for his 1983 first- degree robbery conviction and would be eligible for parole. In the alternative, even if the restoration certificate is interpreted only to restore civil rights and not to pardon, Murray should have been sentenced under the HFOA based on two prior felonies rather than three and thus would also be eligible for parole. In either case, "[s]ince the first sentence imposed on [the defendant] was invalid, the trial court had not only the power, but the duty, to sentence [the 28 1131010 defendant] as required by law." Hughes v. State, 518 So. 2d 890, 891 (Ala. Crim. App. 1987). 29	February 27, 2015
1eb63c86-8073-4e07-8dcf-b67bffee82c1	Ex parte C.E.	N/A	1140290	Alabama	Alabama Supreme Court	REL:03/13/2015 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 _________________________ 1140290 _________________________ Ex parte C.E. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: C.E. v. DeKalb County Department of Human Resources) (DeKalb Juvenile Court, JU-07-386.03; Court of Civil Appeals, 2130591) SHAW, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ., concur. Shaw, J., concurs specially. Moore, C.J., dissents. 1140290 SHAW, Justice (concurring specially). The parental rights of the petitioner, C.E., were terminated as to his child. C.E. appealed to the Court of Civil Appeals, which unanimously affirmed the trial court's order without an opinion. Ex parte C.E. (No. 2130591, December 5, 2014), ___ So. 3d ___ (Ala. Civ. App. 2014) (table). C.E. has petitioned for certiorari review, which this Court today denies. I concur to deny the petition, because I do not believe that it demonstrates any probability of merit. See Rule 39(f), Ala. R. App. P. C.E. argues in his petition that there existed a viable alternative to the termination of his parental rights, namely, that the child could be placed with the child's uncle (C.E.'s brother). However, the existence of an alternative placement, in itself, does not necessarily foreclose the termination of parental rights. As the Court of Civil Appeals has illustrated: "The mother's argument is based on the premise that, if any viable placement alternative exists, a juvenile court may not terminate parental rights. We have recently rejected that premise in a case involving a termination of parental rights under former Ala. Code 1975, § 26–18–7. A.E.T. v. Limestone County Dep't of Human Res., 49 So. 3d 1212, 1216 (Ala. Civ. App. 2010). In A.E.T., we adopted the rationale expressed by then Judge Murdock in the main opinion in D.M.P. v. State 2 1140290 Department of Human Resources, 871 So. 2d 77, 94 (Ala. Civ. App. 2003) (plurality opinion), that 'the existence of a viable alternative was not an absolute bar to termination of parental rights in cases in which the parent was shown to be "irremediably unfit."' A.E.T., 49 So. 3d at 1217. We explained that 'the existence of [a relative] as a potentially viable placement alternative would not, in and of itself, prevent the juvenile court from terminating [a parent's] parental rights, if reunification of the [parent] and the child were no longer a foreseeable alternative.' Id. at 1217. "Relying on the explanation of the purpose of a viable alternative by then Judge Murdock in D.M.P., we held that a viable placement alternative is to be considered under circumstances where continued efforts are to be made to rehabilitate the parent and to reunite the family. Id. at 82. However, we further held that the duty to consider those alternatives cannot bar termination of parental rights once it is determined that rehabilitation of the parent and reunification of the family is not likely in the foreseeable future. Id. at 94." A.F. v. Madison Cnty. Dep't of Human Res., 58 So. 3d 205, 214 (Ala. Civ. App. 2010). C.E. makes no attempt to show or to argue that he could be rehabilitated, that he was not "irremediably unfit," or that his reunification with the child was ever possible. Under A.F., even if the uncle was a placement alternative, the petition does not demonstrate that that fact barred the termination of C.E.'s parental rights. That stated, the petition does not show any probability of merit in the argument that the uncle was indeed a viable placement alternative. Specifically, the evidence tended to 3 1140290 show that the uncle had had very limited prior contact with the child, that he had had several previous criminal charges and convictions, and that there were allegations of prior child abuse and domestic violence on his part. Further, the Department of Human Resources conducted a home study and did not approve the uncle as a relative placement. "In reviewing a decision of the trial court, an appellate court is not permitted to reweigh the evidence, because weighing the evidence is solely a function of the trier of fact. However, it is the function of the appellate court to ascertain that the trial court's findings of fact are supported by substantial evidence with due regard to, and respect for, the appropriate level of evidentiary proof required ...." Ex parte McInish, 47 So. 3d 767, 778 (Ala. 2008). It was the role of the trial court to weigh the testimony and the evidence: It could reject the testimony it found lacking in credibility and accept the testimony and evidence that would ultimately support its determination that the uncle was not a viable alternative placement. This Court could not, on appeal, reweigh the evidence. Thus, I see no need to grant the petition to further review the issue. 4 1140290 MOORE, Chief Justice (dissenting). I respectfully dissent from the decision to deny the petition for the writ of certiorari. The instant petition presents for our consideration the question whether transferring custody of a child to the child's paternal uncle was a viable alternative to terminating the father's parental rights. "Inasmuch as the termination of parental rights strikes at the very heart of the family unit, a court should terminate parental rights only in the most egregious of circumstances." Ex parte Beasley, 564 So. 2d 950, 952 (Ala. 1990). In addition, "the court must inquire as to whether 'all viable alternatives to termination have been considered.'" Id. I would issue the writ of certiorari to determine whether placing the child with his uncle was a viable alternative to terminating the father's parental rights. 5	March 13, 2015
97856862-f6d2-4e28-a9e4-cc02d2961a9e	Peter Ferrari et al. v. D.R. Horton, Inc. - Birmingham	N/A	1130726	Alabama	Alabama Supreme Court	REL: 02/06/2015 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 ____________________ 1130679 ____________________ Ex parte Peter Ferrari et al. PETITION FOR WRIT OF MANDAMUS (In re: D.R. Horton, Inc. - Birmingham v. Peter Ferrari et al.) ____________________ 1130726 ____________________ Peter Ferrari et al. v. D.R. Horton, Inc. - Birmingham Appellate proceedings from Baldwin Circuit Court (CV-13-901249) MURDOCK, Justice. D.R. Horton, Inc. - Birmingham ("DR Horton"), filed a verified petition in the Baldwin Circuit Court, pursuant to Rule 27(a), Ala. R. Civ. P., requesting preaction discovery from Peter Ferrari; Peter's wife, Kimberly Ferrari; Ferrari Capital Partners, LLC; FH Properties, LLC; P6 Holdings, LLC; and Prince 5 Holdings, LLC (collectively "the Ferrari defendants"). The trial court granted the petition. The Ferrari defendants have petitioned this Court for a writ of mandamus ordering the trial court to vacate its order and to dismiss DR Horton's Rule 27(a), Ala. R. Civ. P., petition. Simultaneously, the Ferrari defendants also have appealed the trial court's order on DR Horton's petition. We grant the petition and issue the writ, and we dismiss the appeal. I. Facts and Procedural History Peter Ferrari was employed by DR Horton as a land- acquisition manager for its Gulf Coast division. His responsibilities included researching and acquiring properties for DR Horton to develop. DR Horton asserts that it gave 2 1130679 and 1130726 Ferrari confidential information concerning its business and land-acquisition strategies, including its geographical markets for expansion, and that it empowered Ferrari to arrange land purchases for DR Horton. DR Horton asserts that it received information that Ferrari had supplied third parties with confidential information from DR Horton without DR Horton's permission, including DR Horton's planned land acquisitions, future real- estate developments, markets for expansion, and plans for construction. DR Horton also asserts that it received information that Ferrari had benefited from DR Horton land acquisitions apart from his employment compensation. Based on the information it had received, on July 9, 2013, DR Horton called Ferrari into a meeting with three DR Horton representatives, including its president for Gulf Coast operations, Scott Whitehurst. According to Whitehurst, Ferrari denied making any money "on the side" in DR Horton related transactions, he denied that his wife Kimberly had received any money from third parties, and he denied that the limited-liability companies he and his wife had formed had received any money from DR Horton related transactions or from 3 1130679 and 1130726 third parties. DR Horton requested the tax returns of the Ferrari defendants in order to verify his assertions, but Ferrari refused to provide such information. According to Whitehurst, Ferrari admitted that he had given Brad Zeitlin priority on property deals with DR Horton, but Ferrari was not truthful about the scope and number of DR Horton transactions in which Zeitlin had been involved. Ferrari also claimed that he and his wife had formed their limited-liability companies years before the transactions in question; in fact, however, the formation of those entities coincided with the business dealings DR Horton was scrutinizing. After Ferrari's meeting with the DR Horton representatives, DR Horton placed Ferrari on administrative leave without pay. DR Horton subsequently contacted third parties that it believed had information concerning Ferrari's conduct. Brad Zeitlin agreed to meet with DR Horton representatives to discuss real-property transactions involving DR Horton and Ferrari. Zeitlin was interviewed for over seven hours by a DR Horton attorney who questioned him about transactions in which he had participated with DR Horton and Ferrari. The DR Horton attorney told Zeitlin that it had 4 1130679 and 1130726 reviewed approximately 90,000 e-mails to or from Ferrari as part of its investigation. According to Whitehurst, who was also present during the interview, Zeitlin admitted that he had benefited financially from "tying up" property DR Horton wanted to purchase and then selling it to DR Horton. Whitehurst asserted that Zeitlin admitted that Ferrari had given him priority over other developers, including DR Horton, which allowed Zeitlin to purchase properties that DR Horton wanted. DR Horton terminated Ferrari's employment effective July 31, 2013, allegedly because Ferrari had repeatedly violated several policies of DR Horton as to confidentiality and the purchase of properties. On September 9, 2013, DR Horton filed a petition pursuant to Rule 27(a), Ala. R. Civ. P., in the Baldwin Circuit Court for preaction discovery against the Ferrari defendants. In 1 the petition, DR Horton alleged that Peter Ferrari had supplied confidential information to third parties and that those third parties had benefited financially from DR Horton's Rule 27(a), Ala. R. Civ. P., concerns discovery before 1 an action is filed; Rule 27(b), Ala. R. Civ. P., concerns discovery filed while an action is pending on appeal. 5 1130679 and 1130726 subsequent real-property acquisitions as a result of the confidential business information revealed to them by Ferrari. The petition also alleged that Peter and Kimberly Ferrari "may have received compensation" from the third parties "in exchange for the confidential information Pete Ferrari provided them" and that "the Ferraris may be holding this compensation in their personal bank accounts, in [limited- liability companies] managed or controlled by Pete Ferrari and Kimberly Ferrari, or other unknown entities." The petition stated that DR Horton sought preaction discovery as to this "possible compensation to further determine if causes of action exist against [the Ferrari defendants]." The petition stated that DR Horton "believes that multiple causes of action exist against [the Ferrari defendants]" and that "[t]he allowance of pre-suit discovery from the [Ferrari defendants] may prevent a failure or delay of justice and would benefit all parties by allowing production of relevant and material information, records, and documents, disclosing the identity(ies) of other parties to a potential lawsuit, or preventing a frivolous lawsuit if no claim exists against [the Ferrari defendants]." Attached to the petition were interrogatories, requests for production of documents, and notices for video depositions of the Ferrari defendants. The document requests sought 6 1130679 and 1130726 financial records, including personal bank-account statements, tax returns, and limited-liability-company records. On October 11, 2013, the Ferrari defendants filed their "Objection to Plaintiff's Verified Petition for Pre-suit Discovery and Motion to Dismiss." In their filing, the Ferrari defendants contended that DR Horton's petition was procedurally and substantively deficient under Rule 27(a). On October 24, 2013, DR Horton filed a motion requesting that the court set a hearing on its petition for preaction discovery. On October 30, 2013, without holding a hearing, the trial court entered an order granting DR Horton's petition for preaction discovery in all respects. On November 13, 2013, the trial court entered an order expressly denying DR Horton's motion for a hearing on its Rule 27(a) petition. On November 14, 2013, the Ferrari defendants filed what they styled as a "Motion for Reconsideration, Motion for Stay, for Protective Order, and Supporting Brief." The Ferrari defendants argued that the trial court erred in failing to hold a hearing on DR Horton's Rule 27(a) petition, and they reiterated the defects they believed were present in DR Horton's petition. On November 22, 2013, DR Horton filed 7 1130679 and 1130726 a response in which it contended that Rule 27 does not require a hearing on the merits of a petition. On March 25, 2014, the trial court held a hearing on the Ferrari defendants' motions filed November 14, 2013. In the hearing, the parties argued about whether DR Horton's Rule 27(a) petition demonstrated what was required in order to grant preaction discovery and whether a hearing on DR Horton's petition was required under the rule. DR Horton's counsel admitted in the hearing that DR Horton "could theoretically sue [Ferrari] for breach of fiduciary duty now. But, if he was making a profit and essentially taking bribes and kickbacks from this friend, then the causes of action increase exponentially." He further explained that "[w]hat we want to do is just determine, did he make any money off these transactions or not. That's in his financial records that we can talk to him about so we can sort out what those financial records say." He added: "What we're trying to do is, under Rule 11[, Ala. R. Civ. P.], just assess who are our defendants and what are our claims, and then we'll bring the action." Following further arguments by the parties concerning the propriety of DR Horton's petition, the Ferrari defendants' 8 1130679 and 1130726 counsel interjected that "there is a timing issue that I would like to address." Counsel for the Ferrari defendants proceeded to explain that they had filed their "motion for reconsideration on November 14, 2013, and that "the 90th day after we filed our motion would have been February the 12th, ...." Thus, the Ferrari defendants' counsel believed the motion had been denied by operation of law under Rule 59.1, Ala. R. Civ. P. After hearing more arguments concerning whether the trial court should have held a hearing on DR Horton's petition, the trial court stated: "Since the Court has failed to rule on the respondents' Motion to Reconsider Order and Motion for Protective Order, it's deemed [denied] by rule of law due to the Court's failure to rule within 90 days. So tomorrow is your last day to appeal." On the same day, March 25, 2014, the trial court entered an order granting the Ferrari defendants' request for a stay "of all matters currently pending before this court ... and all discovery in this case ... pending conclusion of the appeal that this court understands will be filed on or before tomorrow March 26, 2014, related to this Court's order granting the Petition for Rule 27 discovery as filed by [DR Horton] in this case." 9 1130679 and 1130726 On March 26, 2014, the Ferrari defendants simultaneously filed with this Court a petition for a writ of mandamus and an appeal challenging the trial court's October 30, 2013, order granting DR Horton's Rule 27 petition for preaction discovery. On April 8, 2014, the trial court entered an order confirming its understanding that the Ferrari defendants' "motion for reconsideration" had been denied "by operation of law due to the passage of more than ninety (90) days without a ruling as set forth in Rule 59.1 of the Alabama Rules of Civil Procedure." Nothing submitted to us indicates that the trial court expressly ruled upon the Ferrari defendants' motion for a protective order. II. Appeal or Mandamus The threshold issue for determination is whether the issues raised by the Ferrari defendants are properly before this Court by way of their petition for a writ of mandamus or their appeal. The Ferrari defendants purport to invoke both avenues of review in the alternative. The precursor to Rule 27 was a set of statutory provisions found at Title 7, §§ 491-505, Ala. Code 1940.2 Predecessors to these statutes date back to 1852. See 2 Ex parte Joiner, 258 Ala. 466, 468, 64 So. 2d 48, 50 (1953). 10 1130679 and 1130726 Noting that "[t]he remedy by appeal 'was entirely unknown to the common law'" and that, "[c]onsequently, the remedy by appeal in actions at law and in equity ... exists only when given by some constitutional or statutory provision," this Court in American Life Insurance Co. v. Powell, 259 Ala. 70, 76, 65 So. 2d 516, 522 (1953), was clear to the conclusion that disputes under Title 7, §§ 491-505, were reviewable only by mandamus: "[T]he resolvement of two questions presented will effectively dispose of this appeal. "The first question, a procedural one, calls for determination of the proper method of reviewing orders granting applications to perpetuate testimony under Title 7, Section 491 et seq., as amended, supra. Our conclusion is that such orders are not appealable, and that mandamus is a proper remedy." 259 Ala. at 72, 65 So. 2d at 518. Consistent with this Court's holding in Powell, we expressly held in Ex parte Renovations Unlimited, LLC, 59 So. 3d 679, 683 (Ala. 2010), that "review of a trial court's grant or denial of a verified petition seeking preaction discovery pursuant to Rule 27 is by a petition for a writ of mandamus." Indeed, since the holding of this Court in Powell, and fully consistent with this Court's express holding in 11 1130679 and 1130726 Renovations Unlimited, this Court and the Court of Civil Appeals typically have reviewed dispositions of Rule 27 petitions by way of mandamus petitions. See, e.g., Ex parte Psychemedics Corp., 987 So. 2d 585 (Ala. 2007); Vesta Fire Ins. Corp. v. Liberty Nat'l Life Ins. Co., 893 So. 2d 395, 411 (Ala. Civ. App. 2003) (addressing a petition for discovery pending appeal under Rule 27(b) and treating an appeal as a petition for a writ of mandamus); Ex parte Norfolk Southern Ry., 816 So. 2d 469 (Ala. 2001); Ex parte Alabama Dep't of Transp., 757 So. 2d 371 (Ala. 1999); and Ex parte Anderson, 644 So. 2d 961 (Ala. 1994). 3 "'An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights There have been a few cases, however, in which either 3 this Court or the Court of Civil Appeals proceeded to address on its merits an appeal of a Rule 27 order. See City of Mobile v. Howard, 59 So. 3d 41 (Ala. 2010); Albert P. Brewer Developmental Ctr. v. Brown, 782 So. 2d 770 (Ala. 2000); Stoor v. Turner, 727 So. 2d 38 (Ala. 1998); and Driskill v. Culliver, 797 So. 2d 495 (Ala. Civ. App. 2001). It does not appear, however, that the proper method of review was raised by the parties, or ex mero motu by the court, in any of these cases, and, unlike some of the cases addressing mandamus petitions, there was no discussion of the proper method of review in any of them. 12 1130679 and 1130726 of the parties.'" Hamilton ex rel. Slate-Hamilton v. Connally, 959 So. 2d 640, 642 (Ala. 2006) (quoting Palughi v. Dow, 659 So. 2d 112, 113 (Ala. 1995)). In contrast, an interlocutory judgment is "[a]n intermediate judgment that determines a preliminary or subordinate point or plea but does not finally decide the case." Black's Law Dictionary 971 (10th ed. 2014). A ruling on a request for preaction discovery under Rule 27(a) merely adjudicates a party's right to engage in certain discovery procedures and is quintessentially interlocutory in nature. Such a ruling does not adjudicate any substantive claim or right of any party. Instead, a ruling on a Rule 27(a) petition is made in contemplation of and in service to a potential future adjudication. Just as a postcomplaint discovery request under Rule 26, Ala. R. Civ. P., furthers the adjudication of a complaint, and the issues that have been or will be raised thereunder, so too does a precomplaint discovery request under Rule 27(a). The difference between the two is one of timing, not the nature of what is sought. 13 1130679 and 1130726 We acknowledge that federal appellate courts review dispositions of preaction-discovery petitions by way of appeal. See, e.g., Ash v. Cort, 512 F.2d 909, 912 (3d Cir. 1975) (finding that "[t]he Rule 27(a) order is deemed final because it is the only matter pending in the district court at a time when no complaint has yet been filed"); Mosseller v. United States, 158 F.2d 380, 383 (2d Cir. 1946) (concluding that an "order authorizing the taking of the deposition is a final order for the purpose of appealability, because it grants all the relief sought in the petition and disposes of the proceeding"). Some states have followed the federal example in this regard. See, e.g., Gernstein v. Lake, 259 Neb. 479, 484, 610 N.W.2d 714, 718 (2000) (concluding that "the order granting the Gernsteins' petition to perpetuate testimony under rule 27 is a final, appealable order"); Powers v. Planned Parenthood of Northern New England, 677 A.2d 534, 536 (Me. 1996) (citing Mosseller and other federal cases in support of the conclusion that orders on preaction-discovery petitions are appealable); and Bainum v. Mackay, 15 Utah 2d 295, 296, 391 P.2d 436, 436 (1964) (holding that "[t]his type of judgment is appealable" and citing Mosseller). 14 1130679 and 1130726 As noted, however, whenever this Court has affirmatively addressed the issue, we have been consistent and clear in holding that the proper method of review is a petition for a writ of mandamus. Moreover, other states have taken the position that orders on preaction-discovery petitions are not subject to appeal. In reaching this conclusion, an Illinois appellate court explained: "Thus, rather than constituting a separate and independent action, a Rule 217 [Illinois's version of Rule 27] proceeding is dependent upon the proposed suit and must be viewed as part of that action. Since a Rule 217 petition seeks no relief other than to take a deposition for use in a contemplated action, an order entered in the course of the deposition is interlocutory and is subject to review only upon appeal from final judgment in the underlying cause." Frye v. Massie, 115 Ill. App. 3d 48, 53, 450 N.E.2d 411, 414-15, 70 Ill. Dec. 938, 941-42 (1983). Likewise, the Supreme Court of Nevada rebuffed an appellant's argument that a ruling on a preaction-discovery request "constitutes a final judgment because it disposes of the issues presented," explaining: "Although entitled a 'petition, 'a pleading filed pursuant to NRCP 27 does not commence a separate action in the district court; instead, the sole purpose of the petition is to perpetuate testimony when no action may presently be commenced. Further, 15 1130679 and 1130726 an order resolving a petition to perpetuate testimony provides no relief to a party other than to permit or deny discovery to the party for use in a contemplated action. ... An order granting or denying a petition to perpetuate testimony is interlocutory in nature and does not adjudicate the rights of any party." Sunrise Hosp. v. Dailey, 109 Nev. 950, 951, 860 P.2d 162, 162-63 (1993). We consider such reasoning to be sound and to align with this Court's frequently expressed understanding of what constitutes a final, appealable judgment. Accordingly, we conclude that the proper avenue for seeking review of a trial court's disposition of a Rule 27(a) petition for preaction discovery is by way of petition for a writ of mandamus, not by way of appeal. The Ferrari defendants' appeal of this matter is therefore dismissed. Possibly because of confusion over the proper avenue for seeking appellate review of this matter, neither party has raised the issue of the timeliness of the Ferrari defendants' petition for a writ of mandamus. This Court has stated that "a petition challenging an order compelling discovery is timely only if (1) a protective order is sought, pursuant to Ala. R. Civ. P. 26(c), within the time set for compliance with the order, Ex parte Orkin, Inc., 960 So. 2d 635, 640 n.5 (Ala. 2006) (citing with approval Wang v. Hsu, 919 F.2d 130, 131 (10th Cir. 1990)), and (2) the mandamus petition is 16 1130679 and 1130726 filed no more than 42 days after the denial of the protective order. 960 So. 2d at 640." Ex parte Meadowbrook Ins. Grp., Inc., 987 So. 2d 540, 546 (Ala. 2007). When the Ferrari defendants filed their "motion for reconsideration" on November 14, 2013, they also requested a stay of all proceedings and the issuance of a protective order. The trial court expressly granted the Ferrari defendants' motion for a stay of proceedings during this Court's review of the trial court's disposition of DR Horton's Rule 27(a) petition, but it did not expressly rule on the motion for a protective order. On April 8, 2014, the trial court belatedly ruled on the Ferrari defendants' "motion for reconsideration," finding that it had been denied by operation of law on February 12, 2014. Of course, because the trial court's order granting preaction discovery was not a final order, the Ferrari defendants' "motion for reconsideration" was not a postjudgment motion under Rule 59, Ala. R. Civ. P., and, therefore, it was not denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.. Be that as it may, the trial court implicitly denied the Ferrari defendants' motion for a protective order when it denied their "motion for 17 1130679 and 1130726 reconsideration." Regardless of whether the motion for a protective order was denied on February 12, 2014, or on April 8, 2014, the Ferrari defendants' petition to this Court was timely filed within 42 days of the denial of the order. III. Analysis "'"A writ of mandamus is an extraordinary remedy that requires a showing of (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on 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 Bruner, 749 So. 2d 437, 439 (Ala. 1999) (quoting Ex parte McNaughton, 728 So. 2d 592, 594 (Ala. 1998))." Ex parte Norfolk Southern Ry., 816 So. 2d at 471. A. Necessity of a Hearing The Ferrari defendants first contend that the trial court erred in granting DR Horton's Rule 27(a) petition because, they say, Rule 27 requires a trial court to hold a hearing on a preaction-discovery petition before it rules on the petition and that the trial court did not do so. The Ferrari defendants note that Rule 27(a)(2) states that after a petitioner files its petition with the circuit court, 18 1130679 and 1130726 "[t]he petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least thirty (30) days before the date of hearing the notice shall be served in the manner provided in Rule 4(c) for service of summons ...." Rule 27(a)(2), Ala. R. Civ. P. (emphasis added). The Ferrari defendants also observe that, in nearly every case in which this Court has reviewed a Rule 27(a) petition, the Court has noted that the trial court held a hearing on the petition. See, e.g., Ex parte Renovations Unlimited, LLC, 59 So. 3d at 682; City of Mobile v. Howard, 59 So. 3d 41, 43 (Ala. 2010); Ex parte Norfolk Southern Ry., 816 So. 2d at 471; and Ex parte Anderson, 644 So. 2d at 962. Likewise, federal courts interpret Rule 27, Fed. R. Civ. P. ("Federal Rule 27"), as requiring a hearing on a preaction-discovery petition. See, 4 e.g., Petition of Delta Quarries & Disposal, Inc., 139 F.R.D. 68, 68 (M.D. Pa. 1991) (stating that, "as required by the rule, a hearing was scheduled to determine whether the Rule 27(a)(2), Fed. R. Civ. P., begins as follows: "At 4 least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing." 19 1130679 and 1130726 'perpetuation of the testimony may prevent a failure or delay of justice.' Fed. R. Civ. P. 27(a)(3)"). Lastly, the Ferrari defendants note that on October 24, 2013, DR Horton itself filed a motion to set a hearing on its Rule 27(a) petition. For its part, DR Horton argues that "[t]he rule does not say that there must be a hearing." It contends that the parties were able to present all of their arguments in written form to the trial court. DR Horton observes that, even though several cases from this Court reviewing preaction-discovery petitions recount that the trial courts in those cases held hearings on the petitions, none of our cases expressly state that Rule 27 requires that a hearing be held. It highlights two opinions from this Court, Ex parte Psychemedics Corp., 987 So. 2d at 587, and Albert P. Brewer Developmental Ctr. v. Brown, 782 So. 2d 770, 771 (Ala. 2000), in which the Court did not state that a hearing was held by the trial courts that entertained the Rule 27(a) petitions. DR Horton discounts 5 Federal Rule 27 by pointing to the fact that this Court observed in Ex parte Anderson that there were differences In their reply brief, the Ferrari defendants attach a 5 copy of the case-action summary from Psychemedics, which indicates that a hearing was held in that action. 20 1130679 and 1130726 between Alabama's Rule 27 and its federal counterpart. 644 So. 2d at 964. DR Horton insists that it filed a motion to set a hearing on its petition "out of an abundance of caution," not because the rule requires such a hearing. Finally, DR Horton contends that even if Rule 27(a) does require a hearing, the Ferrari defendants received one on March 25, 2014, when the trial court heard arguments on the Ferrari defendants' "motion for reconsideration." A plain reading of Rule 27(a)(2) indicates that a hearing must be held on a petition for preaction discovery. The time for filing the notice that a petitioner must provide to persons named in a petition is predicated on a contemplated hearing date, and the notice itself is supposed to include the date for the hearing. Although it is true that the Anderson Court observed that Alabama's Rule 27 is different in certain respects from Federal Rule 27, the Anderson Court was not referring to the requirement that a hearing be held on a petition for preaction discovery when it made that observation. The references to a hearing in subsection (a) of both Federal Rule 27 and the Alabama rule are very similar and therefore the practice in federal courts is helpful to our 21 1130679 and 1130726 interpretation of Rule 27(a) as to whether a hearing is required. The fact that our previous cases have not stated that a hearing is required simply reflects the fact that the issue has not been directly raised; it is telling that a hearing has been held regarding almost all, if not all, preaction-discovery petitions this Court has reviewed before this one. The March 25, 2014, hearing on the Ferrari defendants' "motion for reconsideration" was not a substantive substitute for a hearing on DR Horton's preaction-discovery petition. Although in that hearing the trial court heard arguments about the merits of the petition, the trial court concluded the hearing soon after it was brought to the court's attention that the Ferrari defendants believed that the "motion for reconsideration" already had been denied by operation of law. It is clear that the trial court did not evaluate in the March 25, 2014, hearing the merits of the parties' arguments as to whether DR Horton was entitled to preaction discovery.6 In fact, the trial court's October 30, 2013, order 6 granting DR Horton's preaction-discovery petition leaves some doubt as to whether the trial court even considered the Ferrari defendants' written arguments in response to the petition. In pertinent part, that order stated: "This matter having come before the Court, and the Court having reviewed 22 1130679 and 1130726 Instead, the trial court simply ruled that the "motion for reconsideration" had already been denied. We conclude that the trial court erred in failing to hold a hearing on DR Horton's Rule 27(a) petition before granting the petition. Although this conclusion is sufficient to warrant a vacatur of the trial court's order and an order from this Court requiring the trial court to conduct such a hearing, we note that the Ferrari defendants have raised other possible errors in the trial court's ruling that, for the sake of judicial economy, necessitate further review by this Court. B. The Unavailability of Written Interrogatories The Ferrari defendants argue that the trial court erred in allowing DR Horton to serve written interrogatories on the Ferrari defendants because, they say, Rule 27(a) does not appear to contemplate that such discovery is available in preaction discovery. DR Horton does not respond to this argument. As noted above, Rule 27(a)(1) states, in part: the Petition for Pre-Suit Discovery Pursuant Rule 27 of the Alabama Rules of Civil Procedure filed by [DR Horton], for good cause shown, it is hereby GRANTED" (capitalization in original). 23 1130679 and 1130726 "A person who desires to perpetuate that person's own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party." (Emphasis added.) Likewise, Rule 27(a)(3) states, in part: "If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a). The discovery may then be taken in accordance with these rules." (Emphasis added.) Rule 27(a) contemplates discovery that includes deposition testimony; discovery under Rule 34, which includes the production of documents (as well as the examination of real property and other tangible things); and 7 Rule 34(a), Ala. R. Civ. P., provides: 7 "(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect, copy, test, or sample any designated documents or electronically stored information (including writings, drawings, 24 1130679 and 1130726 discovery under Rule 35, which pertains to mental and physical examinations. Rule 27(a) does not mention the availability 8 of discovery by written interrogatories or Rule 33, Ala. R. Civ. P., which concerns discovery by way of written graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect, copy, test, or sample any designated tangible things that constitute or contain matters within the scope of Rule 26(b) and that are in the possession, custody, or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b)." Rule 35(a), Ala. R. Civ. P., provides: 8 "(a) Order for examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." 25 1130679 and 1130726 interrogatories. The trial court therefore erred in ordering the Ferrari defendants to respond to the written interrogatories. C. The Perpetuation of Evidence under Rule 27 1. The Perpetuation of Testimony Next, the Ferrari defendants contend that the trial court erred by ordering them to submit to depositions and to produce documents that were not sought by DR Horton for the overarching purpose stated in Rule 27(a) of preserving evidence to prevent a failure or delay of justice. With respect to the issue of deposition testimony, we note that Rule 27(a)(1) provides, in pertinent part: "A person who desires to perpetuate that person's own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition. ... The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, ... (3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner's reasons for desiring to perpetuate it, ... and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony or to seek discovery under Rule 34 or Rule 35 from the persons named in the petition." 26 1130679 and 1130726 (Emphasis added.) Similarly, Rule 27(a)(3) provides, in part: "If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions ...." (Emphasis added.) Thus, Rule 27(a) repeatedly frames the authority granted therein in the context of preservation, or "perpetuation." DR Horton did not offer in its petition, and it does not attempt to offer in response to the Ferrari defendants' mandamus petition, any reason it needs to perpetuate the testimony of the Ferrari defendants. Instead, DR Horton openly stated in its Rule 27(a) petition and at the March 25, 2014, hearing that it sought preaction discovery to determine what other causes of action it may have against the Ferrari defendants besides breach of fiduciary duty against Peter Ferrari. DR Horton cites Ex parte Anderson for its right to such preaction discovery. Anderson itself stated, however, that only preaction discovery under Rules 34 and 35, and not deposition testimony, may be compelled for reasons other than perpetuation of 27 1130679 and 1130726 evidence. 44 So. 2d at 962-63. DR Horton did not allege in its Rule 27(a) petition, nor does it argue in its response to the Ferrari defendants' petition for a writ of mandamus, that the deposition testimony it seeks is in danger of being lost. This is not surprising because DR Horton does not seek deposition testimony for the purpose of perpetuating evidence. Therefore, the trial court erred in ordering the Ferrari defendants to submit to depositions absent a showing by DR Horton that it has a need to preserve their testimony. 2. The Perpetuation of Evidence Pursuant to Rule 34 The Ferrari defendants expressly ask this Court to overrule Ex parte Anderson to the extent that it held that preaction discovery under Rules 34 and 35 may be sought for reasons other than the preservation or "perpetuation" of evidence. Among other things, the Ferrari defendants point to Rule 27(a)(3), which, they contend, expressly conditions the availability of discovery under Rule 34 and 35 as follows: "If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall ... make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a)." 28 1130679 and 1130726 (Emphasis added.) The Ferrari defendants also note that the reading of Rule 27(a) in Anderson is contrary to the Committee Comments to that rule: "[T]his rule has been modified [from the federal rule] to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules." (Emphasis added.) (a) The Statutory Precursor to Rule 27 Over the last 160 years, there has been very little decisional law interpreting or applying Rule 27(a), Ala. R. Civ. P., and the statutes that preceded its adoption in 1973. Commenting on those precursor statutes, this Court observed in 1953: "During a period of almost one hundred years, as we have heretofore shown, most of the provisions codified as §§ 491–505, Title 7, Code 1940, were part of the statutory law of this state and were resorted to so infrequently that only three cases, according to our research, reached this court wherein they were directly involved. Consequently, there is very little decisional law on the subject." Ex parte Joiner, 258 Ala. 466, 469, 64 So. 2d 48, 50 (1953). Since 1953, there have been only a handful of additional decisions interpreting Rule 27 or its statutory precursors, one of which, of course, was Anderson. 29 1130679 and 1130726 Insight into the statutes that were the precursors of Rule 27 was provided by this Court in American Life Insurance Co. v. Powell, 259 Ala. at 72, 65 So. 2d at 518, a case decided on the same day as Joiner: "The second question [before us] involves the sufficiency of the affidavits made pursuant to Section 492, Title 7. Specifically, we must decide what is intended by the requirement of Section 492 that 'The applicant must make affidavit before a circuit or probate judge, or register stating ... the facts generally expected to be proved by the witness.' ... Our view is that the affidavits do not meet the requirements of Section 492; that the applications clearly show that the purpose of each is discovery, which is not within the purview of the statutes, supra, authorizing the perpetuation of testimony; and that the judge of the circuit court erred in granting the applications." (Emphasis omitted; emphasis added.) (b) The Text of Rule 27 and the Committee Comments Rule 27 was adopted in 1973; its text has not changed substantively since that time. At this juncture, it is helpful to set out the text of Rules 27(a)(1) and (3) in their entirety: "(1) Petition. A person who desires to perpetuate his own testimony or that of another person or to obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be 30 1130679 and 1130726 entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and his interest therein, (3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner's reasons for desiring to perpetuate it, (4) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony or to seek discovery under Rule 34 or 35 from the persons named in the petition. ".... "(3) Order And Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a). The discovery may then be taken in accordance with these rules. For the purpose of applying these rules to discovery before action, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such discovery was filed." 31 1130679 and 1130726 (Emphasis added.) The original Committee Comments, as adopted by this Court along with Rule 27 itself in 1973, read as follows: "This rule is virtually identical with the corresponding federal rule. Certain 'awkward form' has been eliminated. See Vermont Rule 27, 8 Wright & Miller, Federal Practice and Procedure, Civil, § 2074 (1970).[ ] The only change in substance is 9 extending the time for notice in Rule 27(a)(2) from 20 to 30 days. "This rule supersedes Code of Ala., Tit. 7, §§ 491-505. The rule is similar to the statute –- compare Rule 27(a)(1) 1 with Code of Ala., Tit. 7, § 492 –- in requiring the petition to state the facts which the petitioner desires to establish by the proposed testimony. The statute had been interpreted as requiring 'a narrative of the testimony to be given by the witness.' American Life Ins. Co. v. Powell, 259 Ala. 70, 78, 65 So. 516 (1953). The rule is intended to be somewhat more Section 2074, Federal Practice & Procedure, quotes with 9 approval from Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961): "'The purpose is to make Rules 34 and 35 applicable in proceedings to perpetuate testimony. Common sense says that there will be cases in which they should be applicable where a deposition is not necessary or appropriate. It may frequently occur that the only thing likely to be lost or concealed is a paper or object that should be subject to inspection, etc., under Rule 34, or the physical or mental condition of a party, who should be subject to physical or mental examination by a physician under Rule 35.'" (Emphasis added.) 32 1130679 and 1130726 liberal and to permit the facts to be stated in a brief, generalized form, as distinguished from a particularized and detailed statement of the proposed testimony. But the difference is one of degree only, since all agree that the purpose of the rule, like that of the statute it will supersede, is to perpetuate testimony rather than to make discovery. See Wright & Miller, Federal Practice and Procedure, Civil. § 2071 (1970).[ ]" 10 Section 2071 states as follows: 10 "The scope of discovery available under this rule is not as broad as that provided for discovery generally under Rule 26. Rule 27 is intended only for the perpetuation of testimony or other evidence. It is drafted "'to apply to situations where, for one reason or another, testimony might be lost to a prospective litigant unless taken immediately, without waiting until after a suit or other legal proceeding is commenced. Such testimony would thereby be perpetuated or kept in existence and, if necessary, would be available for use at some subsequent time.' "[Petition of Ferkauf, 3 F.R.D. 89, 91 (S.D. N.Y. 1943).] "At first, some concern was expressed that this rule might be used for the purpose of discovery before action is commenced and might enable a person to fish for some ground for bringing suit. The early commentators agreed that this was not the purpose of the rule, and, despite an occasional intimation to the contrary, the courts have generally agreed that to allow Rule 27 to be used for this purpose would be an 'abuse of the rule.' [Martin v. Reynolds Metals Corp., 297 F.2d 49, 55 (9th Cir. 1961)]." 33 1130679 and 1130726 (Emphasis added.) Beginning in 1986, the committee that drafted Rule 27 and the original Committee Comments to that rule met and considered the issue whether Rule 27 allowed preaction discovery other than for the purpose of preserving evidence. Former Justice Lyons explains the intent of the rule and the result of those meetings in his treatise, Alabama Rules of Civil Procedure Annotated: "When this rule was promulgated it was viewed by the advisory committee as a device for amassing of evidence prior to the institution of an action or pending appeal but, it was not, in the recollection of the author, considered as a vehicle for discovery before commencement of an action in order to determine whether a cause of action exists. "During a series of committee meetings covering a span of approximately one year and commencing in 1986, the committee considered the issue of whether Ala. R. Civ. P. Rule 27 allowed pre-action discovery independent of the need to perpetuate evidence. At its meeting on April 24, 1987, the Committee concluded that 'it was the consensus of the committee that Rule 27 of the Alabama Rules of Civil Procedure does not authorize discovery in advance of the filing of an action except under very limited circumstances.' Minutes of the Advisory Committee, April 27, 1986. The committee then approved the submission to the Supreme Court of revised comments including what now appears as the final paragraph of the Committee Comments. The final paragraph (Emphasis added; footnotes omitted.) 34 1130679 and 1130726 concludes that the reference to discovery under Rules 34 and 35 is for the purpose of perpetuating evidence. The Supreme Court approved and adopted this revision to the comments by order entered on April 5, 1988." 1 Champ Lyons, Jr., and Ally Windsor Howell, Alabama Rules of Civil Procedure Annotated 27.1 (4th ed. 2004). The revision to the Committee Comments that resulted from the committee's work and that was adopted by the Supreme Court in 1988 includes the following: "As is true of the corresponding federal rule, the primary purpose of Rule 27, like that of the state statutes it superseded, is to perpetuate testimony rather than to make discovery. "See 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2071 (1970). "However, this rule has been modified to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules. This rule permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not testimony is perpetuated. See Vermont Rule 27; 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2074 (1970)." (Emphasis added.) (c) Anderson The Court in Anderson held that preaction discovery under Rule 34 may be granted for reasons other than perpetuation of 35 1130679 and 1130726 evidence. The Anderson Court stated: "Rule 27, on its face 11 and stripped of its historical background, does not restrict discovery under Rule 34 to cases where evidence is in danger of being lost or destroyed." 644 So. 2d at 962. The Anderson Court further concluded that Rule 27 "specifically authorizes 'discovery under Rule 34,' without limiting the use of Rule 34 to that of perpetuating evidence." 644 So. 2d at 964. In what is perhaps the most cited passage from the Anderson opinion, the Court stated: "Although Alabama Rule 27 does not give a potential plaintiff 'carte blanche' to 'fish' for a ground for filing an action, it nonetheless provides for preaction 'discovery under Rule 34,' regardless of any need to perpetuate evidence, provided that the requirements of the rule are met and that the trial court is satisfied that such discovery might serve to prevent a failure or delay of justice." 644 So. 2d at 964. The Anderson Court also addressed the matter of the Committee Comments, explaining: The Anderson Court did not specifically address 11 discovery under Rule 35 because such discovery was not requested by the plaintiff in that case. Rule 27 provides for discovery under Rule 35, which allows physical and mental examinations of a party, under the same circumstances in which it provides for discovery under Rule 34, however. 36 1130679 and 1130726 "Although the purpose of the Committee Comments is to explain and clarify the Rules of Civil Procedure, the Committee Comments to Rule 27 actually raise more questions than they answer. For instance, the comments state that Rule 27 is patterned after Federal Rule 27 and Vermont Rule 27 and that the rule's 'primary' purpose is to perpetuate testimony. This statement with respect to the rule's 'primary' purpose probably resulted from the fact that the statutes that the rule superseded focused exclusively on perpetuating testimony. However, although the commentators acknowledged in the third paragraph [of the Committee Comments as amended in 1988 ] that the rule had been changed so 12 as to allow limited preaction discovery under Rule 34, they stated, nonetheless, and with no supporting language from the rule itself, that that discovery was limited to perpetuating evidence. While we are fully aware of the statement of purpose contained in the comments to Rule 27, we cannot give precedence to that statement over the otherwise clear language contained in the rule. Simply put, Rule 27 speaks for itself." 644 So. 2d at 963 (emphasis added). Thus, the Anderson Court held that "clear language" in Rule 27(a) overrode the conflicting explanation of the rule in the Committee Comments and dictated that preaction discovery of documents under Rule 34, and, by implication, physical and mental examinations under Rule 35, could be sought by a prospective plaintiff for the purpose of facilitating the discernment and evaluation of The referenced paragraph is quoted in this opinion in 12 the text at the end of Section III.C.2.(b), above. 37 1130679 and 1130726 potential claims rather than for only the perpetuation of evidence. Since Anderson was decided in 1994, there have been only five occasions in which this Court has reviewed trial court rulings on Rule 27(a) petitions that sought preaction discovery for reasons other than perpetuation of evidence. In none of those cases was the question raised as to whether Anderson correctly interpreted Rule 27(a) in this regard. In 2007, for example, this Court applied Anderson's holding in Ex parte Psychemedics Corp., 987 So. 2d 585 (Ala. 2007), but specifically observed that "Psychemedics's mandamus petition does not ask this Court to revisit its decision in Ex parte Anderson." 987 So. 2d at 588. 13 The opinion in Ex parte Renovations Unlimited, LLC, 59 13 So. 3d 679, 683 (Ala. 2010), quoted the holding in Anderson. That opinion, however, also implied -- and a review of the mandamus petition filed in the case confirms -- that the mandamus petitioners did not ask for Anderson to be overruled. Instead, they succeeded before this Court by arguing merely that the Rule 27 petitioners had affirmatively relinquished their right to pursue legal action against the mandamus petitioners "by executing [a] release and thus no longer have 'an action cognizable in a court of this state' as required by Rule 27(a)(1)." 59 So. 3d at 683. This Court agreed with the mandamus petitioners, and it ordered the trial court to dismiss the petition for preaction discovery on this basis. Likewise, the opinion in City of Mobile v. Howard, 59 So. 3d 41 (Ala. 2010), suggests -- and a review of the mandamus 38 1130679 and 1130726 (d) Anderson Revisited Today, as noted, we have been asked to revisit Anderson. Upon reexamination of the text of Rule 27 itself, the Committee Comments thereto, and the history of both the rule and the Committee Comments, we respectfully must reject the notion that "clear language" in Rule 27(a) dictates that discovery under Rule 34 (and of necessity Rule 35, which in all instances in Rule 27 is referenced in companionship with Rule 34) may be obtained for reasons other than perpetuation of evidence. As noted, Rule 27(a)(1) begins as follows: "A person who desires to perpetuate that person's own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this petition filed in the case confirms -- that the mandamus petitioners did not ask for Anderson to be overruled. Instead, the Howard Court reversed the trial court's Rule 27 order based on the statutory privilege afforded by § 12–21–3.1, Ala. Code 1975, and its conclusion that Howard failed to demonstrate that she "has never tried to obtain the information she seeks from any source other than the City and has failed to demonstrate that she is unable to obtain that information from other sources without undue hardship." 59 So. 3d at 48. See also Albert P. Brewer Developmental Ctr. v. Brown, 782 So. 2d 770 (Ala. 2000) (dismissing the proceeding before us as moot); Ex parte Alabama Dep't of Transp., 757 So. 2d 371, 373-74 (Ala. 1999) (reversing the trial court's Rule 27 order on the ground that a federal statute protected the information sought from discovery). 39 1130679 and 1130726 state may file a verified petition in the circuit court in the county of the residence of any expected adverse party." (Emphasis added.) Admittedly, this language, at least considered in isolation, could be interpreted as meaning that a person seeking testimony under Rule 27(a) may do so only if he or she "desires to perpetuate that person's own testimony or that of another person" but that a Rule 27(a) petitioner seeking discovery under Rule 34 or Rule 35 may do so free of this condition. The language does not require such a reading, however, especially in light of its history, the Committee Comments adopted by this Court, and the text of Rule 27 taken as a whole. Indeed, these factors and others compel us to conclude that the language is due a different construction. First, the structure of the sentence -- the use of two separate infinitive phrases separately referencing deposition testimony and discovery under Rules 34 and 35 -- can be explained rather simply (especially in light of the language of Rule 27(a)(3) discussed below) as an inartful attempt to address an issue that at one time plagued Federal Rule 27, i.e., whether a petitioner may obtain preaction discovery under Rules 34 and 35 only in conjunction with the taking of 40 1130679 and 1130726 deposition testimony. See Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961). In point of fact, this is exactly what the 1988 revision to the Committee Comments to Rule 27 explicitly point to as the import of this particular language: "[T]his rule has been modified to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules. This rule permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not testimony is perpetuated. See Vermont Rule 27; 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2074 (1970)." (Emphasis added.) To like effect are the Reporter's Notes to Rule 27, Vermont R. Civ. P., a rule cited in the foregoing passage from the Committee Comments and which both the Committee Comments and the Anderson Court agree was a model for Alabama's rule: "This rule is based on Federal Rule 27, as modified to fit requirements of state practice. The procedure under it is the equivalent of that under 12 V.S.A. §§ 1281-1286 (now superseded), with the principal difference that the rule also permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not a deposition is taken. In this respect the rule clarifies an ambiguity in the federal rule. See 8 Wright & Miller, Federal Practice and Procedure § 2074 (1970)." 41 1130679 and 1130726 (Emphasis added.)14 Similar to the language of our Rule 27(a)(1), Vermont's 14 Rule 27(a)(1) begins by stating: "A person who desires to perpetuate testimony or to obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court of the state may file a verified petition ...." Vt. R. Civ. P. 27. The Anderson Court observed that "[i]n In re Burlington Bagel Bakery, Inc., 150 Vt. 20, 22, 549 A.2d 1044, 1045 (1988), the Vermont Supreme Court noted: "'V.R.C.P. gives the presiding judge discretion to grant a petition for preaction discovery if he or she "is satisfied that the perpetuation of the testimony or other discovery may prevent a failure or delay of justice."'" 644 So. 2d at 965. Nonetheless, the Anderson Court reasoned: "Burlington Bagel Bakery suggests to us that if the question was presented squarely to it, the Vermont Supreme Court might treat Vermont Rule 27 as a preaction discovery device available for purposes other than the perpetuation of evidence, if the production of the evidence would 'prevent a failure or delay of justice.'" 644 So. 2d at 965 (emphasis added). The Anderson Court's quotation from Burlington Bagel Bakery is nothing more than the Vermont Supreme Court quoting a portion of Vermont's Rule 27, not an explication of the rule. The Burlington Bagel Bakery court expressly "d[id] not reach the merits of this appeal," and instead it reversed the judgment of the trial court on the ground that the hearing on the matter was incomplete because "no evidence was given by either party as to the truth of petitioner's allegation." 150 Vt. at 22-23, 42 1130679 and 1130726 Furthermore, we find it particularly difficult to avoid the clear language in the Committee Comments, as discussed by Justice Lyons and quoted and emphasized in Section III.C.2.(b), above. Again, the 1988 revised Committee Comments resulted from meetings specifically held for the purpose of explaining the original, intended meaning of the very language of the rule at issue here. The result was language explicitly stating that Rule 27 was drafted "to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules." And, of course, this Court adopted these revised Committee Comments. In addition to the history of the rule and the express guidance provided by the same committee that originally drafted it, Rule 27 must be read as an integrated whole. In particular, the provisions of Rule 27(a)(1) must be read in pari materia with those of Rule 27(a)(3). See, e.g., Ex parte Jackson, 614 So. 2d 405, 406 (Ala. 1993) (observing that "[s]ubsections of a statute are in pari materia and 'should be 549 A.2d at 1045. Moreover, Burlington Bagel Bakery was a case in which the petitioner sought to depose the co-owner of a bakery "in order to perpetuate testimony to guard against the 'fading memories of the parties.'" In re Burlington Bagel Bakery, Inc., 150 Vt. at 21, 549 A.2d at 1044. 43 1130679 and 1130726 construed together to ascertain the meaning and intent of each'" (quoting McCausland v. Tide-Mayflower Moving & Storage, 499 So. 2d 1378, 1382 (Ala. 1986))). The pertinent portion of Rule 27(a)(3) reads as follows: "If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a)." (Emphasis added.) Whatever else Rule 27(a)(3) may require, it is clear that it begins by expressly conditioning discovery, including discovery under Rules 34 and 35, on "the court['s being] satisfied that the perpetuation of the testimony may prevent a failure or delay of justice." See Driskill v. Culliver, 797 So. 2d 495, 497 (Ala. Civ. App. 2001) (stating that "[t]he trial court's duty was to determine if discovery of the requested information might 'prevent a failure or delay of justice'" in an action by an inmate seeking preaction discovery of documents). Thus, the language of Rule 27(a) does not "clearly" provide for discovery under Rules 34 and 35 44 1130679 and 1130726 for reasons other than the perpetuation of evidence. To the contrary, the only construction of that rule that is consistent with its history, with the Committee Comments adopted by this Court, and with an in pari materia reading of the language in subsections (a)(1) and (a)(3) of the rule is that Rule 27 was intended merely to make discovery of documents and mental and physical examinations available under the same circumstances or conditions under which it makes deposition testimony available. To the extent there is any language in Rule 27(a)(1) that confuses the issue, that language represents nothing more than an attempt to express the idea that documents and examinations can be procured without also taking a deposition. (e) Yet Further Considerations To the foregoing can be added several other considerations that are by no means necessary for the conclusion reached above, but that do add even more support for it. First, we see no reason to believe that the drafters of Rule 27 would have intended to provide for more liberal access to preaction physical and even mental examinations (given the consistent coupling of references to Rules 34 and 45 1130679 and 1130726 35 throughout Rule 27) than to the perpetuation of deposition testimony. Second, as noted, former Justice Lyons in his treatise, Alabama Rules of Civil Procedure Annotated, provides an unequivocal and clear explication of the intent of Rule 27 itself and of the 1988 revision to the Committee Comments explaining that rule. See Section III.C.2.(b), supra. To that explication may be added the following statement by Justice Lyons, who was not a member of the Court when Anderson was decided: "I do not wish to be understood to embrace the holding of Ex parte Anderson, 644 So. 2d 961, 965 (Ala. 1994). Rule 27 does not provide a vehicle for pre-action discovery to determine whether a cause of action exists. Instead, as the Committee Comments to Rule 27 state, that rule allows only pre-action discovery 'under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules.' (Emphasis added.)" Stoor v. Turner, 727 So. 2d 38, 40 (Ala. 1998) (Lyons, J., concurring in part and dissenting in part as to the rationale and concurring in the result). As already noted, aside from Vermont's comparable rule, the other model for Alabama's Rule 27 was Federal Rule 27. It is clear from federal authorities that "Rule 27 is intended 46 1130679 and 1130726 only for the perpetuation of testimony or other evidence." 8A Charles Alan Wright et al., Federal Practice & Procedure § 2071 (2010).15 Several states have adopted Federal Rule 27 verbatim, along with the view that Rule 27 exists only for perpetuation The Anderson Court correctly observed that Alabama's 15 Rule 27 is different than Federal Rule 27, but whether it is as "significantly different" as the Anderson Court asserted, see 644 So. 2d at 965, is another matter. Rule 27(a)(3), Fed. R. Civ. P., provides, in part: "If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35." Despite this wording, as the Anderson Court itself observed, "[i]t seems to be generally understood now among the federal courts and among legal scholars that the objective of Federal Rule 27 is to perpetuate testimony and evidence in danger of being lost or destroyed, for use in a prospective action, and that, to the extent that use of Federal Rule 34 will serve to preserve evidence, it should be available regardless of whether it is used in conjunction with the taking of a deposition." Ex parte Anderson, 644 So. 2d at 964 (emphasis added). 47 1130679 and 1130726 of testimony and evidence. In other states, the language of 16 preaction-discovery rules differs from Federal Rule 27, but those states likewise interpret their rules as not sanctioning any broader confirmatory or investigatory uses of preaction discovery. The language of New York's rule allows for 17 broader discovery, see N.Y. Civil Practice Law and Rules 3102(c), but even the New York courts have limited that state's rule so that the rule cannot be used by a party to See, e.g., Rule 27, Haw. R. Civ. P.; Rule 27(a)(1)-(c), 16 Idaho R. Civ. P.; Rule 27, Me. R. Civ. P.; Rule 27, Mass. R. Civ. P.; Rule 27.01-03, Minn. R. Civ. P. Dist. Ct.; Rule 57.02, Mo. R. Civ. P.; Rule 27(a)-(c), Mont. R. Civ. P.; Rule 27, Neb. R. Civ. P.; Rule 1-027, N.M. R. Civ. P. Dist. Ct.; Rule 27, S.C. R. Civ. P.; Rule 27, Utah R. Civ. P.; Rule 27, Wash. Super. Ct. Civ. R.; and Rule 27, W. Va. R. Civ. P. See, e.g., McNett v. Alyeska Pipeline Servs. Co., 856 17 P.2d 1165, 1168-69 (Alaska 1993) (discussing Rule 27, Alaska R. Civ. P.); Block v Superior Court, 219 Cal. App. 2d 469, 33 Cal. Rptr. 205 (1963) (discussing Cal. Code Civ. § 2035.010); Rozek v. Christen, 387 P.2d 425 (Colo. 1963) (discussing Rule 27, Colo. R. Civ. P.); Frye v. Massie, 115 Ill. App. 3d 48, 450 N.E.2d 411, 70 Ill. Dec. 938 (1983) (discussing Rule 217, Ill. Sup. Ct. R. Civ. P. Trial Ct.); State v. Jablonski, 590 N.E.2d 598 (Ind. Ct. App. 1992) (discussing Rule 27, Ind. R. Trial P.); Wiles v. Myerley, 210 N.W.2d 619 (Iowa 1973) (discussing Rule 1.721-1.729, Iowa R. Civ. P.); Meredith v. Wilson, 423 S.W.2d 519 (Ky. 1968) (discussing Rule 27.01-.03, Ky. R. Civ. P.); In re Vermillion Parish Sch. Bd., 357 So. 2d 1295 (La. Ct. App. 1978) (discussing La. Code Civ. P. § 1429-1430); and Allen v. Allen, 105 Md. App. 359, 659 A.2d 411 (1995) (discussing Rule 2-204, Md. R. P. Cir. Ct.). 48 1130679 and 1130726 determine if the party has a cause of action. In short, the federal courts and the overwhelming majority of states do not permit preaction discovery for purposes other than the perpetuation of evidence. In point of fact, we have found no jurisdiction, federal or state, with a rule similar to Alabama's Rule 27 that has construed it to permit preaction discovery to investigate or to confirm the presence of a cause of action. Only two states besides Alabama permit broad preaction discovery not conditioned on the need to perpetuate evidence: Pennsylvania and Texas. We have found no state where it has 18 been determined that a person may conduct preaction discovery merely to assess or to confirm the availability of a cause of action without express language to this effect in the applicable rule or statute. The difference between Alabama and the two states -- Pennsylvania and Texas -- where this is permitted is the fact that, as one law review article The Courts in a third state, Ohio, are divided as to the 18 meaning of the analogous rule there, which in any event is significantly different than Alabama's Rule 27. Compare Benner v. Walker Ambulance Co., 118 Ohio App. 3d 341, 344, 692 N.E.2d 1053, 1055 (1997), and Cruz v. Kettering Health Network, (No. 24465) 2012-Ohio-24 (Ohio Ct. App., Jan 06, 2012) (unpublished opinion). 49 1130679 and 1130726 explains, "[t]he Alabama rule does not authorize presuit discovery for investigatory purposes on its face." Lonny Sheinkopf Hoffman, Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery, 40 U. Mich. J.L. Reform 217, 240 (2007) (emphasis added).19 See also Scott Dodson, Federal Pleading and State 19 Presuit Discovery, 14 Lewis & Clark L. Rev. 43, 57 (2010) (explaining that Alabama's "strong policy favoring presuit discovery for claim investigation" was created by the Alabama Supreme Court's construction of Rule 27). In Pennsylvania, Rule 4003.8, Pa. R. Civ. P., provides: "(a) A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party. "(b) Upon a motion for protective order or other objection to a plaintiff's pre-complaint discovery, the court may require the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint. In deciding the motion or other objection, the court shall weigh the importance of the discovery request against the burdens imposed on any person or party from whom the discovery is sought." In Texas, Rule 202.1, Tex. R. Civ. P., provides: "A person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either: 50 1130679 and 1130726 Previous to Anderson, preaction discovery in Alabama concerned testimony or evidence that was in danger of being lost or destroyed. The bright line that existed between preaction discovery and postcomplaint discovery served to prevent intrusive investigations before allegations had been filed against a party. In erasing this line, the Anderson Court contended that its interpretation of Rule 27 was "consistent with the underlying purpose of both Rule 11, Ala. R. Civ. P., and the Alabama Litigation Accountability Act, Ala. Code 1975, § 12-19-270 et seq., in that Rule 27 provides a limited means by which potential plaintiffs (and their attorneys), within the discretion of the trial court, can examine evidence before actually deciding whether they have a reasonable basis for filing an action." 644 So. 2d at 965. Upon further reflection, we see nothing in Rule 11 or the Alabama Litigation Accountability Act that compels a reading of Rule 27 that is contrary to the language of the rule, to the explicit Committee Comments, to the history of both the rule and its Committee Comments, and to the other considerations reviewed above, including the "(a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or "(b) to investigate a potential claim or suit." 51 1130679 and 1130726 uniformly accepted approach in other jurisdictions to language like that at issue here. Before Anderson, plaintiffs were 20 able to discern whether they had causes of action against other parties without using preaction discovery. The same was true of plaintiffs in the 19 years between the adoption of Rules 11 and 27 in 1973 and the release of the Anderson decision in 1994 and, for all that appears, continues to be true. Moreover, one of the reasons "[t]his Court has held that amendments [to complaints] are to be freely allowed," Alabama Farm Bureau Mut. Cas. Ins. Co. v. Guthrie, 338 So. 2d 1276, 1279 (Ala. 1976), is to allow litigants a full and fair opportunity to obtain an adjudication of their rights. See also Atlas Coal Co. v. O'Rear, 161 Ala. 591, 593, 50 So. 63, 64 (1909). Rule 11, Ala. R. Civ. P., provides only that an 20 attorney's signature on a complaint constitutes a certificate that the attorney has read the complaint and "that to the best of the attorney's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay." The Alabama Litigation Accountability Act provides for sanctions against attorneys who file actions that are "frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose." See Ala. Code 1975, §§ 12-19-271 and -272. 52 1130679 and 1130726 Conclusion Based on the foregoing, we overrule Ex parte Anderson's holding that Rule 27, Ala. R. Civ. P., does not limit preaction discovery under Rule 34 to perpetuating evidence. Given that DR Horton expressly sought preaction discovery not for the purpose of perpetuating evidence, but for the purpose of evaluating its claims against the Ferrari defendants, we grant the Ferrari defendants' petition for a writ of mandamus, and we instruct the trial court to dismiss DR Horton's petition for preaction discovery. 1130679 –- PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Parker, Main, and Wise, JJ., concur. Bryan, J., concurs in the result. Moore, C.J., and Shaw, J., dissent. 1130726 –- APPEAL DISMISSED. Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur. Bryan, J., concurs in the result. Moore, C.J., dissents. 53 1130679 and 1130726 SHAW, Justice (dissenting in case no. 1130679). I respectfully dissent. I. I do not believe that the petitioners--the Ferrari defendants--have demonstrated either a clear legal right to a hearing or that the trial court exceeded its discretion in refusing to grant such a hearing. First, I am not convinced that a "plain reading" of the language of Rule 27, Ala. R. Civ. P., indicates that a hearing is always per se required before a petition filed pursuant to that rule can be granted. Specifically, Rule 27(a)(2) states that "[a]t least thirty (30) days before the date of hearing the notice shall be served." The lack of an article--such as the word "the" or "a"--before the word "hearing" makes it unclear to me whether the rule is contemplating that an actual in-court proceeding must take place or whether the rule is simply stating that the parties must have an opportunity to be heard. See Sharpe v. State, 560 So. 2d 1107, 1111 (Ala. Crim. App. 1989) (noting that the word "hearing" can be synonymous with "an opportunity to be heard" and holding that the use of the latter in Rule 15.4(b), Alabama Temporary Rules of Criminal Procedure, did 54 1130679 and 1130726 not require an "adversarial hearing or oral argument" and could instead include a party's "respon[se] in writing to the merits"). I see nothing in the facts of this case indicating that the Ferrari defendants' challenge to DR Horton's verified petition for preaction discovery could be communicated only in a hearing and not in writing. In other words, I see nothing demonstrating the need for the parties to present arguments and evidence in open court. See D.B. Clayton & Assocs. v. McNaughton, 279 Ala. 159, 160, 182 So. 2d 890, 891-92 (1966) ("[A] 'hearing' ordinarily is defined, in matters not associated with full trials, as a proceeding in which the parties are afforded an opportunity to adduce proof and to argue inferences from the evidence."). In any event, I believe that Rule 27 should be interpreted in the same manner as Rule 56, Ala. R. Civ. P. Rule 56(c)(2) states that a motion for a summary judgment "shall be served at least ten (10) days before the time fixed for the hearing." Here, the word "hearing" is preceded by the article "the," thus making clear that it is referring to a proceeding, and not just an opportunity to be heard. Further, this rule, like Rule 27(a)(2), sets a timeline calculated from 55 1130679 and 1130726 the date of the hearing. This 10-day period in Rule 56(c)(2), this Court has held, exists to give the nonmovant the opportunity to respond before the hearing. Hill v. Chambless, 757 So. 2d 409, 411 (Ala. 2000). Despite the clear language in Rule 56(c)(2) that an actual hearing is to occur and the fact that a deadline hinges on the occurrence of this hearing, this Court has held that a hearing is not necessarily required. Hill v. Chambless, 757 So. 2d 409, 411 (Ala. 2000) ("[T]his Court has stated that a trial court may, within its discretion, dispense with the hearing altogether and rule on the [Rule 56] motion without any further proceedings."). As we have stated: "We agree with the general proposition that Rule 56(c) contemplates a hearing before the trial court rules on a motion for summary judgment. Certainly, the nature of summary judgment dictates against a hasty and arbitrary action. As Tharp v. Union State Bank, 364 So. 2d 335 (Ala. Civ. App. 1978), and Brown v. Piggly–Wiggly Stores, 454 So. 2d 1370 (Ala. 1984), indicate, the requirement of a 10–day notice before the hearing on the motion is based on due process considerations. ... But where, as here, the policy considerations of the Rule have been fully satisfied, literal adherence is not required." Cofield v. City of Huntsville, 527 So. 2d 1259, 1260 (Ala. 1988). I see nothing in the language of Rule 27(a)(2) requiring the conclusion that a hearing is mandated when Rule 56 1130679 and 1130726 56(c)(2), which calls for a hearing more strongly than does Rule 27(a)(2), has been interpreted otherwise. Furthermore, to show reversible error resulting from a failure to conduct a hearing under Rule 56(c)(2), a party must demonstrate prejudice. See Lightsey v. Bessemer Clinic, P.A., 495 So. 2d 35, 38 (Ala. 1986) (stating that, while "Rule 56(c) does by its language contemplate a hearing upon a motion for summary judgment," the failure of the trial court to hold a hearing was harmless); cf. Hilliard v. SouthTrust Bank of Alabama, N.A., 581 So. 2d 826, 828 (Ala. 1991). Before concluding that the Ferrari defendants had "a clear legal right" to a hearing, I would determine whether they were actually prejudiced by the trial court's failure to hold a hearing. In the instant case, the trial court ruled on the verified petition more than 30 days after it was served, and the Ferrari defendants responded to the verified petition within that time. There was thus ample opportunity for the Ferrari defendants to have notice of the petition and to respond accordingly. The mandamus petition is silent as to how the lack of a hearing prejudiced the Ferrari defendants in any way. I see nothing indicating that a lack of a hearing in 57 1130679 and 1130726 this case was prejudicial; I would not hold that a trial court per se exceeds its discretion by failing to hold a hearing under Rule 27. II. The first sentence of Rule 27(a)(1) states: "A person who desires to perpetuate that person's own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party." A person may file a petition if he or she desires "to perpetuate that person's own testimony or that of another person" or if he or she desires "to obtain discovery under Rule 34 or Rule 35 regarding any matter." The grammar and content of the language shows that there are two different things that may be obtained if desired: testimony to be perpetuated or discovery under Rule 34, Ala. R. Civ. P., or Rule 35, Ala. R. Civ. P. The main opinion "[a]dmittedly" concedes that the language reads this way but states that it "does not require such a reading" when read in light of materials outside the actual text of the rule. ___ So. 3d at ___. It then suggests that this language "inartful[ly]" 58 1130679 and 1130726 states a different point. I would not reject a clear meaning found in the actual text in favor of an "inartful" reading suggested by outside sources. The main opinion goes on to propose that this sentence actually means that a person may obtain discovery under Rule 34 or Rule 35 only for purposes of perpetuating testimony. This is clearly not what the first sentence of Rule 27(a)(1) says. However, in support of its selection of this reading, the main opinion resorts to, among other things, the Committee Comments. The pertinent comments state: "As is true of the corresponding federal rule, the primary purpose of Rule 27, like that of the state statutes it superseded, is to perpetuate testimony rather than to make discovery. ".... "However, this rule has been modified to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules. This rule permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not testimony is perpetuated. See Vermont Rule 27; 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2074 (1970). The discovery permitted under Rule 27(a) and (b) is expressly limited to that available under Rule 34 and Rule 35." The Committee Comments--just like Rule 27(a)(1)--make a distinction between "perpetuat[ing] testimony" and "mak[ing] 59 1130679 and 1130726 discovery." As the emphasized portions in the first paragraph indicate, although the "primary purpose" of the rule "is to perpetuate testimony," the language of the rule and Committee Comments identify a secondary purpose: "to make discovery." 21 The next quoted paragraph states: "However, this rule has been modified to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules." This would seem to suggest that a prior federal rule might not have allowed "discovery" under Rules 34 and 35 for the purpose of perpetuating evidence but that the Alabama rule does. This does not state that discovery under Rules 34 and 35 is only for the purpose of perpetuating evidence because the next sentence states: "This rule permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not testimony is perpetuated." The language of Rule 27(a)(1) suggests that a petitioner may seek to perpetuate testimony and may also seek discovery under Rules 34 and 35. The comments above confirm that the rule allows both purposes (one is primary and the other If there is a "primary purpose"--here, to perpetuate 21 testimony--then there must be a secondary purpose; otherwise, the primary purpose would be the only purpose. 60 1130679 and 1130726 secondary) and that discovery under Rules 34 and 35 can be for perpetuation purposes but is also "permit[ted] ... whether or not testimony is perpetuated."22 The main opinion also suggests that Rule 27(a)(1) must be read in pari materia with Rule 27(a)(3). I freely concede that subsection (a)(3) seems to imply that if the trial court is satisfied that the "perpetuation of the testimony may prevent a failure or delay of justice," then it may grant discovery under Rules 34 and 35. However, it seems odd to describe discovery under those rules as acquiring "testimony." The production of documents and things and entry upon land for inspection and other purposes under Rule 34 seem to implicate no testimony at all. And although a physical or mental examination of persons under Rule 35 might result in testimony, it does not seem that such testimony is of the sort that could be in need of perpetuation. Further, if we must The main opinion cites the reporter's notes to Vermont's 22 version of Rule 27 in support of its holding. Those notes state that "the rule also permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not a deposition is taken." The notes further state: "Rule 27(a)(1) provides for a verified petition for perpetuation of testimony or other appropriate discovery ...." Again, there is a clear distinction between perpetuation of testimony and "other" discovery. 61 1130679 and 1130726 read the rule in pari materia, what of Rule 27(b), which deals with discovery pending appeal? It states, in part: "If the court finds that the perpetuation of the testimony or other discovery is proper to avoid a failure or delay of justice, it may make an order as provided in paragraph (3) of subdivision (a) of this rule and thereupon discovery may be had and used in the same manner and under the same conditions as are prescribed in these rules for discovery in actions pending in the circuit court." This section characterizes what is available under Rules 34 and 35 as "other discovery [that] is proper to avoid a failure or delay of justice," which is clearly distinguishable from testimony to be perpetuated, but nevertheless references subsection (a)(3). Reading the entire rule in pari materia, I am unconvinced that we should abandon the clear language of Rule 27(a)(1). Therefore, I would not overrule this Court's prior decision in Ex parte Anderson, 644 So. 2d 961 (Ala. 1994). 23 I am also not convinced by the petition for a writ of 23 mandamus that the trial court per se exceeded its discretion in ordering answers to written interrogatories. Rule 27(a)(1) speaks generally to the perpetuation of testimony, and the rule as a whole clearly contemplates the use of depositions in doing so. Rule 27(a)(4) specifies that "[i]f a deposition to perpetuate testimony is taken," then it may be used in accordance with the provisions of Rule 32(a) and (b), Ala. R. Civ. P. Interrogatories are answered under oath (Rule 33(a), Ala. R. Civ. P.), are functionally little different from 62 1130679 and 1130726 Most problematic to me, however, is the paucity of argument by the Ferrari defendants on this issue. Specifically, the petition for a writ of mandamus contains one paragraph advancing the argument adopted by the main opinion. Comparing this one paragraph, which cites one case, the federal rule, and our rule and comments, with the complex, scholarly, detailed, and lengthy analysis in the main opinion encompassing many pages, I do not think that the petition demonstrated "a clear legal right in the petitioner to the order sought." I therefore respectfully dissent.24 written depositions, and are generally used in court under Rule 32(a) in the same manner as depositions. Committee Comments on the 1973 Adoption of Rule 33, Ala. R. Civ. P. ("[T]he use of interrogatories is limited by Rule 32(a), as well as by the ordinary rules of evidence."). Based upon the argument in the petition, I am hard-pressed to see a material difference between answering interrogatories for the purpose of perpetuating testimony and participating in a deposition for the same purpose. I express no opinion at this time as to the Ferrari 24 defendants' arguments pretermitted by the holding of the main opinion, including their other objections to the scope of the trial court's order, including the scope of any written interrogatories. 63	February 6, 2015
4058a369-23c0-467e-a2f0-4efbe147afdb	Adams v. Tractor & Equipment Co., Inc.	N/A	1121162	Alabama	Alabama Supreme Court	Rel: 5/1/15 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 ____________________ 1121162 ____________________ Kenneth R. Adams v. Tractor & Equipment Co., Inc. Appeal from Mobile Circuit Court (CV-11-902295) BRYAN, Justice. Kenneth R. Adams appeals from a summary judgment in favor of Tractor & Equipment Co., Inc. ("TEC"). We reverse and remand. Facts and Procedural History 1121162 Adams and James "Buddy" Money are the only two members of Waste Two Energy, LLC ("Waste Two"), a limited liability company that operates two landfills in Mobile. In early 2011, Money, the managing member of Waste Two, had discussions with representatives of TEC, a company that repairs, rents, and sells heavy equipment, about servicing heavy equipment used by Waste Two in the operation of its business. On February 1, 2011, Money sent an e-mail to Lloyd Adams, a representative of TEC, stating that he was collecting information regarding Waste Two's service and equipment needs that could be filled by TEC and that he would complete a credit application, which would include personal financial statements for himself and Adams, and send it to TEC. On March 3, 2011, Waste Two provided a "credit application and agreement" ("the agreement") to TEC. Money and Adams were listed as the "officers, partners, or owners" of Waste Two. The only specific terms contained in the agreement are as follows: "Parts and Services: due net 10th of month following date of purchase"; "Machine Sales: arranged at the time order is received"; "Rentals: net cash payable in advance"; and "Delinquency Charge: 1.5% per month on all past 2 1121162 due open balances." Money signed the agreement as the "principal of the credit applicant or a personal guarantor of its obligations" and authorized TEC, among other things, to obtain his personal credit profile for purposes of reviewing the credit application. The agreement included a guaranty provision that provided, in pertinent part: "The undersigned guarantor(s), jointly and severally, unconditionally guarantee and warrant the full and complete payment and performance of all obligations of the above applicant to [TEC] ... arising under this agreement, and all other extensions of credit, sales, leases and account balances now or hereafter owing by applicant ...." The names "James Money" and "Ken Adams" are handwritten on two lines below the guaranty provision that are each labeled "Guarantor." Beginning in March 2011 and continuing through July 2011, TEC performed various services on equipment owned by Waste Two. At some point after TEC had performed a substantial amount of work on Waste Two's equipment, a dispute arose between Waste Two and TEC over the amount of money Waste Two owed TEC for the services it had provided. 3 1121162 On October 17, 2011, Waste Two filed a complaint in the Mobile Circuit Court, asserting claims of breach of contract and misrepresentation against TEC. On December 19, 2011, TEC filed an answer to Waste Two's complaint, a counterclaim against Waste Two alleging breach of contract, and a third- party complaint against Money and Adams alleging breach of the guaranty. In its counterclaim and its third-party complaint, TEC sought compensatory damages, attorney fees, interest, and court costs. On January 18, 2012, Waste Two filed an answer to TEC's counterclaim, and Money and Adams filed an answer to the third-party complaint denying the material allegations of the third-party complaint. On May 10, 2012, TEC filed a motion for a summary judgment with respect to its third-party claims against Adams and Money. To support its motion, TEC attached the agreement, invoices, and other evidence indicating that Waste Two had failed to pay TEC $86,689.80 in principal and an additional $13,398.43 in accrued interest and late fees for services TEC had provided to Waste Two. On June 29, 2012, Adams and Money, through counsel, filed a response in opposition to TEC's motion for a summary 4 1121162 judgment. In that response, Adams and Money alleged that TEC and Waste Two had an oral agreement pursuant to which TEC was to develop a service plan for Waste Two's equipment and that "[t]he third party defendant's [sic] entered into the guaranty agreement with TEC pursuant to the parameters of the agreement enacted by the parties and representations made by Danny Wright[, TEC's service manager in Mobile,] and others at TEC." Adams and Money further alleged that TEC had misrepresented the condition of Waste Two's equipment at the time of service and argued that TEC should be estopped from asserting its rights under the agreement because, they said, it had unclean hands. They also argued that TEC's summary-judgment motion was premature because they had not completed discovery. Attached to Adams and Money's response was an affidavit from their attorney, filed pursuant to Rule 56(f), Ala. R. Civ. P. In the affidavit, their attorney stated that additional time was needed for discovery to adequately oppose TEC's summary-judgment motion. In that affidavit, the attorney stated: "Along with [its] motion, [TEC] attached Exhibits '1' and '2' showing a copy of the credit application and agreement and affidavit of Jonella Woods (credit manager 5 1121162 of TEC) showing merely that [Adams and Money] executed a guaranty agreement ...." The attorney further stated in the affidavit, however, that the pertinent issue was whether TEC was liable for breach of contract and misrepresentation, which, he said, if true, would ultimately void the guaranty provision of the agreement. On August 1, 2012, before the circuit court ruled on TEC's motion for a summary judgment, Adams and Money filed a motion to dismiss TEC's third-party claims against them. They argued that they had not actually signed the guaranty provision and that the unverified handwritten names below the guaranty provision in the agreement was insufficient to satisfy the Statute of Frauds. Adams and Money each attached an affidavit to the motion to dismiss, stating that they had reviewed the guaranty provision and "unequivocally deny signing" the provision. TEC responded and argued that the motion to dismiss should be denied because, it said, the motion was based on evidence outside the pleadings and because Adams and Money had already admitted, in their response to TEC's summary-judgment motion, that they had signed the guaranty provision as guarantors of Waste Two's debts to TEC. TEC further stated that the argument asserted in Adams and 6 1121162 Money's motion to dismiss "was never asserted in their answer or opposition to the motion for summary judgment." See generally Hayes v. Payne, 523 So. 2d 333, 334 (Ala. 1987) ("Where an answer has been filed and an affirmative defense has not been pleaded, the defense generally is deemed to have been waived."). On September 7, 2012, the circuit court conducted a hearing on TEC's motion for a summary judgment and on Adams and Money's motion to dismiss. The same day, the circuit court entered an order denying Adams and Money's motion to dismiss without setting forth its basis for the denial. There is no indication in the record that the circuit court excluded the affidavits attached to the motion to dismiss. See Rule 12(b), Ala. R. Civ. P. (stating that, in a motion to dismiss asserting defense numbered (6) where "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment"). Accordingly, the motion to dismiss had been converted to a motion for a summary judgment. See Phillips v. AmSouth Bank, 833 So. 2d 29, 31 (Ala. 2002) ("'[W]here matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment ... regardless of 7 1121162 its denomination and treatment by the trial court.'" (quoting Boles v. Blackstock, 484 So. 2d 1077, 1079 (Ala. 1986))). On 1 September 19, 2012, new counsel for Adams filed a notice of appearance in the circuit court. On September 20, 2012, the circuit court entered a partial summary judgment in favor of TEC on its third-party claims against Adams and Money. However, the order did not specifically adjudicate the issue of damages Money and Adams owed to TEC. On October 16, 2012, Adams, through his new counsel, filed a motion to reconsider and to vacate the partial summary judgment entered in favor of TEC. Adams argued that the affidavit he provided in support of his motion to dismiss should have been considered by the circuit court as substantial evidence creating a material question of fact that precluded a summary judgment in favor of TEC. Adams further argued that statements made by his first attorney in response to TEC's motion for a summary judgment were made before Adams had ever spoken to that attorney, that those statements from his then attorney did not constitute "evidence," and that, in In Phillips, this Court held that "unless the trial court 1 expressly declines to consider the extraneous material [filed with a motion to dismiss,] its conclusions may be construed to include the extraneous material." 833 So. 2d at 31. 8 1121162 his answer to the third-party complaint, which was the only pleading filed by Adams that was before the circuit court when it entered the summary judgment for TEC, he had denied signing the guaranty provision. Adams attached a second, more detailed affidavit to his motion to reconsider. He stated that from March 2011 through September 2012 he was a minority member of Waste Two, that Money was the majority member of Waste Two during that time, and that Money was responsible for the daily operations of Waste Two, including managing its finances and dealing with vendors and creditors. Adams alleged that he was not involved with the daily operations at Waste Two, that he did not report to work at Waste Two's place of business, and that Money was the only member of Waste Two who spoke to anyone associated with TEC about the agreement or the guaranty. Adams stated that he did not print his name on the guaranty provision and that he did not authorize anyone to print his name on the guaranty provision. Adams further alleged that he had never received personal service of TEC's third-party complaint against him and that he had not authorized an attorney to file anything on his behalf until after July 2012, when he first obtained "detailed knowledge" of TEC's action against Waste 9 1121162 Two and learned of the claim against him personally. Adams stated that he spoke to the attorney who represented Waste Two, the same attorney who had filed a response to TEC's motion for a summary judgment on behalf of Money and Adams, for the first time in July 2012 and at that time notified him that he had never signed the guaranty provision. Adams also attached a copy of a guaranty he had provided to TEC in December 2009 –- a guaranty not at issue in this case –- that, he said, accurately depicted his signature and demonstrated that his actual signature was distinguishable from the printed name that is purported to be his signature on the guaranty provision. Adams subsequently supplemented his motion to reconsider and to vacate with Money's deposition testimony, which was taken on November 14, 2012. Money testified that Adams had not been involved in any discussions with TEC, that Money had never discussed with Adams a need to provide a personal guaranty to TEC as part of the agreement, that he was "intimately" familiar with Adams's handwriting and signature, and that the printed name on the guaranty provision in the agreement was "absolutely not" Adams's handwriting or 10 1121162 signature. There is no indication in the record that the circuit court ruled on Adams's motion to reconsider. On February 22, 2013, the circuit court entered a summary judgment in favor of TEC on all claims asserted by Waste Two against TEC. On March 22, 2013, the circuit court entered a partial summary judgment in favor of TEC on its counterclaim against Waste Two; that order did not include an adjudication of damages against Waste Two. 2 On May 7, 2013, Adams filed a "postjudgment" motion, purportedly pursuant to Rule 59, Ala. R. Civ. P., seeking to have the summary judgment against him vacated on the basis (1) On April 8, 2013, the circuit court entered an order 2 stating that all claims presented in the action had been "disposed." Although the circuit court had entered orders adjudicating TEC's liability on the claims asserted against it by Waste Two and Waste Two's, Money's, and Adams's liability on the claims brought by TEC, it had not entered a final judgment as to any of those latter claims because it had not entered an order adjudicating the amount of damages Waste Two, Money, and Adams owed TEC. See Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 361 (Ala. 2004)("'Where the amount of damages is an issue, ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.'" (quoting Moody v. State ex rel. Payne, 351 So. 2d 547, 551 (Ala. 1977))). Under these circumstances, even a Rule 54(b), Ala. R. Civ. P., certification purporting to make those orders final for purposes of appeal would be "ineffective to confer appellate jurisdiction" over those claims. Dzwonkowski, 892 So. 2d at 362. 11 1121162 that a genuine issue of material fact exists as to whether he signed the guaranty provision, and (2) that the guaranty provision violates the Statute of Frauds. See § 8-9-2, Ala. Code 1975. Adams argued that the guaranty provision was void pursuant to the Statute of Frauds because his "name hand printed on the signature blank to the guaranty without [his] knowledge or consent is insufficient under the statute of frauds" and because the guaranty failed to "expressly state, in writing, any consideration related to the purported guaranty." TEC responded to Adams's motion, arguing, among other things, that Adams had failed to timely raise the specific Statute of Frauds arguments raised in his "postjudgment" motion because he had not properly amended his answer to assert those affirmative defenses. After conducting a hearing, the circuit court denied Adams's motion. On May 16, 2014, the circuit court entered a final judgment ordering Waste Two, Money, and Adams to pay TEC $85,873.84 in unpaid principal, $40,484.99 in "accrued late charges," and $60,000 in attorney fees and costs. Adams appealed. Issues On appeal, Adams argues that the circuit court erred in entering a summary judgment in favor of TEC on its third-party 12 1121162 claim against him because, he says, he presented substantial evidence creating a genuine issue of material fact that precluded the entry of a summary judgment. Adams argues further that the circuit court erred in entering a summary judgment for TEC and against him because, he argues, the guaranty provision violated the Statute of Frauds. Standard of Review "'This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So. 2d 82, 87 (Ala. 2004). We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Court reviews the evidence in the light most favorable to the nonmovant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce "substantial evidence" creating a genuine issue of material fact. Ala. Code 1975, § 12–21–12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797–98 (Ala. 1989). "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 Fla., 547 So. 2d 870, 871 (Ala. 1989).' "Muller v. Seeds, 919 So. 2d 1174, 1176–77 (Ala. 2005). As is true with regard to a trial court's 13 1121162 rulings on questions of law in the context of a bench trial, we review de novo questions of law arising in the context of a summary judgment. Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346 (Ala. 2006)." Van Hoof v. Van Hoof, 997 So. 2d 278, 286 (Ala. 2007). Discussion If the guaranty provision violates the Statute of Frauds, the guaranty provision is void and, thus, unenforceable. See § 8-9-2, Ala. Code 1975. Accordingly, we will first address Adams's argument that the guaranty provision violated the Statute of Frauds. Section 8-9-2, Alabama's Statute of Frauds, provides, in pertinent part: "In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing: ".... "(3) Every special promise to answer for the debt, default or miscarriage of another ...." Adams argues that his hand-printed name on the signature blank for the guarantor is insufficient to satisfy the requirement in the Statute of Frauds that the writing be "subscribed by the party to be charged" and that the guaranty provision expressed no consideration for Adams's promise to 14 1121162 pay the debt of Waste Two. In response, TEC contends that Adams waived these Statute of Frauds defenses by failing to amend his answer to specifically assert them. The Statute of Frauds is included in the list of affirmative defenses in Rule 8(c), Ala. R. Civ. P., and that rule requires that such a defense be specially pleaded. See Wallace v. Alabama Ass'n of Classified Sch. Emps., 463 So. 2d 135, 136 (Ala. 1984). However, although it is generally true that a party's failure to assert an affirmative defense in its answer works as a waiver of that defense, that rule is subject to certain exceptions. Regarding affirmative defenses, this Court has stated: "Once an answer is filed, if an affirmative defense is not pleaded, it is waived. Robinson v. [Morse], 352 So. 2d 1355, 1357 (Ala. 1977). The defense may be revived if the adverse party offers no objection (Bechtel v. Crown [Central] Petroleum Corp., 451 So. 2d 793, 796 (Ala. 1984)); or if the party who should have pleaded it is allowed to amend his pleading (Piersol v. ITT [Phillips] Drill Division, Inc., 445 So. 2d 559, 561 (Ala. 1984)); or if the defense appears on the face of the complaint (cf., Sims v. Lewis, 374 So. 2d 298, 302 (Ala. 1979); and Williams v. McMillan, 352 So. 2d 1347, 1349 (Ala. 1977)). See, also, 2A J. Moore, Federal Practice § 8.27[3] at 8–251 (3d ed. 1984) ...." Wallace, 463 So. 2d at 136-37. 15 1121162 Adams concedes that he did not raise a Statute of Frauds defense in his answer as required by Rule 8(c) and that he never amended his answer to assert that defense. However, he contends that the Statute of Frauds defense was properly before the circuit court because TEC failed to object to his assertion of that defense when it was initially raised in his and Money's August 2012 "motion to dismiss," which, as noted above, was converted to a motion for a summary judgment by the circuit court's consideration of his and Money's affidavits. We disagree. TEC clearly set forth its position that Adams and Money's "motion to dismiss" –- which was based primarily on a Statute of Frauds argument -- was due to be denied for various reasons, one of them being that the argument raised in the motion had not been asserted in his answer. Further, Adams concedes that TEC did object to the Statute of Frauds defense that he asserted for the first time in his "postjudgment" motion, i.e., the argument that the guaranty provision violated the Statute of Frauds because the guaranty did not express any consideration given to the guarantors for the promise to pay the debt of Waste Two. Because Adams raised this particular Statute of Frauds defense for the first time in his "postjudgment" motion, TEC's objection to this 16 1121162 defense in its response to that motion could not possibly be construed, as Adams contends it should be, as untimely. Adams further contends that the circuit court could have nonetheless considered his Statute of Frauds defense because, he says, the defense appeared on the face of TEC's third-party complaint. To support this argument, Adams cites Wilder v. Clark, 263 Ala. 55, 56, 81 So. 2d 273, 274 (1955), for the proposition that "'[w]here it clearly appears on the face of the count of the complaint that the contract or agreement alleged to have been breached is obnoxious to the statute of frauds, it is subject to demurrer; and can be raised by demurrer either at law or in equity.'" (Quoting Bunch v. Garner, 208 Ala. 271, 272, 94 So. 114, 115 (1922) (emphasis added).) See also Strouse v. Elting, 110 Ala. 132, 139, 20 So. 123, 125 (1896) ("The [Statute of Frauds defense] was raised both by demurrer to the complaint and by plea. The general rule is that the statute of frauds must be pleaded, and, unless it affirmatively appears in the complaint ... that the agreement declared upon was obnoxious to the statute of frauds, a demurrer will not lie."). These cases support the 3 "The common-law 'demurrer' has been succeeded by a motion 3 filed pursuant to Rule 12(b)(6)[, Ala. R. Civ. P.,] seeking 17 1121162 proposition that a Statute of Frauds defense may be raised in a motion to dismiss, even if it was not properly raised in a pleading or an amended pleading, where it clearly appears on the face of the complaint that the agreement or contract at issue violates the Statute of Frauds. Although later cases have stated the rule, in shorthand, as "an affirmative defense that has not been pleaded may be revived if the defense appears on the face of the complaint," Hayes v. Payne, 523 So. 2d 333, 334 (Ala. 1987), the authority cited in Hayes as support for such a rule, Sims v. Lewis, 374 So. 2d 298, 302 (Ala. 1979), which is also cited in Wallace, supra, clearly provides that, although an affirmative defense "should be presented in a pleading to a preceding pleading, [it] may be properly raised via the [Rule] 12(b)(6)[, Ala. R. Civ. P.,] motion where the face of the complaint shows that the claim is barred." Even if we assume that the Statute of Frauds argument made in Adams's "motion to dismiss" filed on August 1, 2012, dismissal of a complaint on the ground that it fails to state a claim upon which relief may be granted." Working v. Jefferson Cnty. Election Comm'n, 2 So. 3d 827, 833 n.7 (Ala. 2008) (citing Roberts v. Meeks, 397 So. 2d 111, 114 (Ala. 1981)). 18 1121162 was properly before the circuit court pursuant to the rule expressed in Sims, we could not conclude that the face of TEC's complaint showed that the breach-of-guaranty claim was barred by the Statute of Frauds. At that time, Adams argued only that the guaranty provision violated the Statute of Frauds because it was not properly "subscribed by the party to be charged therewith." However, in its third-party complaint, TEC alleged that Adams and Money had signed the agreement as guarantors. Further, the agreement, which was attached to TEC's complaint, demonstrated that the name "Ken Adams" is handwritten on a line designated for a "guarantor" immediately following the guaranty provision in the agreement. Adams's second Statute of Frauds defense –- that the guaranty provision violated the Statute of Frauds because it did not express the consideration for the promise to pay the debt of another -- was not raised in the motion to dismiss. Instead, it was raised for the first time in the "postjudgment" motion seeking to set aside the partial summary judgment that had already determined Adams's liability under the guaranty. As noted above, TEC objected to Adams's assertion of this affirmative defense as untimely, and there is no indication in the record that the circuit court 19 1121162 considered it. Adams has not cited any authority to support his argument that the circuit court was required to consider his second Statute of Frauds defense under these circumstances. Accordingly, Adams has not demonstrated that 4 the summary judgment is due to be vacated because the guaranty provision violates the Statute of Frauds. Adams also argues that the circuit court erred in granting TEC's motion for a summary judgment because, he says, the record established that a genuine issue of material fact exists regarding whether Adams actually signed the guaranty provision and, thus, whether there existed a guaranty contract Even if we were to apply a rule that required a circuit 4 court to consider the merits of an affirmative defense at any stage of a proceeding if the defense clearly appeared on the face of the complaint, we could not conclude that Adams has demonstrated that it clearly appeared on the face of TEC's complaint that no consideration for the guaranty was expressed. TEC's third-party complaint does not mention, or otherwise discuss, consideration, or lack thereof, to support the guaranty. Even if we were required to look beyond the face of the complaint and consider the actual terms of the agreement, we note that the agreement was an application by Waste Two for an extension of credit by TEC; that Adams was listed as an owner of Waste Two; and that Adams agreed to be liable for Waste Two's obligations, including all extensions of credit, that arose pursuant to the agreement. Generally speaking, "[t]he promise of future extension of credit is good and valid consideration." Medly v. SouthTrust Bank of Quad Cities, 500 So. 2d 1075, 1078 (Ala. 1986). Accordingly, we cannot conclude that the absence of expressed consideration was clear from the face of TEC's complaint. 20 1121162 binding Adams. "Every suit on a guaranty agreement requires proof of the existence of the guaranty contract, default on the underlying contract by the debtor, and nonpayment of the amount due from the guarantor under the terms of the guaranty." Delro Indus., Inc. v. Evans, 514 So. 2d 976, 979 (Ala. 1987). Adams does not argue that TEC failed to make a prima facie showing that there was no genuine issue of material fact regarding its breach-of-guaranty claim against Adams. Accordingly, the burden shifted to Adams to produce substantial evidence creating a genuine issue of material fact. Van Hoof, 997 So. 2d at 286. Adams argues that his first affidavit, in which he "unequivocally" denied signing the guaranty provision, was substantial evidence sufficient to create a genuine issue of material fact as to whether Adams had in fact signed the guaranty provision and that the circuit court erred by entering a partial summary judgment in favor of TEC in light of this evidence. He further argues that the circuit court erred in failing to modify the partial summary judgment in light of the additional evidence he presented after the partial-summary-judgment order was entered. See generally Simmons Mach. Co. v. M & M Brokerage, Inc., 409 So. 2d 743, 21 1121162 759 (Ala. 1981) (holding that a partial summary judgment is subject to revision at any time before a final judgment is entered, but noting that "[w]hether a trial court revises a partial grant of summary judgment, as allowed by Rule 54(b), [Ala. R. Civ. P.,] is a matter of discretion which, absent an abuse, we will not disturb"). In response, TEC questions whether Adams's first affidavit was properly before the circuit court because, it says, the affidavit was attached to a "defective" motion to dismiss. As discussed above, Adams and Money's motion to dismiss was converted to a motion for a summary judgment because the circuit court did not exclude the attached affidavits. See Phillips, 833 So. 2d at 31. Furthermore, it is well settled that "a trial court may properly consider any material that would be admissible at trial and all evidence of record as well as material submitted in support of or in opposition to the motion when ruling on a motion for summary judgment." Fountain v. Phillips, 404 So. 2d 614, 618 (Ala. 1981). Accordingly, we conclude that Adams's first affidavit was properly before the circuit court in its consideration of TEC's motion for a summary judgment. 22 1121162 TEC also argues that Adams's first affidavit was insufficient to meet his burden of presenting substantial evidence to create a question of fact because, it states, the affidavit was "conclusory." See Rule 56(e), Ala. R. Civ. P. (requiring an affidavit submitted in opposition to a motion for summary judgment to "set forth specific facts showing there is a genuine issue for trial"). See also Bradley Outdoor, Inc. v. Colonial Bank, 952 So. 2d 359, 362-63 (Ala. 2006) (holding that an affidavit that contained legal conclusions, not statements of fact, was insufficient to create a genuine issue of material fact). Although Adams's first affidavit was not detailed, it contained a recitation of specific facts –- that he had reviewed the guaranty provision at issue and that he did not sign the guaranty provision –- that constituted substantial evidence demonstrating a genuine issue of material fact regarding whether a guaranty binding Adams existed. TEC further argues that the circuit court did not err in entering a summary judgment for TEC, even in light of Adams's first affidavit, because Adams's first affidavit contradicted statements made by Adams's attorney in the affidavit filed in response to TEC's summary-judgment motion. TEC contends that 23 1121162 Adams should be bound by his attorney's response to its summary-judgment motion and by his attorney's affidavit stating that TEC had submitted evidence showing "merely that third-party defendants executed a guaranty agreement." In support of this argument, TEC cites several cases, such as SouthTrust Bank v. Jones, Morrison, Womack & Dearing, P.C., 939 So. 2d 885 (Ala. Civ. App. 2005), for the general propositions that "'omissions and commissions of an attorney at law are to be regarded as acts of the client whom he represents'" and that a "'party is deemed bound by the acts of his lawyer-agent.'" 939 So. 2d at 903-04 (quoting Lawrence v. Gayle, 294 Ala. 91, 94, 312 So. 2d 385, 387 (1975), and Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962), respectively). Applying those general principles of law, the cases cited by TEC hold that a client can be liable for the tortious conduct of his attorney, see SouthTrust, supra; that an attorney's request for a license on behalf of a client is to be "'regarded as [the] act[] of the client whom he represents,'" Lawrence, 294 Ala. at 94, 312 So. 2d at 387; that a client is bound by his attorney's failure to appear at a hearing, which results in dismissal of the client's case, Link, supra; that a client is bound by his attorney's failure to object to a 24 1121162 matter raised at trial or during a jury voir dire, see Edwards v. Edwards, 79 So. 3d 629, 633 (Ala. Civ. App. 2010), and Calhoun v. State, 932 So. 2d 923, 942 (Ala. Crim. App. 2005); and that a defendant is bound by his attorney's specific, repeated admission to a particular allegation contained in a complaint filed against him, see Ayala v. Holder, 574 Fed. App'x 734, 737 (7th Cir. 2014) (not selected for publication in the Federal Reporter). None of these cases, however, addresses the circumstances presented here. Initially, we note that the response to TEC's motion for a summary judgment was signed only by Adams's attorney and was not verified in any manner; thus, the statements made by Adams's attorney in that response, although made on behalf of Adams, do not constitute evidence. See Jackson v. State Farm Fire & Cas. Co., 999 So. 2d 499, 502 (Ala. Civ. App. 2008) (noting that, where counsel for the insured, in response to insurer's summary-judgment motion, "recited a number of assertions in a 'statement of undisputed facts,'" "the assertions contained in the response to the insurer's summary- judgment motion do not constitute evidence in this case"); and Thomas v. Earnest, 72 So. 3d 580, 586 n.5 (Ala. 2011) ("There is an assertion in a brief filed in support of the motion for 25 1121162 summary judgment that Cook told an officer responding to the accident that she could not see vehicles entering the intersection from Fairfax Avenue; however, assertions in motions do not constitute evidence."). Rule 56(e), Ala. R. Civ. P., sets forth the form of affidavits filed in support of or in opposition to a motion for a summary judgment. An affidavit filed pursuant to Rule 56(e) "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." An affidavit filed pursuant to Rule 56(e) does constitute evidence in support of or in opposition to a motion for a summary judgment. In the present case, however, the affidavit filed by Adams's attorney in response to TEC's summary-judgment motion was filed pursuant to Rule 56(f). "Rule 56(f) allows a party opposing a summary-judgment motion to file an affidavit alerting the trial court that it is presently unable to present 'facts essential to justify the party's opposition.'" Scrushy v. Tucker, 955 So. 988, 1007 (Ala. 2006). Adams argues that the statement made by his attorney in the Rule 56(f) affidavit –- that the attachments to TEC's motion for a 26 1121162 summary judgment "merely [showed] that third-party defendants executed a guaranty agreement" -- should not be binding as an admission on his part because his attorney's affidavit was filed for the purpose of seeking additional time in which to conduct discovery and because his attorney effectively repudiated the statements made in his Rule 56(f) affidavit when he filed Adams's first affidavit with the circuit court. In Starke v. Kenan, 11 Ala. 818, 820 (1847), this Court stated: "It is said admissions made by attorneys of record bind their clients in all matters relating to the progress and trial of the cause. But to this end they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial. In such cases they are in general conclusive." Under the particular facts of this case, we cannot conclude that the statement made in the Rule 56(f) affidavit filed by Adams's attorney for the purpose of seeking additional time in which to conduct discovery binds Adams in such a manner that the circuit court was at liberty to disregard the affidavit subsequently filed by Adams, pursuant to Rule 56(e), effectively in opposition to TEC's motion for a summary judgment. This is not a case where Adams, by filing 27 1121162 an affidavit, contradicted his own prior sworn testimony. See, e.g., Wilson v. Teng, 786 So. 2d 485, 497 (Ala. 2000) ("'"When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony."' [Doe v. Swift, 570 So. 2d 1209, 1214 (Ala. 1990)], quoting Robinson v. Hank Roberts, Inc., 514 So. 2d 958, 961 (Ala. 1987)."). As noted above, Adams's first affidavit contained substantial evidence that demonstrated that there was a genuine issue of material fact regarding whether he had signed the guaranty provision and, thus, whether a valid guaranty binding Adams existed. Because that affidavit was properly before the circuit court and because the circuit court had no basis for disregarding it, we conclude that the circuit court erred in entering a summary judgment in favor of TEC on its breach-of-guaranty claim against Adams. Conclusion Because a genuine issue of material fact exists, we reverse the summary judgment against Adams and remand the cause for further proceedings consistent with this opinion. 28 1121162 REVERSED AND REMANDED. Moore, C.J., and Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur. 29	May 1, 2015
97d97230-ad6d-4abd-b988-caf1d4eb4a90	Ex parte Dixon Mills Volunteer Fire Department, Inc.	N/A	1131484	Alabama	Alabama Supreme Court	REL;05/15/2015 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 ____________________ 1131484 ____________________ Ex parte Dixon Mills Volunteer Fire Department, Inc., and Louis Cass White PETITION FOR WRIT OF MANDAMUS (In re: L.C. Westbrook, Jr., and Kimberly Lewis v. Dixon Mills Volunteer Fire Department, Inc., and Louis Cass White) (Marengo Circuit Court, CV-13-900003) BOLIN, Justice. 1131484 Dixon Mills Volunteer Fire Department, Inc. ("the fire department"), and its assistant fire chief, Louis Cass White (hereinafter referred to collectively as "the petitioners"), petition this Court for a writ of mandamus directing the Marengo Circuit Court to vacate its order denying the petitioners' motion for a summary judgment on the basis of immunity as to the negligence claims asserted against them by L.C. Westbrook, Jr., and Kimberly Lewis (hereinafter referred to collectively as "the plaintiffs"). We grant the petition in part, deny it in part, and issue the writ. Facts and Procedural History The fire department was incorporated on September 21, 1993, for the "purpose of forming a non-profit corporation ... exclusively for charitable ... purposes within the meaning of Section 501(c)(3) of the U.S. Internal Revenue Code of 1954." The fire department has been serving the citizens of the Dixon Mills community in Marengo County since its incorporation. On November 9, 1993, the Alabama Forestry Commission sought the Marengo County Commission's "blessing and support" for the fire department through its approval of an agreement the Forestry Commission and the fire department had entered 2 1131484 into, pursuant to which the Forestry Commission, recognizing the importance of organized and coordinated fire protection, agreed to provide equipment to the fire department in support of its firefighting efforts. The agreement required the fire department to obtain insurance for the fire equipment and to maintain the fire equipment in a "high state of readiness." The Marengo County Commission approved the agreement. Dixon Mills is not an incorporated municipality; it is an unincorporated community, with no organized form of government. Bruce Baker, the fire department's chief, testified that the original source of funding for the fire department consisted of donations of equipment from other fire departments. Baker testified that the fire department has since gotten bank loans to acquire equipment. Baker also stated that the fire department approached the Marengo County Commission "several years ago" seeking the passage of a "two mill" county tax as a source of funding. The tax initiative was presented to the public for a vote and passed. Baker stated that the revenue generated by the tax initiative is split among 10 fire departments that are members of the 3 1131484 Marengo County Firefighters Association. The fire department 1 does not compensate its firefighters for their services. On the morning of November 13, 2012, White received an emergency 9-1-1 call dispatching the fire department to a house fire. White, along with firefighters Reginald Clark and Willie Maye, gathered at the fire department before 7:30 a.m. and assembled their equipment. White, Clark, and Maye then left the fire station in the department's fire truck, which White was driving. White activated the lights and siren on the fire truck. At approximately 7:30 a.m., the fire truck, which was traveling south on County Road 6, approached the intersection of County Road 6 and State Highway 10. At the same time, the plaintiffs were traveling east on Highway 10 in a vehicle being driven by Westbrook in which Lewis was a passenger. The plaintiffs were traveling at approximately 45 m.p.h. Traffic at the intersection was controlled by stop signs on County Road 6. The fire truck and the plaintiffs' Baker testified that Marengo County does not have a fire 1 district and that the fire department is not a member of a fire district, i.e., it is not an "other special district." See the Volunteer Service Act, § 6-5-336(c)(1). Ala. Code 1975. 4 1131484 vehicle collided at the intersection of County Road 6 and Highway 10. The plaintiffs were seriously injured. White testified in his deposition that as he approached the intersection of Highway 10 and County Road 6 he began slowing down and brought the fire truck to a complete stop at the stop sign on County Road 6. White stated that he let some traffic on Highway 10 clear and that he then eased the truck forward to get a better line of sight both east and west along Highway 10 and came to a complete stop again. White testified that when he saw no approaching vehicles he proceeded through the intersection and across Highway 10. He testified that, at that moment, firefighters Clark and Maye shouted to him that a vehicle was approaching. Having already committed to proceeding through the intersection, White accelerated through the intersection in an attempt to clear the intersection and to avoid Westbrook's oncoming vehicle. However, White was unsuccessful in doing so, and Westbrook's vehicle struck the fire truck near the rear tire. Both firefighters Clark and Maye stated that White brought the fire truck to a complete stop at the stop sign before proceeding through the intersection. Clark and Maye 5 1131484 both stated that as White proceeded through the intersection Clark shouted that a vehicle was approaching and that White tried to make it through the intersection but was unable to do so. Westbrook initially testified in his deposition that the fire truck did not stop at the intersection and that it was moving across Highway 10 when he first saw it. Westbrook stated that "[the fire truck] just came out in the road in front of me ... a split second [and] he was there." However, upon further questioning, the petitioners' counsel elicited the following testimony: "Q. When you first saw the fire truck, was any part of the fire truck crossing Highway 10? "A. He was just coming out in the road, because we ... was coming in the road, ain't expecting nothing to come out. ".... "Q. All right. So are you saying that you were basically almost to the intersection or in the intersection when you saw him for the first time? "A. I was in the intersection. ".... "Q. All right. Now, so the first time you saw him, he was already starting to –- the truck was already starting to cross Alabama Highway 10 then? 6 1131484 "A. I'm going to say he come in the road. He just come out in the road right there, and he was on me. I couldn't do nothing. "Q. I understand that. My question is: That at the time you first saw him, he had already –- he was already past the stop bar at County Road 6 where the stop sign was? He was already in the road? "A. Yes, sir. He was coming in the road. He was just coming in the road. "Q. So you don't know whether he stopped for that stop sign or not, do you? "A. No, he didn't stop. Really, he didn't. "Q. But if the placement of the vehicle there in the road where you're telling me that you first saw the fire truck is accurate, you don't know –- you didn't see him then before he reached the stop sign, did you? "A. No, you can't see him, because he come around that little bend there. ".... "Q. All right. I guess what I'm getting at, Mr. Westbrook, is this: If the fire truck was out in the road the first time you saw it, how do you know whether or not it actually stopped? How do you know whether or not it stopped at the stop sign here? "A. Like I say, when I come up the road, we was just driving the road. He just all of a sudden come out in the road in front of me. "Q. I guess what I'm getting at is: You don't know whether he stopped at the stop sign and came out in front of you or whether he ever stopped at all? You don't know do you? 7 1131484 "A. No, sir." Lewis testified as follows: "Q. All right. When you first saw the fire truck, was it in the roadway on Alabama Highway 10, or did you see it further back on County Road 6? "A. ... [I]t was in the road. ".... "Q. All right. But you do recall it was –- part of the truck was in the roadway when you first saw it, Highway 10? "A. Yes, sir. ".... "Q. So you saw [the fire truck] behind the stop sign? "A. It was coming out. It wasn't behind the stop sign. When I seen him, he was coming out in the back of the woods onto Highway 10. "Q. I understand that. I guess what I'm getting at is: Did you ever see the fire truck completely behind that -- you know where the –- when I say the stop bar, do you know what I'm referring to? "A. Yes, sir, the stop sign. "Q. The stop sign? Did you ever see the truck behind the stop sign? "A. No. "Q. So, basically, at the time you saw the truck, it was already moving out into or trying to cross Alabama Highway 10? 8 1131484 "A. No. It wasn't trying to cross. I'm misunderstanding what you was saying. "Q. I got you. I want to make sure we're clear. "A. Okay. I'm misunderstanding what you said. When we was coming up, when we was coming up to the intersection, I didn't never see it stopped behind the stop bar. It was already out into the road." Upon being questioned by her own counsel, Lewis testified as follows: "Q. So you saw [the fire truck] moving from behind the stop sign all up to the point where y'all ran into it, and it never stopped? "A. Never stopped." The plaintiffs sued the fire department and White on January 9, 2013, asserting claims of negligence and wantonness and seeking damages for injuries sustained in the accident. The petitioners answered the complaint on February 6, 2013, generally denying the allegations and asserting certain affirmative defenses, including the immunity provided by § 6- 5-336, Ala. Code 1975 ("the Volunteer Service Act"). On April 23, 2014, the petitioners moved the trial court for a summary judgment, arguing, among other things, that they were entitled to the immunity provided by the Volunteer Service Act as to the negligence claims asserted against 9 1131484 them. The petitioners also argued that the alleged acts of 2 misconduct upon which the plaintiffs based their wantonness claims did not rise to the level of wanton conduct. On August 14, 2013, the plaintiffs filed their response in opposition to the petitioners' motion for a summary judgment. Following a hearing, the trial court, on August 17, 2014, entered an order denying the petitioners' motion for a summary judgment. This petition for a writ of mandamus followed. Standard of Review This Court has stated the following regarding the immunity exception to the general rule that an order denying a motion for a summary judgment is not reviewable by a petition for a writ of mandamus and setting out 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 The petitioners also argued that White was immune from 2 liability on the negligence claims under § 6-5-335, Ala. Code 1975, and that the fire department was immune from liability on the negligence claims pursuant to § 11-89-15, Ala. Code 1975. The petitioners concede on appeal that they are not entitled to the immunity provided by those statutory provisions. 10 1131484 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). This Court has also stated: "[W]hether 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). Discussion 11 1131484 The petitioners argue that the Volunteer Service Act immunizes them from liability in this case. The Volunteer Service Act provides, in pertinent part: "(c) For the purposes of this section, the meaning of the terms specified shall be as follows: "(1) Governmental Entity. Any county, municipality, township, school district, chartered unit, or subdivision, governmental unit, other special district, similar entity, or any association, authority, board, commission, division, office, officer, task force, or other agency of any state; "(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); "(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: 12 1131484 "(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)." § 6-5-336, Ala. Code 1975. We address in turn both White's status and the fire department's status relative to the Volunteer Service Act. I. White In order for White to be immune under the Volunteer Service Act from liability based on his status as a volunteer (1) he must have been "acting in good faith and within the scope of [his] official functions and duties for a nonprofit organization, a nonprofit corporation, hospital, or a governmental entity," and (2) the damage or injury made the 13 1131484 basis of the action was not caused by White's willful or wanton misconduct. § 6-5-336. As discussed above, the fire department was incorporated specifically for the "purpose of forming a non-profit corporation ... exclusively for charitable ... purposes within the meaning of Section 501(c)(3) of the U.S. Internal Revenue Code of 1954." The fire department has continuously served the community of Dixon Mills in that regard since its formation. The fire department does not compensate its firefighters for their services. Further, Dixon Mills is an unincorporated community and has no form of government. The fire department's original source of funding consisted of donations of equipment from other fire departments. Accordingly, the fire department is a "nonprofit organization" as that term is defined in, and for purposes of, the Volunteer Service Act. 3 The petitioners, relying upon the fact that they receive 3 some funding from the countywide tax initiative and upon the County Commission's "blessing and support" of the fire department's fire-fighting initiative by way of its approval of the fire department's agreement with the Alabama Forestry Commission, argue for the first time in their reply brief that the fire department is also a "governmental entity" as that term is defined in the Volunteer Service Act and is entitled to immunity in that capacity. However, "[i]t is a well-established principle of appellate review that we will 14 1131484 White was a member of the fire department at the time of the accident, and he received no compensation for the services he performed for the fire department. At the time of the accident, White was operating the fire department's fire truck, with lights displayed and sirens sounding, while en route to a structure fire. Clearly, White was acting in good faith and within the scope of his volunteer-firefighter duties with the fire department, a nonprofit organization under the Volunteer Service Act, and thus would be liable to the plaintiffs only if he engaged in "willful or wanton misconduct." The determination of whether a party's act constitutes willfulness or wantonness depends on the facts of each particular case. Ex parte Anderson, 682 So. 2d 467 (Ala. 1996). "'A majority of this Court, in Lynn Strickland Sales & Service, Inc. v. Aero–Lane Fabricators, Inc., 510 So. 2d 142 not consider an issue not raised in an appellant's initial brief, but raised only in the reply brief." Lloyd Noland Hosp. v. Durham, 906 So. 2d 157, 173 (Ala. 2005). Accordingly, we will not address the petitioners' argument that, in addition to its status as a nonprofit organization, the fire department is also a governmental entity entitled to immunity under the Volunteer Service Act. 15 1131484 (Ala. 1987), emphasized that wantonness, which requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or omission, is not to be confused with negligence (i.e., mere inadvertence): "'"Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actio na ble culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury.... "'"Negligence is usually characterized as an inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as an act which cannot exist without a purpose or design, a conscious or intentional act. 'Simple negligence is the inadvertent omission of duty; and wanton or w i l l f u l m i s c o n d u c t i s characterized as such by the state of mind with which the act or omission is done or omitted.' McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992 (1913).... "'".... 16 1131484 "'"'Willful and wanton conduct has a well-defined meaning at law. It is sometimes expressed in terms of "reckless disregard of the safety of another." Willful and wanton conduct should not be c o n f u s e d w i t h negligence. It has been correctly stated that the two concepts are as "unmixable as oil and water."' "'".... "'"'... Willfulness or wantonness imports premeditation, or k n o w l e d g e a n d consciousness that the injury is likely to result from the act done or from the omission to act, and strictly speaking, is not within the meaning of the term "negligence," which conveys the idea of i n a d v e r t e n c e , a s distinguished from premeditation or formed intention.'" "'510 So. 2d at 145–46 (citations omitted). See also, Central Alabama Electric Cooperative v. Tapley, 546 So. 2d 371 (Ala. 1989).' 17 1131484 "[Ex parte Anderson,] 682 So. 2d [467] at 469–70 [(Ala. 1996)]." Phillips ex rel. Phillips v. United Servs. Auto. Ass'n, 988 So. 2d 464, 467–68 (Ala. 2008). In Ex parte Essary, 992 So. 2d 5, 12 (Ala. 2007), this Court explained: "The evidence, viewed, as it must be, in a light most favorable to the plaintiffs, the nonmovants, shows that Essary slowed to a 'rolling stop' at the intersection and attempted to cross the intersection between two moving vehicles. The plaintiffs' characterization of Essary's attempt to cross the intersection between two vehicles as 'accelerating' after a 'rolling stop' to 'shoot the gap' does not elevate Essary's actual conduct--as observed by the plaintiffs--from the negligent failure to exercise good judgment to a wanton act constituting reckless indifference to a known danger likely to inflict injury. At best, the plaintiffs' evidence shows that Essary, like the defendant in Wilson [v. Cuevas, 420 So. 2d 62 (Ala. 1982)], made an error in judgment when he attempted to 'beat the traffic' or 'shoot the gap' by passing between Banks's vehicle and Burrell's vehicle. Wilson holds that such conduct is not wanton. "Although the evidence indicates that Essary knowingly entered the intersection, there is nothing from which the trier of fact could infer that, in moving his vehicle through the intersection, Essary's state of mind contained the requisite consciousness, awareness, or perception that injury was likely to, or would probably, result. Indeed, the risk of injury to Essary himself was as real as any risk of injury to the plaintiffs. Absent some evidence of impaired judgment, such as from the consumption of alcohol, we do not expect an individual to engage in self-destructive behavior. See Griffin Lumber Co. v. Harper, 252 Ala. 93, 95, 39 So. 2d 399, 401 (1949) 18 1131484 ('There is a rebuttable presumption recognized by the law that every person in possession of his normal faculties in a situation known to be dangerous to himself, will give heed to instincts of safety and self-preservation to exercise ordinary care for his own personal protection. It is founded on a law of nature and has [as] its motive the fear of pain or death. Atlantic Coast Line R. Co. v. Wetherington, 245 Ala. 313(9), 16 So. 2d 720 [(1944)].'). "The facts here presented do not establish any basis from which to conclude that Essary was not possessed of his normal faculties, such as from voluntary intoxication, rendering him indifferent to the risk of injury to himself when crossing the intersection if he collided with another vehicle. Nor is the act as described by Burrell so inherently reckless that we might otherwise impute to Essary a depravity consistent with disregard of instincts of safety and self-preservation. We therefore conclude that, as a matter of law, the plaintiffs failed to offer substantial evidence indicating that Essary was conscious that injury would likely or probably result from his actions." (Some emphasis added.) Here, when White approached the intersection in the fire truck, the lights and sirens on the fire truck were activated. White testified that as he approached the intersection of Highway 10 and County Road 6 he began slowing down and brought the fire truck to a complete stop at the stop sign on County Road 6; that he then let some traffic on Highway 10 clear and eased the truck forward in order to get a better line of sight both east and west along Highway 10; that he brought the fire 19 1131484 truck to a complete stop again; that when he saw no approaching vehicles he proceeded through the intersection and across Highway 10; that, at that moment, firefighters Clark and Maye shouted to him that a vehicle was approaching; and that, having already committed to proceeding through the intersection, he accelerated in an attempt to clear the intersection before making contact with the plaintiffs' oncoming vehicle. Both firefighters Clark and Maye stated that White brought the fire truck to a complete stop at the stop sign before proceeding through the intersection and across Highway 10. Westbrook testified that when he first saw the fire truck it was already proceeding through the intersection and that he did not know whether the fire truck had stopped at the stop sign on County Road 6. Lewis's testimony on this issue is contradictory. She initially testified that when she first saw the fire truck it was proceeding through the intersection and had already entered Highway 10, the implication being that, like Westbrook, she did not know whether the fire truck had stopped at the stop sign. She specifically testified that she never saw the fire truck behind the stop sign. However, 20 1131484 upon subsequent questioning by her attorney, Lewis testified that she saw the fire truck moving at a point before the stop sign and that it never stopped before it entered the intersection. Although the evidence indicates that White knowingly entered the intersection, nothing in the evidence indicates that White acted willfully or wantonly in doing so, i.e., there is nothing from which the trier of fact could infer that, in moving the fire truck through the intersection, White's "state of mind contained the requisite consciousness, awareness, or perception that injury was likely to, or would probably, result." Ex parte Essary, 992 So. 2d at 12. Accordingly, We conclude that White's actions were not willful or wanton and that he is entitled to the immunity afforded a volunteer by the Volunteer Service Act. II. The Fire Department Relying upon this Court's decisions in Hollis v. City of Brighton, 885 So. 2d 135 (Ala. 2004), and Ex parte Labbe, 156 So. 3d 368 (Ala. 2014), the petitioners argue that the fire department "fall[s] within the legislature's intended class of 21 1131484 persons to be protected by the Volunteer Service Act." We disagree. In Hollis, homeowners sued the City of Brighton, alleging that its volunteer fire department negligently failed to extinguish a fire that destroyed their house. The homeowners alleged that the City was liable for negligence because, they argued, by establishing a fire department, the City undertook a duty to provide the homeowners with skillful fire protection, and it then breached that duty through the unskillful acts or omissions of the City-created volunteer fire department in responding to the fire that destroyed their house. In addition, the homeowners claimed that the City was vicariously liable on a negligence or wantonness theory based on the same unskillful acts or omissions of the members of the fire department. The City moved the trial court for a summary judgment, arguing that the Voluntary Service Act immunized the volunteer firefighters individually and that their immunity protected them from liability and thereby protected the City from vicarious liability for the firefighters' torts. The trial court entered a summary judgment for the City. Hollis, supra. 22 1131484 In affirming the summary judgment for the City, this Court stated: "[T]he 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, the putative master in the case now before us. While the [homeowners] 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 142. In Ex parte Labbe, the plaintiffs sued the City of Valley Grande and its mayor asserting various claims, including negligence and wantonness, arising out of the alleged negligent removal of the bodies of the plaintiffs' family members from a fire scene by the City of Valley Grande volunteer fire department. The City had entered into a contract with the Valley Grande volunteer fire department pursuant to which the fire department agreed to provide fire- protection service to the City. The City and its mayor moved the trial court for a summary judgment, arguing, among 23 1131484 other things, that they were entitled to immunity under the Volunteer Service Act. The trial court denied the City and the mayor's motion for a summary judgment, and the City and the mayor filed a petition for a writ of mandamus with is Court. The City and the mayor, relying upon this Court's decision in Hollis, argued in their petition for a writ of mandamus that the volunteer firefighters were immune from suit under the Volunteer Service Act and that, because the individual firefighters were immune from suit, the City and the mayor were protected from vicarious liability for the firefighters' negligent acts. The plaintiffs sought 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, was a professional fire department operating under the control of the City. The plaintiffs based their argument on the contractual relationship that existed between the City and the fire department and certain annual donations made to the fire department by the City. 24 1131484 This Court concluded that the agreement between the City and the fire department did not alter the fire department's "volunteer" status. Having determined that the fire department was a "volunteer" fire department, we concluded that its firefighters were volunteers immune from liability for their negligent acts under the Volunteer Service Act. Because the firefighters were immune from liability for their negligent acts, we concluded that, pursuant to Hollis, the City and the mayor were likewise immune from liability for the negligent acts of the firefighters. Ex parte Labbe, 156 So. 3d at 373-74. It appears from the petitioners' reliance upon Hollis and Ex parte Labbe that they are claiming that the fire department is vicariously immune from liability for White's allegedly negligent acts based on its respondeat superior relationship with White. This argument fails for a couple reasons. First, section (e) of the Volunteer Service Act expressly provides that a nonprofit organization may be held liable for the negligent act or omission of a volunteer, based upon the doctrine of respondeat superior, regardless of the immunity afforded the volunteer under the section (d) of the Act. 25 1131484 Section (e) of the Volunteer Service Act specifically provides: "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)." Second, Hollis and Ex parte Labbe are easily distinguishable from the present case. In those cases the plaintiffs sued municipalities based on the alleged tortious acts of their volunteer firefighters. As discussed above, this Court found that the volunteer firefighters enjoyed immunity under the Volunteer Service Act and, therefore, that the municipalities likewise enjoyed immunity from the firefighters' tortious acts based on the master-servant relationship that existed between the two. Here, the plaintiffs did not sue a municipality; rather, they sued the fire department, an organization that has been expressly foreclosed, under section (e) of the Volunteer Service Act, from vicariously sharing immunity with the firefighters based on the master-servant relationship. 26 1131484 Accordingly, we conclude that the petitioners have failed to establish a clear legal right to the relief sought as it pertains to the fire department. Conclusion The petitioners have established a clear legal right to the relief sought as to White. The petitioners, however, have failed to establish a clear legal right to the relief sought as it pertains to the fire department. Accordingly, we grant the petition for a writ of mandamus in this case as to White and direct the trial court to enter a summary judgment for him on the negligence claim. We deny the petition for a writ of mandamus as to the fire department. PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED. Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. 27	May 15, 2015
83928f6a-5eea-48e9-85fe-bf1c3f681105	Ex parte Joe Bennett.	N/A	1140293	Alabama	Alabama Supreme Court	Rel: 2/27/15 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 ____________________ 1140293 ____________________ Ex parte Joe Bennett PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Joe Bennett v. State of Alabama) (Jefferson Circuit Court, CC-98-1737 and CC-98-1738; Court of Criminal Appeals, CR-13-1612) BRYAN, Justice. WRIT DENIED. NO OPINION. 1140293 Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. Moore, C.J., dissents. 2 1140293 MOORE, Chief Justice (dissenting). I respectfully dissent from this Court's decision to deny the petition for the writ of certiorari. Joe Bennett, the petitioner, was sentenced as a habitual felony offender to life imprisonment without the possibility of parole for two convictions in 1999 for first-degree robbery. On March 6, 2014, Bennett filed a motion for sentence reconsideration pursuant to § 13A–5-9.1, Ala. Code 1975 (repealed effective March 13, 2014, see Act No. 2014-165, Ala. Acts 2014)(a motion for sentence reconsideration is often referred to as a "Kirby motion" in light of this Court's decision in Kirby v. State, 899 So. 2d 968 (Ala. 2004)). According to the unpublished memorandum of the Court of Criminal Appeals, "the circuit court dismissed Bennett's motion [for sentence] reconsideration based on its determination that 'Robbery 1st is a violent felony.'" I believe the circuit court erred in dismissing, and the Court of Criminal Appeals erred in affirming, Bennett v. State (No. CR-13-1612, November 14, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014)(table), Bennett's motion for sentence reconsideration based solely on the 3 1140293 statutory definition of Bennett's underlying offense as violent. Two justices, writing for the Court, recently recognized that "'whether an inmate is a "nonviolent convicted offender" is based on the totality of the circumstances.'" Ex parte Harper, [Ms. 1130496, February 13, 2015] ___ So. 3d ___, ___ (Ala. 2015)(quoting Holt v. State, 960 So. 2d 726, 738 (Ala. Crim. App. 2006)). The opinion noted that the Court of Criminal Appeals' decision in "Holt prohibits circuit courts from ruling on Kirby motions based solely on the statutory designation of the inmate's underlying offense." ___ So. 3d at ___. "[I]t is clear that the Court of Criminal Appeals in Holt did not intend to authorize or validate what it characterized as 'an erroneous interpretation of § 13A-5-9.1 and Kirby,' namely, 'that anyone convicted of an offense statutorily defined as a 'violent offense' is, as a matter of law, a 'violent offender' for the purposes of § 13A-5-9.1, and, thus, ineligible for sentence reconsideration. Holt, 960 So. 2d at 740. ... "'If the Alabama Supreme Court had construed § 13A-5-9.1 as a bright-line rule precluding any inmate who had been convicted of an offense statutorily defined as a "violent offense" from sentence reconsideration, the Court would have instructed circuit courts to look no 4 1140293 further than the statutory designation of the inmate's underlying offense.' "Holt, 960 So. 2d at 737. The fact that one commits a violent offense or 'crime of violence,' as that term is defined in § 13A-11-70(2), Ala. Code 1975, does not forever prohibit one from being considered a 'nonviolent convicted offender' for the purpose of § 13A-5-9.1. The plain language of § 13A-5-9.1 does not ask whether the crime the offender committed was a violent crime; rather, the statute asks whether the convicted offender is nonviolent." Harper, ___ So. 3d at ___. "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." Ex parte Gill, [Ms. 1130649, June 20, 2014] ___ So. 3d ___, ___ (Ala. 2014)(Moore, C.J., dissenting). Bennett is not forever a "violent convicted offender" solely because he was convicted twice for first-degree robbery, which is classified as a violent offense. Therefore, I would grant Bennett's petition for a writ of certiorari and remand the case to the Court of Criminal Appeals with instructions for that court to remand the case for the circuit court to reconsider Bennett's motion for sentence reconsideration, as this Court did in Harper. "[T]he window 5 1140293 for the review of Kirby motions has been closing since the repeal of § 13A-5-9.1.," and Bennett, like the petitioner in Harper, who was also "faced with his last opportunity to take advantage of § 13A-5-9.1," is entitled to a reconsideration of his sentence in light of the totality of the circumstances, including his behavior during his incarceration. Harper, ___ So. 3d at ___. 6	February 27, 2015
2621b14b-af22-4110-9129-c7d46ff83693	Ex parte Kenneth Ray Cornelius.	N/A	1140673	Alabama	Alabama Supreme Court	Rel: 6/5/15 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 ____________________ 1140673 ____________________ Ex parte Kenneth Ray Cornelius PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Kenneth Ray Cornelius v. State of Alabama) (Cullman Circuit Court, CC-04-413; Court of Criminal Appeals, CR-14-0310) BRYAN, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Main, and Wise, JJ., concur. Moore, C.J., and Murdock and Shaw, JJ., dissent. 1140673 MOORE, Chief Justice (dissenting). Kenneth Ray Cornelius petitions this Court for a writ of certiorari to review the decision of the Court of Criminal Appeals dismissing Cornelius's appeal to that court. Today this Court denies his petition for a writ of certiorari. I respectfully dissent. Cornelius filed a motion for sentence reconsideration pursuant to § 13A-5-9.1, Ala. Code 1975 (which was repealed effective March 13, 2014, see Act No. 2014-165, Ala. Acts 2014), and Kirby v. State, 899 So. 2d 968 (Ala. 2004). Such a motion is referred to as a "Kirby motion." The Cullman Circuit Court denied Cornelius's Kirby motion, and Cornelius appealed the circuit court's decision to the Court of Criminal Appeals. On January 15, 2015, the Court of Criminal Appeals dismissed Cornelius's appeal on the ground that Cornelius's Kirby motion was filed on March 13, 2014, the effective date of the repeal of § 13A-5-9.1. The Court of Criminal Appeals determined that the circuit court lacked the jurisdiction to rule on Cornelius's Kirby motion on March 13, 2014, when the repeal of § 13A-5-9.1 became effective. Act No. 2014-165 states, in pertinent part: 2 1140673 "BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: "Section 1. Section 13A-5-9.1, Code of Alabama 1975, is repealed. "Section 2. This act shall be applied prospectively only. Any case, on the effective date of this act, in which a motion filed pursuant to Section 13A-5-9.1, Code of Alabama 1975, is pending in the trial court ... shall not be affected by the act. "Section 3. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law. "Approved March 13, 2014 "Time: 7:20 A.M." (Emphasis added.) Section 2 provides that any Kirby motion "pending" in the trial court on the effective date of the act (March 13, 2014) "shall not be affected by the act." Because in my view Cornelius's Kirby motion was filed on and therefore was pending on March 13, 2014, I believe the circuit court retained jurisdiction to consider Cornelius's Kirby motion. Accordingly, I respectfully dissent. I would grant the petition to determine whether the door on Cornelius's Kirby motion was closed a day too early. 3	June 5, 2015
2db7c99a-0641-43b3-aa6c-382c1efc839c	Ex parte Wendell Hightower.	N/A	1140628	Alabama	Alabama Supreme Court	REL:04/17/2015 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 ____________________ 1140628 ____________________ Ex parte Wendell Hightower PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Wendell Hightower v. State of Alabama) (Mobile Circuit Court, CC-94-1984 and CC-94-1985; Court of Criminal Appeals, CR-13-1539) BOLIN, Justice. WRIT DENIED. NO OPINION. 1140628 Murdock, Main, and Bryan, JJ., concur. Moore, C.J., concurs specially. 2 1140628 MOORE, Chief Justice (concurring specially). I concur in denying Wendell Hightower's petition for a writ of certiorari. Effective March 13, 2014, the Alabama Legislature repealed § 13A-5-9.1, Ala. Code 1975, which provided for the filing of motions for sentence reconsideration by certain inmates, also referred to as "Kirby motions." See Kirby v. State, 899 So. 2d 968 (Ala. 2004); see also Gill v. State, [Ms. 1130649, June 20, 2014] ___ So. 3d ___, ___ (Ala. 2014)(Moore, C.J., dissenting)(discussing the repeal of § 13A-5-9.1). Hightower, an inmate, filed his fourth motion for sentence reconsideration in May 2014, after the effective date of the repeal of § 13A-5-9.1. Therefore, his motion for sentence reconsideration was properly denied. However, Hightower alleges in his petition that he had filed a third motion for sentence reconsideration in June 2013, before the repeal of § 13A-5-9.1, and that the trial court never ruled on that motion. Hightower's third motion for sentence reconsideration is not before us, but if, as Hightower alleges, that motion was filed before the repeal of § 13A-5- 9.1 and remains pending, Hightower may still have available to 3 1140628 him the remedy of sentence reconsideration. If the trial court has indeed not ruled on Hightower's June 2013 motion for sentence reconsideration, then mandamus relief may be available to compel a ruling on that motion. See Ex parte Barnett, 858 So. 2d 948, 949 (Ala. 2003). 4	April 17, 2015
ac83e45c-9f96-4f0d-8679-e6897b420693	Baldwin Mutual Ins. Co. v. McCain	N/A	1131058	Alabama	Alabama Supreme Court	REL: 02/20/2015 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 ____________________ 1131058 ____________________ Baldwin Mutual Insurance Company v. Gloria Mitchell McCain Appeal from Montgomery Circuit Court (CV-10-901266) STUART, Justice. Baldwin Mutual Insurance Company ("Baldwin Mutual") appeals the order of the Montgomery Circuit Court certifying the action filed against it by Gloria Mitchell McCain as a 1131058 class action under Rule 23, Ala. R. Civ. P., and § 6-5-641, Ala. Code 1975. We reverse and remand. I. At all relevant times, McCain owned a house in Montgomery upon which she held a homeowner's insurance policy issued by Baldwin Mutual. That policy provided that any covered property losses would be settled "at actual cash value at the time of loss but not exceeding the amount necessary to repair or replace the damaged property." The policy further explained "actual cash value" as follows: "Actual cash value is calculated as the amount it would cost to repair or replace covered property, at the time of loss or damage, with material of like kind and quality, subject to a deduction for deterioration, depreciation and obsolescence. Actual cash value applies to valuation of covered property regardless of whether that property has sustained partial or total loss or damage. "The actual cash value of the lost or damaged property may be significantly less than its replacement cost." In July 2005, McCain's house was damaged as the result of a windstorm. She filed a claim with Baldwin Mutual, and Baldwin Mutual thereafter retained an independent adjuster to examine McCain's damaged property and to prepare an estimate to repair the damage. Baldwin Mutual paid McCain's claim in 2 1131058 accordance with the estimate prepared by the adjuster. Pursuant to a work-authorization form signed by McCain, Baldwin Mutual paid the funds directly to McCain's contractor. In June 2006, McCain filed another claim after 1 her house suffered damage as a result of a lightning strike. After the same adjuster prepared an estimate, Baldwin Mutual paid the new claim in accordance with the adjuster's estimate. The record contains no allegation or evidence indicating that McCain sought more money from Baldwin Mutual in connection with those claims or that she was unhappy in any way with the service provided by Baldwin Mutual on those claims before she initiated this lawsuit. On September 29, 2010, McCain filed a complaint against Baldwin Mutual. As subsequently amended, the complaint stated one claim of breach of contract and another claim generally asserting misrepresentation and suppression of material facts. The genesis of the claims is that Baldwin Mutual had wrongfully been reducing the amount paid on claims made on actual-cash-value polices inasmuch as its practice was to Baldwin Mutual apparently paid McCain directly for 1 personal property that was damaged as a result of the windstorm. 3 1131058 deduct some amount for depreciation not only of the damaged materials and the labor costs of initially installing those damaged materials (based on their condition prior to the covered damage and their expected life span), but also of the labor costs associated with the removal of the damaged materials. It is improper and impossible to depreciate those labor costs, McCain argues, because they had not previously been incurred at some defined time in the past; rather, they are being incurred at the time of the current repair. For example, with regard to McCain's July 2005 claim, Baldwin Mutual recognized that the cost of removing damaged roof shingles was $420; however, $63 in depreciation was deducted from that amount, and Baldwin Mutual paid only $357 for that job, what it considered to be the actual cash value. See 2 generally Branch v. Farmers Ins. Co., 55 P.3d 1023, 1028 (Okla. 2002) (clarifying that under Oklahoma law "labor costs to tear off an old roof are not included as a necessary part of the replacement costs of installing a new roof" and that McCain does not dispute that Baldwin Mutual was entitled 2 under her policy to deduct an amount for depreciation with regard to the purchase and installation of new shingles, and, in fact, Baldwin Mutual did so, calculating the cost of that job to be $2,070 and paying $1,759.50 as the actual cash value after deducting $310.50 for depreciation. 4 1131058 "the labor costs in debris removal may not be depreciated"). Noting that hundreds or thousands of Baldwin Mutual policyholders were likely negatively affected by Baldwin Mutual's practices in this regard, McCain also sought class- action certification of her claims. Specifically, she sought to represent a class composed of: "All holders of policies, issued by [Baldwin Mutual], insuring properties within the State of Alabama who have suffered a loss within six (6) years of the filing of this complaint for which [Baldwin Mutual] reduced the actual cash value of the same by reduction for the loss of value of undepreciable loss elements." Baldwin Mutual filed an answer denying that it had improperly calculated what was owed McCain or any other policyholder under the terms of its actual-cash-value policies, and it subsequently moved for a summary judgment on the same basis; however, that summary-judgment motion was ultimately denied. On April 16, 2014, the trial court held the class- certification hearing contemplated by § 6-5-641(d). Baldwin Mutual filed a brief that morning opposing class certification and arguing that McCain could not meet the requirements for class certification under Rule 23, and, at the close of the hearing, the trial court granted McCain 30 days in which to 5 1131058 file a brief in response. McCain filed her brief in support of class certification on May 13, 2014. In that brief, McCain proposed a new definition of the class she desired to represent, arguing that the class should be defined as follows: "(1) All current and former Baldwin Mutual insureds; "(2) who are citizens of the State of Alabama; "(3) who in the six years preceding the complaint suffered a covered loss to property situated within the State of Alabama; "(4) where the damage estimate for such loss prepared by Baldwin Mutual or their adjusters did not include as a separate item cost for 'removal' of damaged building components, and then depreciated the cost of labor for removal down to a lesser amount; "(5) where calculation of the loss was based on either replacement cost or actual case value; and "(6) where the payment for such loss was made to the insured or directly to a contractor." On May 19, 2014, Baldwin Mutual filed a response to McCain's brief, supplementing its previous arguments and responding to arguments made by McCain at the hearing and in her post- hearing brief; Baldwin Mutual also argued that it was improper 6 1131058 for McCain to seek to expand the proposed class after the class-certification hearing. On June 3, 2014, the trial court entered an order certifying this action as a class action and defining the class in accordance with the definition proposed by McCain in her May 13 brief. On June 16, 2014, Baldwin Mutual appealed that order to this Court pursuant to § 6-5-642, Ala. Code 1975. II. This Court explained the standard of review applicable to a class-certification order in U-Haul Co. of Alabama v. Johnson, 893 So. 2d 307, 310-11 (Ala. 2004): "This Court reviews a trial court's class-certification order to determine whether the court exceeded its discretion in entering the order, but we review de novo the question whether the trial court applied the correct legal standard in reaching its decision to certify a class. Compass Bank v. Snow, 823 So. 2d 667 (Ala. 2001). We will not disturb a trial court's class-certification order without a showing that in entering the order the court exceeded the permissible limits of its discretion. General Motors Acceptance Corp. v. Dubose, 834 So. 2d 67, 70 (Ala. 2002). "If [the named plaintiff] failed to meet his evidentiary burden as required by Rule 23, Ala. R. Civ. P., then the trial court exceeded its discretion in certifying the class. Compass Bank, 823 So. 2d at 672. [The named plaintiff] must 7 1131058 establish all of the criteria set forth in Rule 23(a) and one of the criteria set forth in Rule 23(b). Ex parte Gold Kist, Inc., 646 So. 2d 1339, 1341 (Ala. 1994)." We further emphasize that a trial court exceeds its discretion in certifying a class, without regard to whether the named plaintiff might have met the requirements of Rule 23, if the procedural requirements of § 6-5-641 are not followed. See § 6-5-641(a) ("No class of civil litigants shall be certified or recognized by any court of the State of Alabama unless there shall have been compliance with the procedures for certification of the class set forth in this article."). Those requirements include the mandate that the trial court, upon the request of any party, "hold a full evidentiary hearing on class certification," § 6-5-641(d), and that the trial court subject the named plaintiff's request for class certification to "a rigorous analysis," § 6-5-641(e). See, e.g., Disch v. Hicks, 900 So. 2d 399, 409 (Ala. 2004) (reversing order entered by trial court, stating that, "[o]n remand, the trial court shall schedule a hearing pursuant to § 6-5-541(d), Ala. Code 1975, and shall comply with the requirements of § 6-5-641(e), Ala. Code 1975"). 8 1131058 III. In this case, Baldwin Mutual argues that the trial court exceeded its discretion in certifying the requested class because, it alleges, McCain failed to meet her evidentiary burden under Rule 23 and the trial court failed to comply with § 6-5-641. Because it is evident that the trial court did not comply with the procedural requirements of § 6-5-641, as those requirements have been explained in Baldwin Mutual Insurance Co. v. Edwards, 63 So. 3d 1268 (Ala. 2010), we pretermit consideration of the Rule 23 issues raised by Baldwin Mutual and reverse the order entered by the trial court so the identified errors can be corrected on remand. The facts in Edwards were substantially similar to the facts in the instant case: A plaintiff sued Baldwin Mutual alleging that Baldwin Mutual had been paying too little on claims filed pursuant to homeowners' insurance policies providing for reimbursement based on the actual cash value of the damaged property, and the plaintiff sought to have his action certified for class-action treatment based on the large number of policyholders alleged to have been treated 9 1131058 similarly. 63 So. 3d at 1269. Subsequently, the trial court 3 conducted a class-certification hearing pursuant to § 6-5-641, after which it allowed the parties to file briefs further explaining their positions on the issue. 63 So. 3d at 1269- 70. In his brief, the plaintiff expanded the proposed class, broadening the definition that had previously been set forth in his complaint; Baldwin Mutual thereafter objected to the expanded definition; and the trial court ultimately certified the class, defining it in accordance with the expanded definition put forth by the plaintiff in his post-class- certification-hearing brief. 63 So. 3d at 1270-71. Baldwin Mutual appealed. This Court ultimately ruled in favor of Baldwin Mutual, stating: "Baldwin Mutual argues on appeal that the trial court erred in certifying the revised class defined in Edwards's November 6, 2009, brief. Specifically, Baldwin Mutual argues that Edwards impermissibly expanded the original class definition and that, in certifying the revised class, the trial court failed to comply with the requirements of § 6–5–641 in that it did not hold a hearing on the class it certified The plaintiff in Edwards alleged that Baldwin Mutual had 3 improperly paid less than the full value of claims based on its practice of not adding a sum equal to 20% of the underlying cost of repair to compensate for a general contractor's overhead and profit. 63 So. 3d at 1269. 10 1131058 and it could not have conducted a rigorous analysis of that class. We agree. "Edwards's proposed redefinition of the class in his November 6, 2009, brief materially changed the class in a manner not contemplated at the October 15, 2009, hearing. Baldwin Mutual objected to that change and argued that, if the trial court accepted the change, Baldwin Mutual would be denied a meaningful hearing on the redefined class as required by § 6–5–641(d). As stated above, § 6–5–641(d) requires the trial court to 'conduct an evidentiary hearing on class-certification issues' at the request of any party. Disch [v. Hicks], 900 So. 2d [399,] 406 [(Ala. 2004)]. Because the definition of the class materially changed in a manner not contemplated at the October 15, 2009, hearing, the trial court exceeded its discretion in certifying the newly defined class without conducting a new hearing. See § 6–5–641(d). Moreover, because it did not conduct such a hearing, the trial court could not have conducted a rigorous analysis of evidence regarding the newly defined class as required by § 6–5–641(e). See Ex parte Caremark RX, Inc., 956 So. 2d 1117 (Ala. 2006), citing with approval the plurality opinion in Bill Heard Chevrolet Co. v. Thomas, 819 So. 2d 34, 41 (Ala. 2001) ('[W]e conclude that the trial court could not have conducted a "rigorous analysis" of the evidence to determine whether the Rule 23 prerequisites were met, because it did not allow the defendants an adequate opportunity to oppose the plaintiffs' proposed certification order.'). "Based on the foregoing, we conclude that the trial court exceeded its discretion in certifying the class as redefined in Edwards's November 6, 2009, brief. This finding precludes our consideration of the other issues presented by the parties on appeal." Edwards, 63 So. 3d at 1271-72. 11 1131058 As was the case in Edwards, the class definition proposed by McCain in her brief submitted after the class-certification hearing was materially different from the class definition offered by McCain in her original complaint –– both McCain's and Edwards's initial proposed classes were limited to those Baldwin Mutual customers who held actual-cash-value policies, but the class definitions proposed following the class- certification hearing, which were accepted by the trial court, also included those Baldwin Mutual customers who held replacement-cost policies. See Edwards, 63 So. 3d at 1270 (stating that the class defined by Edwards in his post-hearing brief "omits from the [originally proposed] class definition the requirement that class members' losses have been paid 'on an actual cash value basis'"). Accordingly, as explained in Edwards, the trial court here exceeded its discretion in certifying the class in accordance with a definition proposed by McCain without giving Baldwin Mutual the opportunity to oppose the certification of the proposed class at a hearing conducted for that purpose pursuant to § 6-5-641, and the class-certification order must therefore be reversed. 12 1131058 IV. Baldwin Mutual appealed the trial court's order certifying McCain's action against it as a class action, and, for the reasons explained above, that order is now reversed and the cause remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. Parker, Shaw, and Wise, JJ., concur. Moore, C.J., concurs in the result. 13	February 20, 2015
58a637fe-35d6-44f7-b643-e5a6ad085a82	Ex parte Sergio Acosta.	N/A	1140200	Alabama	Alabama Supreme Court	REL:06/05/2015 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 ____________________ 1140200 ____________________ Ex parte Sergio Acosta PETITION FOR WRIT OF MANDAMUS (In re: Sergio Acosta v. Trinity Bank) (Geneva Circuit Court, CV-13-900060) BOLIN, Justice. Sergio Acosta petitions this Court for a writ of mandamus directing the Geneva Circuit Court to vacate its October 22, 1140200 2014, order granting a motion filed by Trinity Bank (hereinafter "the bank") to strike Acosta's jury demand with respect to all counts in Acosta's counterclaim and third-party complaint in the bank's action against him. We grant the petition and issue the writ. I. Facts and Procedural History On April 19, 2013, the bank filed a complaint, seeking a judgment against Acosta for financial losses it incurred after Acosta defaulted on certain "Multipurpose Note and Security Agreement[s]" ("the notes") he had executed with the bank. The bank alleged that Acosta had executed two secured notes and one unsecured note, which, it said, Acosta had failed and/or refused to pay; that the bank had foreclosed on the properties pledged as collateral on the secured notes; and that proper credit had been applied to the notes. The bank sought a judgment for the balance due on the notes, plus interest, fees, costs, and attorney fees. On January 30, 2014, Acosta filed a counterclaim against the bank, as well as a third-party complaint against two of its officers, alleging that on April 4, 2006, he had entered into a business relationship with R&B Properties under the 2 1140200 name of SilverPalm Properties, LLC; that SilverPalm was formed to construct and to manage rental properties; that loans from the bank were the principal source of funding for SilverPalm; that the financing plan was for SilverPalm to procure from the bank the funds to construct the properties, for SilverPalm to pay the interest on the notes until the properties were rented, and for SilverPalm to pay off the notes once the properties generated sufficient rental income to do so; that, on November 2, 2009, Acosta and R&B Properties dissolved SilverPalm because of a downturn in the economy; that the bank thereafter induced Acosta to become personally liable for the notes previously secured only by SilverPalm by representing to Acosta that he would be responsible only for the interest accruing on the notes until such time as the principal could be paid from rental income generated by the properties; that Acosta at all times continued to pay the interest on the notes; that the bank at some point advised Acosta that additional security was required to continue financing the notes; that Acosta declined to pledge additional security; and that the bank then called the notes due and foreclosed on the properties securing the notes. Acosta requested an accounting 3 1140200 for the amounts claimed by the bank on the notes and the mortgages securing the notes, and he sought damages based on allegations of wantonness, breach of good faith and fair dealing, negligence, fraud, breach of fiduciary duty, unjust enrichment, and promissory estoppel. The counterclaim and third-party complaint included a demand for a jury trial. On May 2, 2014, the bank filed a motion to strike Acosta's jury demand, relying on a jury-waiver provision in four Assignments of Rents and Leases that Acosta had executed in consideration of the notes ("the assignments"), assigning to the bank all of Acosta's interest in the leases for the rental properties. On May 30, 2014, the trial court entered an order denying the bank's motion to strike, and the bank thereafter filed a motion to reconsider. Following a hearing, the trial court withdrew its May 30, 2014, order and entered a subsequent order, dated October 22, 2014, granting the bank's motion to strike the jury demand as to all counts in Acosta's counterclaim and third-party complaint. Acosta petitioned this Court for a writ of mandamus. II. Standard of Review "A petition for a writ of mandamus is the appropriate vehicle for seeking review by this Court 4 1140200 of a denial of a demand for a jury trial. 'Mandamus is an extraordinary remedy, however, requiring a showing that 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 Jackson, 737 So. 2d 452, 453 (Ala. 1999) (quoting Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991)). Because mandamus is an extraordinary remedy, the standard of review on a petition for a writ of mandamus is whether there is a clear showing of error on the part of the trial court. Ex parte Finance America Corp., 507 So. 2d 458, 460 (Ala. 1987)." Ex parte Atlantis Dev. Co., 897 So. 2d 1022, 1024 (Ala. 2004). III. Analysis In Ex parte BancorpSouth Bank, 109 So. 3d 163, 166 (Ala. 2012), this Court stated the following regarding jury trials: "The right to a jury trial is a significant right in our jurisprudence. 'Public policy, the Alabama Rules of Civil Procedure, and the Alabama Constitution all express a preference for trial by jury.' Ex parte AIG Baker Orange Beach Wharf, L.L.C., 49 So. 3d 1198, 1200–01 (Ala. 2010) (citing Ex parte Cupps, 782 So. 2d [772] at 775 [(Ala. 2000)]). Nevertheless, the right to a jury trial is not absolute in that 'no constitutional or statutory provision prohibits a person from waiving his or her right to trial by jury.' Mall, Inc. v. Robbins, 412 So. 2d 1197, 1199 (Ala. 1982)." Because jury trials are strongly favored in the law, there is a presumption against denying a jury trial based on a contractual waiver, and a waiver of a right to a jury trial 5 1140200 must be strictly construed, giving deference to the constitutional guarantee of the right to a trial by jury. See Mall, Inc. v. Robbins, 412 So. 2d 1197, 1200 (Ala. 1982) (noting that the "same public policy that applies the rule of strict construction will likewise limit the scope of operation of a jury waiver agreement to those controversies directly related to and arising out of the terms and provisions of the overall agreement containing the jury waiver provisions"). The substantive question presented by Acosta in his petition for a writ of mandamus is whether the jury-waiver provision in each of the four assignments, which expressly applies to civil actions "arising out of, or based on, [the] Assignment," can be extended to the notes where, as here, the assignments are incorporated, by reference, into the notes. In connection with the notes, Acosta also executed certain mortgages securing the notes and the assignments, each of which contain an identical jury-waiver provision. The notes incorporate by reference both the mortgages securing the notes and the assignments. Each assignment states that the assignment is executed in consideration of a certain note and the mortgage or mortgages securing that note. Additionally, 6 1140200 Section 19 of each of the notes states that the note plus any other documents signed in conjunction with the note contain the entire agreement of the parties. However, neither the notes nor the mortgages securing the notes contain a jury- waiver provision. As previously indicated, the bank's motion to strike the jury demand is based on the jury-waiver provision in each of the assignments. The assignments in essence grant the bank "all [Acosta's] estate, right, title, interest, claim and demand now owned or ... acquired in all existing and future leases of the real property described [therein]." Each of the assignments states the following: "4. [ACOSTA] MAY RECEIVE RENTS: As long as there is no default under the Note described above, the Security Instrument securing the note, this Assignment or any other present or future obligation of [Acosta] to [the bank] (whether incurred for the same or different purposes)('Obligations'), [the bank] grants [Acosta] a revocable license to collect all Rents from the Leases when due and to use such proceeds in [Acosta's] business operations. However, [the bank] may at any time require [Acosta] to deposit all Rents into an account maintained by [Acosta or the bank] at [the bank's] Institution. "5. DEFAULT AND REMEDIES. Upon default in the payment of, or in the performance of, any of the Obligations, [the bank] may at its option take possession of the Premises and have, hold, manage, lease and operate the Premises on terms and for a 7 1140200 period of time that [the bank] deems proper. [The bank] may proceed to collect and receive all Rents, and [the bank] shall have full power periodically to make alterations, renovations, repairs or replacements to the Premises as [the bank] may deem proper. [The bank] may apply all Rents, in [the bank's] sole discretion, to payment of the obligation or to the payment of the cost of such alterations, renovations, repairs and replacements and any expenses incident to taking and retaining possession of the Premises and the management and operation of the Premises. ... ".... "10. INDEPENDENT RIGHTS. This Assignment and the powers and rights granted are separate and independent from any obligation contained in the Security Instrument and may be enforced without regard to whether [the bank] institutes foreclosure proceedings under the Security Instrument. This Assignment is in addition to the Security Instrument and shall not affect, diminish or impair the Security Instrument. However, the rights and authority granted in this Assignment may be exercised in conjunction with the Security Instrument. ".... "16. JURY TRIAL WAIVER. [Acosta] HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS ASSIGNMENT." (Capitalization in original; emphasis added.) Acosta does not dispute the validity or enforceability of the jury-waiver provision in the assignments. Instead, he argues that the jury waiver applies only to claims "arising 8 1140200 out of, or based upon, this Assignment." (Emphasis added.) In other words, Acosta argues that the operative language in the jury-waiver provision is "this Assignment," that the waiver is expressly limited to claims "arising out of" or "based upon" the terms and provisions of the assignments, and that none of his claims are in any way connected to the assignments. The bank, on the other hand, argues that the 1 phrase "arising out of, or based upon" should be construed broadly to include any claims beyond or collateral to the assignments because, it says, this Court has placed a broader meaning on waivers containing the phrase "arising out of." The bank further argues that because the notes, the mortgages securing the notes, and the assignments together represent the entire agreement of the parties, the jury-waiver provision in the assignments should be imported to the notes. In granting the bank's motion to strike Acosta's jury demand, the trial court relied on Ex parte BancorpSouth Bank, supra, in which this Court was called upon to examine and It appears that the bank did not seek to enforce its 1 rights under the assignments but instead called the notes due and foreclosed on the properties securing the notes. 9 1140200 interpret the scope of the following jury-waiver provision contained in a guaranty agreement: "'22. Waiver of Trial by Jury. GUARANTOR AND BANK WAIVE ANY RIGHT OF TRIAL BY JURY IN ANY ACTION BY BANK OR BY GUARANTOR IN ANY WAY CONNECTED WITH THIS GUARANTY, THE OBLIGATION EVIDENCED HEREBY, INCLUDING THOSE OF BORROWER, UNDER OR ARISING FROM ANY OTHER LOAN DOCUMENTS, THE TRANSACTION(S) RELATED HERETO, OR THE DEBTOR–CREDITOR RELATIONSHIP CREATED HEREBY.'" 109 So. 3d at 165 (capitalization in original; boldface type in original omitted). Specifically, the bank in BancorpSouth Bank argued that the jury-waiver provision was broad enough to encompass all of the guarantor's allegations asserted in his original and amended complaints. In addressing the bank's argument, this Court stated the following regarding broad jury-trial-waiver language: "In Ex parte AIG Baker Orange Beach Wharf, L.L.C., [449 So. 3d 1198 (Ala. 2010),] this Court enforced broad jury-trial waiver language in a contract and ordered the trial court to grant the petitioner's motion to strike the jury demand. This Court recognized a distinction between contractual jury waivers that are limited to claims 'arising from' the agreement, which are to be narrowly constructed and which exclude claims that do not require a reference to or construction of the underlying contract for resolution, and broader waiver provisions that cover claims 'arising out of or relating to' a contract. The AIG Baker Court 10 1140200 relied upon analogous cases dealing with arbitration clauses, such as Selma Medical Center v. Manayan, 733 So. 2d 382 (Ala. 1999) (holding that arbitration clause covering any dispute 'concerning any aspect of' agreement between doctor and hospital required arbitration of fraudulent-inducement claim); Beaver Construction Co. v. Lakehouse, L.L.C., 742 So. 2d 159, 165 (Ala. 1999) (noting that '"relating-to" language has been held to constitute a relatively broad arbitration provision'); General Motors Corp. v. Stokes, 850 So. 2d 1239 (Ala. 2002) (broadly interpreting provision in dealer-relocation agreement calling for arbitration of claims 'arising under or relating to' agreement and negotiation thereof to include claims that manufacturer fraudulently induced dealer to enter into agreement); Ex parte Gates, 675 So. 2d 371 (Ala. 1996) (holding that clause in mobile-home sales contract providing for arbitration of claims 'arising from or relating to' the contract required arbitration of buyers' claims that defendants had misrepresented or concealed facts to induce them to enter into agreement because claims were asserted 'in connection with' contract); and Ex parte Lorance, 669 So. 2d 890 (Ala. 1995) (holding that clause in doctor's professional-services contract requiring arbitration of any controversy or claim 'arising out of or relating to' contract covered doctor's claim that he was fraudulently induced to enter into agreement)." 109 So. 3d at 167-68. Based on the broad language of that jury-waiver provision, this Court in BancorpSouth Bank held that the waiver applied to all of the guarantor's alleged tort claims, i.e., fraud, breach of duty to inform, and failure to mitigate, as well as to a declaratory-judgment claim: "[T]he jury-trial waiver language clearly applies to all ... 11 1140200 allegations that are 'in any way connected with' the guaranty agreements, 'the transaction(s) related hereto,' or 'the debtor-creditor relationship' created by the guaranty agreements." 109 So. 3d at 169. Clearly, the trial court's reliance on BancorpSouth Bank in the present case is misplaced, insofar as the jury-waiver provision here is far from broad and the plain language of the jury-waiver provision limits the waiver to only those claims "arising out of, or based upon, [the] Assignment." (Emphasis added.) In strictly construing the jury-waiver provision, it would be unreasonable, absent more expansive language, to hold that the waiver extends to claims collateral to the assignments. The bank, as the drafter of the assignments, could have, at a minimum, included additional language expanding the jury- waiver provision to include any claims "arising out of, or based upon," the assignments or the loan documents. Had it done so, the outcome may have been different because Acosta's claims against the bank undeniably do arise out of, and are based upon, the other loan documents. However, because Acosta's claims arise outside and beyond the operative effect of the assignments, those claims are not subject to the jury- 12 1140200 waiver provision; the claims simply "do not require a reference to or construction of" the assignments for resolution. Ex parte BancorpSouth Bank, 109 So. 3d at 163. As previously indicated, it does not appear that the bank sought to enforce its rights under the assignments; instead, the bank called the notes due and foreclosed on the properties securing the notes. We are further unpersuaded by the bank's argument that the jury-waiver provision in the assignments should be imported into the notes merely because the notes, the mortgages securing the notes, and the assignments represent the entire agreement of the parties and the assignments are incorporated by reference into the notes. The bank does not cite any cases in which this Court has incorporated a jury- waiver provision appearing in a collateral document into the primary document, especially where, as here, the language of the jury-waiver provision expressly and unambiguously limits its scope to the collateral document. In asserting its argument, however, it appears that the bank is relying on the contemporaneous-writing principle as stated in Ex parte Bill 13 1140200 Heard Chevrolet, 927 So. 2d 792, 800 (Ala. 2005)(quoting Weeden v. Asbury, 223 Ala. 687, 690, 138 So. 267, 270 (1931)): "'[I]n the absence of anything to indicate a contrary intention, writings executed at the same time by the same parties for the same purpose, and in the course of the same transaction, are in the eye of the law one instrument, and will be received and construed together as constituting one contract and evidencing the intention of the parties.'" (Emphasis added.) The Court further elaborated in Bill Heard Chevrolet: "This contemporaneous-writing principle is a rule of construction this Court uses when it is 'necessary to ascertain the intention of the parties.' Hunter–Benn & Co. v. Bassett Lumber Co., 224 Ala. 215, 218, 139 So. 348, 349 (1932). However, '[i]f a contract is unambiguous on its face, there is no room for construction and it must be enforced as written.' Southland Quality Homes, Inc. v. Williams, 781 So. 2d 949, 953 (Ala. 2000)." 927 So. 2d at 800 (emphasis added). Although the notes, the mortgages securing the notes, and the assignments were, according to the bank, executed contemporaneously by the parties for the purpose of financing the construction and management by SilverPalm of rental properties, the assignments, in relationship to the notes, are not ambiguous, insofar as the plain language of the jury- 14 1140200 waiver provision in each of the assignments expressly limits its scope to the assignment. For a good analysis of the purpose and effect of the contemporaneous-writing principle, we quote from Huyler's v. Ritz-Carlton Restaurant & Hotel Co., 1 F.2d 491, 492 (D. Del. 1924): "It is true that the principle by which instruments executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction are considered as one, and receive the same construction as if embodied in one instrument, is of wide application and the illustrative cases are many. Elliott on Contracts, Sec. 1522; 6 R.C.L. 851; 13 C.J. 528. But at most that principle is merely a rule of construction to give effect to the intent of the parties. The provisions of one instrument are not thereby imported bodily into another. The application of the rule does not result in actual consolidation of the several contracts. It does not convert a specialty into a simple contract, or a simple contract into a specialty. Each of several instruments may be construed in the light of the others, without their being considered as one for all purposes. Moreover, considering several instruments as one is not the natural construction, and is resorted to only to effectuate the intention. They may be intended to be separate instruments and to provide for different things." (Emphasis added.) Because the jury-waiver provision in the instant case is unambiguous and is limited to the terms and provisions of the assignment in which it actually appears, the waiver cannot be 15 1140200 imported to the notes so as to apply to those claims arising out or based on the notes. Accordingly, we conclude that Acosta has demonstrated clear error on the part of the trial court in striking his demand for a jury trial as to all claims asserted in his counterclaim and third-party complaint. IV. Conclusion Because Acosta has demonstrated a clear legal right to a jury trial on the claims asserted in his counterclaim and third-party complaint, we grant the petition and direct the trial court to vacate its order striking Acosta's jury demand. PETITION GRANTED; WRIT ISSUED. Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., concurs in the result. 16 1140200 MOORE, Chief Justice (concurring in the result). I concur in the result reached by the Court. Although I agree with the majority opinion that Sergio Acosta has demonstrated a clear legal right to the mandamus relief he seeks, I question the holdings and reasoning in Ex parte BancorpSouth Bank, 109 So. 3d 163 (Ala. 2012), discussed by the majority opinion, and in Mall, Inc. v. Robbins, 412 So. 2d 1197 (Ala. 1982), and Ex parte AIG Baker Orange Beach Wharf, LLC, 49 So. 3d 1198 (Ala. 2010), also mentioned in the majority opinion. The Alabama Constitution states that "the right of trial by jury shall remain inviolate." Art. I, § 11, Ala. Const. 1901. As I explained in Ex parte First Exchange Bank, 150 So. 3d 1010, 1022 (Ala. 2013)(Moore, C.J., concurring specially): "The gist of the cases on which the Court in Mall relied is that the Alabama Constitution does not expressly forbid the waiver of the right to a jury trial. This fact, however, does not mean that individuals may waive their right to a jury trial before the right accrues." I believe that Mall and its progeny have "relied on a line of precedent that fundamentally misconstrued the terms of the Alabama Constitution and 17 1140200 encouraged the violation of the right to a jury trial." First Exchange Bank, 150 So. 3d at 1022. Therefore, I urge this Court "to overturn its recent holding in BancorpSouth Bank and the cases upon which it relied" and "to affirm the inviolate right to a jury trial by holding that predispute jury-trial waivers violate the Alabama Constitution." First Exchange Bank, 150 So. 3d at 1027 (Moore, C.J., concurring specially). I stand by my position expressed in First Exchange Bank that "the right to a jury trial in civil cases may not be waived by a party before a lawsuit has been filed and the right accrues." 150 So. 3d at 1025. The result reached in this case is, in my view, correct. Acosta's legal right to mandamus relief is clear because his substantive right to a jury trial is inviolate. For the reasons set forth above and in my concurrence in First Exchange Bank, however, I concur in the result only. 18	June 5, 2015
4366bac4-b4d0-499d-8a82-4af89e67af5b	Ex parte Ruth Mary Higgins Baker.	N/A	1130810	Alabama	Alabama Supreme Court	REL:02/13/2015 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 ____________________ 1130810 ____________________ Ex parte Ruth Mary Higgins Baker PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Ruth Mary Higgins Baker v. Estate of Ruth G. Higgins, deceased) (Chilton Circuit Court, CV-12-59; Court of Civil Appeals, 2130240) BOLIN, Justice. 1130810 Ruth Mary Higgins Baker ("Ruth") petitioned this Court for a writ of certiorari to review the Court of Civil Appeals' affirmance, without an opinion, of the judgment of the Chilton Circuit Court denying Ruth's petition seeking to be appointed the personal representative of the estate of her mother Ruth G. Higgins, deceased. Baker v. Estate of Higgins (No. 2130240, February 21, 2014), __ So. 3d __ (Ala. Civ. App. 2014)(table). We granted certiorari review to determine whether the Court of Civil Appeals erred in affirming the circuit court's judgment and, specifically, whether the circuit court had obtained jurisdiction over Higgins's estate. Facts and Procedural History Ruth G. Higgins ("Higgins") died testate on February 1, 2012. She was survived by two daughters –- Ruth Mary Higgins Baker and Sallie Juliet Higgins. On April 4, 2012, Christopher G. Speaks, Higgins's nephew and the named personal representative in Higgins's will, petitioned the Probate Court of Chilton County to admit Higgins's will to probate. Subsequently, on April 27, 2012, Speaks filed in the probate court his "Notice to Decline Appointment as Personal Representative" stating that he was declining to serve as the 2 1130810 personal representative of Higgins's estate; William Frances Speaks, Jr., the alternate personal representative named in Higgins's will, also declined to serve. On April 27, 2012, the probate court entered an order admitting Higgins's will to probate. On May 1, 2012, Linda L. Huebner petitioned the probate 1 court for letters of administration ad colligendum of Higgins's estate, alleging that Higgins had died "seized and possessed of certain personal estate ... which may be collected and preserved for those who shall appear to have a legal interest therein." The probate court entered an order on that same date granting Huebner letters of administration ad colligendum of Higgins's estate. On May 31, 2012, Ruth petitioned the probate court for appointment as administrator with the will annexed of Higgins's estate and for letters of administration cum testamento annexo (hereinafter referred to as "C.T.A"). Ruth 2 It appears from the record that Huebner, a lawyer who 1 practices in Chilton County, is unrelated to Higgins. Section 43-2-27, Ala. Code 1975, provides, in part: 2 "If no person is named in the will as executor, or if named executors, one or more, all renounce or fail to apply within 30 days after probate or are 3 1130810 alleged in her petition that the named personal representatives in Higgins's will declined to accept their appointment as personal representative; that the probate court had appointed Huebner as administrator ad colligendum; that the authority of the administrator ad colligendum to act on behalf of the estate is limited and the administrator ad colligendum is without the authority to administer the estate as one to whom letters of administration C.T.A. are issued; that there had been no issuance of letters of administration C.T.A.; and that Ruth was entitled to serve as the administrator with the will annexed of Higgins's estate pursuant to § 43-2-42(a)(2), Ala. Code 1975. unfit persons to serve, the residuary legatee, or if he fails to apply within such time, refuses to accept or is unfit to serve, then the principal legatee, is entitled to letters of administration, with the will annexed." Letters of administration, as opposed to letters testamentary, are issued pursuant to the above section, because the appointment of the personal representative is made pursuant to a statutory provision, rather than a testamentary nomination and appointment made by the decedent in a will. The words of limitation to the letters of administration, i.e., "with the will annexed" or its Latin counterpart "cum testamento annexo" give notice to persons dealing with the personal representative that the administration of that estate is guided by the provisions of a will rather than by the many statutory provisions that govern an intestate estate. 4 1130810 On June 20, 2012, following a hearing, the probate court entered an order denying Ruth's petition for appointment as the administrator with the will annexed for Higgins's estate and dismissing the petition for letters of administration C.T.A. The probate court also confirmed in that order that Huebner would continue to serve as administrator ad colligendum of Higgins's estate. On August 6, 2012, Ruth petitioned the Chilton Circuit Court to remove the "administration" of Higgins's estate from the probate court to the circuit court. On August 8, 2012, the circuit court entered an order purporting to remove the administration of Higgins's estate from the probate court to the circuit court. On September 19, 2012, Ruth petitioned the circuit court for appointment as administrator of Higgins's estate and for issuance of letters of administration C.T.A., alleging the same grounds for appointment and issuance of letters of administration she had alleged in the probate court. On January 3, 2013, Sallie filed an answer to Ruth's petition for appointment as administrator of Higgins's estate and issuance of letters of administration C.T.A. Following an ore 5 1130810 tenus proceeding, the circuit court, on August 29, 2013, entered an order denying Ruth's petition for appointment as administrator of Higgins's estate and for issuance of letters of administration C.T.A. Additionally, the circuit court appointed Huebner as the administrator with the will annexed of Higgins's estate and ordered the issuance of letters of administration C.T.A. Ruth appealed the circuit court's judgment to the Court of Civil Appeals. The Court of Civil Appeals affirmed the circuit court's judgment, without opinion. Baker, supra. This Court granted Ruth's petition for a writ of certiorari to determine whether the circuit court had obtained jurisdiction over Higgins's estate. We reverse and remand. Discussion The facts of this case present a jurisdictional issue that is dispositive of its outcome. Although neither party has raised or argued the jurisdictional issue, it is well settled that this Court may take notice of jurisdictional matters at any time and may even do so ex mero motu. Thomas v. Merritt, [Ms. 1111588, December 6, 2013] __ So. 3d __ (Ala. 2013). 6 1130810 In DuBose v. Weaver, 68 So. 3d 814, 821 (Ala. 2011), this Court explained the initiation of the administration of an estate in the context of subject-matter jurisdiction as follows: "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). Section 12–11–41 provides: "'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.' 7 1130810 "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 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 8 1130810 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 to the circuit court. Ex parte Pettus, 245 Ala. 349, 351, 17 So.2d 409, 410–11 (1944)." (Final emphasis, including double emphasis on "general," added.) It appears from the record that no administrator with the will annexed of Higgins's estate was appointed, nor were letters of general administration C.T.A. issued by the probate court, before the estate was removed to the circuit court. Although the probate court did appoint an administrator ad colligendum, this was a special administrator, with statutorily limited duties, and her appointment was insufficient to initiate the general administration of the estate. Section 43-2-47, Ala. Code 1975, provides: "(a) The judge of probate may, in any contest respecting the validity of a will, or for the purpose of collecting the goods of a deceased, or in 9 1130810 any other case in which it is necessary, appoint a special administrator, authorizing the collection and preservation by him of the goods of the deceased until letters testamentary or of administration have been duly issued. "(b) Every such special administrator has authority to collect the goods and chattels of the estate and debts of the deceased, to give receipts for moneys collected, to satisfy liens and mortgages paid to him and to secure and preserve such goods and chattels at such expense as may be deemed reasonable by the probate court; and for such purposes, he may maintain civil actions as administrator. "(c) Such special administrator may also, under the direction of the probate court, sell such goods as are perishable or wasting, after the same have been appraised, upon such notice as the judge of probate may prescribe. "(d) Upon the grant of letters testamentary or of administration, the authority of such special administrator ceases, and on demand he must deliver to the rightful executor or administrator all the assets of the deceased which may be in his hands and render an account on oath of all his proceedings to the probate court." (Emphasis added.) Thus, a special administrator ad colligendum is appointed at the discretion of the probate court for the specific purpose of collecting and preserving the assets of he esate when necessary, i.e., when no full-blown general administration of an estate has been ordered and no personal representative has been appointed. See Smith v. Snider, 497 10 1130810 So. 2d 484 (Ala. 1986). The special administrator ad colligendum is not a personal representative of an estate and has only limited authority, because he or she may take no action with regard to any estate matters other than what is permitted by § 43-2-47. Smith, supra. The special administrator ad colligendum has no authority to deal with the duties and obligations of the administration of an estate and acts only as an officer or agent of the probate court for the purpose of collecting and preserving the assets of the decedent until proper letters testamentary or of administration are granted and the administration of the estate is initiated. DuBose, supra, Smith, supra. See also Arnold v. Garrison, 255 Ala. 11, 49 So. 2d 787 (1950) (holding that the special administrator ad colligendum is merely an officer or agent of the probate court). The authority of the special administrator ad colligendum ends upon the issuance of letters testamentary or administration. § 43-2-47(d), Ala. Code 1975. Because the probate proceeding was purportedly removed from the probate court to the circuit court before the initiation of the administration of Higgins's estate by the probate court's appointment of a personal representative and 11 1130810 the grant of letters of administration C.T.A. to the appointed personal representative, the circuit court did not obtain proper jurisdiction of the matter. Thus, the circuit court's orders removing the matter from the probate court and subsequently denying Ruth's petition and appointing Huebner as administrator were void and must be vacated. State of Alabama Banking Dep't v. Taylor, 40 So. 3d 669 (Ala. 2009). Because a void judgment will not support an appeal, the Court of Civil Appeals lacked the jurisdiction to consider the matter. Taylor, supra. Conclusion We reverse the judgment of the Court of Civil Appeals and remand he case for that court to dismiss the appeal and to instruct the circuit court to vacate its orders removing the matter from the probate court, denying Ruth's petition for appointment as the administrator with the will annexed of Higgins's estate and appointing Huebner instead, and issuing letters of administration C.T.A. REVERSED AND REMANDED WITH INSTRUCTIONS. Stuart, Parker, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., and Murdock, J., dissent. 12 1130810 MURDOCK, Justice (dissenting). I respectfully dissent. It appears to me that the acts for which an administrator ad colligendum is appointed under § 43-2-47, Ala. Code 1975 -– collecting and preserving estate assets -– amount to the beginning of the administration of an estate. Here the probate court entered an order that admitted the will to probate and recognized that an estate (i.e., "property of the decedent," § 43-8-1(8), Ala. Code 1975) did exist and that it was necessary to begin the process of collecting and preserving the assets of that estate. It would seem to me that this determination by the probate court and the process of collecting and preserving the estate assets are within the scope of the legislature's provision for the removal of the administration of an estate to the circuit court under § 12-11-41, Ala. Code 1975. Further, I note that, on a practical level, the decisions and actions of an administrator ad colligendum could turn out to be substantial and consequential and could go on for many months or even a year or more. I do not think the legislature intended to prevent parties aggrieved by the manner in which 13 1130810 these administrative activities are occurring, or are being approved by the probate court, from being able to seek the involvement of a circuit court, just as they could if the duties being performed by the administrator ad colligendum were being performed (as they typically are) by a permanent personal representative. The main opinion relies heavily upon DuBose v. Weaver, 68 So. 3d 814, 821 (Ala. 2011); however, the point this Court made in the last paragraph of the passage quoted in the main opinion from DuBose was simply that "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." 68 So. 3d at 821 (emphasis added). The DuBose Court continued by explaining that "the probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to circuit court." 68 So. 3d at 821 (some emphasis added). The probate court in this case has "act[ed] upon the petition"; it has "activate[d] proceedings" by granting the petition and admitting the will to probate; and it has recognized the existence of an estate 14 1130810 in need of administration and has appointed someone to begin the process of that administration. I also note that the quoted passage from DuBose ends with the following statement: "[W]here 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." DuBose, 68 So. 3d at 821. Again, the latter condition is not met here. 15	February 13, 2015
16a2c023-65a0-481e-be8e-b4c46f20e536	King v. Winn-Dixie of Montgomery, Inc.	565 So. 2d 12	N/A	Alabama	Alabama Supreme Court	565 So. 2d 12 (1990) Creola KING v. WINN-DIXIE OF MONTGOMERY, INC. 89-31. Supreme Court of Alabama. March 23, 1990. Rehearing Denied June 22, 1990. Ronnie L. Williams, Mobile, for appellant. James E. Robertson, Jr. of Lyons, Pipes & Cook, Mobile, for appellee. JONES, Justice. This is an appeal from a summary judgment entered in favor of the defendant, Winn-Dixie of Montgomery, Inc. The plaintiff, Creola King, was injured in a slip and fall accident that occurred on the defendant's premises, and she sued Winn-Dixie for her personal injury. We affirm in part, reverse in part, and remand. On February 19, 1988, Ms. King entered a Winn-Dixie grocery store in Mobile, Alabama. After walking across a doormat at the front entrance, she slipped and fell at a point where there was water on the floor, injuring her right wrist and hip. She alleged that there was nothing unusual about the doormat. The Winn-Dixie store manager, Derrick Johnson, testified that when he inspected the floor following Ms. King's fall, he found water on it. He further testified that it was store policy for the floors to be "mopped" every 30 minutes on rainy days. It was raining on the day of, and at the time of, the accident. The assistant manager, Alfred Murphy, testified that it was store policy for the floors to be checked every 30 minutes if the weather is clear. He further testified that the floors are checked "as needed" during inclement weather. Ms. King alleged that Winn-Dixie was negligent in the maintenance of its floor and was wanton in failing to warn her of a dangerous condition of its floor. Winn-Dixie moved for summary judgment, and Ms. King filed a response, supported by an affidavit. The trial court entered summary judgment in favor of Winn-Dixie. The only issue presented is whether, under these circumstances, the summary judgment was proper. Rule 56, A.R.Civ.P., sets forth a two-tier standard for entering summary judgment. That rule requires the trial court to determine 1) 13 that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. The action in the present case was commenced after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12. Richardson v. Kroger Co., 521 So. 2d 934, 935-36 (Ala.1988). The facts in this case, although somewhat stronger, parallel the facts in Cox v. Western Supermarkets, Inc., 557 So. 2d 831 (Ala.1989).[1] In Cox, the plaintiff, while walking down the grocery store aisle next to the produce department, slipped and fell on a slippery spot, and as a result, suffered an injury to her right foot. The only evidence that the plaintiff presented that could possibly shed light as to why Cox fell was that after the fall there was a small wet spot "on the right seat of her pants." It was undisputed that no one ever found anything on the floor that would indicate why the plaintiff fell. In Cox, this Court stated, "[W]e cannot hold as a matter of law that there was no foreign substance on the floor or that, if there was, the defendant was, as a matter of law, not delinquent in failing to discover and remove it." Cox, supra, at 832. In the case at bar, it is without dispute that at the time of the accident there was water on the floor at the entrance door. Winn-Dixie contends that the evidence presented by the plaintiff does not rise to the level of indicating a breach of duty owed by Winn-Dixie to its invitees. However, as in Cox, "[v]iewing this testimony in a light most favorable to the plaintiff," we cannot say, as a matter of law, that the defendant was not "delinquent" in failing to discover the water and mop it up before the plaintiff fell. The resolution of the negligence claim involves factual questions, and that claim should therefore be resolved by a jury. We hold that the trial court did not err in entering the summary judgment as to the wantonness claim. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur. HOUSTON, J., concurs in part and concurs in the result in part. HOUSTON, Justice (concurring in part and concurring in the result in part). 14 I concur in the holding regarding wantonness and concur in the result as to the holding regarding negligence. I know Cox v. Western Supermarkets, Inc., 557 So. 2d 831 (Ala.1989), and this case is no Cox v. Western Supermarkets, Inc. This case involves a storekeeper's duty in regard to rainwater at the entrance of a store. Chief Justice Torbert's opinion for a unanimous court in Terrell v. Warehouse Groceries, 364 So. 2d 675, 677 (Ala.1978), correctly states a storekeeper's duty in regard to rainwater; this was Winn-Dixie's duty in this case: Because there was some evidence of an unusual accumulation of rainwater (Ms. King in her affidavit stated, "I slipped and fell in a puddle of water on the floor ... at the front entrance of the store"), there was a factual question as to whether Winn-Dixie should have taken more affirmative measures than it had taken before Ms. King fell. The issue of Ms. King's contributory negligence as a ground for summary judgment was not argued by Winn-Dixie in support of its motion for summary judgment, although it had been pleaded as an affirmative defense. This is understandable, given this Court's recent aversion to holdings of contributory negligence as a matter of law. See Central Alabama Elec. Co-Op v. Tapley, 546 So. 2d 371 (Ala. 1989) (Houston, J., dissenting at 383-85), and Johnson v. Niagara Machine & Tool Works, 555 So. 2d 88 (Ala.1989) (Houston, J., concurring in part and dissenting in part at 94-97). However, it appears to me that the only evidence that makes breach of duty a factual question in this case establishes contributory negligence. I was the author of Cox v. Western Supermarkets, Inc., supra, which I originally wrote to affirm, but changed after I could not obtain five votes. Ultimately, I was persuaded that under the scintilla rule, which was applicable in Cox, I could not hold that there was not at least a barely perceptible manifestation of evidence (i.e., a scintilla) from which a jury could reasonably infer that an errant piece of ice was caused to be on the floor by lack of due care of the defendant and that this caused Ms. Cox to slip and fall. Cox should not be extended beyond its facts. If it is, it is being wrongly construed and should be overruled or expressly limited in its application. [1] The "scintilla rule" was the applicable standard of review in Cox.	March 23, 1990
8c0344cd-2b99-46bf-bb5e-4739d3c0aa3f	Ex parte John Swain.	N/A	1140208	Alabama	Alabama Supreme Court	REL: 02/06/2015 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 ____________________ 1140208 ____________________ Ex parte John Swain PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: John Swain v. State of Alabama) (Houston Circuit Court, CC-11-1661; Court of Criminal Appeals, CR-12-1389) STUART, Justice. WRIT DENIED. NO OPINION. 1140208 Bolin, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Parker and Murdock, JJ., dissent. 2 1140208 MOORE, Chief Justice (dissenting). Because I would grant John Swain's petition for a writ of certiorari, I respectfully dissent from this Court's denial of the petition. When a babysitter discovered a seven-year-old girl inappropriately touching the babysitter's two-year-old son, she confronted the seven-year-old, who told the babysitter that she had learned the behavior from Swain, who was then living with the girl's mother. Swain was subsequently indicted for sexual abuse of a child less than 12 years old, a Class B felony. A hung jury resulted in a mistrial. At a second trial, Swain, representing himself pro se, was convicted and was sentenced to 15 years' imprisonment. See Swain v. State, [Ms. CR-12-1389, Sept. 5, 2014] ___ So. 3d ___ (Ala. Crim. App. 2014). After his conviction, but before sentencing, Swain filed a pro se motion entitled "Motion for Appointment of Counsel on Appeal" in which he requested that appellate counsel be appointed and explained that he did not have the experience to file an appellate brief. Rule 6.1(b), Ala. R. Crim. P., provides that a defendant may waive the right to counsel "after the court has 3 1140208 ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right." Additionally, if a defendant refuses counsel, "the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings." Id. (emphasis added). Although the trial court conducted a waiver colloquy respecting Swain's right to represent himself and also warned Swain of the hazards of representing himself, the trial court did not inform Swain, as Rule 6.1(b) requires, that he could withdraw his waiver of counsel at any time. "Even if a defendant requests to represent himself or herself and the trial court permits the defendant to do so, the trial court's failure to comply with Rule 6.1(b), Ala. R. Crim. P., is grounds for reversal." Presley v. City of Attalla, 88 So. 3d 930, 934 (Ala. Crim. App. 2011). Under the totality-of-the-circumstances test, however, an appellate court may conclude that the defendant was aware of the right to withdraw a waiver of counsel, if the record so discloses, even though the trial judge did not so inform the defendant. See Powers v. State, 38 So. 3d 764 (Ala. Crim. App. 2009) (noting that defendants who asked to withdraw their 4 1140208 waiver of counsel on the first day of trial were obviously aware of the right). In this case, the record does not disclose that Swain was aware, during trial, of his right to withdraw the waiver of counsel at any time. The Court of Criminal Appeals relied on Swain's motion for appointment of appellate counsel as evidence that he knew he could withdraw his waiver during the trial. However, that request is not probative of whether Swain was aware that he could withdraw his waiver during the trial itself. Indeed, given that Swain had a vested right under Rule 6.1(b) to withdraw his waiver and to have counsel appointed, his submission of a motion to appoint counsel is evidence, if anything, that he was not aware of his right to withdraw the waiver during the trial. Because the record contains no persuasive evidence that Swain was aware that he could withdraw his waiver of counsel during trial, I believe his petition has merit and his Sixth Amendment claim validity. As Judge Joiner stated in dissent below: "Because the record on appeal does not demonstrate that Swain was either advised or otherwise aware of his right to withdraw his waiver of counsel, I would reverse the circuit 5 1140208 court's judgment and remand this case for a new trial." Swain v. State, ___ So. 3d at ___ (Joiner, J., dissenting). Accordingly I respectfully dissent from the denial of Swain's petition for a writ of certiorari. 6	February 6, 2015
03447c3d-3166-4292-b753-74a773c32ab8	Ex parte Dolores Owen, individually and as personal representative of the estate of Patricia Owen, deceased.	N/A	1140024	Alabama	Alabama Supreme Court	REL: 01/30/2015 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 ____________________ 1140024 ____________________ Ex parte Dolores Owen, individually and as personal representative of the estate of Patricia Owen, deceased PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Dolores Owen, individually and as personal representative of the estate of Patricia Owen, deceased v. Tennessee Valley Printing Company, Inc., d/b/a The Decatur Daily) (Morgan Circuit Court, CV-11-900327; Court of Civil Appeals, 2130139) 1140024 MURDOCK, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 2 1140024 MOORE, Chief Justice (dissenting). On August 31, 2011, Leon Johnson ("Leon") was delivering newspapers when his vehicle struck Patricia Owen ("Patricia"), causing injuries that eventually led to her death. On September 11, 2011, Dolores Owen, individually and as personal representative of Patricia's estate ("Owen"), brought a wrongful-death action against the Tennessee Valley Printing Company d/b/a The Decatur Daily ("TVPC"). Owen alleged that on the day of the accident Leon was delivering TVPC's newspapers for his wife Carolyn Johnson ("Carolyn"), who had a contract with TVPC to deliver copies of The Decatur Daily. TVPC moved for a summary judgment, arguing that it was not liable for Patricia's death because, it said, Carolyn was an independent contractor, not its agent. The trial court granted TVPC's summary-judgment motion. Owen appealed to the Court of Civil Appeals, which affirmed the judgment of the trial court. Ex parte Owen, [Ms. 2130139, Aug. 8, 2014] ___ So. 3d ___ (Ala. Civ. App. 2014). Owen then petitioned this Court for a writ of certiorari, which the Court now denies. In order to establish an agency relationship between Carolyn and TVPC, Owen must have shown that TVPC had the right 3 1140024 to dictate not only the results of Carolyn's work but also the manner in which it would be done. Jenkins v. Gadsden Times Publ'g Co., 521 So. 2d 957, 958 (Ala. 1988); Brown v. Commercial Dispatch Publ'g Co., 504 So. 2d 245, 246 (Ala. 1987); and Atchison v. Boone Newspapers, Inc., 981 So. 2d 427, 431 (Ala. Civ. App. 2007). Owen's petition states: "Carolyn Johnson testified that when she began delivering Decatur Daily newspapers, someone from The Decatur Daily, an area manager or district manager named 'Tina,' would ride with her on her route during her first two or three days delivering newspapers. Carolyn Johnson testified that the individual from The Decatur Daily who rode with her on her home delivery route would give her instruction and direct her on how to deliver the newspapers. Carolyn Johnson testified that she considered the ride-along with the person from The Decatur Daily and the instruction and direction she received during that ride-along delivering papers on her route to 'be a form of training.'" (Emphasis added; references to record omitted.) Owen also introduced a training checklist for Carolyn's route that appears to be very detailed. Moreover, Leon testified that "TVPC was in control of the single copy route" and that "it was his understanding that he had to follow TVPC's instructions while he was delivering Decatur Daily newspapers." 4 1140024 In addition, TVPC corporate representative Mike McKillip testified that TVPC owned the newspaper racks on Carolyn's route. Carolyn testified that "she was not allowed to deliver Decatur Daily newspapers outside of her assigned geographic route and was restricted to a certain delivery area." McKillip testified that subscribers would pay The Decatur Daily in advance for their annual subscriptions and that The Decatur Daily then would pay carriers like Carolyn incrementally. Carolyn also testified that she was required to post a cash bond to secure payments that customers owed to TVPC when she first started delivering newspapers. Finally, Leon testified that he and Carolyn delivered only The Decatur Daily and that "they did not deliver merchandise or goods for anybody else." Viewing this evidence in light most favorable to Owen, it appears to me that Owen presented substantial evidence of the existence of a genuine issue as to whether an agency relationship existed and that the issue should have been placed before the jury. Therefore, I respectfully dissent. 5	January 30, 2015
ee45467e-0e9f-43aa-ad34-c17e1bc88ee8	Yamaha Motor Corporation, U.S.A., et al. v. Jacklyn McMahon	N/A	1121542	Alabama	Alabama Supreme Court	Rel: 03/27/2015 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 ____________________ 1121542 ____________________ Yamaha Motor Corporation, U.S.A., et al. v. Jacklyn McMahon Appeal from Montgomery Circuit Court (CV-08-00360) PARKER, Justice. AFFIRMED. NO OPINION. See Rule 53(a)(1), (a)(2)(B), and (a)(2)(F), Ala. R. App. P. Moore, C.J., and Stuart, Main, and Wise, JJ., concur. Bolin, Murdock, Shaw, and Bryan, JJ., dissent. 1121542 BOLIN, Justice (dissenting). In McMahon v. Yamaha Motor Corp., U.S.A., 95 So. 3d 769 (Ala. 2012) ("McMahon I"), I concurred with Justice Woodall's special writing dissenting from this Court's reversal of the judgment as a matter of law ("JML") on Jacklyn and Donald McMahon's wantonness claim and concurring with the affirmance of the judgment as to the other claims. 95 So. 3d at 775 (Woodall, J., concurring in part and dissenting in part). Consistent with my position at that time -- that the trial court did not err in entering a JML in favor of the Yamaha defendants on the McMahons' wantonness claim -- I respectfully dissent from the Court's decision today affirming the trial court's judgment based on the jury verdict in favor of Jacklyn McMahon on the wantonness claim. On remand, even the trial judge, after hearing the evidence a second time, expressed her disagreement with submitting the wantonness claim to the jury: "Okay. And, again, everyone knows we are back here because the Supreme Court has instructed us that they believe that there was a question on the wantonness which this court completely disagrees with. "I've sat through both trials. And, again, if this was the first trial, I would be making the exact same ruling. We wouldn't be going to the jury on that. 2 1121542 "However, that is not my job. I'm going to follow the instructions of the Supreme Court which is they want it to go to the jury on the wantonness. So it's going. "And I say that because I'm going to note that I think the [McMahons] this time have done a much better job trying this case this time, a lot better job than the first time. And even with that, I still would not be sending this to the jury on wantonness. ..." Clearly, although the trial judge candidly admitted that the McMahons had presented a better case the second time, she nevertheless reasserted her position that the evidence regarding wantonness had not changed and that the evidence was insufficient to warrant submitting the claim to the jury. Accordingly, I reassert my original position in McMahon I -- that the evidence was insufficient to warrant submission of the wantonness claim to the jury -- and I dissent from today's decision affirming the trial court's judgment based on the jury verdict in favor of Jacklyn McMahon on her wantonness claim against the Yamaha defendants. 3 1121542 BRYAN, Justice (dissenting). I was not a member of this Court when it decided McMahon v. Yamaha Motor Corp., U.S.A., 95 So. 3d 769 (Ala. 2012), the first appeal to this Court involving Jacklyn and Donald McMahon's claims against Yamaha Motor Corporation, U.S.A., Yamaha Motor Manufacturing Corporation of America, and Yamaha Motor Co., Ltd. ("the Yamaha defendants"). Given the facts presented and the applicable law, I would have dissented from this Court's decision to reverse "[t]he judgment as a matter of law entered in favor of the Yamaha defendants on the McMahons' wantonness claim." 95 So. 3d at 774. Because I believe that the Yamaha defendants were also entitled to a judgment as matter of law on Jacklyn McMahon's wantonness claim in the present case, I dissent from this Court's affirmance of the judgment entered on the jury verdict in favor of Jacklyn McMahon on her wantonness claim against the Yamaha defendants. 4	March 27, 2015
fec29496-2cae-4784-9bd4-88b76bb02e26	Ex parte Amee Kozlovski, M.D.	N/A	1140317	Alabama	Alabama Supreme Court	Rel: 04/24/2015 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 _________________________ 1140317 _________________________ Ex parte Amee Kozlovski, M.D. PETITION FOR WRIT OF MANDAMUS (In re: David Shamlin, as administrator of the estate of Jeffery Brown, deceased v. Altapointe Health Systems, Inc., and Amee Kozlovski, M.D.) (Mobile Circuit Court, CV-12-902874) MAIN, Justice. 1140317 Amee Kozlovski, M.D., petitions this Court for a writ of mandamus directing the Mobile Circuit Court to enter a summary judgment in her favor in a wrongful-death action brought against her by David Shamlin, as administrator of the estate of Jeffery Brown, deceased. We grant the petition and issue 1 the writ. I. Facts and Procedural History In November 2011, following a physical attack on his father, David Brown, Jeffery Brown was involuntarily committed by the Mobile Probate Court to Searcy Hospital, a long-term- care facility for mental illness operated by the Alabama Department of Mental Health. Brown was 19 years old at the time of his commitment and had a long history of mental illness and psychiatric hospitalizations. 2 The decedent's name is spelled three ways in the 1 materials before this Court: Jeffery, Jeffrey, and Jefferey. We have chosen to use the spelling used by the respondent. Brown had been diagnosed as suffering from numerous 2 conditions and mental illnesses, including pervasive developmental disorder, oppositional defiant disorder, bipolar disorder, conduct disorder, Asperger's syndrome, schizoaffective disorder, adjustment disorder, psychotic disorder, dysthymia, generalized anxiety disorder, and schizophrenia. 2 1140317 One particular problem associated with Brown's mental illness was his tendency to run away from home. Brown's father testified that Brown began running away from home in 2003. As Brown grew older, his impulse to run away became so pervasive that it was necessary to keep him under 24-hour supervision and to place alarms on his bedroom door and window to keep him from running away at night. When Brown did run away, he would sometimes be gone for days at a time, and when found he would be malnourished and dehydrated. Brown also exhibited violent behavior and aggression toward his parents and others. This behavior also escalated as he grew older. In November 2011, Brown physically attacked his father. The incident resulted in Brown's arrest and his involuntary commitment to Searcy Hospital. At Searcy Hospital Brown was assigned a "treatment team." Dr. Kozlovski, a licensed physician and psychiatrist employed by the Alabama Department of Mental Health, was the head of Brown's treatment team and was responsible for making the ultimate judgment about whether Brown met the criteria for discharge from Searcy Hospital. The treatment team also included a social worker, a licensed psychologist, a 3 1140317 rehabilitation coordinator, and a registered nurse. A treatment plan was devised for Brown, and he was prescribed medication and received other mental-health treatment. During his time at Searcy Hospital, Brown had several incidents of self-injurious behavior but was otherwise fully compliant with his treatment. On April 5, 2012, the treatment team reached a consensus that Brown had met the conditions for discharge. 3 On May 18, 2012, despite reservations expressed by Brown's family that he would run away from a group-home facility, Brown was discharged to Safe Haven, a group home owned and operated by Altapointe Health Systems, Inc. ("Altapointe"). Dr. Kozlovski approved the discharge. On May 19, 2012, Brown left Safe Haven without the knowledge of Safe Haven's staff. On May 23, 2012, Brown's The progress notes for that date state: 3 "Mr. Brown is not suicidal or homicidal, and it is noteworthy that Mr. Brown has met criteria for discharge, has been accepted for Group Home Placement and is waiting for bed space." Likewise, the progress notes from May 17, 2012, state: "[Brown] reports desire to be placed in Group Home setting. [Brown] continues to meet discharge criteria ...." 4 1140317 body was found lying on a road in Mobile. Brown had apparently been struck and killed by a motorist.4 Shamlin, as the court-appointed administrator of Brown's estate, initiated the underlying wrongful-death action in the Mobile Circuit Court, naming as defendants Dr. Kozlovski and Altapointe. The complaint alleged that Dr. Kozlovski had 5 been negligent and/or wanton in numerous respects. Shamlin's complaint, as amended, alleged that Dr. Kozlovski: "a. Negligently and/or wantonly failed to provide proper and/or adequate treatment of [Brown's] mental illness and psychological condition; "b. Negligently and/or wantonly failed to properly assess and/or diagnose [Brown's] mental illness and psychological condition; "c. Negligently and/or wantonly failed to identify [Brown] as a flight risk; "d. Negligently and/or wantonly failed to assess and/or diagnose [Brown's] physical needs and/or requirements; "e. Negligently and/or wantonly failed to determine whether [Brown] met the admission requirements of Safe Haven, a non-secure facility; "f. Negligently and/or wantonly failed to determine whether Safe Haven had the capability to The incident is characterized in the record as a "hit- 4 and-run." Shamlin contends that Brown's death was a suicide. Altapointe is not a party to this petition. 5 5 1140317 monitor and supervise [Brown] at all times in order to prevent [Brown] from eloping, fleeing or escaping from Safe Haven; "g. Negligently and/or wantonly approved and authorized [Brown's] release or discharge from Searcy Hospital, a secure facility, to Safe Haven, a non-secure facility; and "[h]. Negligently and/or wantonly failed to advise, prescribe or otherwise convey that at the time of or prior to discharging [Brown] from her care at Searcy Hospital to Altapointe, [Brown] required 24 hour 'around the clock' eyes-on supervision for at least the first week of his placement at Safe Haven Group Home." Shamlin also alleged that Dr. Kozlovski negligently and/or wantonly discharged Brown in violation of the Mobile Probate Court's commitment order and that she negligently and/or wantonly failed to conduct a suicide-risk assessment before discharging Brown. On September 18, 2014, Dr. Kozlovski filed a motion for a summary judgment, arguing that the claims against her were barred by the doctrine of State-agent immunity. Shamlin 6 The complaint does not state whether Dr. Kozlovski was 6 sued in her official or individual capacity. Dr. Kozlovski correctly argues that any claims asserted against her in her official capacity are barred by the doctrine of sovereign immunity. See Ala. Const. 1901, § 14; Ex parte Department of Mental Health & Mental Retardation, 937 So. 2d 1018, 1023 (Ala. 2006); and Ex parte Department of Mental Health & Mental Retardation, 837 So. 2d 808, 811 (Ala. 2002). Shamlin does not respond to Dr. Kozlovski's official-capacity argument, and 6 1140317 filed a response in opposition to Dr. Kozlovski's motion for a summary judgment, in which he contended that Dr. Kozlovski had violated certain rules and regulations applicable to Brown's release and was not, therefore, entitled to rely on the doctrine of State-agent immunity. On December 12, 2014, 7 the trial court denied Dr. Kozlovski's motion, without explanation. On December 30, 2014, Dr. Kozlovski timely filed this petition for a writ of mandamus. 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 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: his arguments before this Court are limited solely to the issue whether Dr. Kozlovski is entitled to State-agent immunity. Thus, we assume that his claims against Dr. Kozlovski are asserted against her in only her individual capacity. Shamlin's response is limited to assertions that Dr. 7 Kozlovski's actions in discharging Brown to Safe Haven violated certain rules and regulations applicable to Dr. Kozlovski. To the extent that his complaint alleged theories of recovery against Dr. Kozlovski based on actions not directly related to Brown's discharge from Searcy Hospital, those claims appear to have been abandoned. 7 1140317 "'"'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 Rizk, 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))." Ex parte Ruffin, [Ms. 1130324, Aug. 29, 2014] __ So. 3d __, ___ (Ala. 2014). III. Analysis Dr. Kozlovski contends that the trial court erred in denying her motion for a summary judgment because, she argues, she is entitled to State-agent immunity in this case. In response, Shamlin argues that Dr. Kozlovski is not entitled to State-agent immunity from the wrongful-death claim because, he contends, Dr. Kozlovski's actions, as related to Brown's discharge from Searcy Hospital, violated several rules and regulations applicable to Dr. Kozlovski. For the reasons 8 1140317 stated below, we agree that Dr. Kozlovski is immune from the wrongful-death claim asserted by Brown's estate, and we issue the writ of mandamus. In Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), a plurality of this Court restated the test for determining when a State employee is entitled to immunity as follows:8 "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 The test set out in Cranman was subsequently adopted by 8 a majority of the Court in Ex parte Butts, 775 So. 2d 173 (Ala. 2000). 9 1140317 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 9 "(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." 792 So. 2d at 405 (second emphasis added). This Court has developed the following burden-shifting process applicable to the assertion of a State-agent-immunity defense: "'This Court has established a "burden-shifting" process when a party raises the defense of State-agent immunity.' Ex parte Estate of Reynolds, Following Cranman, category (4) was further clarified. 9 See Hollis v. City of Birmingham, 950 So. 2d 300 (Ala. 2006). 10 1140317 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 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 1276, 1282–83 (Ala. 2008). This case concerns the discharge from a mental hospital of a patient suffering from mental illness. Our Court has previously recognized the "complicated" determinations that must be made by State mental-health professionals in balancing the "dual duty they owe to the public and to the individual patient" in making such discharge decisions. Barnes v. Dale, 530 So. 2d 770, 784 (Ala. 1988). "The defendants owe a duty to the general public not to release a civilly committed patient until his treatment has been completed and he is no longer a threat to public safety and order. ... However, the defendants, have a concomitant duty to the patient, 11 1140317 as demonstrated by the minimum constitutional guidelines of Wyatt [v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972),] and Lynch [v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974)]. The defendants must provide their patient a treatment program that achieves the purposes of confinement under the least restrictive conditions. They must provide him with intermediate and long-range treatment goals; and, if he fulfills those goals or no longer requires hospitalization in accordance with the standards for commitment, they must release him. Failure to do so exposes the defendants to liability for violating the patient's right to due process of law." Barnes, 530 So. 2d at 784-85. In light of the opposing duties to the public and the individual patient owed by State mental- health professionals in determining whether to discharge a patient, this Court's restatement of State-agent immunity in Cranman expressly recognized that a State-agent "exercising judgment in the discharge of duties imposed by statute, rule, or regulation in ... counseling or releasing persons of unsound mind" is entitled to immunity from claims resulting from the exercise of that judgment. 792 So. 2d at 405. In the present case, it is not disputed that, in discharging Brown from Searcy Hospital, Dr. Kozlovski, a psychiatrist employed by the Alabama Department of Mental Health, was engaging in a function that would entitle her to State-agent immunity under category (5) of the Cranman 12 1140317 restatement. Accordingly, Dr. Kozlovski met her burden of demonstrating "that the plaintiff's claims arise from a function that would entitle the State agent to immunity." Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006). Thus, the burden then shifted to Shamlin to demonstrate that one of the two categories of exceptions to State-agent immunity applied. Reynolds, 946 So. 2d at 452. To this end, Shamlin argues that Dr. Kozlovski acted beyond her authority in discharging Brown from Searcy Hospital to the Safe Haven group home because, he says, she failed to comply with certain rules and regulations concerning the discharge of patients and "after-care" planning. See Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000); Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003). Shamlin identifies two sets of rules and regulations governing the discharge of patients from Searcy Hospital: "Rules and Regulations of the Psychiatry and Medical Sections of the Organized Medical Staff of Searcy Hospital" and "Written Plan for Client Care and Professional Services." Dr. Kozlovski does not dispute the applicability of these rules and regulations. 13 1140317 First, Shamlin cites two paragraphs of the "Rules and Regulations of the Psychiatry and Medical Sections of the Organized Medical Staff of Searcy Hospital," which provide: "N. The patient's discharge plan, initiated at admission, will be revised and updated throughout the hospital stay. The psychiatrist will participate with the treatment team in discharge planning, which is based on achieving treatment goals and geared toward restoring the patient to sufficiently improved psychiatric functioning to return to the community. The psychiatrist, along with the treatment team, will collaborate with the patient's family, significant others, and community providers to establish discharge criteria and develop the specific components of an appropriate aftercare plan. "O. The psychiatrist will evaluate the patient's psychiatric condition at the time of discharge. A final progress note will be entered in the medical record that addresses the patient's potential for danger to self or others, including the absence of suicide or homicidal ideation. A final review of medications will be made and a 2-week supply of medication along with a prescription written for a 30-day supply of medications will be issued as part of the aftercare plan, unless clinically contraindicated. The final psychiatric diagnoses shall be recorded in the medical record." Shamlin next cites Searcy Hospital's "Written Plan for Client Care and Professional Services," which provides, in part: "a. Psychiatric Services 14 1140317 "(1) Scope of Service: Psychiatric Services is responsible for insuring that all clients admitted, evaluated or treated by any of the clinical services or facilities of the hospital receive appropriate, quality psychiatric care. Services provided include, but are not limited to, the following: "(a) Coordinate psychiatric service planning with other staff and provide service team leadership. "(b) Approve all hospital releases. Participate in discharge and aftercare planning. "(c) Evaluate/diagnose/treat/medicate clients in compliance with hospital standards. "(d) Provide psychiatric opinion/consul- tation to other health professionals. "(e) Participate in medical staff and hospital committees. "(f) Complete required documentation, including Axis I and II of the index of diagnosis, the Initial Treatment Plan, Psychiatric Evaluation, progress notes, and quarterly psychiatric updates." Finally, Shamlin cites another section of the "Written Plan for Client Care and Professional Services": "I. Discharge "It is the policy of Searcy Hospital to discharge clients when they have met their individual criteria for discharge and when a less restrictive treatment 15 1140317 environment is deemed therapeutically appropriate. This decision is made by the treating psychiatrist in coordination with the other members of the treatment team, the client, the client's family, and involved agencies, as appropriate. "Discharge planning begins when the client enters the hospital and continues to be a major component of the treatment plan throughout the client's hospitalization. At the time of admission, the client, the client's family, and involved agencies, as appropriate, are consulted, and their views on discharge planning are recorded in the social history. The family of the client is informed of discharge planning as needed and at regularly scheduled Treatment planning conferences to which the family is invited. "There are a variety of placement options in addition to the client returning home, such as group homes, foster homes, apartments, nursing homes, etc. The discharge plan is documented on the Post- Hospitalization Plan form at the time of the initial development of the Treatment plan and it is reviewed with each Treatment planning update and as needed. "When the client is nearing discharge, outpatient follow-up care with the mental health center is arranged as appropriate. Prior to the client's first appointment, and many times prior to scheduling a mental health center appointment, written information is exchanged with the mental health center via a continuity of care packet. This includes information regarding the diagnoses, brief treatment and hospital course to include course of medications, discharge mental status, recommendations for follow-up and a list of medications on which the client will be discharged. Discharge summaries and recommendations for follow- up treatment of the client are sent to community mental health centers and/or private 16 1140317 medical/psychiatric practitioners following discharge." Citing the deposition testimony of Dr. Kozlovski, in which she stated that Brown needed 24-hour supervision during his first week away from Searcy Hospital and at Safe Haven,10 Dr. Kozlovski testified as follows during her 10 deposition: "Q: ...[D]id [Brown] need any supervision at all once he left Searcy? "A: He needed supervision, yes, sir. ".... "Q: Did he need round-the-clock supervision? "A: I don't think so. ... At least the first week, he get to know people there and build some trust with his new environment. "Q: So the first week he needed round-the-clock supervision? ".... "A: Yes, sir. I would say since it's a new environment, he would [need] supervision around the clock, until he got adjusted. "Q: And does that mean somebody keeping their eyes on him around the clock? ".... "A: Yes, sir." 17 1140317 Shamlin contends that Dr. Kozlovski violated duties expressed in the above rules and regulations. Shamlin argues: "Dr. Kozlovski failed to inform anyone, verbally or in writing, that [Brown] required 24-hour eyes on supervision during the first week following his discharge from Searcy Hospital to the Safe Haven Group Home. Dr. Kozlovski failed to develop, much less participate in developing, the specific components of [Brown]'s aftercare plan. Dr. Kozlovski failed to cooperate with [Brown]'s family, discharging [Brown] to a nonsecure residential group home. Dr. Kozlovski failed to coordinate psychiatric service/planning by discharging [Brown] to a nonsecure residential group home knowing that there was a 'high probability' [Brown] would run away. Dr. Kozlovski failed to cooperate with other 'community providers' (i.e., AltaPointe ... and/or the Safe Haven Group Home) in developing the specific components of an appropriate aftercare plan for [Brown]." (Shamlin's brief, at 17-18.) Thus, Shamlin argues that, in not following the rules and regulations Searcy Hospital had in place for discharging patients, Dr. Kozlovski acted beyond her authority in discharging Brown to Safe Haven and that the trial court's denial Dr. Kozlovski's motion for a summary judgment grounded on State-agent immunity was proper. We disagree. It is not apparent from the evidence in the materials before us that Dr. Kozlovski violated any of the rules, regulations, or policies Shamlin references. The evidence 18 1140317 appears to be undisputed that Brown's treatment team developed a discharge plan for Brown and that it subsequently determined that conditions for his discharge had been met. Shamlin claims Dr. Kozlovski failed to develop a proper "aftercare plan." None of the materials before us, however, precisely defines what constitutes an "aftercare plan." Nevertheless, it appears that Dr. Kozlovski complied with all the express requirements set forth in the above-referenced rules and regulations. Dr. Kozlovski completed a "release instructions" form and a "release/discharge assessment" form for Brown. In those 11 forms she "evaluate[d] [Brown's] psychiatric condition at the time of discharge" and provided a "discharge diagnosis." The forms noted Brown's medication, treatment, and "hospital course." Dr. Kozlovski recommended that Brown was to continue taking his prescribed medications and to follow up with his primary-care physician once he was discharged. Further, Dr. The information categories on those preprinted forms 11 generally appear to correspond to the categories of information required to be provided by the psychiatrist upon a patient's discharge according to the "Rules and Regulations of the Psychiatry and Medical Sections of the Organized Medical Staff of Searcy Hospital" and the "Written Plan for Client Care and Professional Services." 19 1140317 Kozlovski signed off on a "discharge medication list verification" form, which listed Brown's prescribed medications and provided instructions for Brown to continue taking the listed medications. The medical records also indicate that Dr. Kozlovski entered a progress note that stated that Brown was not suicidal or homicidal at the time of his discharge. Nor is there any evidence indicating that Dr. Kozlovski failed to cooperate with Brown's family in discharging Brown to Safe Haven. Brown's family expressed concern regarding Brown's discharge to a group home, and the family's concern was noted in the file. Brown's father testified that he attended and participated in treatment-team meetings concerning Brown's discharge. This is not evidence indicating that Dr. Kozlovski refused to cooperate with the family or that she ignored the family's concerns. To the contrary, it appears from the documents before us that Brown's treatment team recognized and empathized with the family's concerns but determined that, based on its evaluation of Brown, he had met the criteria for discharge from Searcy Hospital. Likewise, 12 For example, Brown's file contained the following 12 progress note: 20 1140317 there is no evidence indicating that Dr. Kozlovski failed to cooperate with "community providers" regarding Brown's discharge criteria or after-care plan. "Social Worker contacted client's father, David Brown, to inquire about recent meeting with AltaPointe Health System's Transitional Living Home. Father reports meeting went well and home appears to be good location with several positive services. Father reports concerns over client's history of suicidal behaviors and elopement. Father reports group home does not appear to have adequate security to prevent elopement. Social Worker empathized with father's concerns and informed father that treatment team has evaluated client [and client] is currently free of any suicidal ideation and/or behaviors. Client has reported 'good' mood for several weeks and is able to maintain ground privileges successfully without any attempts at elopement. Father reports agreement with treatment team assessment, however continues to report apprehension regarding client's release. Father states 'he seems happy in the hospital and I don't see a need for him to have a discharge.' Social worker reported that father's concerns will be further discussed with treatment team and social worker to follow up with father." A follow-up progress note stated: "Social Worker contacted client's father to provide progress update. Father informed of recent interview of AltaPointe Health Systems for group home placement. Client presented well in interview and was accepted for placement at this time awaiting bed availability. Father reports understanding and agreement with client's discharge plans." 21 1140317 To be sure, this is a difficult case. The concerns of Brown's family regarding Brown's discharge from Searcy Hospital, unfortunately, proved justified. But it is nonetheless undisputed that Dr. Kozlovski, in making a judgment concerning Brown's discharge, was "discharging duties imposed by statute, rule, or regulation ... in releasing [a person] of unsound mind ...." Cranman, 792 So. 2d at 405. We cannot say from the materials before us that Dr. Kozlovski "failed to discharge [her] duties pursuant to detailed rules or regulations, such as those stated on a checklist." Ex parte Butts, 775 So. 2d at 178. Nor can we say that her decision to approve Brown's discharge was made "willfully, maliciously, fraudulently, in bad faith, beyond [her] authority, or under a mistaken interpretation of the law ...." Cranman, 792 So. 2d at 405. Accordingly, Shamlin has not met his burden to establish that, in discharging Brown from Searcy Hospital to Safe Haven, Dr. Kozlovski acted "beyond ... her authority." Therefore, Dr. Kozlovski is entitled to State- agent immunity. IV. Conclusion 22 1140317 Based on the materials before us, Dr. Kozlovski is entitled to State-agent immunity from the wrongful-death action asserted against her by Shamlin, as administrator of Brown's estate. Accordingly, she has shown a clear legal right to the relief sought, and the trial court is directed to enter a summary judgment in her favor. PETITION GRANTED; WRIT ISSUED. Moore, C.J., and Stuart, Bolin, Shaw, Wise, and Bryan, JJ., concur. Parker, J., dissents. 23	April 24, 2015
554b6bba-53a6-4575-bc02-970240f551e1	Gilley v. Southern Research Institute	N/A	1131238	Alabama	Alabama Supreme Court	rel: 03/13/2015 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 ____________________ 1131238 ____________________ Richard M. Gilley v. Southern Research Institute Appeal from Jefferson Circuit Court (CV-09-901412) STUART, Justice. Richard M. Gilley sued his former employer, Southern Research Institute ("SRI"), seeking compensation he alleged he was owed as a result of his work leading to SRI's procurement of United States Patent No. 5,407,609 ("the '609 patent"). He 1131238 subsequently amended his complaint and added SRI's one-time subsidiary, Brookwood Pharmaceuticals, Inc. ("Brookwood"), and Brookwood's subsequent owner, SurModics, Inc., in place of fictitiously named defendants. The trial court entered a summary judgment in favor of SRI, and Gilley appealed that judgment to this Court. We affirm. I. Although the record filed in conjunction with Gilley's appeal encompasses 31 volumes, the relevant facts are straightforward and undisputed. While they were employed by SRI, Gilley and his associate Thomas Tice developed a new process of encapsulating drugs that had specific application with regard to the production of slow-release medications. SRI thereafter sought to patent the process, and, on April 18, 1995, the United States Patent and Trademark Office granted SRI's patent application and issued the '609 patent, listing Gilley and Tice as the inventors of record. When he was hired by SRI in 1979, Gilley executed a contract acknowledging that any "improvements, inventions and discoveries" made by him during the tenure of his employment would "be the sole and exclusive property of [SRI]." 2 1131238 Nevertheless, SRI had a policy whereby it did provide additional compensation to employees in some instances when it derived income from patents the employees had played a role in obtaining and/or commercializing. On August 25, 1994, SRI revised its policy in this regard, modifying the "Royalties" section of its "Policies and Procedures Manual" to state the following (hereinafter referred to as "the SRI awards policy"): "[I]f [SRI] derives intellectual property income from patents or inventions which it own[s], it will share such income with the inventor(s) and other [SRI] employees who [SRI] considers[,] in its sole discretion, to have made a significant contribution to the generation of such income (contributor(s)) on the basis of 80% to [SRI] and 20% to inventors and contributors (after recovery of legal and other costs). An inventor or contributor must be currently employed at [SRI] o[r] formally retired (minimum of 55 years of age and 10 years of service) from [SRI] to receive a full share of such income. If no longer employed by [SRI], the inventor or contributor will receive one-half of the share that would otherwise be due. The resulting reduction will not affect the share due any other eligible inventor or contributor. If an inventor or contributor is deceased, intellectual property income due that person will be distributed to that person's estate." In approximately July 1996, SRI and Gilley decided to end their employer-employee relationship, and, on July 18, 1996, they executed an agreement setting forth the terms of their 3 1131238 separation ("the separation agreement"). Pursuant to the terms of the separation agreement, Gilley was placed on paid administrative leave through December 31, 1996, and SRI agreed to provide him with an office and out-placement services during that period. The separation agreement further provided: "During the period of paid administrative leave described above and subsequent to the termination of Gilley's employment on December 31, 1996, Gilley will be eligible for his normal share of any intellectual property payments under [the SRI awards] policy in force on July 1, 1996, as it applies to currently active employees. Gilley acknowledges that the period of paid administrative leave through December 31, 1996, and the offer of outplacement services and use of an office and full royalty sharing represent separate and additional consideration over and above that to which he would otherwise be entitled to receive as an employee or former employee of [SRI]." It appears that Gilley thereafter completed the period of administrative leave and left SRI's employment. In a March 2013 deposition given in connection with this case, Gilley estimated that he had received somewhere between $900,000 and $1,000,000 from SRI under the SRI awards policy, the "vast majority" of it after he left SRI at the end of December 1996. On January 1, 2005, SRI, a nonprofit corporation, spun off Brookwood, a wholly owned subsidiary, for the purpose of 4 1131238 managing and developing SRI's drug-delivery unit as a for- profit business. As part of this spin-off, SRI transferred all aspects of its drug-delivery unit to Brookwood, i.e., real estate, employees, continuing contracts and customers, and intellectual property, including the '609 patent. The asset- transfer agreement setting forth the terms of the spin-off further provided that Brookwood would assume liability for "all amounts payable to employees or former employees of [SRI] as a result of revenues received by Brookwood ... in respect of the intellectual property," and, in an accompanying document governing the transfer of intellectual property, Brookwood explicitly acknowledged "the right of certain current and former employees of [SRI] to share in the revenues generated by certain intellectual property in accordance with certain existing policies of [SRI]." On a schedule attached to this document, the separation agreement was specifically noted as granting Gilley such third-party rights. Thereafter, Brookwood made, and Gilley accepted, payments attributable to the '609 patent. On July 31, 2007, SRI executed an agreement ("the stock- purchase agreement") with SurModics pursuant to which 5 1131238 SurModics purchased 100% of SRI's stock in Brookwood for $40 million, with the possibility of SRI's later receiving up to an additional $22 million if certain milestones were met. Section 7.13 of the stock-purchase agreement specifically discussed the continuing payment of royalties to those current and former employees of SRI and Brookwood who were entitled to such payments and divided the responsibility for those payments between SRI and Brookwood as set forth in schedules attached to the stock-purchase agreement. The parties do not dispute that the stock-purchase agreement obligated Brookwood and/or SurModics to pay Gilley any income attributable to the '609 patent to which he was entitled under the separation agreement; however, in October 2009 and October 2010, SurModics entered into two agreements pursuant to which it licensed intellectual property, including the '609 patent, and for which it received payments of $3.5 million and $250,000, respectively, but it appears that no funds were remitted to Gilley in connection with those transactions at that time. On April 27, 2009, Gilley sued SRI in the Jefferson Circuit Court alleging that he had not been paid all the sums he was due under the separation agreement and specifically 6 1131238 asserting claims of breach of contract, breach of fiduciary duty, negligence, and suppression. Gilley subsequently 1 amended his complaint in July 2009 and again in May 2011 to add Brookwood and SurModics as defendants, and to assert third-party-beneficiary claims based on the various documents effecting the Brookwood spin-off and SurModics purchase, as well as additional conversion, fraudulent-suppression, and conspiracy claims. Following the conclusion of the discovery process, Gilley moved for a partial summary judgment, Brookwood and SurModics moved for a partial summary judgment, and SRI moved for a summary judgment as to all claims. On April 7, 2014, the trial court entered an order resolving the outstanding summary-judgment motions. With regard to Gilley's claims against SRI, the trial court denied Gilley's motion and granted SRI's motion, thereby entering a Gilley was joined in his lawsuit by Herbert M. Blatter, 1 another former SRI employee who similarly maintained that he was due additional intellectual-property income for his contributions toward developing and commercializing certain SRI patents or inventions. The trial court eventually entered a summary judgment against Blatter on his claims as well. Although Blatter was listed as a co-appellant on the notice of appeal filed by Gilley, Blatter thereafter informed this Court that he was not pursuing an appeal and, on January 8, 2015, he was dismissed from this appeal. It is accordingly unnecessary to discuss any facts or arguments relating to Blatter's specific claims. 7 1131238 summary judgment for SRI on all the claims asserted by Gilley against SRI. With regard to Gilley's claims against Brookwood and SurModics, the trial court granted all the parties' summary-judgment motions in part, effectively holding that all of Gilley's claims were dismissed except for his third-party- beneficiary claims. The trial court further held that it was undisputed that Brookwood and SurModics owed Gilley some amount based on the October 2009 and October 2010 licensing agreements involving the '609 patent but that the exact amount owed would need to be determined at trial. However, before a trial on that issue could be held, Gilley reached a settlement agreement with Brookwood and SurModics, and, on July 7, 2014, the trial court dismissed all remaining claims, thus rendering the April 7 summary judgment entered in favor of SRI a final judgment subject to appeal. The next day, Gilley filed his notice of appeal to this Court. II. We review a summary judgment pursuant to the following standard: "This Court's review of a summary judgment 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. 8 1131238 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 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." Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004). III. In its order resolving the summary-judgment motions, the trial court explained its rationale: "[Gilley] base[s] [his] claims primarily on an SRI policy by which 'intellectual property income' received by SRI was to be shared with those who fall within the definitions of 'inventors' and 'contributors.' Based on [a] contract[] that [Gilley] signed while employed at SRI, [he] argue[s] that [he] is entitled to some of the revenue generated by SRI's sale of its subsidiary, Brookwood, to SurModics in 2007. "The court agrees with the defendants that the sale of Brookwood in 2007 did not generate any 'intellectual property income' that would impose an obligation to pay [Gilley]. The 2007 transaction involved SurModic's purchase of the capital stock of 9 1131238 Brookwood from SRI. Both before that transaction and after, Brookwood owned the intellectual property at issue here. The court further agrees with SRI's characterization of a stock sale as involving a change of ownership rather than a transfer of any assets, such as patents. "The September 1994 version of SRI's Royalty Awards Policy starts by declaring that 'if [SRI] derives intellectual property income from patents or inventions which it own[s], it will share such income with the inventor(s) and other [contributors] ....' The 2007 transaction does not fall within this obligation. In 2007, SRI derived income from the sale of stock of a subsidiary –– all agree that the transaction did not involve any revenue directly generated from intellectual property owned by SRI. While assets of Brookwood, such as its [intellectual property], may well have factored into a determination of a fair purchase price, such an indirect effect of the [intellectual property] at issue may not fairly be read into this Policy. "A much closer question is actually presented by SRI's 2005 spin-off of Brookwood. At that time, it conveyed its intellectual property at issue to Brookwood in exchange for stock in the new subsidiary. In his response to SRI's summary- judgment motion, Gilley argues, '[a]lternatively, SRI had an obligation to share stock with Gilley when it transferred the '609 patent and other assets and patents to Brookwood in 2005 and received 100% of Brookwood Stock in exchange.' The problem here is that there is no claim in [Gilley's] complaint, as amended, to this effect. Rather, [Gilley] argue[s] that [he was a] third-party beneficiar[y] under the 'Brookwood Spin-Off Agreements,' entitled to continued intellectual property income from Brookwood. Further, there is evidence that Brookwood did make some royalty payments to [Gilley] after 2005, which [Gilley] apparently accepted without protest of anything further owed. 10 1131238 "In any event, the court finds in favor of the defendants on [Gilley's] claims seeking damages referable to the purchase of Brookwood by SurModics. [Gilley] [is] not entitled to any portion of revenue that SRI received in that transaction. Further, the court finds no evidence supporting a claim that SRI or Brookwood underpaid [Gilley] referable to licensing revenues received before the sale of Brookwood to SurModics. With this finding, there is no basis for any claim against these defendants. Since the defendants had no contractual obligation to share revenues resulting from the 2007 transaction, they had no duty to disclose anything in connection with that transaction, and there can be no actionable conspiracy." (Emphasis added.) On appeal, Gilley does not dispute the trial court's conclusion that no evidence had been identified indicating that SRI or Brookwood underpaid Gilley with respect to licensing revenues at any time before Brookwood was sold to SurModics. Rather, Gilley's arguments to this Court are that SRI was obligated to share with him some portion of the payment SRI received 1) when the '609 patent was transferred to Brookwood at the time Brookwood began operations in January 2005 and/or 2) when SurModics purchased all of SRI's stock in Brookwood in July 2007. For the reasons explained by the trial court, we disagree. The trial court did not provide an in-depth analysis of Gilley's claim, made in his response to SRI's summary-judgment 11 1131238 motion, that he should have been given some stock in Brookwood when the '609 patent was transferred to it in January 2005; rather, the trial court noted that the first time Gilley had asserted this claim was in his response to SRI's summary- judgment motion and held that, because the claim had not been asserted in his original complaint or the two subsequent amendments to the complaint, the claim was not properly before the court. Gilley argues in response that Alabama is a notice-pleading state and that his complaint as amended was sufficient to put SRI on notice that he was claiming an entitlement to a portion of the Brookwood stock SRI received when Brookwood was spun off, even though he did not specifically articulate that argument. See, e.g., Weaver v. American Nat'l Bank, 452 So. 2d 469, 473 (Ala. 1984) ("Our rules of civil procedure require only notice pleading, Dempsey v. Denman, [442 So. 2d 63 (Ala. 1983)]; Rule 8(a), A[la]. R. Civ. P. Strict rules of technicality and form may be disregarded. A[la]. R. Civ. P. 8, Committee Comments. A complaint is sufficient if it puts the defendant on notice of the actions against which it must defend."). We accordingly must review Gilley's complaint to determine if it reasonably 12 1131238 put SRI on notice that Gilley was claiming some portion of the stock SRI received in the Brookwood spin-off. Gilley's complaint, as amended, stated, in relevant part: "13. In January 2005, SRI 'spun off' its drug delivery group into a new, for-profit corporation, Brookwood Pharmaceuticals, Inc. By far, the most significant asset transferred by SRI to Brookwood was the intellectual property associated with the drug delivery group. Gilley was an inventor or co- inventor ... with respect to most of that intellectual property. "14. SRI entered into an asset transfer agreement with Brookwood in which Brookwood purported to 'assume and agree to discharge' certain liabilities and obligations of SRI, including 'all amounts payable to employees or former employees ... as a result of revenues received by Brookwood ... in respect of the intellectual property' transferred to Brookwood. "15. Brookwood was initially a wholly-owned subsidiary of SRI. On or about July 31, 2007, SRI entered into a stock purchase agreement with SurModics, Inc. ('SurModics') by which SurModics purchased from SRI all of the outstanding capital stock of Brookwood. The purchase price was $40 million in cash up front at closing, with the potential for an additional $22 million in future cash payments upon achievement of certain milestones. On information and belief, one or more of the milestone payments have now been made to SRI. "16. Although Gilley ... [is] entitled to a significant portion of the foregoing payments made by SurModics to SRI, in accordance with the above- referenced agreements, SRI and Brookwood have failed and refused to pay Gilley ... the amounts due [him]. 13 1131238 "17. Additionally, SurModics and Brookwood may have entered into contractual arrangements or may in the future enter into contractual arrangements which will result in income derived from intellectual property as to which Gilley had defined rights as an inventor or co-inventor .... [Gilley] [is] entitled to [his] contractual share of that intellectual property income. "Count One: Breach of Contract "18. [Gilley] incorporate[s] the foregoing paragraphs of the complaint. "19. [Gilley] ha[s] fulfilled all of [his] obligations under the referenced agreements. "20. Defendants have breached the agreements by failing to pay [Gilley] the agreed amounts of intellectual property income. "21. To the extent that Brookwood has assumed SRI's obligation to [Gilley] and to the extent that the assumption of obligations is enforceable and binding on [Gilley], Brookwood has breached its obligations to [Gilley] by failing to pay the agreed amounts of intellectual property income owed to [Gilley]." In his brief to this Court, Gilley argues that this "was more than adequate to place SRI on notice that Gilley was claiming relief based on the spinoff of Brookwood in 2005." Gilley's brief, p. 17. He further specifically references paragraphs 18 and 20 and states: "Thus, Gilley did, in fact, plead the claim based on the 2005 stock spin-off. It is true that Gilley did not specifically say in the complaint, or 14 1131238 amended complaint, that he was entitled to 'stock' from the spin-off. But he did not have to specify 'stock' (or 'cash' or 'warrants' or 'equity'). All Gilley had to do was lay out the facts and state his claim that he was entitled to intellectual property income owed –– payments which could take any form. He did so." Gilley's brief, p. 18. We disagree that Gilley's complaint would have put SRI on notice that Gilley was claiming income based on the January 2005 spin-off of Brookwood. Although his complaint does allege as facts that Brookwood was both spun off in January 2005 and then sold in July 2007, it does not assert that Gilley was entitled to any income based on the January 2005 transaction, although it does affirmatively state that he was "entitled to a significant portion of the foregoing payments made by SurModics to SRI" in connection with the July 2007 transaction. The express articulation of a claim that income was owed on the July 2007 transaction –– while omitting any similar claim with regard to the January 2005 transaction –– would, rather than put SRI on notice that there was a claim of income owed based on the January 2005 transaction, indicate to SRI that no such claim was being asserted. 15 1131238 This conclusion is buttressed by the fact that Gilley made no mention of the purported claim that income was owed him as a result of the January 2005 Brookwood spin-off until his response to SRI's summary-judgment motion. Notably, Gilley did not at any time before that put forth any evidence relating to an essential element of such a claim –– his damages –– and the expert he retained to prove his damages in this case, in the report he submitted to the trial court, calculated damages associated only with 1) SurModics' purchase of Brookwood in July 2007 and 2) the October 2009 and October 2010 licensing agreements entered into by SurModics. Although the failure to submit any evidence of damages is, alone, an insufficient basis for entering a summary judgment on a breach-of-contract claim, Brooks v. Franklin Primary Health Center, Inc., 53 So. 3d 932, 936 (Ala. Civ. App. 2010), that failure is relevant in this case inasmuch as it indicates that Gilley never asserted a claim that income was owed him as a result of the January 2005 spin-off of Brookwood. If Gilley had asserted such a claim in any version of his complaint, he presumably would have made some effort to establish the damages he claimed in association with that claim, especially 16 1131238 when he had retained an expert witness for the sole purpose of establishing damages. In sum, the touchstone in determining if a claim has been sufficiently asserted in a complaint is whether the complaint puts the defendant on notice of the claim or action against which it must defend. Weaver, 452 So. 2d at 473. In this case, Gilley's complaint undisputedly put SRI on notice of several claims against which it was required to defend itself; however, a claim that Gilley was entitled to some portion of the Brookwood stock SRI received when Brookwood was spun off in January 2005 is not among those claims. To the contrary, "there was virtually no way for the defendant to be put on notice" that Gilley was asserting such a claim based on the language of the complaint and Gilley's actions up until his response to SRI's summary-judgment motion. Phelps v. South Alabama Elec. Co-op, 434 So. 2d 234, 237 (Ala. 1983). Accordingly, we affirm the judgment of the trial court inasmuch as it relates to any claim made by Gilley based on events before the July 2007 deal. Gilley's next argument is that the trial court erred by entering a summary judgment in favor of SRI on his claim that 17 1131238 SRI realized intellectual-property income based on the '609 patent when it sold all of its stock in Brookwood to SurModics in July 2007 and that he was therefore entitled to some portion of that income based on the terms of the separation agreement and the SRI awards policy. As noted in the trial court's order quoted above, it rejected this argument, holding that "the sale of Brookwood in 2007 did not generate any 'intellectual property income' that would impose an obligation to pay [Gilley]." We agree. When SRI transferred the '609 patent to Brookwood in January 2005, it transferred its entire interest in the patent, relinquishing any further claim to benefit from it. Thus, any future income derived from the '609 patent –– whether by sale or license –– would inure to the benefit of Brookwood, not SRI; in effect, SRI agreed in January 2005 to trade any future income that might be derived by the '609 patent in exchange for present income in the form of Brookwood stock. Thus, because SRI terminated its ownership of the '609 patent in January 2005, it could not "derive" any future income from it, and, accordingly, Gilley was owed no 18 1131238 additional compensation under the SRI awards policy when SRI subsequently sold its Brookwood stock in July 2007. In his brief to this Court, Gilley disputes this reasoning, arguing: "In 1996, when Gilley left SRI, SRI owned the '609 patent. On August 1, 2007, after the sale of Brookwood closed, SRI pocketed $40 million (with $22 million more in future contingent consideration) and was no longer the ultimate owner of the '609 patent. The fact that SRI put those patents in the corporate shell of Brookwood nine years after Gilley's agreement was entered into is of no consequence, as SRI was the ultimate owner of the patents at issue because it owned Brookwood. After Brookwood was sold to SurModics, SurModics became the ultimate owner of those patents because it was the owner of Brookwood. "In other words, SRI made income that without question was at least in part 'derive[d] from' the '609 patent and other intellectual property in which Gilley had an interest. Accordingly, SRI has an obligation to share that income with Gilley." Gilley's brief, pp. 21-22. However, Gilley's argument that SRI was still "the ultimate owner" of the '609 patent even after it was transferred to Brookwood is not supported by Alabama law, which holds, to the contrary, that shareholders in a corporation are not owners of the corporation's property. As explained by this Court in Warrior River Terminal Co. v. State, 257 Ala. 208, 211, 58 So. 2d 100, 101 (1952): 19 1131238 "It is firmly established by the authorities that a corporation is a distinct entity: that it is separate and distinct from its shareholders, and that the property representing its capital is vested in and owned by the corporation and not the shareholders. "In the case of Moore & Handley Hdw. Co. v. Towers Hdw. Co., 87 Ala. 206, 6 So. 41, 43 [(1889)], the foregoing principle was stated as follows: "'The general doctrine is well established, and obtains both at law and in equity, that a corporation is a distinct entity, to be considered separate and apart from the individuals who compose it, and is not to be affected by the personal rights and obligations and transactions of its stockholders, and this whether said rights accrued or obligations were incurred before or subsequent to incorporation.' "And in the case of First National Bank of Gadsden v. Winchester, 119 Ala. 168, 24 So. 351, 352 [(1898)], it was said: "'"The courts of law, however, ... recognize a corporation only as one body acting in the corporate name. The individual stockholders are not, in contemplation of law, parties to contracts made by the association in a corporate capacity, nor have they any legal right or title to property vested in the corporation. At law, a corporation and its stockholders are considered as distinct from each other .... [Quoting Morawetz on Private Corporations, § 381]." 20 1131238 "'The principle here stated, that the legal title to the property of the corporation is in the corporation itself, and not the shareholders, cannot, of course, be questioned; and the authorities, for the most part, go so far as to hold that, even when the body ceases to be an association of persons by reason of the concentration of all the stock in the hands of one owner, the corporation is not thereby dissolved, and the sole stockholder does not thereby become legal owner of the property.' "To the same effect are the decisions of the Supreme Court of the United States." (Emphasis added.) See also Martin Truck Line, Inc. v. Alabama Truck Lines, Inc., 261 Ala. 163, 166, 73 So. 2d 756, 759 (1954) ("It is elementary that a corporation is for ... most purposes an entity distinct from its stockholders. By its very nature the corporate property is vested in the corporation itself and not in the stockholders."). Thus, SRI was not the owner of the '609 patent when it sold Brookwood to SurModics in July 2007, and the income it realized from that sale came solely from its ownership of Brookwood stock, not from any ownership of or rights to the '609 patent. 2 We further note that no evidence indicates that the 2 transfer of the '609 patent to Brookwood was a sham transaction or that SRI simply used the corporate shell of Brookwood in an attempt to avoid paying Gilley any further income under the separation agreement and the SRI awards 21 1131238 In conclusion, Gilley has stated in his brief to this Court that "either SRI had an obligation to share Brookwood stock with Gilley when it transferred the '609 patent to Brookwood and was issued that stock, or it had an obligation to share the income that was received when it dispossessed itself of that stock (and the '609 patent) in 2007." Gilley's brief, p. 24. However, as explained supra, Gilley did not assert a claim in his complaint based upon the January 2005 Brookwood spin-off. Thus, although the trial court correctly recognized that Gilley might have at one time had a plausible claim in connection with the January 2005 transaction that would have presented a "closer question" for the court, because that claim was not properly asserted, it was, and is, unnecessary to consider its merits. We can, however, unequivocally state that there is no merit to Gilley's claim that he was entitled to some portion of the $40 million received when SRI sold its Brookwood stock to SurModics policy. It is undisputed that SRI received Brookwood stock in exchange for a package of assets including the '609 patent and that this stock, by July 2007, had risen in value to at least $40 million. Moreover, the terms of the documents effecting the Brookwood spin-off specifically protected Gilley's rights to receive future compensation based on future commercialization of the '609 patent. 22 1131238 because that income was derived from the sale of stock, not from "patents or inventions which [SRI] own[ed]," which would have implicated the SRI awards policy. In fact, SRI did not own any patents conveyed to SurModics in the July 2007 transaction; any patents involved were owned by Brookwood both before and after the transaction.3 IV. Gilley appealed the summary judgment entered against him and in favor of SRI on his claims that SRI did not pay him money he alleged he was owed pursuant to the separation agreement and the SRI awards policy after Brookwood was spun off in January 2005 and then again when Brookwood was sold to SurModics in July 2007. However, because Gilley did not timely assert a claim based on the January 2005 transaction in his complaint and because the money received by SRI in the July 2007 transaction was not intellectual-property income Gilley has also argued that the summary judgment entered 3 on his fraudulent-suppression claim should be reversed; however, as the trial court noted, if SRI had no contractual obligation to share with Gilley revenue from the July 2007 sale of Brookwood, it similarly had no duty to disclose anything in connection with that transaction. See, e.g., Nesbitt v. Frederick, 941 So. 2d 950, 955 (Ala. 2006) ("An essential element of ... [a] fraudulent-suppression claim[] is a duty to disclose."). 23 1131238 subject to sharing under the SRI awards policy, the summary judgment entered by the trial court was proper and is hereby affirmed. AFFIRMED. Moore, C.J., and Parker, Shaw, and Wise, JJ., concur. 24	March 13, 2015
c6e49f67-47eb-4f37-a060-dfe365faec05	Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County.	N/A	1140460	Alabama	Alabama Supreme Court		March 10, 2015
71856aa6-60e3-4c82-8e73-70d960433ded	Johnny Lloyd Burchfield et al. v. Jim Walter Resources, Inc.	N/A	1130540	Alabama	Alabama Supreme Court	REL: 02/27/15 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 ____________________ 1130540 ____________________ Johnny Lloyd Burchfield et al. v. Jim Walter Resources, Inc. Appeal from Jefferson Circuit Court, Bessemer Division (CV-2009-000910.00) PER CURIAM. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P. Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 1130540 MOORE, Chief Justice (dissenting). Jim Walter Resources, Inc. ("JWR"), owns and operates coal mines in Alabama. In the early 1980s, JWR and El Paso Production ("El Paso") formed Black Warrior Methane Corp. ("BWM") to remove methane from JWR's mines through the construction of methane wells. BWM and JWR operate out of the same building in Brookwood. JWR and El Paso each own 50 percent of the shares of BWM. BWM is responsible for developing plans for the removal of methane from JWR's mines, for drilling the methane wells, for gathering the methane, and for selling the methane. Neither JWR nor El Paso is involved in controlling BWM's day-to-day operations and, pursuant to the terms of an operating agreement between JWR and El Paso, are forbidden from trying to control BWM. When BWM proposes to drill a methane well, its officers submit the plan to its board of directors. One of the members of BWM's board of directors is George Richmond, who is also a member of the board of directors of JWR. When BWM's board of directors receives a proposal, the board reviews the plan, expresses any concerns it has, and then either approves or rejects the proposal. If the proposal is approved, BWM then 2 1130540 makes a capital request to JWR and El Paso for financing for the proposal. After JWR provides the necessary capital to BWM, BWM contracts with other companies to build the 1 pipelines to transport the methane from JWR's mines to BWM's compression sites. When BWM sells methane, 50 percent of the proceeds goes to El Paso and 50 percent goes to JWR. BWM does not make profits from the sale of methane, but it covers all its expenses through financing from JWR and El Paso. In 2007, BWM began a project to construct a pipeline from one of JWR's mines in Brookwood to one of BWM's compression sites. During the course of this project, there was a last- minute reroute of the pipeline. BWM mistakenly believed that the property over which the pipeline would run belonged to U.S. Steel Corporation, but it actually belonged to Johnny Lloyd Burchfield, Pansy Burchfield, Opal Burchfield, and Alice Burchfield McCraw ("the Burchfields"). Because of that mistake, BWM did not obtain permission from the Burchfields to build the pipeline, and the pipeline was constructed on the Burchfields' property. The pipeline is owned and operated by El Paso's role in providing capital is unclear from the 1 record. However, El Paso is not a party to the appeal. 3 1130540 BWM. However, the methane that travels through the pipeline is owned by JWR. The Burchfields sued BWM and JWR on August 3, 2009, in the Jefferson Circuit Court, alleging, among other counts, trespass, nuisance, and unjust enrichment. On December 20, 2009, JWR moved for a summary judgment, alleging that it was not responsible for BWM's actions in constructing or operating the pipeline. The trial court granted JWR's motion for a summary judgment on August 3, 2010. The Burchfields appeal. 2 The Burchfields argue that they presented substantial evidence showing that a genuine issue of material fact exists as to whether JWR is liable for trespass because JWR owns the methane that is being pumped through the pipeline that extends across the Burchfields' property. "[I]n order for one to be liable to another for trespass, the person must intentionally enter upon land in the possession of another or the person must intentionally cause some 'substance' or 'thing' to enter upon another's land." Born v. Exxon Corp., 388 So. 2d 933, 934 (Ala. 1980) (emphasis added). The Burchfields and BWM settled after the trial court 2 entered the summary judgment in favor of JWR. 4 1130540 "'One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally "'... [e]nters land in the possession of another, or causes a thing or a third person to do so .... "'....' ".... "'... It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.'" Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 59, 300 So. 2d 94, 96-97 (1974) (quoting Restatement (Second) of Torts § 158 & cmt. i) (emphasis omitted; emphasis added). In this case, JWR owns the methane BWM is pumping across the Burchfields' property. Thus, a jury could reasonably infer that JWR is continuing to allow BWM to transport its methane "'with knowledge that it will to a substantial certainty result in the entry of the foreign matter'" onto the Burchfields' property. Rushing, 293 Ala. at 59, 300 So. 2d at 97 (quoting Restatement § 158 cmt. i). The Burchfields also argue that they presented substantial evidence showing that a genuine issue of material 5 1130540 fact exists as to whether JWR is liable for trespassing because BWM was acting as JWR's agent. "'Without question one may commit a trespass through another as his active agent or joint participant, although the one may not be present at the time, taking any personal hand in the trespass. He must be directing, aiding, participating in, or must ratify the trespass.'" C.O. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 7, 135 So. 2d 166, 168 (1961) (quoting Trognitz v. Fry, 215 Ala. 609, 610, 112 So. 156, 157 (1927)) (emphasis added), superseded by statute on other grounds as recognized in Wint v. Alabama Eye & Tissue Bank, 675 So. 2d 383 (Ala. 1996). Because Richmond sits on the board of directors for both JWR and BWM, a jury question is presented as to whether JWR knew of BWM's plan to build on the Burchfields' land and whether it participated in the trespass by funding the project. Moreover, as stated above, it does not appear that JWR made any efforts to stop BWM from pumping its methane over the Burchfields' property once it learned of the trespass; consequently, a jury could reasonably infer that JWR ratified the trespass. Therefore, I believe that the summary judgment is due to be reversed as to this issue. 6 1130540 The Burchfields also argue that they presented substantial evidence showing that a genuine issue of material fact exists as to whether JWR is liable for nuisance. "[F]or an action in nuisance under § 6–5–120, Ala. Code, 1975, the plaintiff must show conduct, be it intentional, unintentional, or negligent, on the defendant's part, which was the breach of a legal duty, and which factually and proximately caused the complained-of hurt, inconvenience, or damage." Hilliard v. City of Huntsville Elec. Util. Bd., 599 So. 2d 1108, 1113 (Ala. 1992). As discussed above under the trespass issue, it 3 appears that JWR has continued to allow its methane to be transported across the Burchfields' property after learning of the trespass. This too presents a question for the jury. Finally, the Burchfields argue that they presented substantial evidence to show that a genuine issue of material fact exists as to their claim of unjust enrichment. The parties agree that the following standard applies in establishing an unjust-enrichment claim: "'The essence of the "Indeed, because of the comprehensive language of our 3 nuisance statute (§ 6-5-120), conduct which rises to the level of trespass to land, generally speaking, would support a nuisance action ...." Borland v. Sanders Lead Co., 369 So. 2d 523, 529 n.1 (Ala. 1979). 7 1130540 theories of unjust enrichment or money had and received is that a plaintiff can prove facts showing that defendant holds money which, in equity and good conscience, belongs to plaintiff or holds money which was improperly paid to defendant because of mistake or fraud.'" Dickinson v. Cosmos Broad. Co., 782 So. 2d 260, 266 (Ala. 2000) (quoting Hancock- Hazlett Gen. Constr. Co. v. Trane Co., 499 So. 2d 1385, 1387 (Ala. 1986)). In this case, the Burchfields have presented enough evidence from which a jury could reasonably infer that JWR received profits from the sale of the methane because of its mistaken belief that the Burchfields' property was owned by U.S. Steel. Therefore, I believe that this issue should have been submitted to the jury as well. It appears to me that JWR is using BWM as a shield to escape liability. I believe that the Burchfields presented enough evidence of JWR's involvement to survive a summary- judgment motion and to allow a jury to decide the issues. Therefore, I respectfully dissent. 8	February 27, 2015
13dfb123-382e-4ff2-a624-13f204ea043a	Ex parte Jennifer Ann Vest	N/A	1131050	Alabama	Alabama Supreme Court	REL:02/27/2015 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 ____________________ 1131050 ____________________ Ex parte Jennifer Ann Vest (Herron) PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Jennifer Ann Vest (Herron) v. David Jeremy Vest) (Elmore Circuit Court, DR-01-492.02; Court of Civil Appeals, 2120913) BOLIN, Justice. Jennifer Ann Vest (Herron) ("the mother") petitioned this Court for certiorari review of the decision of the Alabama 1131050 Court of Civil Appeals affirming the Elmore Circuit Court's order imposing a five-day jail sentence for contempt. The contempt order arose out of a child-custody-modification action, which we now hold was improperly filed in the Elmore Circuit Court. Facts and Procedural History The mother and David Jeremy Vest ("the father") were divorced in 2002 in Elmore County. The mother was granted custody of the parties' minor child, and the father was granted visitation. With the court's permission, the mother moved to Mississippi. In 2006, the Elmore Circuit Court entered an agreement between the parties, modifying the father's visitation in light of the mother's move. The father moved to Mobile in 2006. On June 10, 2010, the mother filed in the Mobile Circuit Court a motion seeking to suspend the father's visitation and requesting supervised visitation and psychological counseling for the father and that the father pay for the child's psychological counseling based on the mother's allegations against the father. The father was living in Mobile at the time. On June 24, 2010, the father filed a response in the 2 1131050 Mobile Circuit Court to the mother's motion. The father did not object to the venue of the Mobile Circuit Court in his response. On June 25, 2010, the father filed in the Elmore Circuit Court a motion to modify custody and a motion seeking to hold the mother in contempt for not following the modified visitation schedule entered by the Elmore Circuit Court. Attached to the father's motion was a child-support- information sheet on which the father's address was listed as being in Mobile. On July 23, 2010, the mother filed a motion in the Elmore Circuit Court to dismiss the father's postdivorce proceeding on the ground that venue was not proper in the Elmore Circuit Court because, she said, (1) she had commenced a postdivorce proceeding in the Mobile Circuit Court that remained pending and the father had neither objected to venue in that proceeding nor moved the Mobile Circuit Court to transfer that proceeding to the Elmore Circuit Court, and (2) neither party was then living in Elmore County and the father had lived in Mobile County for "over two years." On August 6, 2010, the mother amended her motion to dismiss to further argue that the father had waived his right 3 1131050 to object to venue in the Mobile Circuit Court by admitting that he lived in Mobile County. The mother again asked the Elmore Circuit Court to dismiss the father's motion to modify custody and to hold him in contempt. In the alternative, the mother sought to have the father's motion transferred to the Mobile Circuit Court. The Elmore Circuit Court held a hearing on the mother's motion to dismiss during which the mother stated that she had introduced in the Elmore Circuit Court the motion filed in the Mobile Circuit Court without objection from the father. The Elmore Circuit Court, on September 29, 2010, entered an order denying the mother's motion to dismiss. On November 8, 2010, the mother petitioned the Court of Civil Appeals for a writ of mandamus, which it denied, holding that the mother had failed to establish a clear legal right to mandamus relief. Ex parte Vest, 68 So. 3d 881 (Ala. Civ. App. 2011)("Vest I"). After the Court of Civil Appeals denied the mother's petition for a writ of mandamus, the mother, on March 10, 2011, filed a renewed motion to dismiss the father's postdivorce proceeding in the Elmore Circuit Court and, on April 8, 2011, filed a second renewed motion to dismiss the 4 1131050 father's postdivorce proceeding in the Elmore Circuit Court. The renewed motion to dismiss and the second renewed motion to dismiss asserted that the father's postdivorce proceeding in the Elmore Circuit Court was actually a compulsory counterclaim in the postdivorce proceeding the mother had filed in the Mobile Circuit Court and, therefore, that the father's postdivorce proceeding in the Elmore Circuit Court was barred by § 6–5–440, Ala. Code 1975. Those motions also asserted that the father's postdivorce proceeding in the Elmore Circuit Court should be dismissed because, the mother said, the father had waived his objection to venue in the Mobile Circuit Court by failing to assert an objection to venue in his response to the mother's motion initiating her postdivorce proceeding in the Mobile Circuit Court. The mother attached to her motions certified copies of the motion she had filed to initiate her postdivorce proceeding in the Mobile Circuit Court, along with the father's response to her motion. On April 13, 2011, the Elmore Circuit Court entered an order denying the motions to dismiss. 5 1131050 On April 14, 2011, the mother again petitioned the Court of Civil Appeals for a writ of mandamus, which that court denied, holding as follows: "Because the mother and the parties' child had not resided in a county in Alabama for a period of at least three consecutive years immediately preceding the filing of her postdivorce proceeding in the Mobile Circuit Court, § 30–3–5[, Ala. Code 1975,] dictated that the proper venue for the mother's postdivorce proceeding was the Elmore Circuit Court, which was 'the original circuit court rendering the final [divorce] decree.' The fact that the father, who was not the custodial parent, was residing in Mobile County when the mother filed her postdivorce proceeding was irrelevant to the determination of the proper venue of the mother's postdivorce proceeding under § 30–3–5. The father subsequently filed his postdivorce proceeding in the Elmore Circuit Court, which was the proper venue for that proceeding under § 30–3–5. "Thus, in arguing that § 6–5–440 bars the father's postdivorce proceeding because she had previously filed a postdivorce proceeding in the Mobile Circuit Court, the mother is asking this court to hold that one former spouse may race to the courthouse and file a postdivorce proceeding in an improper venue and thereby bar the other former spouse from filing a postdivorce proceeding in the proper venue. The mother has cited no binding precedent that dictates that result. Moreover, if we were to hold that § 6–5–440 dictates such a result, we would be encouraging former spouses to race to the courthouse and forum shop. Consequently, we hold that, under the particular circumstances of this case, § 6–5–440 does not bar the father's postdivorce proceeding in the Elmore Circuit Court." 6 1131050 Ex parte Vest, 130 So. 3d 566, 571 (Ala. Civ. App. 2011) ("Vest II"). The Court of Civil Appeals overruled the mother's application for a rehearing on October 28, 2011. The mother petitioned this Court for certiorari review, and this Court granted the petition. We rejected the Court of Civil Appeals' "race to the courthouse" rationale and stated: "It does not follow from the principle that venue in child-custody-modification proceedings can be waived that a forum-shopping parent can 'file a postdivorce proceeding in an improper venue and thereby bar the other former spouse from filing a postdivorce proceeding in the proper venue,' [Ex parte] Vest, 130 So. 3d [566] at 571 [(Ala. Civ. App. 2011)], because the respondent parent can always object to venue in his or her first responsive pleading in the court in which venue is alleged to be improper. Nor does the requirement that a party object immediately to venue or waive the venue issue constitute a trap for the unwary, because Rule 12, Ala. R. Civ. P., has long provided that a defense of improper venue can be waived if omitted from the first responsive pleading." Ex parte Vest, 130 So. 3d 572, 573 (Ala. 2012) ("Vest III"). We reversed the judgment of the Court of Civil Appeals and remanded the cause to that court for further consideration of § 6-5-440 and any other arguments pretermitted by that court's earlier analysis. On remand from this Court, the Court of Civil Appeals further considered the mother's petition for a writ of 7 1131050 mandamus in the context of whether the mother had waived the affirmative defense of simultaneous pending actions set out in § 6–5–440 and had failed to revive it before the Elmore Circuit Court entered its order of April 13, 2011. The Court of Civil Appeals noted that, because the mother had supported her motions with material outside the pleadings, which the Elmore Circuit Court had considered, her motions to dismiss were automatically converted to motions for a summary judgment. The court thus concluded that the mother had waived the affirmative defense set out in § 6–5–440 and had failed to revive that defense before the trial court denied her motions for a summary judgment. Ex parte Vest, 130 So. 3d 574 (Ala. Civ. App. 2013) ("Vest IV"). The mother petitioned this Court for certiorari review, which we denied on May 10, 2013. Ex parte Vest, 130 So. 3d 580 (Ala. 2013). On May 14, 2013, the Elmore Circuit Court ordered the reinstatement of the father's visitation. On May 20, 2013, the father filed a motion seeking to hold the mother in contempt for failing to deliver the child for visitation. That same day, the Elmore Circuit Court set a show-cause hearing for June 5, 2013. The mother's counsel withdrew, and 8 1131050 new counsel filed a motion on June 4, 2013, seeking, among other things, additional time in which to respond. The hearing was held on June 5, 2013, and neither the mother nor her counsel appeared. The court entered an order holding the mother in contempt and imposing a five-day jail sentence. The mother appealed. The Court of Civil Appeals affirmed the trial court's order, without an opinion. Vest v. Vest (No. 2120913, April 25, 2014), So. 3d (Ala. Civ. App. 2014)(table). The mother sought rehearing, which the Court of Civil Appeals denied. On June 20, 2014, the mother filed this petition for a writ of certiorari with this Court asking us to review the Court of Civil Appeals' affirmance of the trial court's order holding the mother in contempt. Before consideration of the mother's petition and without ordering answer and briefs in response to the petition, we suspended the Rules of Appellate Procedure pursuant to Rule 2, Ala. R. App. P., and ordered the parties to show cause why this Court has authority to address the merits of the mother's petition. In our order, we noted that two different circuit courts of this State presently purport to exercise jurisdiction over the dispute 9 1131050 between the parties, thus giving rise to existing and potential conflicting orders concerning the custody of the parties' child. Our order was entered pursuant to this Court's supervisory role as to courts of inferior jurisdiction. See Ex parte James, 836 So. 2d 813, 833 (Ala. 2002)(Houston, J., concurring specially)("[T]he Supreme Court of Alabama has constitutionally grounded supervisory authority over the State courts of Alabama."); Ala. Const. 1901, Art. VI, § 140 (Official Recomp.)("The supreme court shall have original jurisdiction ... to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction."). The parties were directed to address whether the issue of abatement had, in fact, been raised in the mother's motion to dismiss filed in the Elmore Circuit Court action on July 23, 2010, and, if not, whether a failure to raise this defense constituted a waiver. In addition, the parties were directed to address the issue whether the decision of the Court of Civil Appeals in Vest IV would be binding on this Court under the doctrine of law of the case in light of this Court's decisions in Ex parte Discount Foods, Inc., 789 So. 2d 842, 846 n.4 (Ala. 10 1131050 2001)(holding that the law-of-the-case doctrine does not in all circumstances require rigid adherence to rulings made at an earlier stage of a case, particularly when the court is convinced that its prior decision is clearly erroneous or when an intervening or contemporaneous change in the law has occurred), and Papastefan v. B & L Construction Co., 385 So. 2d 966, 967 (Ala. 1980)("The Supreme Court is not barred from re-examination of a previous ruling upon a subsequent appeal of the same case."). Discussion In Vest IV, the Court of Civil Appeals concluded that the mother had waived the affirmative defense of § 6-5-440 because in her motion to dismiss filed on July 23, 2010, the mother did not expressly cite § 6-5-440, nor did she state that the father's postdivorce proceeding filed in the Elmore Circuit Court constituted a compulsory counterclaim to her postdivorce proceeding filed in the Mobile Circuit Court. Although the mother did not specifically cite § 6-5-440, the mother's motion read as follows: "Comes now, the [mother] ... and would object to the Motion of the [father] to Modify Custody and Hold the [mother] in Contempt as filed by the [father] on June 25, 2010, based upon improper venue and 11 1131050 would further show that this matter is already pending before the Mobile County Circuit Court and in further support would show the following: "1) There is currently pending, a previously filed Motion before the Circuit Court of Mobile County, Alabama .... "2) Venue is no longer proper in the Circuit Court of Elmore County, Alabama. Neither party resides in Elmore County, Alabama, the [father] having resided for greater than two (2) years in Mobile County, Alabama and the [mother] residing in the state of Mississippi. "3) [The father] is well aware of the matters currently pending in Mobile County .... Furthermore, there has been no objection to venue in Mobile County nor Motion to Transfer or to assert the venue of Elmore County, Alabama, file[d] in the Mobile County case. "4) Upon information and/or belief, the [father] is attempting to usurp the authority of the Circuit Court of Mobile County where jurisdiction and venue are proper. "Wherefore the premises considered, [the mother] prays this Honorable Court dismiss and/or strike all motions of the [father] filed in Elmore County, Alabama until such time as the Circuit Court of Mobile County rules on the pending Motion plus any further and/or different relief this Court deems appropriate." Given the language of the mother's motion, we disagree with the Court of Civil Appeals' conclusion that the mother failed to assert a defense pursuant to § 6-5-440. 12 1131050 We note that § 6-5-440 prohibits a plaintiff from prosecuting two actions simultaneously in different courts of the State if the claims asserted in each action arose from the same underlying facts. In such a case, the defendant may require the plaintiff to elect which action will be prosecuted. Where the parties' alignment (as plaintiff or defendant) in the original suit is reversed in the subsequent action, § 6-5-440 still applies, because it is designed to prohibit one party from twice prosecuting the same cause of action. "'The obligation imposed on a defendant under Rule 13(a), Ala. R. Civ. P., to assert compulsory counterclaims, when read in conjunction with Ala. Code § 6-5-440, 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.'" Ex parte J.C. Duke & Assocs., Inc., 4 So. 3d 1092, 1094 (Ala. 2008) (quoting Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849, 851 (Ala. 1999)). "The purpose of [§ 6-5-440] is to avoid multiplicity of suits and vexatious litigation." Johnson v. Brown–Serv. Ins. 13 1131050 Co., 293 Ala. 549, 551, 307 So. 2d 518, 520 (1974). Section 6-5-440 protects a party currently defending one action from having to defend another action subsequently filed by the same plaintiff in a different court "for the same cause" and provides that "the pendency of the former is a good defense to the latter." See L.A. Draper & Son v. Wheelabrator–Frye, Inc., 454 So. 2d 506 (Ala. 1984). In sum, § 6-5-440 prohibits simultaneous actions for the same cause against the same parties. In the present case, the father filed a motion in the Elmore Circuit Court to modify custody of the parties' minor child. In response, the mother, in her motion to dismiss, clearly stated that there was an action pending in Mobile County involving the parties' child of which the father was aware. She further alleged that venue was proper in Mobile County and that the father had not objected to venue in the Mobile Circuit Court. The mother requested that the Elmore Circuit Court dismiss the father's motion to modify custody until such time as the Mobile Circuit Court addressed the mother's motion regarding the parties' child and her allegations against the father. The mother's motion clearly 14 1131050 put the father on notice of the affirmative defense she was raising. The Court of Civil Appeals in Vest IV went on to discuss whether the mother revived the affirmative defense of abatement under § 6-5-440 when she renewed her motions to dismiss on March 10, 2011, and April 8, 2011. There is no need for this Court to address that portion of the Vest IV holding, however, because our discussion necessarily turns on whether, under the facts of this case, we should apply the law-of-the-case doctrine. As noted earlier, the law-of-the-case doctrine does not in all circumstances require rigid adherence to rulings made at an earlier stage of a case. In Ex parte Discount Foods, Inc., 789 So. 2d 842 (Ala. 2001) ("Discount Foods II"), this Court determined that the Court's opinion in Ex parte Discount Foods, Inc., 711 So. 2d 992 (Ala. 1998)("Discount Foods I"), had been predicated on an incorrectly decided plurality opinion. In note 4 of the opinion in Discount Foods II, we explained: "This Court is not required under the doctrine of 'law of the case' to adhere to the decision in Discount Foods I. Generally, the law-of-the-case doctrine provides that when a court decides upon a 15 1131050 rule of law, that rule should continue to govern the same issues in subsequent stages in the same case. The purpose of the doctrine is to bring an end to litigation by foreclosing the possibility of repeatedly litigating an issue already decided. See Murphy v. FDIC, 208 F.3d 959 (11th Cir. 2000); see, also, Blumberg v. Touche Ross & Co., 514 So. 2d 922 (Ala. 1987). However, the law-of-the case doctrine does not in all circumstances require rigid adherence to rulings made at an earlier stage of a case. The doctrine directs a court's discretion; it does not limit a court's power. The law-of-the-case doctrine is one of practice or court policy, not of inflexible law, and it will be disregarded when compelling circumstances call for the redetermination of a point of law on a prior appeal; and this is particularly true when the court is convinced that its prior decision is clearly erroneous or where an intervening or contemporaneous change in the law has occurred by an overruling of former decisions or when such a change has occurred by new precedent established by controlling authority. See State v. Whirley, 530 So. 2d 861 (Ala. Crim. App. 1987), rev'd on other grounds, 530 So. 2d 865 (Ala. 1988); Callahan v. State, 767 So. 2d 380 (Ala. Crim. App. 1999); Murphy v. FDIC, supra; United States v. Escobar–Urrego, 110 F.3d 1556 (11th Cir. 1997); Heathcoat v. Potts, 905 F.2d 367 (11th Cir. 1990). The decision in Discount Foods I failed to give effect to the parties' contractual intent, as evidenced by the plain language of the arbitration provision; it, therefore, was clearly erroneous. In fact, this Court sub silentio disapproved the rationale of Discount Foods I in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kirton, 719 So. 2d 201 (Ala. 1998), which was released approximately four months after the opinion in Discount Foods I. In Kirton, this Court specifically noted: '[W]e conclude that the language of the arbitration provision in the 1995 customer agreement entered into between Merrill Lynch and Ms. Kirton is sufficiently broad to include any and all 16 1131050 controversies between them, regardless of the kind of controversy or the date on which the controversy occurred.' 719 So. 2d at 204." 789 So. 2d at 846 n. 4 (emphasis omitted; emphasis added). Because the purpose of the law-of-the-case doctrine is to protect the settled expectations of the parties and to promote orderly development of the case, it should not be applied in the present case. The result of the Court of Civil Appeals' erroneous conclusion regarding the waiver of abatement in Vest IV, which was compounded and prolonged by this Court's denial of certiorari review on May 10, 2013, is to now have two circuit courts addressing custody issues relating to the same child. The father was aware of the mother's motion filed in the Mobile Circuit Court on June 10, 2010, when he filed his motion in the Elmore Circuit Court on June 25, 2010. There is a significant risk of inconsistent results in those pending cases. In light of the facts that this case presents a domestic issue involving custody of a child and that there is a distinct possibility that a sheriff's deputy could be handed competing custody orders from the Mobile Circuit Court and the Elmore Circuit Court involving the child, we decline to apply the law-of-the-case doctrine here. Accordingly, we are not 17 1131050 bound by the Court of Civil Appeals' conclusion that the mother waived the affirmative defense of abatement. In the present case, the Elmore Circuit Court erred in not recognizing the primacy of the Mobile action when the mother filed her motion to dismiss or to transfer the father's motion to the Mobile Circuit Court. Subsequently, the Court of Civil Appeals erred in concluding that the mother had waived the affirmative defense of abatement. Accordingly, we hereby suspend the provisions of Rule 39(g) and (h), Ala. R. App. P., allowing the petitioner and the respondent to file a brief and to request oral argument, and we grant certiorari review of the Court of Civil Appeals' order affirming the Elmore Circuit Court's order holding the mother in contempt and imposing a five-day jail sentence. See Ex parte Edwards, 986 So. 2d 378 (Ala. 2007)(suspending Rule 39(g) and (h) and summarily granting the writ of certiorari). We hold that the mother did not waive the affirmative defense of abatement under § 6-5-440. The Mobile Circuit Court is the proper court to address the mother's motion to suspend the father's visitation because the mother filed her motion in the Mobile Circuit Court on June 10, 2010, and the father responded to 18 1131050 that motion without challenging the venue of the Mobile Circuit Court. Accordingly, the judgment of the Court of Civil Appeals is reversed and the cause is remanded for that court to issue an order directing the Elmore Circuit Court to decide whether to dismiss or to transfer the father's motion to modify custody filed in that court on June 25, 2010. WRIT GRANTED; REVERSED AND REMANDED. Moore, C.J., and Stuart, Parker, Main, and Wise, JJ., concur. Murdock, J., concurs specially. Shaw, J., dissents. Bryan, J., recuses himself.* *Justice Bryan was a member of the Court of Civil Appeals when that court considered this case. 19 1131050 MURDOCK, Justice (concurring specially). I agree with the main opinion. I write separately merely to note in addition that, even if the defense offered by § 6-5-440, Ala. Code 1975, was not asserted by the mother in the first motion to dismiss she filed, that fact alone would not necessarily have resulted in a waiver of that defense. There is no general first-filed-motion rule (as there is in Rule 12(g), Ala. R. Civ. P., for certain defenses) applicable to the assertion of a defense of abatement under § 6-5-440. Regions Bank v. Reed, 60 So. 3d 868 (Ala. 2010), does not hold otherwise. 20 1131050 SHAW, Justice (dissenting). The case before us challenges the Court of Civil Appeals' April 2014 decision affirming, without an opinion, the trial court's order holding Jennifer Ann Vest (Herron) ("Vest") in contempt. I believe that the contempt order is the only 1 decision before us and the only decision that should be addressed. However, this Court asked the parties to file briefs on a different issue -- one that was settled in a 2013 2 Court of Civil Appeals' decision on which we have previously 3 denied certiorari review. Vest answered our request; David 4 Jeremy Vest filed a letter stating that he could not afford to pay his attorney to do the same. The issue whether Vest waived her abatement defense by failing to properly raise it in a motion filed in 2010 in the Elmore Circuit Court is not an issue in this case. That issue was decided against her in the Court of Civil Appeals' 2013 decision; Vest filed a certiorari petition in this Court Vest v. Vest (No. 2120913, April 25, 2014), So. 3d 1 (Ala. Civ. App. 2014) (table). I dissented from that order. 2 Ex parte Vest, 130 So. 3d 574 (Ala. Civ. App. 2013). 3 Ex parte Vest, 130 So. 3d 580 (Ala. 2013). 4 21 1131050 challenging that decision, but this Court denied it. Justice Murdock's reason for concurring with that denial is telling: "I question the conclusion reached by the Court of Civil Appeals in its opinion on remand from this Court that the mother in a post-divorce proceeding had waived her affirmative defense arising under Ala. Code 1975, § 6–5–440, by failing to assert that defense in a motion to dismiss or to transfer filed in that proceeding. Ex parte Vest, 130 So. 3d 574 (Ala. Civ. App. 2013). Because this waiver issue is not presented in the petition for certiorari review now before this Court, however, I concur in denying that petition." Ex parte Vest, 130 So. 3d 580, 581 (Ala. 2013) (Murdock, J., concurring specially) (emphasis added). I see nothing indicating that this Court clearly erred in denying that petition. If Vest did not see the need to challenge the Court of Civil Appeals' abatement ruling when the time was appropriate, then I am not persuaded that this Court, on its own initiative and without being asked by Vest to do so, should take the extraordinary step of suspending the Alabama Rules of Appellate Procedure to now address that issue. The Court of Civil Appeals' decision before us involves whether Vest can be held in contempt, not whether she waived the abatement issue. We are reversing the 2014 decision of the Court of Civil 22 1131050 Appeals on a purported error found in a completely different 2013 decision of that court, which Vest failed to properly challenge in this Court. I respectfully dissent. 23	February 27, 2015
295a4eaa-c2ce-4d77-a096-457069e2a8e3	Tequila Rogers et al. v. Daniel Boyd et al.	N/A	1131021	Alabama	Alabama Supreme Court		March 2, 2015
f5338b6a-91e6-4573-84f1-1d246322d45e	Crusoe v. Davis	N/A	1130798	Alabama	Alabama Supreme Court	REL:02/20/2015 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 ____________________ 1130798 ____________________ Dorothy Crusoe and Erica Boyd, a minor, by and through her mother and next friend, Latricia Witherspoon v. Juanita Davis Appeal from Jefferson Circuit Court (CV-12-900512) MOORE, Chief Justice. Dorothy Crusoe and her granddaughter, Erica Boyd, by and through her mother and next friend, Latricia Witherspoon (hereinafter referred to collectively as "Crusoe"), appeal 1130798 from an order of the Jefferson Circuit Court denying their motion for a new trial. We affirm. I. Facts and Procedural History This case arises from an automobile accident that occurred in Bessemer. Dorothy Crusoe claims that while she was driving south on Fourth Avenue she stopped at a red light at the corner of Fourth Avenue and Eleventh Street. Her granddaughter, Erica Boyd, then nine years old, was in the passenger seat. Dorothy Crusoe testified that, as she began turning right onto Eleventh Street, a car accelerated out of a parking space to her right and struck her passenger-side door, fracturing Erica's arm and causing injuries to Dorothy Crusoe. The driver of the other vehicle, Juanita Davis, testified that, to the contrary, she was sitting in her parked car with the engine turned off when Dorothy Crusoe's vehicle sideswiped her vehicle. Crusoe sued Davis under a negligence theory seeking damages for medical expenses and for past and future pain and suffering. Dorothy Crusoe additionally sought damages for lost wages. A Jefferson County jury, after hearing the evidence and being instructed on negligence, returned a verdict for Davis. 2 1130798 Crusoe filed a motion for a new trial, which was denied. She appeals, arguing that the trial court erred in not allowing the policeman who prepared the accident report to testify as to the contents of that report, which testimony, Crusoe alleges, would refute Davis's testimony that her vehicle was not in motion at the time of the accident. II. Standard of Review A. Motion for a New Trial "The decision to grant or to deny a motion for new trial rests within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error." Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 45 (Ala. 1990). Appealing from the denial of a motion for a new trial does not of itself limit the issues that may be raised on appeal. "Any error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) or Rule 59 of the [Alabama Rules of Civil Procedure]." Rule 4(a)(3), Ala. R. App. P. See also Clark v. Black, 630 So. 2d 1012 (Ala. 1993). B. Exclusion of Evidence 3 1130798 "Trial judges have wide discretion to exclude or admit evidence .... The test is that the evidence must ... shed light on the main inquiry, and not withdraw attention from the main inquiry." Ryan v. Acuff, 435 So. 2d 1244, 1247 (Ala. 1983). Errors in the exclusion of evidence are subject to a harmless-error rule. "No ... new trial [may be] granted in any civil ... case on the ground of ... the improper ... rejection of evidence ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties." Rule 45, Ala. R. App. P. "The burden of establishing that an erroneous ruling was prejudicial is on the appellant." Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165, 167 (Ala. 1991). A judgment will not be reversed for erroneous exclusion of evidence unless "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." Rule 103(a)(2), Ala. R. Evid. "An offer of proof customarily includes calling the court's attention to the expected answer and explaining the relevancy of that answer." Committee Comments to Rule 103, Ala. R. Evid. 4 1130798 C. Preservation of Error Generally this court will not address the merits of an argument that is raised for the first time on appeal. Chatman v. City of Prichard, 431 So. 2d 532, 533 (Ala. 1983). "[M]atters raised on appeal must have been presented to the trial court at some stage." Committee Comments to Rule 4, Ala. R. App. P. III. Discussion Crusoe raises three issues on appeal, all of which relate to the admissibility of the accident report and the testimony of the officer who prepared it. She argues that the narrative- summary portion of the report was admissible, that the officer who prepared the report should have been allowed to testify as to admissions made by Davis at the scene, and that the trial court should have allowed the officer to testify on rebuttal as to admissions against interest made by Davis. Rule 801(d)(2), Ala. R. Evid. A. The Accident Report The trial court in remarks to the jury before opening statements made its views clear: "[I]n a lot of these trials you will see that there is a police report, an accident report. In this trial and in the State of Alabama, usually there 5 1130798 will not be an accident report, and the reason ... is because it's hearsay. That's an out-of-court statement that is offered to prove the truth of the matter asserted. So whatever is on an accident report is deemed to be hearsay and not admissible evidence to prove anything that is contained within the accident report." Before the court's remarks to the jury, Crusoe's counsel had argued to the court in a bench conference that the narrative portion of the report was admissible as an admission against interest, but the court did not agree that such a consideration could overcome the hearsay problem. After the reading of the treating physicians' depositions, Crusoe called to the witness stand Donald Cartier, the police officer who had responded to the scene of the accident. Officer Cartier had been employed by the Bessemer Police Department for 21 years and was a certified accident-reconstruction specialist. He had reconstructed about 100 accidents and investigated thousands of others. Crusoe did not attempt to qualify Officer Cartier as an expert to give his opinion as to how the accident occurred. Instead she sought to have the narrative description in the accident report admitted under the admission-by-party-opponent exclusion of the hearsay rule. See Rule 802(d)(2), Ala. R. Evid. 6 1130798 The trial court did not allow the accident report to be admitted as evidence for the purpose of being read to the jury or examined by it. The trial court, however, did identify the accident report as exhibit no. 7 for purposes of a proffer of testimony outside the hearing of the jury. The exclusion of 1 the "Narrative and Diagram" section of the accident report from jury consideration is the focus of this appeal. That section contains a diagram of the intersection of Fourth Avenue and Eleventh Street. On that diagram are drawn outlines of two vehicles: Unit #1 and Unit #2. Unit #1 represents Davis's vehicle, and Unit #2 represents Dorothy Crusoe's vehicle. Both vehicles have arrows behind them indicating that they are in motion. Unit #2 is depicted making a right-hand turn at the corner; Unit #1 appears to be moving directly into the turning path of unit #2. Beneath the diagram is a box entitled "Officer's Opinion of What Happened." In that box is the following handwritten statement: "Unit #2 was traveling south on 4th Ave and attempted to turn right onto 11th St. As Although the trial exhibits were not included in the 1 record on appeal, the accident report is in the record as an exhibit to Officer Cartier's affidavit in support of Crusoe's motion for a new trial. 7 1130798 she did Unit #1 passed Unit #2 on the right. Both vehicles collided as Unit #2 turned." The diagram and narrative description, if admissible, would support the contention that Davis's vehicle was in motion at the time of the accident. During argument before the trial court on Davis's motion in limine seeking to exclude the accident report, counsel for Davis stated that "the diagram indicates [that Davis] drove forward and collided with the plaintiffs." B. Police Reports as Hearsay Alabama courts have acknowledged the general principle that police reports, whether of accidents or other events, may be excluded as hearsay. See Gardner v. Williams, 390 So. 2d 2 304, 307 (Ala. Civ. App. 1980) (noting that "the reports of investigating officers are not ordinarily admissible as they are deemed hearsay"); Nettles v. Bishop, 289 Ala. 100, 105, 266 So. 2d 260, 264 (1972) (noting the apparent general rule that "the report of an investigating officer is not admissible in evidence as being hearsay"); and Vest v. Gay, 275 Ala. 286, "'Hearsay' is a statement, other than one made by the 2 declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), Ala. R. Evid. 8 1130798 290, 154 So. 2d 297, 300 (1963) (acknowledging "the settled rule in our jurisdiction that the reports of investigating officers are not admissible in evidence, as being hearsay"). The portions of a police report, however, that reflect the officer's firsthand knowledge may be admissible. See Rule 602, Ala. R. Evid. (stating that a witness must have "personal knowledge of the matter"). In this case counsel for Crusoe did not seek to elicit testimony about Officer Cartier's own observations after he arrived at the scene of the accident. Officer Cartier was not asked where the vehicles were located, what damage to the vehicles he observed, or if debris or skid marks were visible on the road. Instead, the sole purpose of Crusoe's questioning of Officer Cartier at trial was to discover what those involved in the accident had told him about the cause of the crash, an event he had not observed. Such statements are hearsay. Crusoe nonetheless argues that Officer Cartier's accident report is admissible under an exception to the hearsay rule -- the admission by a party opponent, i.e., Davis. See Rule 802(d)(2), Ala. R. Evid. Davis counters that Officer Cartier stated on the witness stand that he could not remember the accident. How then could he testify as to what Davis told him? 9 1130798 Crusoe in turn argues that reviewing the accident report refreshed Officer Cartier's memory, thereby allowing him to testify about his conversation with Davis. See Rule 612, Ala. R. Evid. C. Present Recollection Revived Counsel for Crusoe questioned Officer Cartier: "Q. Do you recall specifically this wreck? "A. No, sir. "Q. And is that because -- you investigate, what, hundreds of wrecks a year? "A. Yes, sir, a whole lot and this happened so long ago. And I do remember bits and pieces of it, but [3] to actually remember the exact circumstances I -- I don't. "Q. Okay. Well, I have here the wreck report that has your signature on it. Would it help you with regard to your testimony today to have this to refresh your memory? "A. Yes, sir, it would. ".... "Q. Using the wreck report there to refresh your recollection, can you tell the jury what you found upon said interview? "A. Yes, sir. I've labeled each driver. I've given them a unique number, and Driver Number 1 would be The accident occurred on May 22, 2012. Officer Cartier 3 testified at trial in late January 2014. 10 1130798 Ms. Davis and Driver Number 2 would be Ms. Crusoe. And when I interviewed both drivers I came to the conclusion that both vehicles were traveling south on 4th Avenue ...." Although Crusoe's counsel spoke of refreshing Officer Cartier's recollection, that terminology is incorrect. Officer Cartier, in fact, was merely reading from the report rather than independently recollecting the events. On cross- examination, counsel for Davis questioned Officer Cartier: "Q. [Y]ou really just don't recall this accident, other than what you're reading off that piece of paper. Is that right? "A. Yes, sir. You're right." The trial judge commented: "Now, if this witness came up here and said 'yes, it refreshes my recollection. Now I do recall what they told me; I do recall,' then we would be in a totally different place, but he does not." The doctrine of "present recollection revived" applies "when the witness is able to look at a memorandum and from it, have his memory so refreshed that the witness can testify, as a matter of independent recollection, to facts pertinent to the issue." In that event "the witness' testimony, not the writing, ... becomes evidence in the case." 1 Charles W. Gamble & Robert J. Goodwin, McElroy's Alabama Evidence § 116.01 (6th ed. 2009). See Ex 11 1130798 parte Scott, 728 So. 2d 172, 185 (Ala. 1998) (concluding that the witness's "statement, 'Yeah, I'm remembering now' sufficiently indicate[d] that the statement had refreshed his memory"). This distinction is important because a witness whose recollection is revived can testify about matters not contained in the memorandum the witness is reviewing. The written document is merely a catalyst for the witness's independent recollection. "[T]he writing ... is not offered as evidence at all. It is the refreshed recollection of the witness, as stimulated and issuing in the form of oral testimony, that is the evidence." McElroy's Evidence § 116.01 n.3. Because Officer Cartier admitted he had no independent recollection of the contents of the accident report, the trial court acted within its discretion in forbidding him from testifying about statements the parties made that were not recorded in that report. D. Past Recollection Recorded Even if an investigating officer has no present recollection of the accident and viewing the report does not refresh the officer's memory, the accident report the officer 12 1130798 prepared may still be admissible under the "past-recollection- recorded" exception to the hearsay rule. "The second use of a memorandum occurs when the witness, after examining the memorandum, cannot testify to an existing knowledge of the fact, independent of the memorandum. This use of the memorandum is often referred to as past recollection recorded; and if the witness testifies that, at or about the time the memorandum was made, he knew its contents and knew them to be true, then both his testimony and the memorandum become admissible. The memorandum and the witness' testimony are the equivalent of a present positive statement of the witness affirming the truth of the contents of the memorandum." McElroy's Evidence § 116.01. Rule 803(5), Ala. R. Evid., describes the hearsay exception of "Recorded Recollection": "A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly." The doctrine of past recollection recorded does not of itself convert hearsay statements in the accident report into admissible evidence. "A writing which would otherwise be inadmissible hearsay may be admitted if it qualifies as a 'past recollection recorded.' To fall within this exception, however, the statements in that writing must be statements which the witness would have been able to testify to if he had had a present recollection of the event at the time of the trial. 13 1130798 In this case, the officer had no first hand knowledge of the accident and the plaintiff did not attempt to qualify him as an expert who could testify as to the cause of the collision. His hearsay statements on the report were not made admissible merely by putting them in writing, and nothing else appears in this case to make his hearsay admissible." Worsham v. Fletcher, 454 So. 2d 946, 948 (Ala. 1984) (emphasis added). In this case, Officer Cartier had no firsthand knowledge of what happened when the accident occurred. His report merely reflected information he had gathered from Dorothy Crusoe and Davis after the fact. Thus, the report is not admissible under the past-recollection-recorded exception to the hearsay rule. See Stevens v. Stanford, 766 So. 2d 849, 852 (Ala. Civ. App. 1999) (noting that "the accident report in this case was inadmissible because neither of the investigating officers was a witness to the accident and their report recounts the statements and conclusions of others"). Crusoe argues, however, that the narrative summary in the accident report is admissible as the admission of a party opponent. E. Admission by Party Opponent A statement that would otherwise qualify as hearsay is not hearsay if "[t]he statement is offered against a party and 14 1130798 is ... the party's own statement in either an individual or a representative capacity." Rule 801(d)(2)(A), Ala. R. Evid. Because an admission by a party opponent that is offered against that party is not hearsay, Officer Cartier's testimony that Davis stated that her vehicle was moving at the time of the accident would be admissible. However, the admission-by- party-opponent rule does not apply to an inference that a statement was made. The actual statement alleged to have been made must itself be offered into evidence. The rule requires that the statement sought to be admitted is, as applicable to this case, "the party's own statement." Rule 801(d)(2)(A), Ala. R. Evid. "A 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." Rule 801(a), Ala. R. Evid. "The hearsay evidence objection applies only to offered evidence that constitutes a statement. Such a statement is normally in the form of a verbal assertion and may be oral or written." Advisory Committee's Notes to Section (a), Rule 801, Ala. R. Evid. (emphasis added). The statement Crusoe sought to admit into evidence is an oral assertion by Davis that her vehicle was moving at the time of the accident. However, Officer Cartier's accident 15 1130798 report records no statements attributable to Davis. It contains only Officer Cartier's opinion as to how the accident occurred. See Davis's brief, at 5 (noting "that neither of the drivers were quoted in the narrative section"). Officer Cartier most likely derived the description of the accident recorded in the report from what Dorothy Crusoe and Davis told him, but the hearsay exception for an admission by a party opponent requires the existence of a statement by that opponent, not merely an inference that a statement was made. To circumvent this problem, Crusoe sought to offer Officer Cartier's testimony that, if Davis had told him her vehicle was not moving at the time of the accident, he would have included that statement in his report. During a proffer outside the hearing of the jury, counsel for Crusoe asked Officer Cartier: "Now, also, if [Davis] had stated that at the time of the wreck that she was standing stock still and that my client, Ms. Crusoe, actually collided with her vehicle, would you have included that statement on your wreck report?" The trial court rejected such testimony as "pure speculation," and Davis objected to it as "proving a negative." In any event, testimony about a statement that was not made cannot satisfy the statement requirement of Rule 801(d)(2). 16 1130798 Because Officer Cartier's accident report contains no statements attributed to Davis, Rule 801(d)(2) is inapplicable. See Lingefelt v. International Paper Co., 57 So. 3d 118, 129 (Ala. Civ. App. 2010) (refusing to consider information in a manufacturing-plant-accident report as the admission of a party opponent when the report itself did not attribute any of the pertinent information to the party opponent and the report contained the conclusions of the investigator "drawn from his own observations and from his conversations with others, including [the party opponent]"). See also Worsham, 454 So. 2d at 948 (holding that an accident report "based on what other people told the officer, not on what he saw" was inadmissible where "the report did not indicate that the statements made to the officer were attributable to the defendant"). IV. Conclusion Because Officer Cartier had no independent memory of what Davis said to him at the accident scene and because his report contains no statement by Davis that could qualify as the admission of a party opponent, the trial court properly exercised its discretion in excluding the accident report as inadmissible hearsay. 17 1130798 AFFIRMED. Murdock, Main, and Bryan, JJ., concur. Moore, C.J., concurs specially. Bolin, J., concurs in the result. 18 1130798 MOORE, Chief Justice (concurring specially). I write specially to address a potential alternative ground for affirming the trial court's order -- the applicability to this case of § 32-10-11, Ala. Code 1975, the accident-report-confidentiality statute. Although neither party cited this statute in its briefs, "[t]his Court may affirm the judgment of the trial court upon any valid legal ground even if that ground was not argued before or considered by ... the trial court," Ex parte Jones, 147 So. 3d 415, 419 (Ala. 2013), so long as certain due-process constraints are observed. Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So. 2d 1013, 1020 (Ala. 2003). Section 32-10-11 states, in pertinent part: "All accident reports made by persons involved in accidents or by garages shall be without prejudice to the individual so reporting and shall be for the confidential use of the director or of other state agencies having use for the records for accident prevention purposes .... No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident ...." (Emphasis added.) Alabama appellate courts have interpreted § 32-10-11 to apply to accident reports prepared by police officers. See Ex parte McKenzie, 37 So. 3d 128, 132 (Ala. 2009) (stating that "a report by a law-enforcement officer 19 1130798 concerning an automobile accident investigated by the officer is inadmissible evidence under § 32-10-11, Ala. Code 1975"); Mainor v. Hayneville Tel. Co., 715 So. 2d 800, 801 (Ala. Civ. App. 1997) (stating that § 32-10-11 "provides that police accident reports are inadmissible in any civil or criminal trial arising out of an accident"); and Pike Taxi Co. v. Patterson, 258 Ala. 508, 510, 63 So. 2d 599, 601-02 (1952) (quoting the predecessor statute to § 32-10-11 as authority for upholding a trial court's exclusion from evidence of a police accident report). If the interpretation of § 32-10-11 set out in the aforementioned cases were correct, we could have upheld the trial court's exclusion from evidence of Officer Cartier's accident report on that authority alone. However, McKenzie, Mainor, and Pike Taxi misread the statute. The first sentence of § 32-10-11 begins: "All accident reports made by persons involved in accidents or by garages shall be without prejudice to the individual ...." (Emphasis added.) The accident report at issue in this case was made neither by a garage nor by the persons involved in the accident, namely Dorothy Crusoe, Erica Boyd, and Juanita Davis. The legislature did not include accident reports prepared by police officers in the 20 1130798 prohibitory language of § 32-10-11. "We cannot read into the 4 statute a provision which the legislature did not include." Ex parte Jones, 444 So. 2d 888, 890 (Ala. 1983). Because 5 evidentiary privileges are in derogation of the truth-seeking function of the courts, such privileges are narrowly construed. See United States v. Nixon, 418 U.S. 683, 710 (1974) (stating that "exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth"). Accordingly, "[t]he words of the particular statute therefore must be closely examined with awareness that the courts are reluctant to find a privilege where not required by the language and the subject matter to do so." 8 Wigmore, Evidence If reports prepared by those involved in an accident were 4 admissible as evidence, the makers of those reports might be inhibited from reporting accurately. As an investigator of the acts of others, a police officer is not exposed to civil or criminal liability for the acts the officer is reporting. Professor Wigmore explains: "[W]here the Government needs information for the conduct of its functions, and the persons possessing the information need the encouragement of anonymity in order to be induced to make full disclosure, the protection of a privilege should be accorded." 8 Wigmore, Evidence § 2377 (McNaughton rev. 1961). Compare, for instance, the parallel Tennessee statute, 5 which begins: "All accident reports made by any person or by garages shall be without prejudice to the individual so reporting ...." Tenn. Code Ann. § 55-10-114(a). 21 1130798 § 2377 (McNaughton rev. 1961). Both the general principles of statutory construction and the requirement that privileges be construed narrowly counsel against reading into § 32-10-11 an evidentiary exclusion the statute does not contain. In contrast to this Court's past error in reading into § 32-10-11 an evidentiary privilege for accident reports prepared by investigating police officers, the Alabama Attorney General has twice noted the limited scope of § 32-10-11. When asked in 1979 if police accident reports were public records that could be examined free of charge, the Attorney General responded: "I am not aware of any statute which revokes a citizen's right to inspect a traffic accident report made by a police officer. Please note that this ruling does not apply to accident reports made by persons involved in accidents or by garages, inasmuch as those reports are limited to confidential use under Section 32-10-11, Code of Alabama 1975." Ala. Op. Atty. Gen. No. 1979-173 (April 26, 1979). When asked a similar question in 2012, the Attorney General responded with the same explanation: "Section 32-10-11 specifically makes reports that are completed by individuals involved in the accident or by garages confidential. Accordingly, reports, like the Uniform Traffic Accident Report, that are completed by law enforcement officers would 22 1130798 remain a matter of public record, and, thus, available to the public for inspection and copying." Ala. Op. Atty. Gen. No. 2012-45 (March 13, 2012). In both of these opinions the Attorney General explained that § 32-10-11 applies only to reports submitted by garages or by individuals involved in accidents. Despite the contrary interpretation in McKenzie, Mainor, and Pike Taxi, the actual language of § 32- 10-11 must control. "We will not read into a statute what the Legislature has not written." Elmore Cnty. Comm'n v. Smith, 786 So. 2d 449, 455 (Ala. 2000). Accordingly, § 32-10-11, as correctly interpreted, would not of itself require the exclusion from evidence of the accident report prepared by Officer Cartier. Therefore, in my view, § 32-10-11, even if cited by the parties, would not have been available as an alternative ground for affirmance. 23	February 20, 2015
27392ce7-e6ec-464a-9a1f-b03b217af17b	Moultrie v. Wall	N/A	1130697	Alabama	Alabama Supreme Court	Rel: 2/6/15 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 ____________________ 1130697 ____________________ Frank A. Moultrie v. Charles O. Wall II and Autauga Automotive, LLC Appeal from Autauga Circuit Court (CV-11-900263) BRYAN, Justice. This case involves the ownership interests in and control of Autauga Automotive, LLC ("Autauga Automotive"), a limited liability company that owns and operates a Ford Motor Company ("Ford") franchise in Prattville known as Gilmore Ford. Frank 1130697 A. Moultrie appeals from a judgment of the Autauga Circuit Court holding that the interests of Charles O. Wall II and Moultrie in the profits and losses of Autauga Automotive were 90% and 10%, respectively, but that Moultrie was divested of his 10% interest for failing to pay a required capital contribution. We affirm in part, reverse in part, and remand 1 the cause to the circuit court with instructions. I. Facts and Procedural History In early 2009, Wall and Jesse Mariner began negotiations to purchase the assets of Gilmore Ford, an existing automobile dealership in Prattville. As part of their planned purchase of Gilmore Ford, Wall and Mariner applied to Ford to become a franchise dealership, but Ford rejected their application because of their lack of experience. On July 8, 2009, Wall and Mariner filed articles of organization for Autauga Automotive, which listed Wall and Mariner as the only members, in the Autauga Probate Court. Mariner was named the manager of Autauga Automotive. Wall and Mariner also signed an operating agreement for Autauga Automotive that provided in This is the third time these parties have appeared before 1 this Court. See Moultrie v. Wall, 143 So. 3d 128 (Ala. 2013), and Ex parte Moultrie (No. 1120250, August 30, 2013), ___ So. 3d ___ (Ala. 2013) (table). 2 1130697 paragraph IV that Wall and Mariner "agree to share in all post formation capital contributions, profits, and surplus of [Autauga Automotive] according to their percentage of ownership." Paragraph IV stated that Wall and Mariner each owned an undivided 50% interest in Autauga Automotive. Paragraph VII of the operating agreement, which concerns "Division of Profits and Losses," provides: "Each of the owners shall own an interest in [Autauga Automotive] as set forth in Paragraph IV, entitled 'Capital Contributions,' except as the same may hereafter vary or change as provided in Paragraph V, entitled 'Contributions of Additional Capital.' All profits of [Autauga Automotive] shall be shared by each of said members according to the percentage of interest each member owns." Paragraph VIII of the operating agreement, which concerns the "Rights and Duties of the Parties," provides: "Company decisions and actions shall be decided by a majority in interest of the members, at a meeting regularly called with notice to all members. For purposes of determining a 'majority in interest', a member's interest will be his/her interest in profits and losses as set forth in Paragraph VII, and a majority will mean fifty-one percent (51%) or more." Initially, Mariner contributed $300,000 in capital to Autauga Automotive, and Wall contributed approximately $5,000 in capital with the intention of paying Mariner the rest of 3 1130697 Wall's part of the capital contribution from Wall's share of the earnings of Autauga Automotive. At some point before Mariner and Wall formed Autauga Automotive, Mariner and Wall approached Moultrie, who had experience in the automobile-sales industry with other dealerships, to help with their application to become a Ford franchise dealership. According to Mariner, he and Wall offered Moultrie "10% of the company for his signature for Ford." On July 17, 2009, Wall submitted another dealer application to Ford that indicated that Mariner and Wall each owned a 45% interest in Autauga Automotive and that Moultrie owned a 10% interest. Ford rejected the application because 2 of Mariner's "background." At that point, the parties realized that Mariner could not be involved in Autauga Automotive "on paper," and they decided that Mariner had to be removed as a member of Autauga Automotive. On July 20, 2009, Mariner, Wall, and Moultrie signed an amendment to Autauga Automotive's articles of organization The application indicated that the agreement to divide 2 the interests in Autauga Automotive 45%, 45%, and 10% was discussed among the parties as early as June 12, 2009, before Wall and Mariner filed articles of organization for Autauga Automotive. 4 1130697 that stated: "[T]he members unanimously voted and have received approval of the Manager for Jesse Mariner to transfer his 50% interest and for Charles O. Wall to transfer 1% of his interest in Autauga Automotive, LLC to: Frank Moultrie." The 3 amendment also provided that Wall replaced Mariner as the manager of Autauga Automotive. At the same time, Mariner, Wall, and Moultrie filed an amendment to Autauga Automotive's operating agreement that modified paragraph IV of the agreement as follows: "The undersigned owners agree that Jesse J. Mariner has transferred his 50% interest and Charles O. Wall is transferring 1% of his interest in Autauga Automotive, LLC, to Frank Moultrie. As such, the owners agree to share in all post formation capital contributions, profits, and surplus of [Autauga Automotive] according to their percentage of ownership. The amended ownership interest in the business and company as follows: Frank Moultrie 51% [and] Charles O. Wall 49%." According to Mariner and Wall, this agreement was only to placate Ford and their "agreement of men" was still that profits and losses would be split 45%, 45%, and 10%, with Moultrie's interest in Autauga Automotive being only 10%. Wall sent an amended prospective dealership application to The record indicates that the amended articles of 3 organization were filed in the Autauga Probate Court on August 19, 2009. 5 1130697 Ford on July 27, 2009, that reflected Moultrie's 51% interest and Wall's 49% interest. That application was approved. Because on paper Mariner was no longer a member of Autauga Automotive and because he had contributed a significant amount of capital to Autauga Automotive, Mariner wanted reassurance that he was still "part of the deal." According to Wall and Mariner, Moultrie drew up an agreement that was supposed to reflect the actual agreement of the parties, that is, that Moultrie had only a 10% interest in Autauga Automotive. That agreement, which was dated August 24, 2009 ("the August 2009 agreement") and was signed by Wall, Mariner, and Moultrie, stated: "Agreement For Purchase of Gilmore Ford Assets & Franchise by Autauga Automotive LLC[.] Autauga Automotive LLC & Jesse Mariner & Charlie Wall & Frank Moultrie Agree to: "A Sell 10% of Franchise & Autauga Automotive LLC to Frank Moultrie for $1.00 and other considerations such as franchise approval & guarantees to Ford Motor Co. "B Frank Moultrie retains the 10% for [five] years & participates accordingly w[ith] any & all profit distributions as 10% owner of Autauga Automotive LLC/Ford franchise. "C At the end of the [five] years Autauga Automotive, LLC has the option to 6 1130697 repurchase Frank Moultrie's 10% at book value of the LLC & Ford franchise. At the end of the [five] years a condition of the buyout must be that Frank Moultrie is released from any & all guarantees to Ford Motor Co. & Ford Motor Credit and any and all other guarantees associated w[ith] [the] LLC & franchise." On September 15, 2009, Wall and Moultrie signed an application for a wholesale financing and security agreement with Ford, which is essentially a line of credit from Ford to use to purchase inventory for the dealership. On October 1, 2009, Wall and Mariner took out a $200,000 loan from River Bank & Trust for use by Autauga Automotive, and, on the same day, Autauga Automotive purchased the assets of Gilmore Ford. Also on October 1, 2009, Wall and Moultrie signed a sales and service agreement with Ford, which established Autauga Automotive as an authorized Ford dealership. In that agreement, Moultrie is recognized as having 51% and Wall 49% of "interest equity voting." Although Mariner was not a member of Autauga Automotive, he worked for Gilmore Ford and "ran the sales side of the store" from Autauga Automotive's purchase of the dealership until approximately July or August 2010. During that time, Autauga Automotive operated in accordance with the August 2009 7 1130697 agreement. Moultrie did not work at the dealership, and he did not maintain an office at the dealership. Moultrie was supposed to transfer ownership of inventory from his other dealerships and cash to Autauga Automotive in the amount of $1,003,300 as a capital contribution, but he never did so, and he never contributed any other capital.4 In December 2009, Mariner, Wall, and Moultrie attended a year-end tax-planning meeting for Autauga Automotive, along with Annamarie Jones, a certified public accountant hired by Autauga Automotive, and Michael Frakes, the comptroller of Gilmore Ford. Moultrie told Jones that he was not an active member of the business and that he should be allocated only 10% of Autauga Automotive's profits. Jones asked for documentation to support that division of profits because it was a deviation from the terms of the operating agreement, but no one at the meeting mentioned the August 2009 agreement between Wall, Moultrie, and Mariner. Jones prepared K-1 forms for Wall and Moultrie that allocated 90% of the profits of In a 2009 capital-account summary, Moultrie was credited 4 for that capital contribution, but, a year later, Autauga Automotive's accountant discovered that Moultrie had not made a capital contribution and a "reclassification entry" was made in the capital-account summary. 8 1130697 Autauga Automotive to Wall and 10% of the profits of Autauga Automotive to Moultrie. Jones conducted another tax-planning meeting in April 2010. Although Moultrie was invited to this meeting, he did not attend. Wall and Frakes were present at this meeting, and Jones was instructed to make the same allocation of profits and losses as she had made in 2009. Jones again asked for documentation to support this allocation because it was not the allocation provided for in the operating agreement, but Wall told her that he was "getting that." Jones prepared 2010 K-1 forms for Wall and Moultrie that once again allocated 90% of the profits to Wall and 10% of the profits to Moultrie. By October 2010, Mariner was no longer working at the dealership, and, at that time, Moultrie had replaced Mariner as a guarantor on the $200,000 note Wall and Mariner had executed in October 2009. After Mariner stopped working at the dealership, Wall and Moultrie began repaying Mariner for the capital he had contributed to Autauga Automotive. In May 2011, Wall and Moultrie signed as guarantors of a $400,000 note they used, in part, to repay Mariner for his capital contribution to Autauga Automotive. 9 1130697 On April 6, 2011, Jones received a call from Vince Studeman, Moultrie's personal accountant, disputing the allocation of profits and losses in the 2010 tax returns. However, Jones had already given the returns to the parties for filing and, apparently, the 2010 tax returns were not modified before they were filed. In September 2011, Jones attended a meeting with Wall, Frakes, and Moultrie, but the dispute about allocation of profits and losses was not resolved. Jones asked Wall for documentation supporting the 90/10 allocation of profits and losses, but Wall did not tell her about the August 2009 agreement. At this meeting, Moultrie stated that he believed he was entitled to 51% of "everything," not just capital. On October 5, 2011, Moultrie went to the Gilmore Ford dealership and asked Wall to sign five signature pages and refused to tell Wall what he was agreeing to by signing those pages. Wall refused to sign the pages and left the premises. After Wall left, Moultrie told Frakes that if Wall did not sign those signature pages by the next morning, he was going to have Wall removed as the manager of Autauga Automotive. Moultrie's brother eventually e-mailed Frakes 80 pages of loan 10 1130697 documents that were connected to the 5 signature pages. Wall agreed to sign for the loan, which indebted Autauga Automotive in the amount of $800,000 for the benefit of other automobile dealerships that Moultrie was connected to, on the condition that Moultrie agree to sell his interest in Autauga Automotive. On October 6, 2011, Moultrie signed a letter of intent to sell his "51% interest" in Autauga Automotive to Wall on January 2, 2012, and it indicated that the "agreed buyout amount" would be determined at a later date. On November 21, 2011, Moultrie sent Wall a "Notice of Special Meeting of Members of Autauga Automotive, LLC." The meeting was scheduled for December 5, 2011, and Moultrie indicated in the letter that the purpose of the meeting was "to elect a managing agent/member for the next year by a majority vote of the members" and "to discuss any inaccuracies in the tax returns signed by Charles Wall for the company, and the manner of correcting any inaccuracies." Moultrie signed the letter as "Majority Member." On December 1, 2011, Wall and Autauga Automotive (hereinafter referred to collectively as "the plaintiffs") filed a verified complaint in the Autauga Circuit Court 11 1130697 seeking a temporary restraining order ("TRO") and a preliminary injunction "enjoining Moultrie, or anyone acting on his behalf, from holding the meeting of the members and taking the actions set forth" in the notice of the special meeting and "enjoining any additional actions by Moultrie to sell Autauga Automotive or its assets or to take any further actions that are detrimental to the best interest of Autauga Automotive, the dealership, or Wall." The complaint also asked the circuit court to issue a judgment declaring, among other things, that Wall owns a 90% interest in the "profits and losses of Autauga Automotive,[ and that] Wall is the 'majority in interest' Member of Autauga Automotive with the right to make decisions as such under the operating agreement." On December 2, 2011, the circuit court granted the plaintiffs' request for a TRO. On December 14, 2012, by an agreement of the parties, the circuit court entered an order extending the December 2 TRO until further order of the court. The following pertinent procedural history was set forth in Moultrie v. Wall, 143 So. 3d 128, 132-33 (Ala. 2013): "On January 3, 2012, Moultrie filed an answer and a counterclaim. Moultrie alleged, among other 12 1130697 things, that Wall had breached fiduciary duties he owed Autauga Automotive as its manager and that Wall had breached the operating agreement of Autauga Automotive. Moultrie also sought a preliminary injunction seeking, among other things, to prohibit Autauga Automotive from paying Wall anything except his monthly salary. Moultrie also moved the circuit court to dismiss any claim brought by Autauga Automotive. In his motion to dismiss, Moultrie alleged that, because Moultrie owned a 51% majority interest in Autauga Automotive, Wall lacked standing to bring suit on behalf of Autauga Automotive without Moultrie's approval or consent. "On February 13, 2012, Wall filed a petition seeking to hold Moultrie in contempt for violating the terms of the TRO. ... Wall requested an award of costs for filing the motion and an award of damages to prevent further violations of the TRO. "On February 21, 2012, the plaintiffs amended their complaint, adding a claim to enforce a 'letter of intent' signed by Moultrie and acknowledged by Wall in October 2011 indicating that Moultrie intended to sell his interest in Autauga Automotive. ... On February 27, 2012, the circuit court entered an amended TRO, based on an agreement of the parties, that was to remain in effect pending further order of the court. ... "On March 20, 2012, the day before the final hearing in this matter was scheduled to take place, all four attorneys representing Moultrie filed a motion for leave to withdraw from the case. The same day, Wall filed a second petition seeking to hold Moultrie in contempt for violating the TRO and the amended TRO. ... The circuit court allowed Moultrie's attorneys to withdraw and postponed the final hearing that had been scheduled for March 21. 13 1130697 "On May 1, 2012, Moultrie filed a motion seeking the return of funds of Autauga Automotive and a petition seeking to hold Wall in contempt. ... "After conducting a hearing, the circuit court entered a judgment on May 29, 2012, finding Moultrie in contempt for violating the TRO and the amended TRO .... In a separate judgment entered on May 29, 2012, the circuit court denied Moultrie's motions seeking the return of funds and his petitions seeking to hold Wall in contempt. "On June 21, 2012, the circuit court entered a judgment assessing $132,345.57 in attorney fees and costs against Moultrie." Frakes testified that, at this point in the litigation, the dealership had been operating below Ford's minimum capital requirement for months, and, in June 2012, there was a shortfall of approximately $180,000 in the working-capital requirement on Autauga Automotive's financial statement. Frakes and Wall had communicated with Ford about this issue, and they told Ford representatives that they did not want to infuse more cash into the dealership while litigation was pending. According to Frakes, Ford was giving them leeway about providing more capital for the dealership because it thought that the trial in this case was supposed to take place in March 2012 and because Wall had promised to capitalize the dealership once the litigation was over. 14 1130697 However, on July 19, 2012, Wall and Frakes received an e- mail from Autauga Automotive's Ford credit representative that stated: "Do you know why [Autauga Automotive] shows a negative used equity on the May financial statement? Also, their Net Cash Requirement has increased to over $600,000. This is consistent with the trend from this time last year; however, they have zero internal resources to mitigate the amount." Frakes and Wall took this message as a clear warning that Ford was about to make a "cash call." Frakes testified that 5 Autauga Automotive needed the additional capital to appear on Frakes explained a "cash call" as follows: 5 "A cash call is when either the manufacturer or your captive lending arm and floor plan provider comes to you and says you have to put money into the store to retain either your franchise or your floor plan. Now, the fear of the cash call is they won't come in and ask for a little bit of money, they will come in and they'll ask to plug the big hole that's in the financial .... "So if they come in and they ask for that and we, as a company, cannot produce that money, they have the right to perform several actions. They can suspend our floor plan and claim our titles, which is detrimental to the business. They can go a step further than that and require that our floor plan be satisfied, be completely paid off, which would shut the doors totally. Or if it was the manufacturer that came to you, they can pull the franchise. So none of those options are good options." 15 1130697 the July 2012 monthly financial report that he sent to Ford so there was not another report with a large deficit in working capital. Wall and Frakes were able to secure a $250,000 loan, and they received the funds on July 31, 2012. The loan proceeds were not put into an account owned by Autauga Automotive because Frakes and Wall did not want Moultrie to have access to the money; however, the money was in an account accessible to Autauga Automotive and was reported on Autauga Automotive's July financial statement. It is undisputed that no one told Moultrie about the e-mail from Ford that caused Wall and Frakes to borrow money to contribute additional capital to Autauga Automotive. In August 2012, Moultrie appealed the circuit court's May 2012 contempt judgment and the June 2012 attorney-fee judgment to this Court. On September 10, 2012, while Moultrie's appeal was pending in this Court, the circuit court conducted a bench trial on the plaintiffs' request for a declaratory judgment and on Moultrie's pending counterclaim. At that hearing, the plaintiffs introduced a document, which was undisputedly handwritten by Moultrie, that set forth the terms of the August 2009 agreement, quoted above. Although there were 16 1130697 signature lines on the document for Moultrie, Wall, and Mariner, there were no signatures on the document submitted as evidence. Mariner testified that Wall, Moultrie, and Mariner had signed the August 2009 agreement. The plaintiffs presented evidence indicating that the signed copy of the August 2009 agreement was kept in Wall's office at Gilmore Ford; that the August 2009 agreement, along with other company documents, had been stolen from Wall's office while this litigation was pending; and that the signed copy of the August 2009 agreement had not been recovered. Trial of the issues could not be completed on that date, and the circuit court entered an order stating that the trial would resume on November 30, 2012. On September 17, 2012, Wall sent Moultrie a letter asking Moultrie, pursuant to paragraph V of the operating agreement, to contribute $93,718 in capital to Autauga Automotive in order to maintain his 51% ownership in the assets of Autauga Automotive. Paragraph V states: 6 Frakes testified that $93,718 represented 51% of the 6 amount required to bring the dealership to a zero deficit in working capital in July 2012, not 51% of the amount contributed by Wall (and Frakes) in July 2012. 17 1130697 "The owners may contribute in proportionate amount any additional capital deemed necessary for the operation of [Autauga Automotive], provided, however, that in the event that any member deems it advisable to refuse or fails to contribute his share of any or all of the additional capital, then the other members or any one of them may contribute the additional capital not paid in by such refusing member and shall receive therefor[] an increase in the proportionate share of the ownership or interest in the entire company in direct proportion to the said additional capital contributed." Wall gave Moultrie 30 days to comply, but Moultrie did not respond to the letter or contribute any capital to Autauga Automotive. Wall sent Moultrie a second letter on October 23, 2012, asking that Moultrie contribute $93,718 in capital to Autauga Automotive by October 31, 2012, and informing him that, if he did not, the capital accounts would be rebalanced so as to divest Moultrie of his membership interest. On October 26, 2012, Moultrie filed a motion for a protective order regarding Wall's request for an additional capital contribution. Moultrie argued that the capital call was improper while litigation concerning the controlling interest of Autauga Automotive was pending, that Wall owed money to Autauga Automotive and should not be able to demand a capital contribution from Moultrie, and that Wall failed to call a meeting of the members of Autauga Automotive or 18 1130697 otherwise to discuss the cash call issue with Moultrie before Wall decided a capital contribution by Moultrie was necessary. Wall responded to Moultrie's motion on October 31, 2012, and asked the circuit court to "ratify the actions of [Autauga Automotive] in rebalancing the capital accounts of the company in accordance with the provisions of its operating agreement." The circuit court did not rule on Moultrie's motion for a protective order on or before October 31, 2012, and Moultrie did not contribute any capital to Autauga Automotive. On October 31, 2012, Autauga Automotive's capital accounts were rebalanced to reflect that Moultrie had no interest in the capital, profits, or losses of Autauga Automotive. On November 11, 2012, Moultrie filed a motion to recuse, requesting that the circuit court judge who had presided over this case since its inception recuse himself from the proceedings based on an allegation that the judge, on September 12, 2012, had an improper ex parte communication with a witness who had testified at the September 10 trial. The circuit court denied the motion to recuse on November 19, 2012. On November 20, 2012, the plaintiffs moved for a partial summary judgment, arguing that Wall was entitled to a 19 1130697 judgment as a matter of law declaring him the owner of 100% of the ownership or interest in Autauga Automotive in light of Moultrie's failure to respond to the request for an additional capital contribution. On November 26, 2012, Moultrie filed in this Court a petition for a writ of mandamus directing the circuit court judge presiding over this case to recuse himself. On November 29, 2012, this Court granted Moultrie's request for a stay of the proceedings pending disposition of the mandamus petition. On August 30, 2013, this Court denied Moultrie's petition for a writ of mandamus without an opinion. See Ex parte Moultrie (No. 1120250, August 30, 2013), ___ So. 3d ___ (Ala. 2013) (table). On September 13, 2013, this Court released its decision in Moultrie's appeal. See Moultrie v. Wall, 143 So. 3d 128 (Ala. 2013). We dismissed "Moultrie's appeal insofar as it relate[d] to the May 29, 2012, contempt judgment or the February 27, 2012, TRO," 143 So. 3d at 136, and we affirmed "the judgment assessing attorney fees and costs." 143 So. 3d at 139. On October 11, 2013, Moultrie filed a motion requesting permission from the court to depose Wall, even though one day 20 1130697 of trial had been completed, because, he said, "new issues" had arisen; specifically, Moultrie stated that he needed to depose Wall concerning Wall's September 2012 request for additional capital from Moultrie. On November 8, 2013, the circuit court denied the plaintiffs' motion for a partial summary judgment because the motion was filed "in the middle of trial." On the same day, the circuit court denied Moultrie's request to depose Wall. The circuit court subsequently set a final hearing date of March 10, 2014. On March 6, 2014, the plaintiffs filed a motion to strike Moultrie's expert disclosures as untimely. The plaintiffs argued that the circuit court had set an October 31, 2012, deadline for disclosing expert witnesses and that Moultrie should not be permitted to present the testimony of experts who had not been disclosed by that date. At the start of the hearing on March 10, 2014, the circuit court stated that Moultrie's motion for a protective order, which concerned Wall's September 2012 request for a capital contribution, was still pending. Counsel for Moultrie stated that the expert Moultrie proposed to call was necessary only if the court was going to allow testimony related to Wall's request for 21 1130697 additional capital. The circuit court granted the plaintiffs' motion to strike and stated that any expert disclosed after October 31, 2012, would not be permitted to testify. Frakes testified at the March 10 hearing that he had not considered that Wall could request that Moultrie contribute 51% of the capital needed by Autauga Automotive in July 2012 until Moultrie's counsel asked him that question on the first day of trial on September 10, 2012. Although Frakes had testified at the September 10 hearing about the $250,000 capital contribution that took place after he and Wall heard "things" from Ford "that made us worry [Ford was] going to make a cash call," Frakes testified in more detail about the cash-call issue at the March 10 hearing. The e-mail from Ford dated July 19, 2012, that convinced Wall and Frakes that Ford was about to make a cash call was introduced into evidence; Moultrie objected because, he said, he had never seen the e- mail and did not know of its existence until the last day of trial. When the plaintiffs offered the September 17, 2012, capital-contribution-request letter from Wall to Moultrie into evidence, the circuit court granted Moultrie a continuing objection to any testimony or documents related to the cash 22 1130697 call that took place after the first day of trial on September 10, 2012. Frakes admitted that paragraph VIII of the operating agreement provided for a meeting among members to discuss decisions related to Autauga Automotive, such as the cash call, and that Wall had not conducted a meeting with Moultrie before requesting a capital contribution from Moultrie. Wall testified that he did not call a meeting with Moultrie before securing additional capital for Autauga Automotive because he was "interested in saving [his] back side" at the time. At the conclusion of the plaintiffs' case, the plaintiffs moved to "amend their complaint to conform to the evidence" presented at trial, specifically: that the July 31, 2012, capital contribution was necessary to satisfy Ford, that the request for a capital contribution from Moultrie was made in compliance with paragraph V of the operating agreement, that the time for Moultrie to respond to the capital call was reasonable, that Moultrie failed to respond, and that, as of October 31, 2012, due to Moultrie's failure to respond, Wall became the sole owner of Autauga Automotive. Moultrie objected and argued that the motion to amend was not timely 23 1130697 and that the plaintiffs had not demonstrated that an additional capital contribution was needed –- only that Wall and Frakes feared that one was needed. The circuit court granted the plaintiffs' motion to amend their pleadings, over Moultrie's objection. On March 11, 2014, the circuit court entered a final judgment on all pending claims before the court. The circuit court found that a signed copy of the August 2009 agreement had been stolen from Wall's office, that the August 2009 agreement provided that Moultrie "was to retain a 10% interest in the business and participate in any profits distribution as a 10% owner," that the August 2009 agreement modified paragraph VII of the operating agreement, and that the K-1 schedules prepared in 2009 and 2010 and "other evidence support Wall's contention and the court's finding that Wall had a 90% interest in the profits and losses and Moultrie had a 10% interest in the profits of [Autauga Automotive]." The circuit court also made specific findings of fact about the "cash-call" issue. The court noted that the evidence demonstrated that Moultrie had never contributed any capital to Autauga Automotive; that Moultrie, in May 2012, had 24 1130697 expressed concern about Autauga Automotive's working capital falling below Ford's guidelines; and that Moultrie was aware of the possibility of a cash call by Ford as early as July 2011. The court stated: "Since Wall, pursuant to the 'side agreement' of August 2009, possesses a 90% interest in profits and losses he made the decision to make a 'cash call' on Moultrie pursuant to paragraph V of the operating agreement. Wall did not call a meeting as required [7] by paragraph VIII as this emergency occurred during the pendency of this litigation and would have been fruitless. Clearly, his majority interest of 90% and position as Manager of [Autauga Automotive] give him the right to make such a decision." The circuit court determined that, because Moultrie did not make the capital contribution to Autauga Automotive requested by Wall, "Wall is the 100% owner in capital and in profits and losses of Autauga Automotive." The circuit court entered a separate order denying as moot Moultrie's motion for a protective order, stating that "the cash call was an emergency that was necessary and should have been complied with by [Moultrie] in accordance with [Autauga Automotive]'s operating agreement." Moultrie filed a postjudgment motion The circuit court and, at times, the parties, use the 7 term "cash call" to refer to the "cash call" Wall and Frakes feared would occur if Autauga Automotive's July 2012 financial statement did not meet Ford's working-capital requirement, as well as Wall's request for additional capital from Moultrie. 25 1130697 pursuant to Rule 59, Ala. R. Civ. P. The circuit court denied that motion, and Moultrie timely appealed to this Court. On appeal, Moultrie challenges the circuit court's determination that Wall owned 90% and Moultrie owned 10% of the profits and losses of Autauga Automotive and that Moultrie was divested of his 10% interest on October 31, 2012, when he failed to contribute capital to Autauga Automotive. Moultrie also contends that Autauga Automotive was not a proper party to an action between two of its members to determine the members' respective ownership interests. II. Standard of Review "Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies." Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67 (Ala. 2010). "'"'[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, 26 1130697 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 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). "Questions of law are reviewed de novo." Alabama Republican Party v. McGinley, 893 So. 2d 337, 342 (Ala. 2004). III. Analysis A. Ownership of Profits and Losses of Autauga Automotive Moultrie first challenges the circuit court's conclusion that Wall had a 90% interest and Moultrie a 10% interest in the profits and losses of Autauga Automotive. Moultrie first argues that the circuit court's conclusion that Autauga Automotive's operating agreement was amended so that Moultrie had only a 10% interest in the profits and losses unlawfully conflicts with the allocation of profits and losses set forth in Autauga Automotive's articles of organization, as admitted by the plaintiffs in their pleadings. Section 10A-5-4.03(a), Ala. Code 1975, which concerns operating agreements, provides, in pertinent part: "An operating agreement may contain any provisions regarding the affairs of a limited liability 27 1130697 company and conduct of its business that are not inconsistent with the laws of this state or the articles of organization." 8 The plaintiffs stated in their verified complaint, and Moultrie admitted in his answer, that Autauga Automotive's articles of organization conferred on Moultrie a 51% interest in the capital and the profits and losses of Autauga Automotive. Thus, Moultrie contends, the circuit court acted contrary to § 10A-5-4.03(a) by concluding that the August 2009 agreement –- by designating Wall as having a 90% interest in the profits and losses and Moultrie as having a 10% interest -- amended Autauga Automotive's operating agreement in such a manner that the operating agreement became inconsistent with the allocation of profits and losses in Autauga Automotive's articles of organization. The plaintiffs argue that Moultrie did not make this argument below and, therefore, that it cannot be a basis for reversing the circuit court's judgment. See Birmingham Hockey Club, Inc. v. National Council on Comp. Ins., Inc., 827 So. 2d In 2014, the legislature enacted the Alabama Limited 8 Liability Company Law of 2014, effective January 1, 2015. Act No. 2014-144, Ala. Acts 2014. Act No. 2014-144 updated Alabama's limited-liability-company law, repealed existing law in Chapter 5 of Title 10, and replaced Chapter 5 of Title 10 with Chapter 5A. 28 1130697 73, 80 (Ala. 2002) ("In order to be considered on appeal, issues must be presented to the trial court and to the opposing parties at the trial level."). In his reply brief, Moultrie contends that he raised this issue in a motion for a summary judgment filed in August 2012. In that motion, Moultrie directed the circuit court's attention to the fact that the plaintiffs admitted in their pleadings that the July 20, 2009, amendment to the articles of organization and the operating agreement conferred on Moultrie a 51% ownership interest in the capital, profits, and losses of Autauga Automotive. He then argued that "no parol evidence should be admissible in this matter as the company's governing documents are unambiguous, and any parol evidence would be in direct contradiction to these governing documents." However, Moultrie did not argue that the August 2009 agreement could not have amended the operating agreement on the basis that the terms of the operating agreement concerning the allocation of profits conflicted with the allocation of profits in the articles of organization, contrary to the requirements of what was then § 10A-5-4.03(a). In fact, Moultrie did not mention 29 1130697 the August 2009 agreement at all in his motion for a summary judgment. Moultrie contends that the above-quoted argument he made in his summary-judgment motion is essentially a broad allegation that any evidence of a 90/10 split in profits and losses contradicts, or is "inconsistent with," the "governing documents" of Autauga Automotive. However, considering the argument in Moultrie's motion for a summary judgment as a whole –- an argument entirely focused on whether parol evidence should be considered to support Wall's allegation that the parties' actual agreement was different from the unambiguous terms of Autauga Automotive's "governing documents" as amended in July 2009 -- it is clear that Moultrie did not preserve the argument he presents in this part of his appeal for appellate review. This Court has long held that it "will not hold a trial court to be in error unless that court has been apprised of its alleged error and has been given the opportunity to act thereon." Sea Calm Shipping Co. v. Cooks, 565 So. 2d 212, 216 (Ala. 1990) (citing Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846 (1958)). This is so, in part, because "'"there is something 30 1130697 unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right."'" Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So. 2d 308, 314 (Ala. 2001) (quoting Cantu v. State, 660 So. 2d 1026, 1031-32 (Ala. 1995) (Maddox, J., concurring in part and dissenting in part), quoting in turn State v. Applegate, 39 Or. App. 17, 21, 591 P.2d 371, 373 (1979) (emphasis omitted)). We note that Moultrie identifies this alleged error on appeal as the means of the "simplest disposition of this case." Moultrie's brief, at 44. Yet this admittedly straightforward argument was never presented to the circuit court in Moultrie's motion for a summary judgment or, notably, in his postjudgment motion. Because Moultrie failed to "present[] this argument to the trial court and opposing parties so as to give them an opportunity to address this issue," we will not consider on appeal this argument as a basis for reversal. Birmingham Hockey Club, 827 So. 2d at 81. Moultrie next argues that the circuit court relied on legally insufficient evidence to find that the parties amended Autauga Automotive's operating agreement after the July 2009 amendment. Pursuant to what was then § 10A-5-4.03(b), Ala. 31 1130697 Code 1975, "[i]f an operating agreement does not provide for the method by which an operating agreement may be amended, then all of the members shall agree in writing to any amendment." It is undisputed that the operating agreement does not provide a method by which that agreement may be amended; therefore, any amendment to the operating agreement must be in writing and agreed to by both Wall and Moultrie. Moultrie argues that the evidence the circuit court relied on to determine that the parties had agreed to amend the operating agreement after July 2009 -- such as the August 2009 agreement, Moultrie's acceptance of only 10% profits during the 2009 tax-planning meeting, and Jones's preparation of the tax documents –- was insufficient to show that Moultrie and Wall "agree[d] in writing" to such an amendment. In support of his position, Moultrie relies on this Court's decision in L.B. Whitfield Family Trust, LLC v. Whitfield, 150 So. 3d 171 (Ala. 2014). In Whitfield, we considered whether the trial court properly ordered the L.B. Whitfield, III Family LLC ("the Family LLC") "to wind up its affairs following its dissolution on the death of its sole member," L.B. Whitfield. 150 So. 3d at 174. After L.B.'s 32 1130697 death, the executor of his estate "took several steps ... that the Family LLC contends were part of an effort to continue the Family LLC in the wake of L.B.'s death," 150 So. 3d at 176, including "obtaining an employer-identification number necessary for a multimember limited-liability company; ... opening a bank account for the dividends received on the shares of Whitfield Foods held by the Family LLC; and ... working with accountants to establish capital accounts" for each of L.B.'s heirs. Id. After L.B.'s estate was closed, litigation between the Family LLC and some of L.B.'s heirs commenced. Some the heirs asked the trial court to enter an order requiring the Family LLC to wind up its affairs because, they contended, the Family LLC was dissolved at the time of L.B.'s death. Section § 10A-5-7.01(3)a., Ala. Code 1975, provided that an LLC is "dissolved and its affairs shall be wound up ... [w]hen there is no remaining member, unless ... [t]he holders of all the financial rights in the limited liability company agree in writing ... to continue the legal existence and business of the limited liability company." 9 The "Events of dissolution" are now codified at § 10A-5A- 9 7.01, Ala. Code 1975; however, the internal numbering and some language of that section were changed in the 2014 revision. See supra note 8. 33 1130697 The Family LLC argued that the actions of L.B.'s executor to continue the existence of the Family LLC after L.B.'s death, as well as L.B.'s heirs' consent to the final settlement of L.B.'s estate, constituted an "agreement in writing" to the continuation of the Family LLC. This Court held that, pursuant to the plain terms of § 10A-5-7.01(3)a., the agreement to continue the legal existence of the Family LLC had to be in writing and that the legal existence of the Family LLC could not be continued by implication based on the actions of the heirs or of L.B.'s executor. Moultrie contends that this Court's strict application of the phrase "agree in writing" in § 10A-5-7.01(3)a. should also be applied to the phrase "agree in writing" found in § 10A-5- 4.03(b), that is, that the circuit court could not rely on Moultrie's 2009 oral agreement to accept only 10% of the profits, Jones's preparation of tax documents that allocated to Moultrie only 10% of the profits, or the "unsigned" August 2009 agreement to support a conclusion that Wall and Moultrie had "agreed in writing" to amend the operating agreement. We agree that Moultrie's oral agreement to accept 10% of the profits of Autauga Automotive at the December 2009 tax- 34 1130697 planning meeting and Jones's preparation of tax documents reflecting that agreement, alone, would be insufficient to meet the requirement of § 10A-5-4.03(b) that an amendment to Autauga Automotive's operating agreement be in writing. However, the glaring difference between the facts in the present case and the facts in Whitfield is that the plaintiffs in the present case presented evidence indicating that there was an agreement in writing signed by both Moultrie and Wall, specifically the August 2009 agreement, that amended the operating agreement. Moultrie takes issue with the fact that the copy of the August 2009 agreement that was submitted into evidence was unsigned, but it was undisputed that a signed copy of the August 2009 agreement was kept in Wall's office and that that copy was stolen from Wall's office while this litigation was pending. 10 Moultrie contends that testimony establishing that the August 2009 agreement was signed is insufficient to justify In its final judgment, the circuit court found that 10 "Moultrie denies the existence or execution of" the August 2009 agreement. However, neither Moultrie nor any witness on his behalf, testified at either the September 10, 2012, or the March 10, 2014, hearing that the August 2009 agreement did not exist or that it had not been signed by Mariner, Wall, and Moultrie. 35 1130697 the circuit court's conclusion that Moultrie's interest in the profits and losses of Autauga Automotive was only 10%. In this regard, he first contends that the August 2009 agreement does not purport to modify the allocation of profits and losses reflected in the July 2009 articles of organization and admitted in the pleadings. He contends that, because there was no evidence indicating that the August 2009 agreement had been filed in the Autauga Probate Court pursuant to what was then § 10A-5-2.03 and -2.04, Ala. Code 1975, there is insufficient evidence to give the August 2009 agreement "operative effect." Section 10A-5-2.03 required an amendment to the certificate of formation, formerly known as the articles of organization,11 to be delivered "to the judge of probate in whose office the certificate of formation is filed." Section 10A-5-2.04 specified how "each instrument required by this chapter to be filed in the office of the judge of probate shall be executed." Neither § 10A-5-2.03 nor -2.04 required that an amendment to the operating agreement be filed with the probate See Comment to then § 10A-5-2.01, Ala. Code 1975 11 ("[T]his chapter sometimes uses the generic term 'certificate of formation' as an alternative to 'articles of organization,' the traditional term used for the certificate of formation of [limited liability companies]."). 36 1130697 court. To the extent that Moultrie is arguing, as he did above, that an amendment to the articles of organization was necessary and should have been filed in the Autauga Probate Court before the August 2009 agreement could be construed as amending the operating agreement, as we concluded above, Moultrie did not preserve that argument for appellate review. Moultrie also contends that "the terms of the document are far from clear about whether it was intended to be an amendment to the operating agreement." Moultrie's brief, at 53. To support this contention, Moultrie points only to the fact that the heading of the August 2009 agreement states "Agreement for Purchase of Gilmore Ford Assets & Franchise by Autauga Automotive." Moultrie cites no authority to support his argument that, because the August 2009 agreement does not use the word "amendment" or specifically refer to the operating agreement, it cannot be a valid amendment to the operating agreement, even though it specifically provides that Moultrie will participate "with any and all profit distributions as 10% owner of Autauga Automotive." Moultrie further contends that "the evidence is not clear and convincing, as it should be, to resolve such a central 37 1130697 issue controlled by statutes requiring the parties to 'agree in writing.'" Moultrie's brief, at 53. Citing Bradley v. Nall, 505 So. 2d 1062 (Ala. 1987), Moultrie contends that "[t]his Court has required more evidence to establish an agreement in writing by proof as to a lost writing." Moultrie's brief, at 53. In Bradley, this Court considered "whether the trial court erred in admitting secondary evidence of an allegedly lost or destroyed legal document," specifically, an "unrestricted guaranty" on a promissory note. 505 So. 2d at 1063. At trial, there was disputed evidence about whether Bradley had signed an unrestricted guaranty as Nall alleged, and the trial court allowed an unsigned copy of the unrestricted guaranty as a substitute for a lost or destroyed original. We stated: "In order to admit evidence of a lost document, the proponent must establish: (1) the existence and execution of the document; (2) the substance of its contents; and (3) the loss or destruction of the document or other satisfactory reason for failure to produce the original. Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 210 So. 2d 814 (1968). ".... "In establishing the existence of an executed document, we think the evidence must be clear and convincing. Wiggins, supra. This is especially true 38 1130697 where the party seeking to hold others liable on the instrument is responsible for its loss." 505 So. 2d at 1064. In Bradley, we held that there was not clear and convincing evidence to support the existence of an unrestricted guaranty signed by Bradley, which had been lost. We considered that Nall testified that Bradley had signed the unrestricted guaranty, that Nall's attorney testified that he could not swear that Bradley had signed the unrestricted guaranty, and that Bradley denied that he had signed the unrestricted guaranty. We stated that the Statute of Frauds, which required a signed writing by Bradley under the circumstances of that case, "was enacted to prevent this very kind of swearing match." 505 So. 2d at 1064. Moultrie contends that there was not clear and convincing evidence of the existence and execution of the August 2009 agreement and that, like the Statute of Frauds, the requirement in § 10A-5-4.03(b) that an amendment to an operating agreement be in writing was meant to "block reliance on parol evidence ... to change an operating agreement." Moultrie's brief, at 53. However, we conclude that the plaintiffs presented clear and convincing evidence of the 39 1130697 existence and execution of the August 2009 agreement, the substance of its contents, and its loss. As we stated above, Moultrie did not dispute the evidence presented by the plaintiffs regarding the August 2009 agreement. There was no "swearing match" between Wall, Mariner, and Moultrie; instead, all evidence presented to the circuit court supported the circuit court's conclusion that a signed copy of the August 2009 agreement existed and had been kept in Wall's office until it was stolen. Accordingly, we cannot conclude that the circuit court erred by determining that the August 2009 agreement existed and was executed by both Wall and Moultrie. Based on the arguments presented on appeal that were properly preserved for our review, we cannot conclude that the circuit court erred by holding that the August 2009 agreement amended the operating agreement so as to give Moultrie a 10% interest in the profits and losses of Autauga Automotive. Accordingly, that part of the circuit court's judgment is due to be affirmed. B. Moultrie's Interest in Autauga Automotive after Wall's September 2012 Request for Additional Capital Moultrie next challenges the circuit court's conclusion that he was divested of his membership interest in Autauga 40 1130697 Automotive. In this regard, Moultrie first argues that the plaintiffs' pleadings were not amended as required by the Alabama Rules of Civil Procedure so as to allow the circuit court to consider the "capital-call issue," i.e., Moultrie's failure to comply with Wall's demand for a capital contribution pursuant to paragraph V of the operating agreement. Specifically, Moultrie argues that, because the plaintiffs did not file a pleading raising the capital-call issue, the "circuit court was without jurisdiction to issue a judgment that Moultrie had not complied with paragraph V." Moultrie's brief, at 56. Moultrie contends that Rule 15(b), Ala. R. Civ. P., which allows a pleading to be amended to conform to the evidence, does not excuse the plaintiffs from filing a pleading to amend their complaint. Although Moultrie objected to the plaintiffs' motion to amend the pleadings to conform to the evidence made at trial on March 10, 2014, Moultrie never argued, at any point during the proceedings below, that the circuit court did not have authority to consider any amendment if the plaintiffs did not actually file a pleading amending their complaint in the circuit court. As set forth extensively above, this Court 41 1130697 will not reverse the circuit court's judgment based on an argument Moultrie never presented to the court for its consideration. See Birmingham Hockey Club, supra. Although Moultrie frames this issue as a "jurisdictional" one, it does not concern the circuit court's subject-matter jurisdiction. See Russell v. State, 51 So. 3d 1026, 1028 (Ala. 2010) ("In determining a court's subject-matter jurisdiction, 'we ask only whether the trial court had the constitutional and statutory authority' to hear the case." (quoting Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006))). None of the authority cited by Moultrie supports his contention that the absence of a filed pleading amending the complaint deprives a circuit court of subject-matter jurisdiction to consider a claim under the circumstances of this case. Whether the plaintiffs should have filed an amendment to their pleadings after the circuit court granted the plaintiffs' oral motion to amend their pleadings on the last day of trial has no bearing on the circuit court's constitutional or statutory authority to consider that claim. Accordingly, because this argument was raised for the first time on appeal and does not concern 42 1130697 the circuit court's subject-matter jurisdiction to consider the claim, we will not consider it further. In a footnote on page 59 of his brief, Moultrie states that he "suffer[ed] prejudice from any ruling which would deem the pleadings amended." He cites three cases, without a discussion of any of them, to support his contention. See, e.g., Advantage Sales of Alabama v. Clemons, 979 So. 2d 114 (Ala. Civ. App. 2007) (discussing Rule 15(b), Ala. R. Civ. P., and concluding that the trial court exceeded its discretion in allowing the plaintiff to present evidence of her depression to support her claim for damages because the claim for damages based on depression was not included in her complaint, the plaintiff denied that she was seeking damages for depression during her deposition, and the defendant demonstrated that it would be prejudiced by the amendment). In support of his contention that he "suffer[ed] prejudice from any ruling which would deem the pleadings amended," Moultrie states that the circuit court denied him the opportunity to depose Wall on the subject of the capital call, that the circuit court allowed the plaintiffs to present evidence regarding the capital call -- including the July 19, 43 1130697 2012, e-mail from Ford to Wall that was not produced by the plaintiffs until March 10, 2014 -- over his objections at the March 10 trial, and that the circuit court relied on that evidence to conclude that he had been divested of his interest in Autauga Automotive. These arguments do not demonstrate that Moultrie was prejudiced by the circuit court's allowance of the amendment to the plaintiffs' complaint but, instead, assert that Moultrie was prevented from presenting a defense to that claim by the circuit court's discovery and evidentiary rulings concerning the capital-call issue. The capital-call issue was initially placed before the circuit court by Moultrie in his motion for a protective order, which was filed in October 2012, approximately 16 months before the March 10 trial. In response to that motion, Wall asked the circuit court to "ratify" the rebalancing of Autauga Automotive's capital accounts to reflect that Moultrie had no interest in Autauga Automotive. Moultrie cannot possibly contend, and he does not, that he was surprised or otherwise caught off guard by the fact that evidence concerning the capital-call issue was presented to the circuit court at the March 10 trial. In fact, the record demonstrates that Moultrie had obtained an 44 1130697 expert who was prepared to testify at the March 10 trial as to the necessity of the capital call. Accordingly, we cannot conclude that Moultrie has demonstrated that he was prejudiced by the circuit court's allowance of the amendment to the complaint concerning that capital call. Furthermore, Moultrie does not cite any authority or otherwise attempt to argue that the circuit court exceeded its discretion by refusing to allow Moultrie to depose Wall a third time or that the circuit court exceeded its discretion by sustaining Moultrie's objection to admission of the July 19, 2012, e-mail, which was based primarily on the fact that the e-mail was "not produced in accordance with [the circuit court's] orders." See generally Ex parte Wal-Mart, Inc., 809 So. 2d 818, 822 (Ala. 2001) ("'A trial court has very broad discretion in discovery matters, and its ruling on discovery matters will not be reversed absent a clear abuse of discretion.'" (quoting Ex parte Wal-Mart Stores, Inc., 682 So. 2d 65, 67 (Ala. 1996))); and Sweeney v. Purvis, 665 So. 2d 926, 933 (Ala. 1995) ("A trial judge has great discretion in ruling on the admissibility of particular evidence, and the judge's ruling in that regard will not be disturbed on appeal 45 1130697 except for an abuse of that discretion."). Based on the arguments presented on appeal, we cannot conclude that Moultrie has demonstrated that the circuit court erred in considering the capital-call issue. Next, Moultrie argues that even if the capital-call issue was properly considered by the circuit court, the circuit court erred in concluding that Moultrie had been divested of his interest in Autauga Automotive. In this regard, Moultrie first contends that the circuit court cannot excuse Wall from calling a meeting to discuss the capital-call issue with Moultrie, which the circuit found to be required by the operating agreement, "by labeling the event as an emergency and saying it 'would have been fruitless.'" Moultrie's brief, at 61. This Court has held that "[o]perating agreements of limited liability companies serve as contracts that set forth the rights, duties, and relationships of the parties to the agreement." Harbison v. Strickland, 900 So. 2d 385, 391 (Ala. 2004). Paragraph VIII of the operating agreement, which is labeled "Rights and Duties of the Parties," provides that "[c]ompany decisions and actions shall be decided by a 46 1130697 majority in interest of the members, at [a] meeting regularly called with notice to all members." (Emphasis added.) Although the circuit court found that paragraph VIII required Wall to call a meeting before he made the capital call to Moultrie, Wall argues that paragraph VIII did not require a meeting between him and Moultrie before the capital call because paragraph V of the operating agreement, which controls Wall's request for additional capital from Moultrie, does not specifically require a meeting. We disagree. Paragraph VIII is a general provision that sets forth, among other things, each member's right to a meeting before "company decisions and actions" are decided. Wall contends that the decision "to contribute capital is not a 'company decision or action,' but rather one left to the individual members of the company." Wall's brief, at 46. Although nothing in the operating agreement forbids an individual member from contributing additional capital to Autauga Automotive if that individual member desires to do so, we conclude that a decision that the company needs a substantial capital contribution and that all members will be required to provide a percentage of that contribution in order to maintain their ownership interest in 47 1130697 the company is a "company decision or action" that required a meeting of all members of Autauga Automotive before approval or implementation. We agree with Moultrie that the urgency of the situation in July 2012 did not excuse the meeting. Wall argues that he did not have time to call a formal meeting with Moultrie in July 2012 because, after he received the e-mail from Ford on July 19, he and Frakes were frantically trying to obtain a loan to cover the shortfall in meeting Ford's working-capital guidelines. We note, however, that the operating agreement does not require a "formal" meeting, and Wall did not demonstrate that in the 12 days between July 19 and July 31 he did not have even a few minutes to schedule an informal meeting, perhaps even a conference telephone call, to discuss the capital-contribution issue with Moultrie. As noted above, it was undisputed that Wall had failed to mention the July 19 e-mail –- the e-mail that allegedly spurred him and Frakes into action –- to Moultrie until the last day of trial, nearly two years after he received the e-mail. Further, Wall presented no evidence indicating that, once the capital contribution was made on July 31 with the proceeds of the loan 48 1130697 secured by Wall and Frakes, there was any "urgency" to his request for Moultrie to contribute his proportionate share of the capital so that a meeting could not be called an held. Similarly, we cannot conclude that any perceived notion that such a meeting would have been "fruitless" excused the requirement of a meeting between Wall and Moultrie. Wall testified that he did not think he and Moultrie "would have had a very good meeting" about the capital contribution. The contentious nature of this case is certainly not lost on this Court. Regardless, the likelihood of a hostile exchange between members cannot excuse the requirement in the operating agreement for a meeting of "all members" before such a decision is made by the majority in interest. We also cannot conclude that such a meeting would have been fruitless simply because Wall owned the majority interest in the company. Pursuant to the operating agreement, all members had a right to a meeting before company decisions and actions were decided by "a majority in interest of the members." Finally, we cannot conclude that anything in the operating agreement allowed Wall, as the manager of Autauga Automotive, to make a unilateral demand for a capital contribution from Moultrie 49 1130697 without otherwise complying with the requirement in the operating agreement that a meeting of all members be held before such a decision was made. It is undisputed that Wall and Moultrie did not meet before Wall unilaterally decided to contribute additional capital to Autauga Automotive and to make a capital call on Moultrie after doing so. Because the terms of the operating agreement required such a meeting and because Wall failed to comply with the terms of the operating agreement in this regard, the circuit court's judgment is reversed insofar as it held that Moultrie was divested of his 10% interest in Autauga Automotive by failing to contribute additional capital pursuant to Wall's September 2012 capital call, and the cause is remanded with directions to the circuit court to enter a judgment in favor of Moultrie on the claim that Moultrie was divested of his interest in Autauga Automotive. C. Whether Autauga Automotive was a Proper Party Moultrie finally argues that Autauga Automotive is barred by then § 10A-5-2.07, Ala. Code 1975, from suing Moultrie and that, therefore, "[t]he judgment against Moultrie in favor of Autauga Automotive should not stand." Moultrie's brief, at 67. 50 1130697 The plaintiffs contend that this issue was not preserved for appellate review and that it "is not determinative of either [Wall's or Moultrie's] rights as it relates to this lawsuit." Plaintiffs' brief, at 48. Although Moultrie argued, at several stages of the proceedings below (including in his postjudgment motion), that Wall, as the "minority shareholder" of Autauga Automotive, lacked "standing" to bring a lawsuit on behalf of Autauga Automotive, he did not argue that Autauga Automotive was barred by statute, or any other applicable law, from participating in an action against one of its members. Thus, neither the circuit court nor Wall had the opportunity to address or correct the error Moultrie alleges on appeal. See Birmingham Hockey Club, 827 So. 2d at 81. Accordingly, we will not consider this claim of error. IV. Conclusion The circuit court's judgment, insofar as it concluded that Wall had a 90% interest in the profits and losses of Autauga Automotive and that Moultrie had a 10% interest in the profits and losses, is affirmed. However, that part of the circuit court's judgment holding that Moultrie was divested of 51 1130697 his interest in Autauga Automotive by failing to make a capital contribution pursuant to Wall's September 2012 capital call is reversed, and the cause is remanded to the circuit court with instructions to enter a judgment in favor of Moultrie on that claim. The plaintiffs request an award of attorney fees "for responding to [Moultrie's] frivolous appeal." Plaintiffs' brief, at 49-50. That request is denied. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. Moore, C.J., and Stuart, Parker, Shaw, and Wise, JJ., concur. Murdock and Main, JJ., concur in the result. Bolin, J., recuses himself. 52 1130697 MURDOCK, Justice (concurring in the result). I concur in the result reached by the main opinion. In addition, I write separately to note that no issue has been presented to this Court as to whether the articles of incorporation of Autauga Automotive, LLC, and the July amendment to the operating agreement signed by Charles O. Wall II and Jesse Mariner were artifices by which the parties misrepresented to Ford Motor Company the actual agreement between the parties already in existence at the time and whether, having benefited from these artifices, Wall should be estopped to disclaim the ownership interest in Autauga Automotive reflected in those documents. 53	February 6, 2015
e2cbe95c-4ef7-44f0-ac64-072dc5371b86	Ex parte Howard Whited.	N/A	1130686	Alabama	Alabama Supreme Court	REL:02/06/2015 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 ____________________ 1130686 ____________________ Ex parte Howard Carl Whited PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Howard Carl Whited v. State of Alabama) (Blount Circuit Court, CC-07-526; Court of Criminal Appeals, CR-09-0909) BOLIN, Justice. 1130686 Howard Carl Whited was convicted of sodomy in the first degree, a violation of § 13A-6-63, Ala. Code 1975. The trial court sentenced Whited to 35 years' imprisonment and ordered Whited to pay $50 to the Alabama Crime Victims Compensation Fund and court costs. The Court of Criminal Appeals affirmed Whited's conviction and sentence in a 3-2 per curiam opinion. Whited v. State, [Ms. CR-09-0909, March 14, 2014] __ So. 3d __ (Ala. Crim. App. 2014). Whited petitioned this Court for a writ of certiorari, contending that the decision of the Court of Criminal Appeals conflicts with Strickland v. Washington, 466 U.S. 668 (1984). We granted the petition, and we reverse and remand. Facts and Procedural History The Court of Criminal Appeals set forth the following facts: "In May 2005, when M.H. was 14 years old, she lived with her father in an apartment complex in Allgood. Danny Robertson lived next to M.H. and her father. Robertson testified that he had observed Whited at M.H.'s father's apartment approximately two to three times per week. Robertson stated that he could hear conversations and noise coming from M.H.'s apartment, and, specifically, on the evening of May 19, 2005, Robertson went to take a shower and could hear M.H. saying 'Stop. Don't. No more, please.' Robertson stated that, in addition to M.H.'s voice, he could hear three male voices. Robertson stated 2 1130686 that after he got out of the shower he could hear M.H. 'crying--weeping on the floor.' Robertson stated that there had been '[q]uite a few' incidents similar to this and that on those occasions he would see Whited at the apartment. After Robertson heard M.H. 'crying--weeping on the floor' he reported what he had heard to the Blount County Sheriff's Office the following morning. "M.H. testified that in 2005 Whited and another male--Edward Dunn--would visit her father and that Whited would be at her house '[e]very now and then.' "M.H. stated that one morning in February 2005, she woke up at approximately 6:00 a.m. and heard someone knocking on the front door. M.H. stated that she answered the door and saw Whited. M.H. testified that Whited asked whether M.H.'s father was home and she went and checked. When M.H. returned to the door to tell Whited that her father was not home, Whited came into the apartment and shut the door and gave her two pieces of gum. M.H. stated that she turned around and placed one piece of gum on the washing machine and Whited grabbed her around the waist and started kissing her neck. M.H. stated that Whited then 'started talking to [her] telling [her] that he knows that [she] think[s] about him a lot and that [she] dream[s] about him.' M.H. stated that she told Whited that she did not 'think like that' and told him that she 'needed to get ready for school and that he needed to get ready to go to work and he needed to leave.' M.H. stated that Whited then told her that 'everybody has got to grow up sometime' and that 'if [she] ever changed [her] mind, [she] could call him.' M.H. stated that after Whited left she began crying because she 'couldn't believe what had just happened.' M.H. stated that when she got to school she told the school nurse what had happened. "M.H. further testified that in May 2005 she came home from school and Whited, [Edward] Dunn, and 3 1130686 her father were sitting on the couch 'laughing and smoking pot.' According to M.H., 'they were looking at [her] weird' so she decided to go to her room. M.H. stated that she could hear the three men when she was in her room and that she stayed in her room until she got up to get something to drink. M.H. stated that she then got ready for bed but could not fall asleep because the three men were too loud. M.H. stated that, at some point, the bedroom door opened and Whited, Dunn, and her father entered the bedroom. M.H. stated, however, that '[i]t was dark' in the bedroom and that she 'couldn't see their faces.' M.H. stated that Whited then came toward her and 'grabbed [her] by the leg and he pulled [her] long ways on [her] bed over to [her] dad's bed.' M.H. stated that Whited then 'took [her] panties off' and 'got on top of [her] and then he stuck his penis in [her] back side and then somebody took an electric toothbrush and he stuck it inside [her].' M.H. stated that Whited then 'took a back massager and rubbed it on [her] back and all over. He got off [her] and someone else got on [her].' M.H. stated that while this was happening she was on her stomach and that if she tried to get up 'somebody would hit [her] on the back of the head.' M.H. further testified that, at some point, '[t]hey got off and [Whited] said if [she] told anybody, that he would kill [her].' "After M.H. testified, the State rested and Whited moved for a judgment of acquittal, which the circuit court denied. Whited then presented evidence that tended to establish the following: Jeffrey Whited ('Jeffrey') testified that he is Whited's uncle and that on May 19, 2005, he visited with Whited at approximately 6:30 p.m. at Jeffrey's mother's house in Oneonta. Jeffrey stated that he remembered visiting with Whited on that date because he wrote it down in his journal, which, he said, he keeps for work. Jeffrey stated that Whited was at the house when he arrived and that Whited told Jeffrey that his back hurt. According to Jeffrey, 4 1130686 Whited 'looked rough.' Jeffrey stated that he stayed at the house until approximately 9:00 p.m. and that Whited did not leave. "Deputy Sue Ashworth testified that she investigates sexual crimes for the Blount County Sheriff's Office. Ashworth testified that on May 26, 2005, she went to M.H.'s father's apartment, because she had received a complaint from Robertson about possible sexual abuse. Deputy Ashworth stated that on May 26, 2005, M.H. stated that 'her father had put his penis in her butt' and that Whited and another person were involved as well. Deputy Ashworth also testified, however, that M.H. stated that she could not see their faces. Deputy Ashworth testified that during the interview she did not notice any marks on M.H. to indicate physical abuse. According to Deputy Ashworth, M.H., during a videotaped interview, stated that she was 'penetrated vaginally' by both her father and Whited. Deputy Ashworth testified that, at some point, she executed a search warrant on M.H.'s father's apartment and seized sheets, bedding, toothbrushes, and a massager for the purpose of having those items tested at the Department of Forensic Sciences ('DFS'). Deputy Ashworth testified that she received a report from DFS indicating that they were unable to locate any DNA evidence on the items. Deputy Ashworth further testified that M.H. received a medical examination that indicated that she had contracted ureaplasma urealyticum--a sexually transmitted disease. Deputy Ashworth stated that Whited was tested for the sexually transmitted disease and that his test result was negative. Deputy Ashworth testified, however, that Edward Dunn tested positive for ureaplasma urealyticum. Deputy Ashworth stated that, in July 2005, she interviewed Whited and Whited denied any involvement with the offense. "On cross-examination, Deputy Ashworth stated that M.H. told her that, before May 19, 2005, M.H. 5 1130686 had been molested by her father for a long period and, on those occasions, would scream for her father to stop. "Brad Sims, a child-abuse-and-neglect investigator for the Department of Human Resources, testified that he and Deputy Ashworth met with M.H. in May 2005. According to Sims, M.H. did not tell them what occurred on May 19, 2005, but only stated that she had been molested by her father. Sims stated that at that time there was no indication that anyone but M.H.'s father was involved. Sims testified that on June 15, 2005, he and Deputy Ashworth again met with M.H. and that, during that meeting, M.H. for the first time mentioned both Whited and Dunn. When confronted with his report of that meeting, however, Sims agreed that the report did not mention Whited or Dunn and stated only that '[M.H.] told us again that she had been molested by her father. She indicated that he had anal sex with her in the bedroom they shared.' "On cross-examination, Sims testified that he had investigated Whited in February 2005, because M.H. had alleged that Whited had come to her father's apartment and kissed her on the neck and also mentioned to M.H. that he had been having dreams about engaging in sexual intercourse with her. Sims stated that, although Whited did not deny going to the apartment, he denied any wrongdoing. Sims conceded that no charges were brought against Whited arising out of the events that M.H. alleged occurred in February 2005. "Hulan Whited ('Hulan'), Whited's father, testified that on May 19, 2005, he and Whited were "'over at Mr. Owen's house. His lawnmower had broke down with him. He had to get a part for it--had to go to Cleveland. We had to mow Ms. Turley's yard. We worked on it until noon and got us a sandwich and went 6 1130686 over there and mowed her yard. [Whited] hurt his back. We got home and he was in the bed a week.' "Hulan further testified that on May 19, 2005, Jeffrey came over to the house at approximately 6:00 p.m. and remained at the house until approximately 9:30 p.m. According to Hulan, Whited was at the house the entire evening because Whited hurt his back and was unable to leave. "Daniel Stidham testified that in May 2005 he was employed by Mutual Savings Life Insurance and that Whited was one of his customers. According to Stidham, on May 19, 2005, he "'and his sales manager [were] working Springville Boulevard. That was his first week of employment. We had went down to Glenda Torbert's on Woodard Road, and as we were coming back up, as we approached Ms. Turley's driveway and the edge of her lawn here, my sales manager had me to slow down and stop. He waved at [Whited] and his father.' "Stidham testified that he did not know who Whited was at the time and was only able to recall that he saw Whited on May 19, 2005, because he had a 'copy of [his] mandate,' which he kept for work. "Whited testified in his own behalf, and, although he conceded that he knew M.H., he denied that he had anything to do with the events of May 19, 2005. Whited stated that he knew M.H.'s father because they had gone to school together and that in February 2005 he was going to work and noticed that the hood on M.H.'s father's car was raised. Whited stated that he then went over to M.H.'s father's apartment to see if he needed a ride to work. Whited stated that M.H. answered the door and indicated that her father was not home. According 7 1130686 to Whited, he never entered the apartment and, after M.H. stated that her father was not home, he left the apartment and never returned. "Whited stated that on May 19, 2005, he was working with his father and his great uncle, Cecil Owen. According to Whited, they repaired a lawnmower that morning and around 12:00 p.m. went to Ms. Turley's home to cut her lawn. Whited stated that it took approximately two and a half hours to cut Ms. Turley's lawn and they left Ms. Turley's home at approximately 3:00 p.m. Whited stated that, at some point that day, he strained a muscle in his back 'around where [he] had surgery.' Whited further testified that he did not have any sexually transmitted diseases." Whited, __ So. 3d at __ (footnote and references to record omitted). At the close of all the evidence, Whited again moved the trial court for a judgment of acquittal, which the trial court denied. The State then presented a lengthy and impassioned closing argument. Jerome Colley, Whited's attorney, waived his closing argument. The jury returned a verdict finding Whited guilty of first-degree sodomy. On August 31, 2009, Whited moved for a new trial. On October 5, 2009, the trial court set a sentencing date for November 19, 2009. On November 19, the trial court sentenced Whited to 35 years in the penitentiary. On that date, the trial court also deferred ruling on the motion for a new trial until after sentencing 8 1130686 and granted permission to Whited's new attorney, Walter Kennedy III, to amend the posttrial motion for a new trial within 30 days after the imposition of sentence. On December 14, 2009, Whited filed an amended motion for a new trial raising numerous ineffective-assistance-of-counsel claims, including the claim that his counsel was ineffective in waiving the right to make a closing argument on behalf of Whited. Following a continuance by agreement of the parties, see Rule 24.4, Ala. R. Crim. P., the trial court, on January 28, 2010, conducted a hearing on Whited's motion. On February 16, 2010, the trial court denied Whited's motion for a new trial and made the following entry on the case-action-summary sheet: "The court having considered testimony of witnesses and argument of counsel, [Whited's] motion for [a] new trial is hereby denied." Whited argued on appeal to the Court of Criminal Appeals that the trial court erred in denying his motion for a new trial based on his ineffective-assistance-of-counsel claim. Specifically, Whited argued, among other things, that his trial counsel was ineffective because he failed to make a 9 1130686 closing argument on Whited's behalf. The Court of Criminal Appeals addressed the issue as follows: "In addressing Whited's contention in his motion for a new trial that counsel rendered ineffective assistance by waiving closing argument, the circuit made the following findings of fact: "'[T]he Court finds that counsel for [Whited] did in fact waive the right to offer a closing argument to the jury. During the hearing on the motion for a new trial, trial counsel for [Whited] stated it was trial strategy in not offering a closing and to prevent the prosecution from further commenting on [Whited's] conduct. "'It is this Court's understanding that the law requires the Court give deference to trial counsel's decisions and strategic choices. And it is the Court's opinion that the waiver of a closing argument did not affect the outcome of the verdict. As such, the Court does not find that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. And the Court does not find that [counsel's failure to make a closing argument] warrants setting aside the judgment of the jury and granting a new trial.' "The record indicates that, at the hearing on Whited's motion for new trial, trial counsel testified that his decision to waive closing argument was trial strategy. When asked specific questions regarding his strategic decisions, however, trial counsel testified that his recollection of the events surrounding Whited's case was diminished based on the sudden death of his wife 10 1130686 less than two months after Whited's trial. Trial counsel testified that he could not recall when he made the decision to waive his closing argument but stated generally that the decision whether to have a closing argument is 'part of the attorney's strategy.' "'"If the record is silent as to the reasoning behind counsel's actions, the presumption of effectiveness is sufficient to deny relief on [an] ineffective assistance of counsel claim."' Davis v. State, 9 So. 3d 539, 546 (Ala. Crim. App. 2008)(quoting Howard v. State, 239 S.W.3d 359, 367 (Tex. Crim. App. 2007)). "'"'An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption [of effective representation]. Therefore "where the record is incomplete or unclear about [counsel]'s actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment."' Chandler v. United States, 218 F.3d 1305, 1314 n. 15 (11th Cir. 2000)(en banc)(quoting Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999))."' "Davis, 9 So. 3d at 546 (quoting Grayson v. Thompson, 257 F.3d 1194, 1218 (11th Cir. 2001)). Trial counsel's inability to recall the basis of his strategic decision to waive closing argument in this case limits this Court's ability to review counsel's representation at trial. "Not only are we limited in our review by trial counsel's inability to recall the basis of his strategic choice to waive closing argument, we are also limited in our review by the United States Supreme Court's holding in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court cautioned that a court must 11 1130686 indulge a 'strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. 466 U.S. at 689. Furthermore, 'it is not our function to second-guess the strategic decisions made by counsel.' Smith v. State, 756 So. 2d 892, 910 (Ala. Crim. App. 1997), aff'd, 756 So. 2d 957 (Ala. 2000). Indeed, a review of the prosecutor's closing argument indicates that the prosecutor made an emotional plea to the jury that included general statements about the hideous nature of the offenses of which Whited had been charged and the plight of the victim following the incident. It is possible that trial counsel made a strategic choice to waive closing argument in order to prevent the prosecutor from returning on rebuttal and going into specific detail regarding the evidence presented at trial. It is this type of decision that the Supreme Court contemplated in Strickland when it recognized the presumption in favor of a finding of reasonable professional assistance when the challenged action 'might be considered sound trial strategy.' 466 U.S. at 689. "It is well settled that a trial counsel's decision to waive closing argument is not, in itself, ineffective assistance of counsel. See Young v. State, 887 So. 2d 320 (Ala. Crim. App. 2004) .... "Although Whited makes a compelling argument that his trial counsel exercised poor judgment in waiving closing argument, Whited failed to 'affirmatively prove prejudice' and 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Strickland, 466 U.S. at 694. 'The prejudice prong of the Strickland test requires a showing that a different outcome of the trial probably would have resulted but for counsel's allegedly ineffective performance.' Worthington v. 12 1130686 State, 652 So. 2d 790, 796 (Ala. Crim. App. 1994)(internal citations omitted). Whited has not made such a showing in this case. Accordingly, the circuit court did not abuse its discretion in denying Whited's motion for a new trial on the basis that he received ineffective assistance of counsel based on counsel's waiver of closing argument." Whited, __ So. 3d at __. Judge Joiner dissented from the main opinion, stating that he did not "agree that Whited's trial counsel's actions were within the 'wide range of professionally competent assistance' when he waived closing argument, see Strickland, 446 U.S. at 689, abandoning 'the last clear chance to persuade the [jury] that there may be reasonable doubt of [Whited's] guilt.' Herring [v. New York, 422 U.S. 853 (1975)]." Whited, __ So. 3d at __. Judge Joiner further concluded that, under the circumstances of this case, Whited was prejudiced by trial counsel's failure to make a closing argument. Whited, ___ So. 3d at ___. Discussion Whited argues that the Court of Criminal Appeals erred in evaluating whether his trial counsel's performance was deficient under Strickland because, he says, that court failed to adequately consider all the circumstances that existed at 13 1130686 the time his trial counsel waived Whited's right to a closing argument. Whited contends (1) that the Court of Criminal Appeals' conclusion that his trial counsel's decision to waive closing argument was based on "trial strategy" is not supported by the record, (2) that the Court of Criminal Appeals did not fully consider the effect of the waiver of closing argument in light of the prosecutor's closing statement, and (3) that the Court of Criminal Appeals failed to consider the strong arguments against guilt that were available to Whited. The Court of Criminal Appeals aptly set forth the applicable law: "'"'"It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error."'" Hosea O. Weaver & Sons, Inc. v. Towner, 663 So. 2d 892, 895 (Ala. 1995)(quoting Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d 693, 694 (Ala. 1989), quoting in turn Hill v. Sherwood, 488 So. 2d 1357 (Ala. 1986)).' "Ex parte Hall, 863 So. 2d 1079, 1081-82 (Ala. 2003). 14 1130686 "'"'In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): "'"'"First, the defendant must show t h a t c o u n s e l ' s p e r f o r m a n c e w a s d e f i c i e n t . T h i s requires showing that counsel made errors so serious that counsel was not functioning as t h e ' c o u n s e l ' g u a r a n t e e d t h e defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be s a i d t h a t t h e conviction or death sentence resulted from a breakdown in the adversary process that 15 1130686 renders the result unreliable." "'"'466 U.S. at 687, 104 S. Ct. at 2064. "'"'"The performance component outlined in Strickland is an objective one: that is, whether counsel's assistance, judged under 'prevailing professional norms,' was 'reasonable considering all the circumstances.'" Daniels v. State, 650 So. 2d 544, 552 (Ala. Cr. App. 1994), cert. denied, [514 U.S. 1024, 115 S. Ct. 1375, 131 L. Ed. 2d 230 (1995)], quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 206. "A court d e c i d i n g a n a c t u a l ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. "'"'The claimant alleging ineffective assistance of counsel has the burden of showing that counsel's assistance was ineffective. Ex parte Baldwin, 456 So. 2d 129 (Ala. 1984), aff'd, 472 U.S. 372, 105 S. Ct. 2727, 86 L. Ed. 2d 300 (1985). "Once a petitioner has identified the specific acts or omissions that he alleges were not the result of reasonable professional judgment on counsel's part, the 16 1130686 court must determine whether those acts or omissions fall 'outside the wide range of professionally competent assistance.' [Strickland,] 466 U.S. at 690, 104 S. Ct. at 2066." Daniels, 650 So. 2d at 552. When reviewing a claim of ineffective assistance of counsel, this court indulges a strong presumption that counsel's conduct was appropriate and reasonable. Hallford v. State, 629 So. 2d 6 (Ala. Cr. App. 1992), cert. denied, 511 U.S. 1100, 114 S. Ct. 1870, 128 L. Ed. 2d 491 (1994); Luke v. State, 484 So. 2d 531 (Ala. Cr. App. 1985). "This court must avoid using 'hindsight' to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance." Hallford, 629 So. 2d at 9. See also, e.g., Cartwright v. State, 645 So. 2d 326 (Ala. Cr. App. 1994). " ' " ' " J u d i c i a l scrutiny of counsel's performance must be highly deferential. It is all too tempting for a def e nd a nt to second-guess counsel's a s s i s t a n c e a f t e r conviction or adverse sentence, and it is all too easy for a court, 17 1130686 examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of h i n d s i g h t , t o r e c o n s t r u c t t h e c i r c u m s t a n c e s o f counsel's challenged conduct, and to evaluate the conduct f r o m c o u n s e l ' s perspective at the time. Because of the difficulties inherent i n m a k i n g t h e evaluation, a court must indulge a strong p r e s u m p t i o n t h a t counsel's conduct falls within the wide range o f r e a s o n a b l e p r o f e s s i o n a l assistance; that is, the defendant must o v e r c o m e t h e presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even 18 1130686 the best criminal defense attorneys would not defend a particular client in the same way." "'"'Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citations omitted). See Ex parte Lawley, 512 So. 2d 1370, 1372 (Ala. 1987). "'"'"Even if an attorney's performance is determined to be d e f i c i e n t , t h e petitioner is not entitled to relief unless he establishes that 'there is a 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, 104 S. Ct. at 2068." "'"'Daniels, 650 So. 2d at 552.'" "'Dobyne v. State, 805 So. 2d 733, 742–43 (Ala. Crim. App. 2000), aff'd, 805 So. 2d 763 (Ala. 2001). See also Nicks v. State, 783 So. 2d 895, 918–919 (Ala. Crim. App. 1999).' 19 1130686 "Sheffield v. State, 87 So. 3d 607, 633-35 (Ala. Crim. App. 2010)." Whited, __ So. 3d at __. It is well settled that a trial counsel's decision to waive a closing argument on behalf of his or her client does not alone constitute ineffective assistance of counsel. Young v. State, 887 So. 2d 320 (Ala. Crim. App. 2004); Lawhorn v. State, 756 So. 2d 971 (Ala. Crim. App. 1999); and Floyd v. State, 571 So. 2d 1221 (Ala. Crim. App. 1989), rev'd on other grounds, Ex parte Floyd, 571 So. 2d 1234 (Ala. 1990). However, the importance of a closing argument cannot be understated: "It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt. See In re Winship, 397 U.S. 358 [(1970)]. "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in 20 1130686 the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment." Herring v. New York, 422 U.S. 853, 862 (1975). The Court of Criminal Appeals surmised that one "possible" strategic reason for trial counsel's waiver of closing argument in this case was "to prevent the prosecutor from returning on rebuttal and going into specific detail regarding the evidence presented at trial." Whited, __ So. 3d at __. Preventing the State from returning on rebuttal to make a closing argument has been upheld as a strategic decision that alone does not render counsel's performance ineffective. See Floyd, supra, and Lawhorn, supra. In Floyd, the defendant claimed that his trial counsel had been ineffective when trial counsel waived closing argument. The trial court addressed the defendant's ineffective-assistance- of-counsel claim as follows: "[Floyd's] second allegation of ineffective assistance is that his trial lawyer waived closing argument at the guilt stage. [Trial counsel] did waive his closing argument pursuant to a strategic decision. "[Trial counsel] based his decision to waive closing argument on two factors. First, [trial counsel] had no strong arguments available to 21 1130686 dissuade the jury from convicting his client or to persuade [it] to find petitioner guilty of a lesser offense. Second, the prosecution's initial closing argument was very brief and it appeared that the prosecution was saving its persuasive argument for last. [Floyd's trial counsel] thought the potential harm to his client from the prosecution's second closing argument outweighed any benefit to be obtained from [trial counsel's] argument. [Floyd's trial counsel] had made the same decision in other cases with some success." 571 So. 2d at 1227. The Court of Criminal Appeals held in Floyd as follows: "The testimony of [Floyd's] trial counsel established that he made a strategic decision to forgo his closing argument in order to deprive the prosecution of its main opportunity to argue its case to the jury. The uncontradicted testimony of trial counsel was that the prosecutor's initial closing argument had been quite brief and had consisted of little more than a reading of the indictment. In light of this, Floyd's trial counsel decided that because he had no persuasive arguments, his client's interest could best be served by denying the prosecution, who had the burden of proof, of its chance to argue how that burden had been met. This is exactly the sort of strategic decision which the United States Supreme Court has held to be virtually unchallengeable in Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2065. Furthermore, Floyd did not even suggest a manner in which his trial counsel could have argued in closing that would have affected the outcome of his trial. Thus, Floyd has failed to establish a reasonable probability that, but for his lawyer's waiving his guilt-stage closing argument, the outcome of his trial would have been different. Therefore, the circuit court's findings were correct." 22 1130686 571 So. 2d at 1227. In Lawhorn, the defendant in a death-penalty case argued in a Rule 32, Ala. R. Crim. P., postconviction petition that his trial counsel was ineffective for failing to make a closing argument during the penalty phase of his trial. The trial court addressed the issue as follows: "'At the Rule 32[, Ala. R. Crim. P.,] hearing, [Lawhorn's trial counsel] testified that he made a strategic decision that he would not make a closing argument during the penalty phase of the trial. It was [trial counsel's] understanding that if he waived closing argument that the district attorney would not be allowed to argue. [Trial counsel] did not want to give the district attorney an opportunity on rebuttal to get up and point at Lawhorn and call him a cold-blooded murderer and back-shooter. [Trial counsel] wanted to prevent the district attorney from inflaming the minds of the jury. "'.... "'Trial counsel's decision to waive his closing argument did not render his performance deficient because it was a strategic decision to keep the district attorney from making a closing argument. This Court has watched district attorney Rumsey on many occasions during closing argument. He is powerful and effective during closing argument. Based on this Court's experience, it is not an unusual tactical decision in Talladega County for attorneys to waive closing argument to prevent district attorney Rumsey from making a closing argument....'" 23 1130686 Lawhorn, 756 So. 2d at 987. The Court of Criminal Appeals addressed the issue in Lawhorn as follows: "[W]e [have] held that it was not ineffective assistance of counsel when defense counsel made a strategic decision to waive closing arguments in order to deprive the prosecution of its main opportunity to argue to the jury. Similar to the situation in Floyd, Lawhorn's trial counsel did not offer closing argument in an attempt to deprive the prosecution of labeling Lawhorn a 'cold-blooded murderer and a back-shooter.' 'This is exactly the sort of strategic decision which the United States Supreme Court has held to be virtually unchallengeable in Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2065.' Floyd, 571 So. 2d at 1227. We agree with the trial court that in this situation with these particular facts, closing argument by defense counsel would have had little impact." 756 So. 2d at 987. Thus, in disposing of the waiver-of-closing-argument issue in the context of an ineffective-assistance-of-counsel claim in Floyd and Lawhorn, the Court of Criminal Appeals took into consideration whether trial counsel could articulate a strategic reason for waiving the argument, the strength or persuasiveness of the defendant's arguments against guilt, and the nature of the State's closing argument. The "Trial-Strategy Finding" 24 1130686 Whited first contends that the Court of Criminal Appeals "should have, at best, given no weight" to trial counsel's testimony that the decision to waive closing argument was based on "trial strategy," because, he says, nothing in the record indicates that the decision to waive closing argument was based on "trial strategy." As quoted above, the trial court found that Whited's trial counsel stated that "'it was trial strategy in not offering a closing and to prevent the prosecution from further commenting on [Whited's] conduct.'" Whited, __ So. 3d at __. At the hearing on the motion for a new trial, Whited's trial counsel testified that his recollection of the events surrounding Whited's trial was diminished as a result of the sudden death of his wife less than two months following the trial. When questioned by Whited's appellate counsel, Whited's trial counsel repeatedly stated that he did not recall much about the trial. Whited's trial counsel testified that he did not recall when he decided to waive closing argument and that he did not recall discussing with Whited the decision to waive closing argument. Although Whited's trial counsel did not recall specifics about the decision to waive 25 1130686 Whited's right to closing argument at trial, he stated generally that the decision whether to present a closing argument is part of the attorney's trial strategy and is dependent upon the information elicited during the trial. Although Whited's trial counsel testified that he could not recall the specifics surrounding his decision to waive closing argument, the record indicates that he was able to recall other aspects of the case. For example, Whited's trial counsel testified that his overall strategy was to continue this case from trial docket to trial docket until the victim turned of age and "disappeared." However, Whited's trial 1 counsel testified that, when it became apparent that this case would proceed to trial, he developed a new strategy. Whited's trial counsel explained at length that his defense strategy was to present an alibi for Whited at the time of the assault through the testimony of family and friends. He also testified that Whited's uncle had a document that would have supported the alibi. Whited's trial counsel further testified that his strategy included attempting to impeach the victim's Trial counsel was obviously referring to his thoughts 1 that the victim would ultimately decide not to testify. 26 1130686 testimony, including whether the victim could actually identify the person or persons who had assaulted her. Whited testified during the hearing on the motion for a new trial that his trial counsel informed him during a recess immediately before closing arguments were to begin that he was not going to present a closing argument. Whited stated that he responded by stating that he did not know what a closing argument was but implored his trial counsel to "do what you are supposed to do for me." Whited's trial counsel testified that his practice was to discuss each phase of the trial process with his clients and that he would have discussed the issue of waiving closing argument with Whited before closing arguments began. Whited's trial counsel candidly admitted during the hearing that, at the time he would have had the conversation with Whited regarding waiving closing argument, he could not have known what the prosecutor would initially argue in the State's closing argument. A review of the record in this case indicates that Whited's trial counsel was unable to provide a specific reason for waiving closing argument. When questioned on the issue, Whited's trial counsel was unable to recall specifics about 27 1130686 the decision to waive closing argument, such as when the decision to waive closing argument was actually made. Whited's trial counsel stated only in general terms that whether to waive closing argument would be part of the attorney's trial strategy based on the information elicited at trial. Whited's trial counsel did not testify, as the trial court found, that his decision to waive closing argument was trial strategy designed to prevent the prosecution from further commenting on Whited's conduct. We further note that Whited's trial counsel informed him before closing arguments began that he would not make a closing argument. Because Whited's trial counsel had decided to waive closing argument before closing arguments had began, it was not possible for his trial counsel to make a fully informed "strategic decision" regarding the waiver of closing argument without first having heard the complete content and extent of the State's initial closing argument. Accordingly, after reviewing the record in this case, we conclude that it does not support the trial court's finding that trial counsel's waiver of closing argument was a strategic decision with the goal of preventing the prosecution from further commenting on 28 1130686 Whited's conduct during rebuttal. The failure of Whited's 2 trial counsel to articulate a "strategic" reason for waiving closing argument distinguishes this case from both Floyd and Lawhorn. Arguments Against Guilt Whited next argues that the Court of Criminal Appeals failed to take into consideration the "'strong arguments available to dissuade the jury from convicting'" him. Whited, __ So. 3d at __ (Joiner, J., dissenting)(quoting Floyd, 571 So. 2d at 1227). The State's case lacked any physical or forensic evidence linking Whited to the crime. Whited also had tested negative for a sexually transmitted disease for We note, as did the Court of Criminal Appeals, that an 2 appellate court "'"'indulges a strong presumption that counsel's conduct was appropriate and reasonable,'"'" Sheffield v. State, 87 So. 3d 607, 633-35 (Ala. Crim. App. 2010)(quoting Dobyne v. State, 805 So. 2d 733, 743 (Ala. Crim. App. 2000), quoting other cases), and that where the "'record is silent as to the reasoning behind counsel's actions, the presumption of effectiveness is sufficient to deny relief on [an] ineffective assistance of counsel claim.'" Davis v. State, 9 So. 3d 539, 546 (Ala. Crim. App. 2008)(quoting Howard v. State, 329 S.W. 2d 359, 367 (Tex. Crim. App. 2007)). However, the effect of a silent record upon the presumption of effectiveness afforded Whited's trial counsel's decision to waive closing in this particular case must be considered in light of Whited's trial counsel's ability to recall at length that strategy as it pertained to Whited's defense. 29 1130686 which both the victim and an alleged co-assailant--Dunn--had tested positive. The State's case essentially turned upon the testimony of the victim. Danny Robertson, the victim's next-door neighbor, testified at trial that on the evening of May 19, 2005, between 6:00 p.m. and 7:00 p.m., he could hear voices coming from the apartment where the victim lived. He testified that he heard the victim saying "Stop. Don't. No more, please" and that he could also hear her "crying--weeping on the floor." Robertson further testified that, in addition to the victim's voice, he could hear three male voices coming from the apartment. Robertson testified that there had been "[q]uite a few" incidents similar to this and that on those occasions he would see Whited at the apartment. Robertson reported what he had heard to the Blount County Sheriff's Office the following morning. On cross-examination Robertson admitted that he had previously testified at the trial of codefendant Edward Dunn in October 2008 that he had heard the voices coming from the apartment between 5:30 p.m. and 6:00 p.m. Robertson further admitted that he had previously testified that the events 30 1130686 happened in "early fall" when "it was cold" despite it being undisputed that the events made the basis of this case occurred in May. Robertson also testified that the events occurred at "dusk ... between daylight and dark." The victim contradicted Robertson's testimony in that she testified that there was no light shining through her bedroom window at the time of the incident because it was dark outside. The only direct evidence establishing Whited's guilt was the testimony of the victim indicating that Whited, Dunn, and her father entered her bedroom; that Whited "grabbed [her] by the leg and he pulled [her] long ways on [her] bed over to [her] dad's bed"; that Whited "took [her] panties off" and "got on top of [her] and then he stuck his penis in [her] back side and then somebody took an electric toothbrush and he stuck it inside [her]"; that Whited "got off [her] and someone else got on [her]"; and that Whited threatened to kill her if she told anyone. This testimony was qualified, however, by the victim's testimony that the bedroom was dark and that she could not see her attackers' faces. We further note that the victim testified that she did not know if any of the three men–-Whited, Dunn, or her father–-present in the apartment 31 1130686 when she came home from school had left or if any additional men had entered the apartment after she retired to her bedroom during the intervening period between her entering the apartment after school and the attack later in the evening. The victim did not initially report the attack to anyone. As stated above, Robertson reported what he had heard in the adjoining apartment to the authorities the morning after the incident. Investigator Brad Sims testified that during the initial interview with the victim on May 26, 2005, she did not initially name Whited as one of her attackers and did not indicate that anyone other than her father was involved in the attack. On June 15, 2005, the victim was again interviewed by Sims and Deputy Sue Ashworth. Sims testified that at this interview the victim mentioned Whited and Dunn for the first time. However, the report generated following the interview did not mention Whited or Dunn and stated only that her father had molested her. The victim testified at trial that Whited had penetrated her vagina with his penis. However, on June 20, 2015, the victim was examined by Dr. Earl Stradtman and during this examination she specifically denied that she had been 32 1130686 penetrated vaginally. Dr. Stradtman's physical examination of the victim revealed no sign of injury to the outer structures of the vagina or the hymen. Whited also presented evidence that he had an alibi for the period when the attack occurred. Jeffrey Whited, Whited's uncle, testified that he maintains a journal for work purposes in which he stated that he "logged everything down." Jeffrey testified that the journal entry for May 19, 2005, indicated that he spoke with Whited at Jeffrey's mother's residence3 for about 10 minutes between 6:30 p.m. and 7:00 p.m. regarding a job for Jeffrey's son mowing grass. Jeffrey testified that Whited complained about his back hurting and that Whited looked "rough." Jeffrey stated that he remained at his mother's residence til approximately 9:00 p.m. and that Whited did not leave during that time. Hulan Whited, Whited's father, testified that on May 19, 2005, he and Whited mowed "Mrs. Turley's" yard and that Whited injured his back while doing so, which, according to Hulan, left Whited "in the bed a week." Hulan confirmed that Jeffrey Jeffrey stated that Whited lived at Jeffrey's mother's 3 house. 33 1130686 came over to the house at approximately 6:00 p.m. on May 19, 2005, and remained at the house until approximately 9:30 p.m. According to Hulan, Whited remained at the house the entire evening of May 19, 2005, because he was unable to leave due to his back injury. Daniel Stidham testified that in May 2005 he was employed by Mutual Savings Life Insurance and that Whited was one of his customers. Stidham testified that on May 19, 2005, he and his sales manager saw Whited and his father at "Ms. Turley's." Stidham testified that he was able to recall that he saw Whited on May 19, 2005, because he had a "copy of [his] mandate," which he kept for work. It appears from the record that Whited had several potentially strong arguments available to him that could have been presented to the jury in a closing argument. The State's case lacked any physical or forensic evidence linking Whited to the crime. Whited had tested negative for a sexually transmitted disease that both the victim and codefendant Dunn had tested positive for. The victim's graphic testimony describing the attack in her bedroom was qualified by the fact that the bedroom was dark and that she could not see her 34 1130686 attackers' faces. There were a number of inconsistencies in the evidence that could have been argued to the jury, including the testimony from investigator Sims that the victim did not initially name Whited as one of her attackers and the victim's own testimony at trial that she was vaginally penetrated after having specifically denied being vaginally penetrated during Dr. Stradtman's examination of her. Finally, Whited had presented evidence of an alibi that could have been argued to the jury. The existence of these seemingly strong arguments against guilt that were available to Whited and that could have been presented to the jury during a closing argument distinguishes this case from Floyd, supra. The State's Closing Argument Whited next argues that the Court of Criminal Appeals failed to fully consider his trial counsel's waiver of closing argument in light of the content of the State's closing argument. The prosecutor stated to the jury during the State's initial closing argument that "all the stuff you heard ... is not easy to hear" and that it "sure wasn't easy for [the victim] to get up here and tell it to thirteen 35 1130686 strangers." The prosecutor then referenced other criminal activity that was unrelated to the case, stating: "I flipped on the [television] this morning about five o'clock on Channel 13 and one of the first things I see on the news is where a convicted felon from another state was caught here in Alabama because he had molested and sodomized a thirteen year old girl in another state. I thought, 'You can't get away from it.' It is not something even though we hear about it and we know in the back of our mind that it goes on, it is not something we like to think about or that it goes on in our society especially here in Blount County." The prosecutor further stated to the jury that she was a mother and that she disliked the "things that are going on ...out there." She then informed the jury that she thought about how to "sugarcoat" the case, even praying for an answer, but then determined that "[i]t is what it is," stating that "there is no easy way to sugarcoat it. It is ugly. It is nasty. It is repulsive." The prosecutor stated that she came to the realization that the case could not be "sugarcoated" because no one had "sugarcoated" it for the victim. She explained: "When [the victim] was thirteen years old, she [4] lived here at ---- Godfrey Drive with her dad. That The Court of Criminal Appeals stated that the victim was 4 14 years old. Apparently, although it is not clear from the record, the victim turned 14 around the time of the offense. 36 1130686 was her home. She was supposed to be safe in that home. She was supposed to be able to go to bed at night, get a good night's sleep at thirteen years old and get up and go to school the next morning and not have a care in the world. She is thirteen years old ... When I was thirteen, I didn't have a worry in the world. My parents saw to that. [The victim] didn't have that privilege and that luxury. When she was thirteen years old, nothing was sugarcoated especially on that night back in May of 2005 when these people entered her bedroom--the sanctity of her bedroom where she slept. When they came into her bedroom, they didn't sugarcoat anything for [the victim]-–nothing. Those three men--that man included–-did what they wanted to without thinking anything about [the victim]. They didn't care what happened or what happened afterwards. They did what they wanted to do. [The victim] was there alone in her bed. She had nobody to protect her. We have already established that her mother was nowhere to be found. She even lived in some other county. There was nobody. One of these three men was a man she trusted. She trusted him to take care of her. What does he do? He went in there with them. You heard the testimony. It wasn't sugarcoated. As harsh and abrasive as it may be for us to talk about, I think we had to do that. We had to hear those words. I'm sorry you had to go through it. It was something we had to do to make you understand her story." The prosecutor told the jury how "painful" and "humiliating" it was for the victim to get on the witness stand and to relive the events of May 19, 2005. The prosecutor then referred to the victim as "my hero" for choosing to come to court to testify and to relive the events when she did not have to. The prosecutor told the jury that 37 1130686 Whited had "humiliat[ed] [the victim], beat[en] [the victim], [and] hit [the victim] when she tried to get up" and that "when he finished doing what he did to her" he said, in a whisper, "[i]f you tell anybody, I'm going to kill you." The prosecutor, while crying, closed her statement to the jury stating: "(Crying) I would ask that when you go back--I'm so sorry. I was not going to do this. When you go back in there, just remember it is what it is. And what it is--is ugly. What that man did to that child is a crime." Judge Joiner correctly stated in his dissent that the prosecutor's initial closing argument "can neither be characterized as 'very brief,' nor does 'it appear[] that the prosecution was saving its persuasive argument for last.' Floyd, [571 So. 2d at 1227]." Whited, __ So. 3d at __ (Joiner, J., dissenting). Instead, he described the prosecutor's initial closing argument as "lengthy, persuasive, and emotional," Whited, __ So. 3d at __ (Joiner, J., dissenting), and in that regard this case is further distinguishable from Floyd, supra, and Lawhorn, supra. As stated above, the Court of Criminal Appeals concluded that one "possible" strategic decision for trial counsel's 38 1130686 waiving closing argument in this case was to "prevent the prosecutor from returning on rebuttal and going into specific detail regarding the evidence presented at trial." Whited, __ So. 3d at __. We must question what "specific detail regarding the evidence" was left for the prosecutor to delve into on rebuttal. The only direct evidence linking Whited to the crime was the victim's testimony, which she gave in graphic detail during the trial and which the prosecutor characterized in her initial closing argument as describing an offense that was "ugly," "repulsive," and "nasty." The prosecutor told the jury that Whited "humiliated" and "beat" the victim while sodomizing her and that when he was done "doing what he did to her" he threatened to kill her if she told anyone. The prosecutor described the sad circumstances of the victim's home life and the fact that she had no one to protect her as she lie alone in her bed as the three men, including her own father, entered the bedroom to sodomize her. The prosecutor further told the jury how humiliating and painful it was for the victim to relive the events by testifying as to those events in court and how the victim was her "hero" for doing so when she did not have to. Finally, the 39 1130686 prosecutor referenced other criminal activity unrelated to this case in which an assailant had molested and sodomized a 13-year-old girl. When Whited's trial counsel chose to waive closing argument in this case, he forfeited Whited's last chance to "marshal the evidence" in his favor by presenting to the jury the rather strong arguments available to Whited from which the jury could determine the relative weaknesses of the State's case and from which the jury could conclude that "there may be reasonable doubt of [Whited's] guilt." See Herring, 422 U.S. at 862. As is the case here, "when Whited's trial counsel waived his closing argument, he left the jury with only the tearful, emotional[, and persuasive] plea of the prosecutor to find Whited guilty of first-degree sodomy." Whited, __ So. 3d at __ (Joiner, J., dissenting). After evaluating "all the circumstances surrounding the case at the time of [Whited's] counsel's actions," Strickland, 466 U.S. at 689, including Whited's trial counsel's inability to provide a strategic reason for waiving closing argument; the seemingly strong arguments available to Whited from which the jury could possibly conclude that reasonable doubt existed 40 1130686 as to Whited's guilt; and the length and highly emotional nature of the State's initial closing argument, we conclude that trial counsel's decision to waive closing argument was an "error[] so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and that the waiver of Whited's closing was deficient under Strickland. Strickland, 466 U.S. at 689. Thus, Whited has satisfied the first prong of Strickland. We next must determine whether Whited was prejudiced by his trial counsel's deficient performance in waiving his right to a closing argument. Strickland, supra. As discussed at length above, the State's case against Whited lacked any physical evidence connecting Whited to the crime, there were inconsistencies in the victim's testimony, the victim and co- defendant Dunn tested positive for a sexually transmitted disease for which Whited tested negative, and Whited had a relatively strong alibi. By failing to make a closing argument on Whited's behalf, Whited's trial counsel lost the final opportunity to present these arguments to the jury in order "to persuade the trier of fact that there may be reasonable doubt of [Whited's] guilt." Herring, 422 U.S. at 41 1130686 862. We conclude that had these aspects of the case been presented to the jury in a closing argument "there is a reasonable probability that ... the result of the proceeding would have been different." Strickland, 466 U.S. at 694. 5 Thus, Whited has satisfied the second prong of Strickland. Conclusion Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case for that court to direct the trial court to grant Whited's motion for a new trial. REVERSED AND REMANDED. Stuart, Murdock, and Bryan, JJ., concur. Moore, C.J., and Parker and Shaw, JJ., dissent. Main and Wise, JJ., recuse themselves.* We do not imply that the State's evidence was 5 insufficient to convict Whited of first-degree sodomy. We conclude only that, based on the circumstances present in this case, Whited was prejudiced under Strickland by his trial counsel's failure to make a closing argument on his behalf. Justice Main and Justice Wise were members of the Court * of Criminal Appeals when that court considered this case. 42	February 6, 2015
4842f24c-2914-4a57-9f2a-7f52b55cd37a	Megan Marie Russell v. Keone Kaukawele Fuqua	N/A	1120957	Alabama	Alabama Supreme Court	REL: 03/20/2015 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 ____________________ 1120957 ____________________ Megan Marie Russell v. Keone Kaukawele Fuqua Appeal from Mobile Probate Court (PR-12-2270) On Application for Rehearing PER CURIAM. This Court's opinion of May 9, 2014, is withdrawn, and the following is substituted therefor. 1120957 2 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 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 1120957 3 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 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 1120957 4 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 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. 1120957 5 "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's] being capable of inheriting the [father's] estate. ".... "[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 1120957 6 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: "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 1120957 7 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). 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)). Section 12-13-1(b)(10), Ala. Code 1975, provides: "(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." (Emphasis added.) Thus, the legislature has given the probate courts jurisdiction over actions in which a "person" files a "declaration" that the statute says is "his filing," that is "signed by him," and that requests a change of his own name to a name to which "he wishes" it to be changed. What is at 1120957 Clearly, the language of § 12-13-l(b)(10) provides for 1 the filing of an action by an adult to change his or her own name. That said, we note that the statute makes reference to the filing of a declaration by a "person," a term that in itself is not limited to adults. See Ala. Code 1975, § 1-1- 1(1) (explaining that the term "person" includes a "natural person"). Compare, e.g., Mack v. Carmack, 79 So. 3d 597 (Ala. 2011) (holding that the term "person" applies even to a child in utero). For purposes of this case, we may assume, without deciding, that this statute also gives jurisdiction to a probate court over a petition and declaration for change of a minor’s name filed on behalf of a minor by the minor's next friend, see Rule 17, Ala. R. Civ. P., provided that the petition does not implicate custodial issues falling within the jurisdiction of the circuit court. This is not the circumstance presented in the present case. 8 issue in the present case, however, is whether the probate court has jurisdiction over an action in which one person, the father, attempts to change the name of another person, his child. Section 12-13-1(b)(10) has no application to such an action.1 Nor did the probate court have jurisdiction to order a change of name under chapter 11 of Title 26 of the Code of Alabama 1975. That chapter governs so-called legitimation proceedings, i.e., actions in which a father seeks to legitimate an illegitimate child as his own. Section 26-11-3, Ala. Code 1975, provides, in part: "(a) The father may petition at the time of filing the declaration of legitimation or at any time subsequent to the determination of legitimation 1120957 9 to 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. ..." As the probate court itself explained, chapter 11 of Title 26 concerns efforts by "the father of a bastard child ... to legitimate it." In addition to the fact that § 26-11-3 is part of the chapter in the Code governing legitimation proceedings, it specifically states that the petition for a name change is to be filed "at the time of filing the declaration of legitimation" or "subsequent to the determination of legitimation." "[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 under § 26-11-3 derives from that court's jurisdiction over legitimation actions. It is undisputed that the father's petition was not filed as part of a legitimation proceeding. Section 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 1120957 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. 10 general equity jurisdiction and, specifically, its jurisdiction over matters within the realm of custody disputes between two parents. As Judge Crawley explained in discussing § 26-11-3(a) in his dissenting opinion in Clark v. Clark, 682 So. 2d 1051 (Ala. Civ. App. 1996) (plurality opinion):2 "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). 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). 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 1120957 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 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. APPLICATION GRANTED; OPINION OF MAY 9, 2014, WITHDRAWN; OPINION SUBSTITUTED; JUDGMENT VACATED; APPEAL DISMISSED. Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur.	March 20, 2015
9db525bd-5246-4407-82b0-76d9c2bc1efd	Alfa Mutual General Ins. Co. v. Oglesby	711 So. 2d 938	1960928	Alabama	Alabama Supreme Court	711 So. 2d 938 (1997) ALFA MUTUAL GENERAL INSURANCE COMPANY v. Jerry OGLESBY. 1960928. Supreme Court of Alabama. December 19, 1997. Rehearing Denied March 20, 1998. 940 Connie Ray Stockham and Stephanie Zohar Lynton of Stockham & Stockham, P.C., Birmingham, for appellant. Thomas W. Harmon of Brooks & Harmon, Anniston, for appellee. SHORES, Justice. Alfa Mutual General Insurance Company ("Alfa") appeals from a judgment entered on a jury verdict for Jerry Oglesby on his claim alleging breach of contract. Alfa initiated the litigation by suing for a declaratory judgment and for rescission of a contract between the parties. We affirm. Jerry Oglesby purchased a homeowner's insurance policy from Alfa in December 1989. On December 28, 1989, the policy went into effect; it provided coverage of $35,000 for Oglesby's dwelling, $24,500 for the contents of the dwelling, and $10,500 for the loss of use of the dwelling. The policy was renewed annually. The last renewal policy went into effect on January 10, 1994; it provided increased coverage of $43,000 for the dwelling, $30,000 for the contents, and $12,900 for the loss of use. On February 16, 1994, Oglesby's house was completely destroyed by fire. On February 28, 1994, Oglesby filed a sworn proof of loss statement with Alfa. During its investigation of the fire, Alfa discovered that before he had bought the insurance policy Oglesby had been arrested for indecent exposure. Alfa filed this action for a declaratory judgment seeking to rescind the contract between Alfa and Oglesby, alleging that the company should not be liable to Oglesby on his homeowner's policy because when he applied for the policy he failed to answer "yes" to the question "Has anyone in the household ever been arrested for any reason?" On May 23, 1994, Oglesby answered and counterclaimed, alleging breach of contract. Alfa moved for a summary judgment, contending that Oglesby had made material misrepresentations in his application by not disclosing that he had pleaded guilty in Georgia to four counts of public indecency. Alfa argued that information of Oglesby's arrests was material to its acceptance of the risk and that if it had known of Oglesby's arrests it would not have issued the policy of insurance. The trial court denied the motion. The case was tried on September 24, 1996. The jury returned a verdict in favor of Oglesby for $82,500. Alfa moved for a new trial on October 25, 1996; its motion was denied by operation of law. Alfa raises the following issues: whether the trial court erred (1) in directing a verdict for Oglesby on Alfa's claims of misrepresentation under § 27-14-7, Ala.Code 1975; (2) in failing to charge the jury on misrepresentation made by Oglesby during the application process and before the fire loss; (3) by allowing evidence to be offered to show that there had not been a criminal prosecution of Oglesby for arson; (4) in denying Alfa's motion for summary judgment; (5) by not allowing complete testimony and evidence regarding Oglesby's prior arrests and convictions; (6) in denying Alfa's motion for new trial; and (7) in calculating the prejudgment interest award. Alfa first argues that the trial court erred in granting Oglesby's motion for a directed verdict. During the trial, the Alfa agent who sold the policy testified that the question on the application about prior arrests had been asked of Oglesby and that Oglesby answered it "No." The trial court refused to allow Alfa to introduce evidence of the facts surrounding the arrests and/or convictions. At the close of Alfa's evidence, Oglesby moved for a directed verdict as to Alfa's claim of misrepresentation under § 27-14-7, based on the case of State Farm Gen. Ins. Co. v. Oliver, 658 F. Supp. 1546 (N.D.Ala.1987). The trial court granted Oglesby's motion and directed a verdict on Alfa's claim of misrepresentation under § 27-14-7. Section 27-14-7(a) provides: Because the court directed a verdict for Oglesby on this issue, the jury was not charged on the law regarding misrepresentations in the application and misrepresentations before the loss. The standard of review applicable to a motion for a directed verdict is stated as follows: Hosea O. Weaver & Sons v. Towner, 663 So. 2d 892, 894 (Ala.1995). Alfa contends that the trial court erred in directing a verdict on Alfa's claim because, it says, there are questions of fact as to whether Oglesby made misrepresentations during the policy application and before the fire loss. Alfa argues that the trial court erred in holding that the federal district court decision in State Farm was dispositive of the misrepresentation issue. In State Farm, as in this present case, the insurer sought to deny benefits for a fire loss, on the basis of a misrepresentation in the insured's application. In that district court case, in reviewing State Farm's post-judgment motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, District Judge William Acker stated: State Farm, 658 F. Supp. at 1550. (Emphasis original.) The trial court directed a verdict for Oglesby on Alfa's claim that the contract should be rescinded because of Oglesby's alleged misrepresentation under § 27-14-7. The trial court, relying upon State Farm, held that § 27-14-7 does not apply to renewal policies and, because the policy in issue was a renewal policy, determined that a directed verdict was warranted. We conclude that the legislature intended that § 27-14-7 apply to initial policies and the applications therefor. Therefore, the trial court properly directed a verdict for Oglesby on Alfa's claim for rescission based upon an alleged misrepresentation. Alfa next argues that the trial court erred in refusing to include certain of Alfa's 942 requested jury instructions (specifically Nos. 1-7 and No. 9) in its charge to the jury. Alfa attached copies of these requested charges as appendixes to its brief filed in this Court, but they were not included in the record on appeal. The record does indicate that the trial court charged the jury that a misrepresentation is an affirmative defense to a breach-of-contract claim. The trial court's charge in this regard was as follows: Alfa objected to the trial court's refusal to charge the jury on misrepresentation pursuant to § 27-14-7 and to the court's omission from charge No. 9 of language regarding the time of the alleged misrepresentation. As previously mentioned, the record does not contain a copy of the requested jury instructions. "This court cannot assume error, nor can it presume the existence of facts to which the record is silent. Dais v. State ex rel. Davis, 420 So. 2d 278 (Ala.Civ.App. 1982). The appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal. Matter of Coleman, 469 So. 2d 638 (Ala.Civ.App.1985)." Newman v. State, 623 So. 2d 1171, 1172 (Ala. Civ.App.1993). Alfa next argues that the trial court committed reversible error by allowing testimony regarding whether Oglesby had been criminally prosecuted for arson. The testimony at issue was elicited from Alfa's investigator, Rodney Brown, during cross-examination. The questioning regarded the report of the fire to the state fire marshal and the state fire marshal's subsequent investigation of the fire. In his questioning of Brown, Oglesby's attorney, referring to the investigation by the state fire marshal, asked, "And he did not bring any criminal charges in this case?" Brown responded by stating "I do not know." Alfa objected, and the trial court overruled the objection. Once again Oglesby's attorney asked, "No criminal charges were brought?" Brown once again responded, "I don't know." Rule 61, Ala. R. Civ. P., states: The trial court committed no reversible error in allowing the testimony from Brown, for two reasons. First, the testimony elicited from Brown indicated that he did not know to what extent an arson investigation was conducted; therefore, even if admitting the testimony was error, the error was harmless. See Rule 45, Ala. R.App. P. Second, Brown's direct examination by Alfa's attorney indicated that an investigation had been conducted by Alfa, the state fire marshal, and the office of the Paulding County, Georgia, sheriff. Therefore any elicitation of testimony on cross-examination regarding that investigation would be proper. Alfa next argues that the trial court erred in denying its motion for summary judgment. "In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the 943 burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 798 (Ala.1989). Evidence is "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." 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. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990). The trial court's order denying Alfa's motion for summary judgment stated, in pertinent part: In considering whether the trial court erred in denying Alfa's motion for summary judgment, we must consider Alfa's argument regarding what effect Oglesby's concealment of his arrests and convictions for indecent exposure had on Alfa's decision to insure or not to insure Oglesby. Alfa relies on Clark v. Alabama Farm Bureau Mut. Cas. Ins. Co., 465 So. 2d 1135 (Ala.Civ.App. 1984), in which the Court of Civil Appeals held "that a conviction of a crime involving moral turpitude which is not disclosed to a prospective insurer increases the risk of loss as a matter of law." 465 So. 2d at 1140. However, the Court of Civil Appeals in Clark did not specifically state that indecent exposure is a crime involving moral turpitude; rather it stated: 465 So. 2d at 1139. "Moral turpitude" was defined by this court in Ex parte McIntosh, 443 So. 2d 1283, 1284 (Ala.1983), as follows: (Quoting C. Gamble, McElroy's Alabama Evidence § 145.01(7) (3d ed.1977).) We are not bound by Georgia law, contrary to the trial court's statement in its order; the courts of this state have not determined whether indecent exposure is a crime involving moral turpitude. Reviewing the record in a light most favorable to Oglesby, this Court must conclude that the trial court properly denied Alfa's motion for summary judgment. Alfa next argues that the trial court erred in not allowing it to present complete evidence and testimony concerning Oglesby's arrests. Alfa relies on Rule 401, Ala. R. Evid., and Clark, supra, in its argument of this issue. Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Alfa contends that Clark stands for the proposition 944 that materiality is a question for the jury, and, therefore, that the jury was entitled to full and complete information concerning Oglesby's arrests. The trial court did allow evidence of Oglesby's arrests and convictions; however, it refused to allow testimony regarding the factual allegations surrounding the charges and the sentence that Oglesby received for his convictions. We cannot discern how an omission of the facts surrounding the charge and the sentence received by Oglesby would have been relevant to the outcome of this case. We conclude, in light of the court's ruling on Oglesby's motion for a directed verdict, that the arrests and convictions, regardless of whether the complete testimony and evidence had been allowed, were not sufficient to show that there had been a material misrepresentation under § 27-14-7. Alfa next argues that the trial court erred in denying its motion for a new trial. Jones v. Baltazar, 658 So. 2d 420, 421 (Ala. 1995). In considering the issues we have previously addressed, we have written to each of the arguments made by Alfa in its motion for a new trial. We conclude that the trial court did not err in denying that motion. Last, Alfa argues that the trial court erred in calculating the prejudgment interest award. Alfa did not raise this issue in a post-judgment motion. An issue not raised in the trial court cannot be raised for the first time on appeal. Hutchins v. Shepard, 370 So. 2d 275 (Ala.1979); Brown v. Robinson, 354 So. 2d 272 (Ala.1977); McWhorter v. Clark, 342 So. 2d 903 (Ala.1977); McDuffie v. Hooper, 294 Ala. 293, 315 So. 2d 573 (1975). Accordingly, this Court need not address the merits of Alfa's argument. The judgment is affirmed. AFFIRMED. ALMON, KENNEDY, and COOK, JJ., concur. BUTTS, J., concurs specially. HOOPER, C.J., and HOUSTON and SEE, JJ., dissent. MADDOX, J., recuses himself. BUTTS, Justice (concurring specially). Alfa's misrepresentation defense was based upon § 27-14-7, Ala.Code 1975, which provides: In State Farm Gen. Ins. Co. v. Oliver, 658 F. Supp. 1546 (N.D.Ala.1987), an insurer sought to avoid payment of benefits to the insured under a fire insurance policy, based upon misrepresentations that the insured had made in his original application for insurance. In denying the insurer's motion for judgment notwithstanding the verdict, the United States district court held: 658 F. Supp. at 1550 (emphasis original). Here, as in State Farm, the policy in effect at the time of the fire was not the original policy, but was instead a renewal policy that was not issued pursuant to the original application. I agree that the legislature intended that § 27-14-7(a)(3) apply only to initial policies and the applications therefor; thus, I conclude that the trial court properly directed a verdict for Oglesby on Alfa's misrepresentation defense. HOOPER, Chief Justice (dissenting). I must respectfully dissent. I believe the trial court erred in directing a verdict for Oglesby on Alfa's misrepresentation claim that was based on § 27-14-7, Ala.Code 1975. The majority states that the legislature intended this statute to apply only to initial policies. Because the insured is seeking to recover under a renewal of the original policy, the majority holds that the statute regarding misrepresentation does not apply. I disagree. Nothing in § 27-14-7 indicates that it applies only to the initial application and the initial policy: Oglesby's policy was renewed annually after it went into effect in December 1989, until 1994, when the fire that is the subject of this dispute occurred. However, there was only one application, and Oglesby was not truthful in completing it. There is no evidence of a substitute application; the application involved in this case is the original application. We might have a different situation if Oglesby had completed a new application with each renewal. He did not. The issuance of a renewal policy should not operate to void the effect of statements made in the originaland onlyapplication. See 43 Am.Jur.2d Insurance § 1020 (1982) ("in the absence of a new application or anything showing a different intention, the renewal of a fire insurance policy is impliedly made on the basis that the statements in the original application or policy are still accurate and operative"). Section 27-14-7 was certainly not written to protect an insurer from misrepresentations made in the application, but only for the length of the original policy term. Under the rationale of the majority opinion, an insured could give false information on an application for insurance and then hide the truth for a year (or whatever the term of the original policy), and then, once a renewal policy is issued, be free from the consequences of being untruthful. I do not believe one should benefit from being untruthful. The majority is rewarding Oglesby for not telling the truth and for concealing the truth for five years. The fact that Alfa 946 did not discover the truth until after the term of the initial policy had ended should not prevent Alfa from denying coverage as a result of Oglesby's misrepresentation. Nothing in the statute suggests the result reached by the majority. Oglesby misrepresented a fact that was material to the acceptance of the risk, and Alfa took that risk under the belief that Oglesby had had no prior arrests. The fact that Oglesby seeks recovery under a renewal policy should not excuse his untruthfulness. Further, the majority's reliance on State Farm Gen. Ins. Co. v. Oliver, 658 F. Supp. 1546 (N.D.Ala.1987), aff'd, 854 F.2d 416 (11th Cir.1988), for the proposition that § 27-14-7 should be read to apply only to the original insurance policy and not to renewal policies, is misplaced. Although the Court of Appeals for the Eleventh Circuit affirmed the judgment in State Farm, it did so for reasons other than that used by the trial court. The Eleventh Circuit reasoned that § 27-14-7 did not apply because State Farm had set forth in its policy a different standard for determining whether a policy was voidableintentional misrepresentation. 854 F.2d 416, 419. Thus, State Farm could not fall back on the less stringent standard of § 27-14-7 for determining voidabilityinnocent misrepresentation. Id. The Eleventh Circuit's reasoning implies that had State Farm not set forth in its policy a different standard for determining the misrepresentation that would make a policy voidable, § 27-14-7 would have applied to the renewal policy. Id. "An insurance company has the right to expect a prospective insured to give truthful information on the application, and the insurance company normally has no duty to inquire further into whether an insured has told the truth on the application." Amerson v. Gardner, 681 So. 2d 570, 573 (Ala.Civ.App. 1996) (citing Hess v. Liberty National Life Ins. Co., 522 So. 2d 270 (Ala.1988)). Oglesby did not tell the truth on his application. "It is established law in Alabama that an intentional misrepresentation of material facts relied upon by the insurer permits the insurer to void the policy." Clark v. Alabama Farm Bureau Mut. Cas. Ins. Co., 465 So. 2d 1135, 1139 (Ala.Civ.App.1984) (emphasis omitted). Oglesby's misrepresentation was clearly intentional. I find it hard to believe that one could forget about an arrest for indecent exposure. Therefore, Alfa should be able to void the policy. If Oglesby's loss had occurred during the term of the original policy, there would be no question that Alfa could deny coverage because of the misrepresentation. I see no reason for the result to change just because by the time of the loss the insured had been issued a renewal policy. Therefore, I must dissent. SEE, J., concurs. HOUSTON, Justice (dissenting). Because I insist on a level playing field in the Alabama Judicial System, I must dissent. I am persuaded that if in a fraud action the trial court had directed a verdict against a plaintiff who had presented the evidence of misrepresentation that Alfa presented in this case to support its defense of misrepresentation, a majority of this Court, including me, would have reversed and remanded for another trial; therefore, I must vote to reverse and remand. Alfa presented substantial evidence sufficient to submit its misrepresentation defenses based on the insurance policy and on Ala.Code 1975, § 27-14-7(a)(1), to the trier of fact for resolution. It is undisputed that Oglesby was asked the question: "Has anyone in the household ever been arrested for any reason?" and it is undisputed that he answered "No." It is undisputed that in fact Oglesby had been arrested eight times before he represented to Alfa that no one in his household had been arrested for any reason. Oglesby's arrests started in 1971 and continued until 1989, the last of the eight coming only several months before Oglesby applied for the policy. The arrests were for assault and battery, kidnapping, aggravated assault, public indecency (four counts), and harassment. He was convicted of six of the offenses for which he was arrested. It is undisputed that Alfa did not know of Oglesby's arrests when it issued the policy or when it subsequently renewed the policy. It is undisputed that if the evidence of arrests had been made known, the agent 947 could not have bound coverage and Alfa would not have issued the policy. It is undisputed that the policy contained the following provision: It is undisputed that Ala.Code 1975, § 27-14-7(a), provides: In my opinion, the trial court erred to reversal in directing a verdict against Alfa on Alfa's misrepresentation defenses.	December 19, 1997
b908fabe-1c8b-453b-9235-7f8a23860331	Ex parte D.E.	N/A	1140207	Alabama	Alabama Supreme Court	REL: 01/30/2015 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 ____________________ 1140207 ____________________ Ex parte D.E. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: D.E. v. Jefferson County Department of Human Resources) (Jefferson Juvenile Court, JU-07-84488.02, JU-07-84489.03, and JU-10-95200.01; Court of Civil Appeals, 2130461) STUART, Justice. WRIT DENIED. NO OPINION. 1140207 Bolin, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Parker and Murdock, JJ., dissent. 2 1140207 MOORE, Chief Justice (dissenting). On February 18, 2014, the Jefferson Juvenile Court terminated the parental rights of D.E. ("the mother") to three of her six children. The Court of Civil Appeals affirmed the juvenile court's judgment, without an opinion. D.E. v. Jefferson Cnty. Dep't of Human Res. (No. 2130461, September 19, 2014), ___ So. 3d ___ (Ala. Civ. App. 2014)(table). This Court today denies the mother's petition for a writ of certiorari. I dissent from that denial because there appears to be no clear and convincing evidence to support the termination of her parental rights. The mother has never abused her children and seems to have taken great measures to support them to the best of her ability. The juvenile court placed undue weight on the fact that the mother was previously in an abusive relationship with the children's father. The mother alleges that she has not seen 1 the father since February 2012, when he appeared at her place In 2005 the father stabbed the mother and was convicted 1 of attempted murder as a result. In 2008 the father was released from jail. In July 2009 the father moved in with the mother, and they resumed their relationship. In October 2010, after the father had engaged in numerous acts of violence against the mother, the mother was granted a permanent order of protection against him. 3 1140207 of employment. The children have not communicated with or seen the father since March 2010, and there is no indication that he ever abused them. The mother claims that she is unaware of the father's whereabouts, that she does not have his contact information, and that she does not communicate with his relatives. The evidence before the juvenile court showed that the mother's housing was stable and that she had two bedrooms, four beds for the children, and ample furniture. At the time of the hearing she was employed as a sitter for the elderly at a hospital and had maintained continual employment with various employers for the year and a half preceding the hearing. Although the children had been removed from the mother's custody at some point before the hearing, the mother consistently visited the children and talked with them regularly by telephone. She provided the children with clothes and cash, among other things. The social worker assigned to the mother's case from October 2011 through February 2013 testified that the mother was cooperative and that she had participated in therapy. 4 1140207 "'This court has consistently held that the existence of evidence of current conditions or conduct relating to a parent's inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.'" P.H. v. Madison Cnty. Dep't of Human Res., 937 So. 2d 525, 531 (Ala. Civ. App. 2006) (quoting D.O. v. Calhoun Cnty. Dep't of Human Res., 859 So. 2d 439, 444 (Ala. Civ. App. 2003), and citing T.H. v. State Dep't of Human Res., 740 So. 2d 1089, 1092 (Ala. Civ. App. 1998), and Bowman v. State Dep't of Human Res., 534 So. 2d 304, 306 (Ala. Civ. App. 1988)). Under our precedents a juvenile court may consider "'"the past history of the family"'" when determining whether the evidence supports a termination of parental rights. M.J.C. v. G.R.W., 69 So. 3d 197, 207 (Ala. Civ. App. 2011) (quoting A.R. v. State Dep't of Human Res., 992 So. 2d 748, 760 (Ala. Civ. App. 2008), quoting in turn T.B. v. Lauderdale Cnty. Dep't of Human Res., 920 So. 2d 565, 570 (Ala. Civ. App. 2005)). The history of the family in this case suggests that the father, not the mother, was unable and unwilling to properly care for the children; it also suggests that he is no longer in contact 5 1140207 with the family. The mother's current conditions reveal that she is improving in the father's absence and seems sufficiently able and willing to raise her own children. Therefore, I would grant the mother's petition to consider whether this Court should reverse the judgment of the Court of Civil Appeals. Murdock, J., concurs. 6	January 30, 2015
a6d79704-f962-46f0-b767-a06418b5ab2a	Ex Parte Citicorp Acceptance Co., Inc.	715 So. 2d 199	1951977	Alabama	Alabama Supreme Court	715 So. 2d 199 (1997) Ex parte CITICORP ACCEPTANCE COMPANY, INC. (Re CITICORP ACCEPTANCE COMPANY, INC. v. Truman L. McILWAIN and Eloise McIlwain). 1951977. Supreme Court of Alabama. December 16, 1997. 201 Sterling G. Culpepper, Jr., David R. Boyd, and Donald R. Jones, Jr., of Balch & Bingham, Montgomery, for petitioner. Joe R. Whatley, Jr., and Frederick T. Kuykendall III of Cooper, Mitch, Crawford, Kuykendall & Whatley, L.L.C., Birmingham; T. Roe Frazer II, Richard A. Freese, and Leslie E. McFall of Langston, Frazer, Sweet & Freese, P.A., Birmingham; E. Mark Ezell and John Sharbrough of Ezell & Sharbrough, L.L.C., Butler; and William L. Utsey of Utsey, Christopher & Newton, Butler, for respondents. SEE, Justice. This mandamus petition arises from a trial court's conditional certification of a class action. Citicorp Acceptance Company, Inc. ("Citicorp"), seeks a writ of mandamus directing the Choctaw Circuit Court to decertify the class. Citicorp contends that the trial court abused its discretion by: (1) basing certification solely on the allegations of the plaintiffs in their amended counterclaim; and (2) certifying the class without first giving notice to Citicorp. We agree with both contentions; therefore, we grant the writ. In April 1989, Citicorp filed the original complaint against Truman and Eloise McIlwain seeking repayment of the amount owed under a mobile home financing agreement.[1] The McIlwains answered and counterclaimed in January 1990. The counterclaim asserted class allegations based on excessive finance charges arising from the method by which the charges were calculated.[2] In June 1992, Citicorp filed a motion to dismiss the McIlwains' counterclaim. The trial court did not rule on that motion. In fact, no action was taken on the case from June 1992 until the McIlwains filed a second amended counterclaim and motion for class certification, on October 19, 1995.[3] On that same date, before Citicorp had received the amended counterclaim, and without notice to Citicorp, the trial court certified the following class: The trial court named the McIlwains as class representatives. Citicorp moved the trial court to vacate the class action order and to reconsider the class certification, alleging that the Rule 23(a), Ala. R. Civ. P.,[4] safeguards had been disregarded. Citicorp also moved for dismissal of the amended complaint, with its class allegations, as untimely. The trial court denied both motions and ordered the parties to proceed with discovery. Citicorp filed this petition for a writ of mandamus. A petition for a writ of mandamus is the proper method for obtaining review of the certification of a class action.[5]Ex parte Blue Cross & Blue Shield, 582 So. 2d 469 (Ala.1991). Mandamus review of class certification is available when the party seeking review has demonstrated a compelling reason. Ex parte Green Tree Fin. Corp., 684 So. 2d 1302, 1307 (Ala.1996) (citing Ex parte Masonite Corp., 681 So. 2d 1068 (Ala.1996)). Citicorp has demonstrated that the McIlwains, who sought the class certification, failed to produce sufficient evidence that the class met the four prerequisites of Rule 23(a), Ala. R. Civ. P., and at least one of the prerequisites of Rule 23(b), Ala. R. Civ. P. See Green Tree, 684 So. 2d at 1307 (stating that when the trial court fails to require the plaintiff to meet his burden of proof under Rule 23, a compelling reason for review has been established). Citicorp asserts that the trial court abused its discretion when it certified the class solely on the basis of the McIlwains' pleading, and that this certification improperly shifted the burden of proof to the defendant. Citicorp now finds itself having to produce sufficient evidence to undo the class certification, even though the McIlwains have not satisfied their initial burden to meet the Rule 23 prerequisites. The McIlwains claim that this conditional certification is in accord with the requirement of Rule 23 that "[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." Ala. R. Civ. P., Rule 23(c)(1). They contend that this Court should promote, not limit, ex parte conditional certification. This, they argue, is compelled by the abatement rule, by which certification of a conditional class prevents another court from certifying a class on the same issues,[6] and by the fact that class certification 203 protects the class by tolling the running of the statutory period of limitations and giving early notice to class members.[7] While conditional certification of a class action is allowed, simply labeling a class certification as "conditional" does not relieve the trial court of its obligation to conduct a rigorous analysis and to require the plaintiff to carry its burden of proof as to the appropriateness of class treatment under Rule 23(a). Castano v. American Tobacco Co., 84 F.3d 734, 741 (5th Cir.1996).[8] All classes are "conditional" in that they are subject to decertification. As the Court of Appeals for the Third Circuit stated in In re General Motors Corp. Pick-Up Truck Fuel Tank, 55 F.3d 768, 792 n. 14 (3d Cir.1995): In Castano, based solely on the pleadings before the court, the plaintiffs sought and received certification of a nationwide class of all smokers and nicotine-dependent persons and their families. Although the certification was labeled "conditional," the Court of Appeals for the Fifth Circuit decertified the class, because the district court had failed to consider how variations in state law would affect predominance and superiority, and because the district court's predominance inquiry had not included a consideration of how a trial on the merits would be conducted. Id., 84 F.3d at 742. The seminal and frequently cited case of General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982), demonstrates that class actions may not be approved lightly and that the determination of whether the prerequisites of Rule 23 have been satisfied requires a "rigorous analysis." In Falcon the trial court failed to meet this "rigorous analysis" standard. Falcon, a Mexican-American, sued his employer, General Telephone, making class allegations and contending that he was denied a promotion because, he said, General Telephone's promotion policy operated to disadvantage Mexican-Americans. A federal district court, based on these allegations and without conducting an evidentiary hearing, certified a class consisting of Mexican-American job applicants and employees. The United States Supreme Court held that it was improper to certify such a class based on the mere allegation of discrimination and that no class was properly certifiable unless the party seeking certification specifically demonstrated the Rule 23(a) prerequisites of numerosity, commonality, typicality, and adequacy 204 of representation. Id. The burden of satisfying each of these prerequisites rests solely on the party seeking certification, and the court cannot approve class certification until it has adequate information before it to satisfy each of the prerequisites. Ex parte Blue Cross & Blue Shield, 582 So. 2d at 475. The "rigorous analysis" standard ordinarily requires the trial court to go beyond the bare allegations of the complaint. As the Court of Appeals for the Fifth Circuit stated in Castano, 84 F.3d at 744, "[g]oing beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues." See also, Rodriguez v. Banco Central, 102 F.R.D. 897, 903 (D.P.R. 1984) (stating that examination of the complaint alone will not suffice); King v. Gulf Oil Co., 581 F.2d 1184, 1186 (5th Cir.1978) (stating that "[t]he propriety of class action suits can seldom be determined on the basis of the pleadings alone, and ... it is the duty of the trial court to hold an evidentiary hearing before deciding whether to grant or deny class certification"); and Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir.1985) (stating that bare allegations do not satisfy the prerequisites of Rule 23). The McIlwains also contend that the trial court's order in this case is supported by Ex parte Green Tree Financial Corp., 684 So. 2d 1302 (Ala.1996), and Ex parte Masonite Corp., 681 So. 2d 1068 (Ala.1996). Their reliance on these cases is misplaced. In Green Tree, there was "extensive briefing" and there was argument before the certification hearing. Green Tree, 684 So. 2d at 1304. Even so, this Court reversed the class certification, stating that the trial court had "entered an order based upon little or no evidentiary underpinnings" and that "[t]he order merely parrot[ed] the formulaic language of Rule 23(a)." Id. at 1307. This Court did not decertify the class in Masonite, but that class was certified only after discovery, briefing, and a class certification hearing. Masonite, 681 So. 2d at 1069. The pleading relied on in the present case, like that relied on in Green Tree, amounts to bare allegations and fails to offer a sufficient basis for the trial court to certify the class. Reliance solely on the allegations of the plaintiff, where the defendant has not even been notified, does not provide the basis for a "rigorous analysis." Although the certification order in this case does outline the prerequisites of Rule 23 and does state that each has been met, the trial court: (1) did not test whether the McIlwains could fairly and adequately protect the interest of the classclass representation requires more than having the competence to hire legal counsel;[9] and (2) certified what appears to be a nationwide class without addressing such issues as choice of law and whether the acts of Citicorp were legal in other states. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818, 105 S. Ct. 2965, 2977-78, 86 L. Ed. 2d 628 (1985) (requiring "the state to have significant contact or sufficient aggregation of contacts" to the claims asserted by each plaintiff to ensure that the choice of law was not arbitrary or unfair to the defendant).[10] 205 A class should not be certified without notice to the defendant, who may be able immediately and definitively to dispute the plaintiff's allegations. As Judge Nelson stated in Brewer v. Campo Electronics Appliances & Computers, Inc., CV 96-N-1172-W at n. 1 (N.D.Ala., Aug. 9, 1996) (unpublished), a case in which he vacated an order that conditionally certified a class without notice having been given to the defendants: See also, Pipes v. American Sec. Ins. Co., 169 F.R.D. 382 (N.D.Ala.1996) (stating that certifying a class without notice having been given to the defendant is "quite troubling" and that conditional certification is "the term used by the state court and plaintiff's attorney for a certification order entered without any judicial inquiry into the appropriateness of class certification under Rule 23"). Because the McIlwains failed to establish the prerequisites of Rule 23(a), and because the trial court improperly certified the class without first giving Citicorp notice, Citicorp has demonstrated a clear legal right to the order decertifying the class. WRIT GRANTED. HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur. ALMON, SHORES, COOK, and BUTTS, JJ., concur in the result. KENNEDY, J., dissents. ALMON, Justice (concurring in the result). I concur with Justice Cook's opinion concurring in the result. I concur with the rule announced today in Ex parte State Mutual Ins. Co., 715 So. 2d 207 (Ala.1997), and Ex parte First Nat'l Bank of Jasper, 717 So. 2d 342 (Ala.1997)that the first action filed with class allegations should generally take precedence over later-filed actions seeking the same relief on behalf of the same alleged class. I also agree that certification of a class should not take place before notice is given to the defendant and a hearing is conducted, if a hearing is necessary. I am not sure, however, exactly what is meant by "rigorous analysis." It seems likely that the level of analysis and the requirements of proof or other substantiation of the class allegations will vary from case to case. In the cases announced today, the Court has removed the impetus toward ex parte conditional certifications. In my opinion, any further development of a standard by which certifications should be measured should await a case in which a certification has been ordered or denied after notice has been given, a hearing has been conducted, and the court has issued an order on the merits that is not tainted by the urgency prompted by Ex parte First Nat'l Bank of Jasper, 675 So. 2d 348 (Ala.1995), First Nat'l Bank of Jasper v. Crawford, 689 So. 2d 43 (Ala.1997), and Ex parte Voyager Guar. Ins. Co., 669 So. 2d 198 (Ala.Civ.App.1995). SHORES, J., concurs. COOK, Justice (concurring in the result). I concur in the result. I write specially to discuss briefly the concerns expressed by the respondents, Truman and Eloise McIlwain, regarding filing priority and abatement in class actions. The practice of "conditionally certifying" classes has become almost routine in this 206 state. In fact, the McIlwains' brief lists no fewer than 23 cases recently commenced in 15 Alabama counties in which such orders have been granted.[11] One of these actions was commenced in 1995; 22 were commenced in 1996. In fact, as this Court has considered this present case, it has had before it no fewer than four other cases involving this precise issue. We have today decided those four other cases. See Ex parte American Bankers Life Assurance Co. of Florida, 715 So. 2d 186 (Ala.1997) (conditional certification); Ex parte First National Bank of Jasper, 717 So. 2d 342 (Ala.1997) (conditional certification); Ex parte Equity National Life Ins. Co., 715 So. 2d 192 (Ala.1997) (conditional certification); and Ex parte Mercury Finance Corp. of Alabama, 715 So. 2d 196 (Ala.1997) (conditional certification). I cannot state more succinctly the concerns expressed by the McIlwains than by quoting their brief directly: Brief of Respondents in Opposition to Petition for Writ of Mandamus, at 17-18 (emphasis added). Significantly, the McIlwains also recognized that "[i]f this Court were to consider eliminating the discretion of trial courts to grant conditional certification, then it should also consider whether the abatement rule of [FNB of Jasper I] should be modified." That is precisely what we have done. In Ex parte State Mutual Ins. Co., 715 So. 2d 207 (Ala.1997), we have today overruled FNB of Jasper I. In doing so, we eliminated the conditions that resulted in the "race for justice," of which the McIlwains complain. See also Ex parte First National Bank of Jasper, 717 So. 2d 342 (Ala.1997), also decided today, in which we discuss more fully the implications of the abrogation of the FNB of Jasper I rule for the issues involved in this case. Henceforth, trial courts are to return to the rule applied in Ex parte Liberty National Life Insurance Co., 631 So. 2d 865 (Ala. 1993). Under that rule, the first court in which a complaint containing class allegations is filed has exclusive jurisdiction of the action until that court affirmatively decides whether or not a class certification is proper. 207 In Ex parte First National Bank of Jasper we explained: Id. at 351. Elimination of the rationale for conditional certification will also alleviate the concerns expressed by the respondents in this case and in the other "conditional certification" cases. ALMON and SHORES, JJ., concur. KENNEDY, Justice (dissenting). I dissent. See my opinion concurring specially in Ex parte First National Bank of Jasper, 717 So. 2d 342 (Ala.1997). [1] The McIlwains defaulted on their mobile home payments and Citicorp repossessed the mobile home. Citicorp's resale of the mobile home did not satisfy the debt the McIlwains owed under the financing agreement. Citicorp sued to collect the deficiency. [2] The McIlwains also filed separate individual actions alleging fraud and misrepresentation. [3] This amended counterclaim joined a new plaintiff, Tony McGrew, and included new claims alleging breach of contract, breach of implied contract, and breach of fiduciary duty. The class allegations again charged that Citicorp had engaged in a practice of systematically charging excessive credit life insurance premiums. The allegation is that Citicorp accomplished this by imposing credit life coverage calculated either on the sum total of remaining payments or on the original purchase price. [4] Rule 23(a) provides: "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." [5] Because mandamus is an extraordinary remedy, the party seeking it must demonstrate: "(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). [6] Justice Cook, in his special writing in this case, purports to resolve the problems arising from the race to the courthouse among competing actions through a patchwork application of statutory law, common law, and equitable abatement rules. In doing so, Justice Cook disregards the Legislature's having provided a first-to-file abatement statute, Ala.Code 1975, § 6-5-440, which, by its terms, applies to all situations involving competing actions. For example, if a defendant faces two competing class actions, § 6-5-440 will abate the second-filed class action. This is true even if the second-filed class action is certified first, because certification relates back to the date the class complaint was filed. United States Parole Comm'n v. Geraghty, 445 U.S. 388, 404-05 n. 11, 100 S. Ct. 1202, 1212-13 n. 11, 63 L. Ed. 2d 479 (1980); 13A C. Wright, et al., Federal Practice and Procedure § 3533.9, at 411 (1984). Instead of following the plain terms of the statute, Justice Cook cites Ex parte Liberty National Life Ins. Co., 631 So. 2d 865 (Ala.1993), to support his patchwork approach, even though Ex parte Liberty National itself cites § 6-5-440. See Ex parte State Mut. Ins. Co., 715 So. 2d 207 (Ala.1997) (See, J., concurring in the result). [7] We must note, however, that this is not the purpose of conditional class certification. See In re Hotel Tel. Charges, 500 F.2d 86, 90 (9th Cir. 1974) (stating "[the] purpose of conditional class certification is to preserve the Court's power to revoke certification in those cases wherein the magnitude or complexity of litigation" becomes apparent), and In re General Motors Corp. Pick-Up Truck Fuel Tank, 55 F.3d 768, 785 (3d Cir. 1995) (stating "[t]he requirement in Rule 23[(c)] that the court decide certification motions as soon as practicable ... aims to reduce even further the possibility that a party could use the ill-founded threat of a class action to control negotiations or the possibility that absentees' interests could be unfairly bound. Hence, the procedural formalities of certification are important even if the case appears to be headed for settlement rather than litigation"). See Ex parte First Nat'l Bank of Jasper, 717 So. 2d 342 (Ala.1997) (See, J., concurring in result) (stating that a rigorous analysis is required for conditional certification for settlement purposes) (citing Amchem Products, Inc. v. Windsor, ___ U.S. ___, ___, 117 S. Ct. 2231, 2241-42, 138 L. Ed. 2d 689 (1997)). [8] Because Rule 23, Ala. R. Civ. P., is identical to Rule 23, Fed.R.Civ.P., we use cases interpreting the federal rule as persuasive authority. First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So. 2d 727, 729 (Ala.1981). [9] The court examines two factors in determining adequacy of representation: (1) whether the class representative has any conflicts of interest with respect to the common issues raised on behalf of the class and (2) whether the plaintiff's counsel will vigorously prosecute the litigation on behalf of the class. In this case, a three-year hiatus from June 1992, when Citicorp filed its motion to dismiss the McIlwain's counterclaim, until October 1995, when the McIlwains filed a second amended counterclaim, gives rise to the question whether the class members have been vigorously represented. Jones v. Bowen, 121 F.R.D. 344, 349 (N.D.Ill.1988), vacated as moot, Jones v. Sullivan, 938 F.2d 801 (7th Cir.1991). [10] The McIlwains also rely on Ex parte Voyager Guaranty Ins. Co., 669 So. 2d 198 (Ala.Civ.App. 1995), to support the trial court's certification order. They contend that Voyager: (1) relieves them of the burden of having to produce sufficient evidence that a class is properly certifiable and (2) waives the requirement of notice to a defendant, when the certification is initially labeled as "conditional." In Voyager, 669 So. 2d at 200, the Court of Civil Appeals refused to decertify a class that had been certified without notice to the defendant, stating that mandamus relief was inappropriate where "[the certification] order, by its own terms, is merely a conditional order `pending further discovery and procedures,' and ... contemplates a ruling in regard to class certification after discovery and a hearing." The defendants in Voyager did not seek review in this Court. But more importantly, the defendants did not file a motion with the trial court seeking to have the class decertified. Thus, mandamus relief was inappropriate in Voyager. This Court's opinion in Ex parte American Bankers Life Assurance Co. of Florida, 715 So. 2d 186 (Ala.1997), demonstrates that a party is not relieved of its burden to present sufficient evidence that a class is properly certifiable when the class is labeled as "conditional," but we have not previously addressed the issue whether ex parte conditional certifications are appropriate. [11] These counties were Barbour, Chambers, Choctaw, Clarke, Coosa, DeKalb, Dale, Escambia, Greene, Jefferson, Mobile, Montgomery, Talladega, Tuscaloosa, and Walker.	December 16, 1997
821a03f9-7058-4a42-ab9f-ea94a8fc9c43	Ex parte Kenneth Paul Robertson, Jr.	N/A	1140083	Alabama	Alabama Supreme Court	Rel: 02/13/15 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 ____________________ 1140083 ____________________ Ex parte Kenneth Paul Robertson, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Ex parte Kenneth Paul Robertson, Jr. (In re: Donna L. Robertson v. Kenneth Paul Robertson, Jr.)) (Etowah Circuit Court, DR-09-900109; Court of Civil Appeals, 2130264) BRYAN, Justice. 1140083 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 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. Bolin, Murdock, Shaw, and Main, JJ., concur. Moore, C.J., and Wise, J., recuse themselves. 2	February 13, 2015
65dbcbdc-4474-45f8-b3db-47d7ebf79297	Rayna Reyes and Richard Reyes v. Better Living, Inc d/b/a A Better Way	N/A	1130716	Alabama	Alabama Supreme Court	REL: 02/06/2015 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 _________________________ 1130716 _________________________ Rayna Reyes and Richard Reyes v. Better Living, Inc., d/b/a A Better Way Appeal from Baldwin Circuit Court (CV-12-900646) WISE, Justice. AFFIRMED. NO OPINION. Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., dissents. 1130716 MOORE, Chief Justice (dissenting). At the heart of this case is an issue of first impression: Does Act No. 2011-627, Ala. Acts 2011 ("the Act"), which amended § 6-5-521, Ala. Code 1975, apply retroactively? Because I believe, based on settled precedent, that the answer is "no," I respectfully dissent from affirming the summary judgment entered for defendant Better Living, Inc., d/b/a/ A Better Way. I. Rayna Reyes, an insurance seller, visited Don and JoAnn Phillips at their home in Lillian in June 2010. Responding to a request from Reyes for a glass of water, JoAnn removed a container from the freezer section of her refrigerator, poured a portion of the contents into a glass, and gave the glass to Reyes, who drank it. The Phillipses typically kept water in their freezer in plastic bottles. Unknown to JoAnn, the bottle she selected contained Oxy-Tech, a 35% solution of hydrogen peroxide, which in its undiluted form is a hazardous substance. Don Phillips had purchased the product for health reasons and typically consumed it by mixing a few drops into a glass of water, thus diluting it to a 3% solution. 2 1130716 Reyes suffered permanent scarring of her mouth, throat, esophagus, and vocal cords and an impairment of her ability to speak and to swallow. She also alleged economic loss and pain and suffering. On May 18, 2012, Reyes and her husband Richard sued the 1 Phillipses, the manufacturer, and Better Living, the retail store where Don Phillips purchased the product. After the Reyeses settled with the Phillipses and the manufacturer of Oxy-Tech, the only remaining claims in the case were those against Better Living alleging negligence and liability under the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"). Better Living filed both a motion to dismiss and a 2 Richard claimed loss of consortium, a cause of action 1 that is derivative of Rayna's claims. See Ex parte Progress Rail Servs. Corp., 869 So. 2d 459, 462 (Ala. 2003) (holding that a loss-of-consortium claim is "derivative of, and dependent upon the outcome of, the direct claim"). "The AEMLD is a judicially created accommodation of 2 Alabama law to the doctrine of strict liability for damage or injuries caused by allegedly defective products." Keck v. Dryvit Sys., Inc., 830 So. 2d 1, 5 (Ala. 2002). The AEMLD "by definition ... include[s] not only the manufacturer, but also the supplier and the seller." Casrell v. Altec Indus., Inc., 335 So. 2d 128, 132 (Ala. 1976). The AEMLD does not subsume negligence claims against retailers. "We will not presume to so define the boundaries of the judicially created AEMLD so that it subsumes the common-law tort actions of negligence and wantonness against the retailer defendants." Tillman v. R.J. Reynolds Tobacco Co., 871 So. 2d 28, 35 (Ala. 2003). 3 1130716 motion for a summary judgment. The two motions were identical except for the attachment of an affidavit from the owner of Better Living to the motion for a summary judgment. The affidavit provided factual support for the sole argument in the motions that Better Living, a retailer who neither manufactured nor had modified the bottle of Oxy-Tech sold to Don Phillips, was exempt under the Act from a product- liability action. The Reyeses opposed the motions in the trial court on the ground, now raised on appeal, that the Act, which became effective one year after the June 2010 incident, did not apply retroactively to nullify their common-law causes of action for negligence and strict liability under the AEMLD.3 The trial court entered a summary judgment for Better Living, but provided no reasoning to explain its ruling. The Reyeses appeal. II. From its enactment in 1979 until its amendment in 2011, § 6-5-521, Ala. Code 1975, provided: "The operative facts raise this significant legal 3 question for the Court: did the Alabama Legislature intend for this statute to be retroactive, so as to be applicable to an event that occurred before it was adopted?" Plaintiffs' Supplemental Memorandum in Opposition to Defendant's Motions to Dismiss and for Summary Judgment (March 14, 2013), at 2. 4 1130716 "(a) A 'product liability action' means any action brought by a natural person for personal injury, death, or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, or labeling of a manufactured product when such action is based upon (1) negligence, (2) innocent or negligent misrepresentation, (3) the manufacturer's liability doctrine, (4) the Alabama extended manufacturer's liability doctrine as it exists or is hereafter construed or modified, (5) breach of any implied warranty, or (6) breach of any oral express warranty and no other. A product liability action does not include an action for contribution or indemnity. "(b) The definition used herein is to be used for purposes of this division and is not to be construed to expand or limit the status of the common or statutory law except as expressly modified by the provisions of this division." The Act added the following subsections to § 6-5-521: "(b) No product liability action may be asserted or may be provided a claim for relief against any distributor, wholesaler, dealer, retailer, or seller of a product, or against an individual or business entity using a product in the production or delivery of its products or services (collectively referred to as the distributor) unless any of the following apply: "(1) The distributor is also the manufacturer or assembler of the final product and such act is causally related to the product's defective condition. "(2) The distributor exercised substantial control over the design, testing, manufacture, packaging, or 5 1130716 labeling of the product and such act is causally related to the product's condition. "(3) The distributor altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought. "(4) It is the intent of this subsection to protect distributors who are merely conduits of a product. This subsection is not intended to protect distributors from independent acts unrelated to the product design or manufacture, such as independent acts of negligence, wantonness, warranty violations, or fraud. "(c) Notwithstanding subsection (b), if a claimant is unable, despite a good faith exercise of due diligence, to identify the manufacturer of an allegedly defective and unreasonably dangerous product, a product liability action may be brought against a distributor, wholesaler, dealer, retailer, or seller of a product, or against the individual or business entity using a product in the production or delivery of its products or services. The claimant shall provide an affidavit certifying that the claimant, or the attorney therefor, has in good faith exercised due diligence and has been unable to identify the manufacturer of the product in question. "(d) In a product liability action brought pursuant to subsection (c), against a distributor, wholesaler, dealer, retailer, or seller of a product, or against the individual or business entity using a product in the production or delivery of its products or services, the party, upon answering or otherwise pleading, may file an 6 1130716 affidavit certifying the correct identity of the manufacturer of the product that allegedly caused the claimant's injury. Once the claimant has received an affidavit, the claimant shall exercise due diligence to file an action and obtain jurisdiction over the manufacturer. Once the claimant has commenced an action against the manufacturer, and the manufacturer has or is required to have answered or otherwise pleaded, the claimant shall voluntarily dismiss all claims against any distributor, wholesaler, dealer, retailer, or seller of the product in question, or against the individual or business entity using a product in the production or delivery of its products or services, unless the claimant can identify prima facie evidence that the requirements of subsection (b) for maintaining a product liability action against such a party are satisfied."4 (Emphasis added.) The new subsections exempt from liability retailers like Better Living "who are merely conduits of a product." Better Living did not manufacture Oxy-Tech or label the container of Oxy-Tech, nor did it alter or modify the product. The legislature amended § 6-5-521 in 2011. The Reyeses' causes of action accrued in June 2010, when Rayna drank from the glass of Oxy-Tech. The Reyeses filed suit in May 2012 -- within the two-year statute-of-limitations period for personal injuries, § 6-2-38(l), Ala. Code 1975, but after the effective Original subsection (b) was retained and redesignated 4 subsection (e). 7 1130716 date of the Act. The dispositive question is whether the Act erased the Reyeses' causes of action against Better Living. Or, stated differently, do we apply the law in effect in 2010 when Rayna's injury occurred or the law in effect in 2012 when the underlying action was filed?5 III. A statute that eliminates a cause of action does not apply to a cause of action that has already accrued unless the legislature expressly makes the statute retroactive. "In Alabama, retrospective application of a statute is generally not favored, absent an express statutory provision or clear legislative intent that the enactment apply retroactively as well as prospectively." Jones v. Casey, 445 So. 2d 873, 875 (Ala. 1983). The presumption in Alabama law is that a newly enacted statute does not disturb causes of action that have accrued under previously existing law unless the legislature specifically so provides. "Courts indulge every presumption in The Reyeses contend that, even if the Act operates 5 retroactively, their negligence cause of action is saved by the qualifying sentence that preserves actions against distributors for "independent acts unrelated to the product design or manufacture." Because, under settled precedent, the Act does not apply retroactively to the Reyeses' claims, I do not address the effect of the "independent-acts" exception. 8 1130716 favor of construing actions of the legislature to have a prospective operation unless the legislature's intention is otherwise stated in express terms, or clearly, explicitly, and unmistakenly permit[s] of no other meaning." City of Brewton v. White's Auto Store, Inc., 362 So. 2d 226, 227 (Ala. 1978). 6 The Act contains two sections that define its temporal scope: "Section 2. This act shall apply only to civil actions commenced or filed on or after the effective date of the act. "Section 3. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law."7 Because neither of these sections "clearly, explicitly, and unmistakenly" states that the amendment of § 6-5-521 is to have retroactive effect, the Act does not apply to a cause of The federal rule is the same. "When a case implicates a 6 federal statute enacted after the events in suit" and the statute does not contain an "express command" that it applies to preeneactment events, "the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted." Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). "If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Id. The Governor approved the Act, and it became effective, 7 on June 9, 2011. 9 1130716 action that accrued before its effective date. By contrast, see Ex parte F.P., 857 So. 2d 125, 136 (Ala. 2003) (analyzing a statutory amendment, the enacting legislation for which stated: "This act shall have retroactive effect to January 1, 1997."). An exception to the presumption against retroactivity does exist for statutes that are merely remedial. "Remedial statutes are those statutes relating to remedies or modes of procedure." Mason v. USA Med. Ctr., 646 So. 2d 90, 91 (Ala. Civ. App. 1994). Such statutes "do not create new rights or take away vested ones." Street v. City of Anniston, 381 So. 2d 26, 29 (Ala. 1980). A statute is remedial if "it concerns matters of procedure rather than substantive rights." Mason, 646 So. 2d at 91. A right to sue for injuries caused by a dangerous product is certainly a substantive right. "[I]t is difficult to imagine how a statute creating a new immunity from suit could possibly be viewed as remedial and not substantive." Kruse v. Corizon, Inc. (No. 12-0212-WS-B, July 5, 2013) (S.D. Ala. 2013) (not published in F. Supp. 3d). Because the Act changed the substantive law, namely that "part of the law that creates, defines, and regulates the 10 1130716 rights, duties, and powers of parties," Black's Law Dictionary 1658 (10th ed. 2014), and because the legislature did not state its intent that the Act apply retroactively, the Act has no effect on the Reyeses' causes of action, which accrued in 2010. "It is a fundamental precept of our jurisprudence that substantive legal interests spring from the law in effect at the time such interests are alleged to have arisen or to have been violated." Alabama Power Co. v. Director of Indus. Relations, 36 Ala. App. 218, 221, 54 So. 2d 786, 788 (1951) (emphasis added). See also Kaiser Aluminum & Chem. Corp. v. 8 Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring) (noting "[t]he principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place" and citing extensive authority for the proposition that this principle "has timeless and universal human appeal" (emphasis added)); Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (stating that "the presumption against retroactive legislation is deeply rooted in our For the application of this principle in a different 8 context, see Ex parte Capstone Building Corp., 96 So. 3d 77, 93 (Ala. 2012) (noting that a legislature "cannot shorten a limitations period to the point that it does not permit a reasonable time for the commencement of actions to vindicate already accrued claims"). 11 1130716 jurisprudence, and embodies a legal doctrine centuries older than our Republic").9 Article I, § 13, Ala. Const. 1901, states: "That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law ...." This provision has been construed to protect rights of action that have accrued before a legislative change in the law. "Undoubtedly the right to the remedy must remain and cannot be curtailed after the injury has occurred and right of action vested ...." Pickett v. Matthews, 238 Ala. 542, 545, 192 So. 261, 264 (1939) (construing Art. I, § 13, Ala. Const. 1901 (emphasis added)). See also Reed v. Brunson, 527 So. 2d 102, 114 n.5 (Ala. 1988) (stating that "[s]ection 13 protects the injured party's right to a remedy from the time the civil action accrues until suit is filed"); Mayo v. Rouselle Corp., 375 So. 2d 449, 451 (Ala. 1979) (noting that § 13 "preserves to all persons a remedy for The presumption against retroactive operation of a law 9 underlies provisions forbidding ex post facto criminal laws, Art. I, § 22, Ala. Const. 1901, and the taking of vested rights in property without compensation, Amend. V, U.S. Const. See Landgraf, 511 U.S. at 266 (finding it "not surprising that the antiretroactivity principle finds expression in several provisions of our Constitution"). 12 1130716 accrued or vested causes of action"). By contrast, an injury that accrues after the effective date of a law is governed by that law. See Baugher v. Beaver Constr. Co., 791 So. 2d 932, 934 (Ala. 2000) (finding no violation of § 13 where the "causes of action had not yet accrued when the statute was enacted"); Reed, 527 So. 2d at 114 (finding no violation of § 13 where "injuries occurred after [an amendment to the Workers' Compensation Act] became law"). Because the Act substantively changed § 6-5-521 and did not contain an express statement of retroactivity, it could not void the Reyeses' preexisting causes of action in negligence and under the AEMLD. See Alabama Ins. Guar. Ass'n v. Mercy Med. Ass'n, 120 So. 3d 1063, 1070 (Ala. 2013) (holding that a presumption against retroactivity applies "with respect to amendments that constitute a substantive change ... by ... taking away vested rights"). IV. For the above-stated reasons, I dissent from affirming the trial court's summary judgment. Although the trial court did not provide any reasoning to support its judgment, the sole argument presented in Better Living's motion was that the 13 1130716 Act eliminated causes of action, like the Reyeses', that arise from injuries predating the Act but not sued on until after the effective date of the Act. Under the settled law that substantive statutory changes that lack an express retroactivity clause are to be applied prospectively only, the summary judgment should be reversed and this case remanded for further proceedings in the trial court. 14	February 6, 2015
c64ffd01-cd33-466e-a1e6-b2c13eb056a8	Ex parte John Alfred Harper.	N/A	1130496	Alabama	Alabama Supreme Court	rel: 02/13/2015 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 ____________________ 1130496 ____________________ Ex parte John Alfred Harper PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: John Alfred Harper v. State of Alabama) (Lee Circuit Court, CC-86-582; Court of Criminal Appeals, CR-12-0510) MOORE, Chief Justice. 1130496 John Alfred Harper, an incarcerated inmate, petitioned this Court for a writ of certiorari to review the circuit court's denial of his latest motion for sentence reconsideration filed pursuant to § 13A-5-9.1, Ala. Code 1975 (repealed effective March 13, 2014, Act No. 2014-165, Ala. Acts 2014), and the Court of Criminal Appeals' affirmance of that denial. Section 13A-5-9.1 stated: "The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or, if the sentencing judge is no longer in office, by any circuit judge appointed by the 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." We granted Harper's petition; we reverse and remand. I. Facts and Procedural History On October 20, 1986, Harper was convicted of first-degree armed robbery--a Class A felony. Based upon that conviction and his prior felony convictions, the Lee Circuit Court 1 sentenced him as a habitual felony offender to what in 1986 was a mandatory sentence of life imprisonment without the Harper had been convicted of grand larceny in 1969, two 1 counts of second-degree burglary in 1971, and second-degree burglary and grand larceny in 1972. 2 1130496 possibility of parole. See former § 13A-5-9(c)(3), Ala. Code 1975 (amended effective May 25, 2000), a subsection of the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA"). In March 2012 Harper filed the most recent in a 2 Before an amendment effective in 2000, subsection (c) of 2 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: "(1) On conviction of a Class C felony, he or she must be punished by 3 1130496 series of motions for sentence reconsideration pursuant to § 13A-5-9.1, Ala. Code 1975, and Kirby v. State, 899 So. 2d 968 (Ala. 2004)(discussing the constitutionality of § 13A-5-9.1 and the jurisdiction of circuit courts to hear motions filed pursuant to that Code section), often referred to as a "Kirby motion." The materials available for the circuit court to consider with Harper's motion included, among other things, the report from Harper's work supervisor stating that Harper 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.) 4 1130496 is a "productive person" and a "diligent worker" who "displays a positive attitude," "is respectful of authority," "dedicates spare time to meditation and spiritual endeavors," and "encourages other inmates to self-improvement and discipline"; the fact that Harper assured the female clerk who was the object of the robbery that he was not going to hurt her, that he claims to have never touched her, and that he informed her before letting her go that he needed her to walk with him just so he could escape the crime scene; and Harper's certificates for completing, during his 28 years of imprisonment, multiple substance-abuse programs, multiple Alcoholics Anonymous programs, the Crime Bill Drug Treatment Program, multiple group-meditation programs, multiple Vipassana meditation courses, multiple sex-adjustment or sex-addicts-anonymous programs, and relapse-prevention and substance-abuse counseling. Despite this evidence of the numerous programs Harper completed during his incarceration, his courses of instruction by licensed psychologists, and his supervisor's report regarding his good work record, the circuit court denied Harper's motion on the sole ground that the underlying offense for which Harper had been sentenced was a violent 5 1130496 offense. The circuit court in an order dated November 13, 2012, quoted an earlier March 9, 2010, ruling on a previous Kirby motion filed by Harper: "'Regarding the original robbery offense [Harper] was convicted of, [Harper] concedes that he entered a local business on foot, abducted a female clerk at knifepoint and released her approximately two blocks from the store. This offense is obviously a violent offense pursuant to statutory authority and reasonable application of the meaning of "violent."'" Harper appealed the denial of his most recent Kirby motion to the Court of Criminal Appeals, which affirmed the circuit court's order in an unpublished memorandum. Harper v. State (No. CR-12-0510, Dec. 13, 2013), ___ So. 3d ___ (Ala. Crim. App. 2013)(table). This petition, in which Harper alleged that the Court of Criminal Appeals' decision conflicts with Holt v. State, 960 So. 2d 726 (Ala. Crim. App. 2006), followed. The circuit court's November 13, 2012, order denying Harper's motion and the Court of Criminal Appeals' unpublished memorandum affirming that denial recount incompletely the circuit court's order dated March 9, 2010, which notes Harper's concession that he "entered a local business on foot, abducted a female clerk at knifepoint and released her approximately two blocks from the store." This offense is 6 1130496 obviously a violent offense under the statute defining the offense and under a reasonable application of the meaning of the word "violent." However, neither the circuit court nor the Court of Criminal Appeals quoted the last sentence of the circuit court's March 9, 2010, order, which is essential to a determination in this case. The circuit court's order concludes with this sentence: "[Harper] has failed to submit any other factors which show that [Harper's] conduct in prison has not been violent." (Emphasis added.) This is a crucial omission because Harper, in his petition, asserts that the circuit court now refuses to consider his conduct during imprisonment. The last sentence of the circuit court's 2010 order ignores the relevant part of a prior order addressing Harper's failure to submit records of his conduct while in prison. In the Kirby motion before the court, Harper did exactly what the circuit court ordered him to do in 2010: He submitted evidence of his changed conduct while in prison, which both the circuit court and the Court of Criminal Appeals nevertheless refused to consider. II. Standard of Review 7 1130496 Citing Kirby and Prestwood v. State, 915 So. 2d 580 (Ala. Crim. App. 2005), the State contends that "appellate courts review motions to reconsider sentences using an abuse of discretion standard." Although this Court will determine whether the circuit court has exceeded its discretion in ruling on a Kirby motion for sentence reconsideration based on the totality of the circumstances, see Holt v. State, 960 So. 2d 726, 738 (Ala. Crim. App. 2006), whether the circuit court's decision complies with a statute is a matter of law, and the decision is to be reviewed de novo where, as here, the facts are not in dispute. Christian v. Murray, 915 So. 2d 23, 25 (Ala. 2005)("Where the facts are not in dispute and we are presented with a pure question of law, ... this Court's review is de novo." (citing State v. American Tobacco Co., 772 So. 2d 417, 419 (Ala. 2000), Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997), and Beavers v. County of Walker, 645 So. 2d 1365, 1372 (Ala. 1994))). Therefore, we review de novo whether the circuit court's order denying Harper's Kirby motion complies with § 13A-5-9.1. III. Analysis 8 1130496 Harper argues that the Court of Criminal Appeals' unpublished memorandum upholding the circuit court's order denying Harper's Kirby motion conflicts with Holt, in which that court quoted Kirby for the proposition that "whether an inmate is a 'nonviolent convicted offender' is based on the totality of the circumstances." 960 So. 2d at 738. Harper alleges that the circuit court refused to consider any of the factors or evidence he submitted to it, including his completion of rehabilitative programs and counseling courses and the facts and circumstances of his prior convictions. The State does not deny this but counters that the "instant record contained [Harper's] [Department of Corrections] records, and it cannot be presumed that the circuit court did not properly consider them." State's brief, at 5 (emphasis added). No presumption, however, is necessary: The State's position is belied by the language in the circuit court's order wrongfully asserting that a circuit court may "refuse to consider all factors presented to it by either party." Refusing to consider certain factors presented by Harper, the circuit court concluded that Harper was not a "nonviolent convicted 9 1130496 offender" only because he had been convicted of an offense that was statutorily defined as violent. This Court "will presume that the circuit court properly considered and weighed each factor presented, unless the record affirmatively shows otherwise." Holt, 960 So. 2d at 738 (citing Prestwood v. State, 915 So. 2d at 583 (emphasis added)). Here the record affirmatively shows that the circuit court, although acknowledging that "[w]hether an inmate is a violent or nonviolent offender is based on the totality of the circumstances," nevertheless considered only a single circumstance: the statutory designation of Harper's underlying offense. The circuit court announced in its order that it could "refuse to consider" the very items § 13A-5-9.1 requires it to consider. See § 13A-5-9.1 ("The provisions of Section 13A-5-9 shall be applied retroactively ... 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"(emphasis added)). 3 Harper's records are either certified by the Alabama 3 Department of Corrections, signed by licensed psychologists employed by the Alabama Department of Corrections, signed by 10 1130496 The circuit court attributed to Holt the notion that circuit courts may "refuse to consider" factors presented to them by either party. Holt, however, held that "a circuit court is not precluded from considering, nor may it refuse to consider, all of the factors presented to it by either party." Holt, 960 So. 2d at 738. The circuit court's order, therefore, directly contradicts the holding of Holt. Moreover, the State did not present the circuit court with any evidence of misbehavior, misconduct, or violence on Harper's part while he was incarcerated; therefore, the State has waived any input as to Harper's conduct while incarcerated. Kirby, 899 So. 2d at 975 ("[I]f the [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 the warden of the correctional facility in which Harper is imprisoned, or signed by a correctional officer employed by the Alabama Department of Corrections. The State has not argued that the Board of Pardons and Paroles did not approve these records; therefore, for the purposes of this petition for the writ of certiorari, that argument is waived. Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So. 2d 1143, 1167 (Ala. 2003)("Issues not argued in a party's brief are waived."). 11 1130496 have considered in determining whether the inmate is a nonviolent offender.").4 Holt spoke only of what factors the circuit court may consider, i.e., what records, materials, and evidence may be submitted to the circuit court as part of the "circumstances" that must be considered in toto. Holt does not permit the circuit court to "refuse" to consider any factors; it instead requires the circuit court to consider "the totality of the circumstances," or "the totality of the information before the circuit court when it rules on the § 13A-5-9.1 motion." Holt, 960 So. 2d at 738. Holt concerned what records, materials, and evidence could be submitted to the circuit court for the purposes of a Kirby motion, not whether the circuit court was free to disregard the records, materials, and evidence already before it. Holt relied on the principle in Kirby that a "'factor in determining whether the inmate is a nonviolent offender ... should be a consideration of the inmate's conduct It appears that Harper, not the Department of 4 Corrections, submitted the evaluations that appear in the record before us. This is permissible under § 13A-5-9.1, which refers to evaluations "submitted to the court" without limiting or restricting in any way which party may submit those evaluations. 12 1130496 while incarcerated, which knowledge is within the purview of the [Department of Corrections].'" Holt, 960 So. 2d at 733 (quoting Kirby, 899 So. 2d at 974 (emphasis added)). Holt prohibits circuit courts from ruling on Kirby motions based solely on the statutory designation of the inmate's underlying offense: "[T]he statutory designation of an inmate's underlying offense as a 'violent offense' is certainly an important consideration in determining whether an inmate is a 'nonviolent convicted offender.' ... However, the statutory designation of an offense is not the only factor a circuit court may consider, and the fact that the inmate's underlying conviction was for an offense statutorily defined as a 'violent offense' does not preclude a court from considering other factors presented to it." Holt, 960 So. 2d at 738. Taken in isolation, the phrase "may consider" might suggest that the circuit court has the option of not considering factors other than the statutory designation of the underlying offense, but it is clear that the Court of Criminal Appeals in Holt did not intend to authorize or validate what it characterized as "an erroneous interpretation of § 13A-5-9.1 and Kirby," namely, "that anyone convicted of an offense statutorily defined as a 'violent offense' is, as a matter of law, a 'violent offender' for the 13 1130496 purposes of § 13A-5-9.1, and, thus, ineligible for sentence reconsideration." Holt, 960 So. 2d at 740. See also Ex parte Gunn, 993 So. 2d 433, 434 (Ala. 2007)(noting the holding in Holt that "a trial court could not reject an application for sentence reconsideration under § 13A-5-9.1 solely on the basis that the underlying conviction was for a violent offense"). "If the Alabama Supreme Court had construed § 13A-5- 9.1 as a bright-line rule precluding any inmate who had been convicted of an offense statutorily defined as a 'violent offense' from sentence reconsideration, the Court would have instructed circuit courts to look no further than the statutory designation of the inmate's underlying offense." Holt, 960 So. 2d at 737. The fact that one commits a violent offense or "crime of violence," as that term is defined in § 13A-11-70(2), Ala. Code 1975, does not forever prohibit one from being considered a "nonviolent convicted offender" for the purpose of § 13A-5-9.1. The plain language of § 13A-5-9.1 does not ask whether the crime the offender committed was a violent crime; rather, the statute asks whether the convicted offender is nonviolent.5 As explained in a dissent in a similar case, Ex parte 5 Gill, [Ms. 1130649, June 20, 2014] ___ So. 3d ___, ___ (Ala. 2014) (Moore, C.J., dissenting): "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 14 1130496 Whether Harper is a "nonviolent convicted offender" necessarily involves a multi-factor analysis. "[T]he state's trial judges have the authority under [§ 13A-5-9.1] to determine whether a defendant is a nonviolent offender and ... those judges are competent to make that determination based upon the nature of the defendant's underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the [Department of Corrections] and the [Board of Pardons and Paroles] concerning the inmate's behavior while incarcerated. ... Section 13A-5-9.1 provides that the [Department of Corrections] will conduct an evaluation of the inmate's performance while incarcerated and submit its evaluation to the court so the judge can take that information into account in determining whether the inmate is eligible for reconsideration of his or her sentence." Kirby, 899 So. 2d at 974 (emphasis added). Thus, any evaluations conducted by the Department of Corrections and submitted to the circuit court must be considered in determining an inmate's eligibility for sentence reconsideration under § 13A-5-9.1. Although the circuit court has the discretion to determine whether Harper is a "nonviolent convicted offender" for the purposes of § 13A-5-9.1, the circuit court may not "refuse to consider[] all statutorily defined as a 'violent offense,' this fact alone does not necessarily render an inmate a violent convicted offender." 15 1130496 of the factors presented to it by either party." Holt, 960 So. 2d at 738. Holt reversed the circuit court's order denying inmate William Buster Holt's Kirby motion because that denial "was based solely on the fact that Holt had been convicted of robbery in the first degree and that that crime is statutorily defined as a 'violent offense.'" Holt, 960 So. 2d at 738. Holt and Harper are thus similarly situated: their Kirby motions were both denied based solely on the statutory designation of their underlying offenses. Therefore, Harper is entitled to the same remedy that was offered Holt: a remand for the circuit court to consider his Kirby motion in light of the principles set forth in this opinion. IV. Conclusion Because the circuit court did not consider all the factors and evidence, including records of the Department of Corrections, that Harper presented with his Kirby motion, we conclude that the circuit court did not consider the totality of the circumstances. For the same reasons, the Court of Criminal Appeals erred in affirming the circuit court's order denying Harper's Kirby motion. We therefore reverse the Court of Criminal Appeals' judgment and direct that court to remand 16 1130496 the case to the circuit court for it to reconsider Harper's Kirby motion in conformity with this opinion and § 13A-5-9.1. We note in conclusion that the window for the review of Kirby motions has been closing since the repeal of § 13A-5-9.1, effective March 1, 2014. After 28 years of incarceration, Harper is faced with his last opportunity to take advantage of § 13A-5-9.1. He has done exactly what a previous court said he must do for reconsideration of his sentence as a current nonviolent convicted offender. Justice demands that he have an opportunity provided by that law for reconsideration of his sentence. REVERSED AND REMANDED WITH INSTRUCTIONS. Murdock, J., concurs. Parker and Bryan, JJ., and Lyons, Special Justice,* concur in the result. Stuart, Bolin, Shaw, and Wise, JJ., dissent. Main, J., recuses himself.** Retired Associate Justice Champ Lyons, Jr., was appointed to serve as a Special Justice in regard to this petition. *Justice Main was a member of the Court of Criminal Appeals when that court considered this case. 17 1130496 BRYAN, Justice (concurring in the result). In its judgment denying John Alfred Harper's motion filed pursuant to § 13A-5-9.1, Ala. Code 1975, and Kirby v. State, 899 So. 2d 968 (Ala. 2004), the circuit court incorrectly stated that it could refuse to consider factors presented to it. I would reverse its judgment and remand the case for the circuit court to clarify whether, in denying Harper's motion, it actually considered all the factors presented to it. 18 1130496 LYONS, Special Justice (concurring in the result). John Alfred Harper had previously moved, pursuant to § 13A-5-9.1, Ala. Code 1975, for reconsideration of his sentence of life imprisonment without the possibility of parole but failed to present any evidence concerning his conduct while incarcerated. The circuit court, in denying relief in that earlier proceeding, noted that Harper had failed to offer any evidence showing that his conduct in prison was not violent. Order of March 9, 2010. In the instant proceeding Harper submitted substantial evidence to support his contention that his conduct in prison was not violent. In denying relief in this proceeding, the circuit court quoted from its earlier order in which it characterized the robbery offense that had triggered the sentence of life imprisonment without parole as "violent." The circuit court did not allude to the evidence of Harper's conduct while he was incarcerated. In Holt v. State, 960 So. 2d 726, 738 (Ala. Crim. App. 2006), writ quashed, 960 So. 2d 740 (Ala. 2006), the Court of Criminal Appeals, citing Prestwood v. State, 915 So. 2d 580, 583 (Ala. Crim. App. 2005), observed: "[W]e will presume that the circuit court properly considered and weighed each factor 19 1130496 presented, unless the record affirmatively shows otherwise." The dissenting opinion, relying on this aspect of Holt, concludes that absent an affirmative showing of the circuit court’s failure to consider Harper's postincarceration conduct, we must affirm. The dissenting opinion is correct in its conclusion that the circuit court’s order does not expressly state that it did not consider such evidence. However, the circuit court’s order, as the dissenting opinion and main opinion both recognize, erroneously states that it had the prerogative to refuse to consider evidence submitted by Harper. In Prestwood, the case relied upon in Holt for its rule of limited review, the defendant sought relief, pursuant to § 13A-5-9.1, from his sentence of concurrent terms of 20 years' imprisonment. The Court of Criminal Appeals affirmed the circuit court’s denial of relief on the basis that § 13A-5-9.1 did not apply to a sentence other than a sentence of life imprisonment or life imprisonment without parole. In Prestwood, 915 So. 2d at 583, the Court of Criminal Appeals in dicta announced a prospective rule: "[T]his court’s review of such orders [issued in proceedings brought pursuant to § 13A-5-9.1] will be 20 1130496 limited. As long as the circuit court has jurisdiction to rule on a § 13A-5-9.1 motion; reviews any such motion that is properly filed by an inmate who is eligible for reconsideration; and, if it chooses to resentence a petitioner, imposes a sentence that is authorized by §§ 13A-5-9(c)(2) or 13A-5-9(c)(3), Ala. Code 1975, we will not second- guess that court’s discretionary decision." The heightened standard of an affirmative showing that each factor was not properly considered and weighed, not found in Prestwood, was introduced in Holt in reliance upon the above- quoted statement in dicta in Prestwood that the standard of review would be limited. In Holt, the circuit court found that the underlying conviction of robbery in the first degree, standing alone, precluded the applicability of § 13A-5-9.1. Under those facts, the Court of Criminal Appeals reversed the judgment of the circuit court where it affirmatively appeared in the record that the circuit court had failed to consider evidence other than the nature of the underlying offense. In this proceeding, it does not affirmatively appear that the circuit court rejected the proffered evidence of postincarceration conduct. However, as was the case in Holt, the circuit court, as previously noted, applied an incorrect standard of review, announcing, in an order silent on 21 1130496 postincarceration conduct and dealing solely with the nature of the underlying conviction, that it had the discretion to refuse to consider evidence presented to it. The State, citing Williams v. State, 55 So. 3d 366, 377 (Ala. Crim. App. 2010), argues that it is well settled that "'"'[w]here the record is silent on appeal it is assumed that what ought to have been done was not only done but rightly done.'"'" (Quoting Johnson v. State, 823 So. 2d 1, 19 (Ala. Crim. App. 2001), quoting, in turn, other cases.) Here, as in Holt, the record reflects that the circuit court applied an incorrect standard; we therefore cannot presume that "what ought to have been done was not only done but rightly done." I decline to read the rule announced in Holt as requiring an affirmative showing of the rejection of evidence. The court in Holt stated only: "[W]e will presume that the circuit court properly considered and weighed each factor presented unless the record affirmatively shows otherwise." 960 So. 2d at 738 (emphasis added). Here the record reflects that the circuit court did not properly consider and weigh each factor because it announced an improper standard by which it governed that process. Requiring an affirmative showing that the circuit 22 1130496 court applied its incorrect standard in a manner prejudicial to Harper is an unwarranted further contraction of the limited review announced in Holt. The inference that the circuit court disregarded the evidence of Harper's postincarceration conduct is not susceptible to fair characterization as speculation; to the contrary, it is an entirely reasonable inference given the circuit court’s failure to mention the evidence in its order denying relief. This record, therefore, affirmatively reflects the absence of proper consideration and weighing, and the circuit court’s order is thus inconsistent with Holt. 23 1130496 STUART, Justice (dissenting) I respectfully dissent from the conclusion in the main opinion that the record establishes affirmatively that the circuit court refused to consider the documents submitted by John Alfred Harper in support of his contention that he is a "nonviolent convicted offender" for purposes of sentence reconsideration pursuant to § 13A-5-9.1, Ala. Code 1975. Specifically, I believe that the holding that the circuit court's misstatement of the law in its discussion of the applicable law requires the conclusion that the circuit court "[r]efus[ed] to consider certain factors presented by Harper," ___ So. 3d at ___, is an assumption based on speculation that is not supported by the law or the record. In its order the circuit court stated: "When reviewing a Kirby [v. State, 899 So. 2d 968 (Ala. 2004),] petition: "'[r]eading § 13A-5-9.1 in conjunction with § 13A-5-9, it is clear that a sentencing judge or presiding judge can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA [Habitual Felony Offender Act] upon conviction of a Class A felony with no prior Class A felony convictions; and those who have been 24 1130496 sentenced to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. Moreover, of those habitual offenders, the judge can resentence only those who are nonviolent offenders.' "Ex parte Kirby, 899 So. 2d 968, 974 (Ala. 2004). "To be eligible for sentence reconsideration under Ala. Code § 13-5-9.1 (1975), "'(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 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), see Prestwood [v. State, 915 So. 2d 580 (Ala. Crim. App. 2005)]; 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 sentence under § 13A-5-9.1.' "Holt v. State, 960 So. 2d 726, 734-35 (Ala. Crim. App. 2006). "Regarding the determination of whether an inmate is a violent or nonviolent offender, Ala. Code § 13A-11-70 (1975) provides, in pertinent part: "'For the purpose of this division ["The Uniform Firearms Act"], the following terms shall have the respective meanings ascribed by this section: "'.... 25 1130496 "'(2) Crime of Violence. Any of the following crimes or an attempt to commit any of them, namely, murder, manslaughter, (except manslaughter arising out of the operation of a vehicle), rape, mayhem, assault with intent to rob, assault with intent to ravish, assault with intent to murder, robbery, burglary, kidnapping and larceny.' "The fact that crimes are listed in the aforementioned code section as violent does not bind a circuit court in determining whether an inmate is a violent or nonviolent convicted offender within the meaning of § 13A-5-9.1 but it is an important consideration in making that determination. 960 So. 2d 726. This court may consider or refuse to consider all factors presented to it by either party. Id. Whether an inmate is a violent or nonviolent offender is based on the totality of the circumstances. Id." (Emphasis added.) Unquestionably, the circuit court's statement that a "court may ... refuse to consider all factors presented to it by either party" is clearly a misstatement of the law. Holt v. State, 960 So. 2d 726, 738 (Ala. Crim. App. 2006), specifically states that, "[i]n determining whether an inmate is a 'nonviolent convicted offender' within the meaning of § 13A-5-9.1, a circuit court is not precluded from considering, nor may it refuse to consider, all of the factors presented to it by either party." 26 1130496 Therefore, the circuit court erred in stating that it could refuse to consider all the evidence submitted by the parties. However, this misstatement of the law does not mandate the conclusion reached by the main opinion that the circuit court did refuse to consider the evidence submitted by Harper. The Court of Criminal Appeals set forth the requirements for determining whether an inmate is a violent or nonviolent offender in Holt, stating: "Of course, the statutory designation of an inmate's underlying offense as a 'violent offense' is certainly an important consideration in determining whether an inmate is a 'nonviolent convicted offender'; nothing in § 13A-5-9.1 or Kirby [v. State, 899 So. 2d 968 (Ala. 2004),] suggests otherwise. However, the statutory designation of an offense is not the only factor a circuit court may consider, and the fact that the inmate's underlying conviction was for an offense statutorily defined as a 'violent offense' does not preclude a circuit court from considering other factors presented to it, such as the facts and circumstances surrounding the underlying offense, the facts and circumstances surrounding the inmate's prior convictions, the inmate's prison record, and any 'other factors brought before the judge in the record of the case.' Kirby, 899 So. 2d at 974. In determining whether an inmate is a 'nonviolent convicted offender' within the meaning of § 13A-5-9.1, a circuit court is not precluded from considering, nor may it refuse to consider, all of the factors presented to it by either party. As Holt argued to the circuit court, and argues to this Court, and as the Alabama Supreme Court made clear in Kirby, whether an inmate is a 27 1130496 'nonviolent convicted offender' is based on the totality of the circumstances. "By totality of the circumstances, we mean the totality of the information before the circuit court when it rules on the § 13A-5-9.1 motion. A circuit court is not required to solicit additional information before ruling on such a motion. To the contrary, a circuit court may summarily deny a § 13A-5-9.1 motion without holding an evidentiary hearing or otherwise requiring the submission of additional evidence not before it as part of the pleadings, if it so chooses. Nothing in § 13A-5-9.1 or Kirby requires otherwise. In addition, in 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 it is within the circuit court's discretion. 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 circuit 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. See, e.g., Prestwood [v. State], 915 So. 2d [580,] 583 [(Ala. Crim. App. 2005)](recognizing the limited appellate review of a motion filed under § 13A-5-9.1)." 960 So. 2d at 738 (emphasis added). In light of the fact that the circuit court in its order recognized that it could consider each factor presented to it and of the law that the circuit court had discretion in determining what weight to afford each factor presented to it, 28 1130496 that the circuit court was not required to make specific findings of fact with regard to each factor, and that a reviewing court gives "great deference" to the circuit court with regard to the weight afforded the factors submitted, and the presumption by a reviewing court that the circuit court properly considered and weighed all the factors, I cannot conclude that the record affirmatively shows that the circuit court did not consider all the evidence presented to it. Contrary to the conclusion in the main opinion, it is just as likely that the circuit court did consider all the evidence presented to it, but, in accordance with Holt, discussed only the factor that it afforded the greatest weight and found to be determinative. It is important to recognize that the circuit court did not state in its order that it refused to consider all the evidence –- which would be an affirmative showing on the record; rather, a fair reading of the circuit court's order in light of the deference afforded the circuit court and the presumption that a circuit court will consider all the evidence presented to it establishes that the circuit court gave great weight to the violent nature of Harper's offense and little or no weight to Harper's conduct since his 29 1130496 incarceration. Based on the record before us, I cannot agree with the conclusion in the main opinion that the record affirmatively evidences that the circuit court's determination that Harper is not a "nonviolent convicted offender" was based solely on the statutory designation of his underlying offense. Finally, this writing is not to be viewed as indicating that I have abandoned my belief as set forth in my dissents in Ex parte Jones, 953 So. 2d 1210, 1210 (Ala. 2006); and Holt v. State, 960 So. 2d 740, 744 (Ala. 2006). I adhere to those writings and maintain that as a matter of law a person convicted of a violent offense, as defined in § 13A-11-70, Ala. Code 1975, is a violent offender and is not eligible for sentence reconsideration, pursuant to § 13A-5-9.1, Ala. Code 1975. For the foregoing reasons, I respectfully dissent. Bolin and Wise, JJ., concur. 30	February 13, 2015
08201fbd-0f2c-4587-8140-2ced8587b93c	Lemley v. Wilson	N/A	1130160	Alabama	Alabama Supreme Court	REL: 03/06/2015 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 _________________________ 1130160 _________________________ Frank Lemley v. Terry Wilson, as father, and as personal representative of the estate, of Christopher Wilson, deceased Appeal from Walker Circuit Court (CV-09-900253) PER CURIAM. The defendant, Frank Lemley, appeals from an order of the trial court granting a motion for a new trial filed by the plaintiff, Terry Wilson, after a jury had returned a verdict in favor of Lemley. 1130160 Facts On April 17, 2009, Christopher Wilson was working for the City of Sumiton ("the City"). Christopher and his supervisor, Michael Carr, had been sent to mow grass on Bryan Road. It was a clear, sunny day. Carr and Christopher were in the City's white Chevrolet 1500 pickup truck, which had emergency flashers ("the city truck"). Carr and Christopher picked up four trusties from the City jail and went to mow grass on Bryan Road. The trusties were all wearing their City-issued orange jumpsuits. At some point, they stopped for lunch and left the area where they had been mowing. They left their mowers and their warning signs in the area. Carr testified that Christopher left his safety vest on his mower as he had been instructed to do. Carr and Christopher dropped the trusties off at the City jail around 11:50 a.m., went to the City shop, and then went to lunch. After lunch, Carr and Christopher met back at the City shop and then went and picked up the trusties. Around 1:25 p.m., before Carr and his crew had gotten back to the work site on Bryan Road, Tony Henderson, the driver of the City's knuckle-boom truck, radioed Carr and 2 1130160 asked him and his crew to come and flag traffic for him while he was operating the knuckle-boom truck on Sullivan Road, "just over the knob." Carr, Christopher, and the trusties went to Sullivan Road. Carr testified that he pulled up on the top of the knob, parked the city truck in front of some mailboxes, and turned on the emergency flashers on the city truck. Carr and a trusty walked below where the knuckle-boom truck was located to direct traffic. Christopher and two other trusties were next to the city truck, and those two trusties were directing traffic at that end. While the knuckle-boom truck was backing up, part of it became stuck in someone's yard. The knuckle-boom truck was sticking out into the road perpendicular to the road; part of it was in the lane of travel on Sullivan Road for traffic coming from Sumiton. Carr testified that between 10 and 15 vehicles went through the area before the accident and that he did not notice that any of those vehicles had trouble stopping until traffic could be directed around the knuckle-boom truck. Carr also testified that, when the City crew is mowing, it has signs that say "Mowers Ahead" but that there were no signs at the location where the knuckle-boom truck got stuck. 3 1130160 Additionally, he testified that there were no flashing signs, orange cones, or anything else to warn about the presence of the knuckle-boom truck that was in the roadway. During defense counsel's re-cross-examination of Carr, the following occurred: "[Defense counsel:] The City of Sumiton doesn't have a policy about people working on the side of the road having safety devices set up? "[Carr:] Yes. "[Defense counsel:] And they weren't set up, were they? "[Carr:] Not -- as our crew goes, our stuff gets set up. "[Defense counsel:] But in this situation, they weren't set up; right? "[Carr:] All of our stuff was on Bryan Road. "[Defense counsel:] Right. At the accident scene, the safety devices were not set up; correct?" Carr further testified that, when he received the call from Henderson, it was a situation that had to be attended to immediately and that he and Christopher did not have time to return to Bryan Road to get Christopher's safety vest. Carr admitted that he remembered making the statement "that there were enough vests for everybody on the crew there." However, 4 1130160 Carr also testified that Christopher did not do anything that was against his instructions, did not do anything that Carr considered unsafe, and did not do anything that Carr would consider as violating the City's policies. At some point, the two trusties who were near Christopher went to the city truck to get cigarettes and were no longer monitoring the traffic. Christopher was standing on the side of the road next to the city truck, and he was "kind of" flagging traffic until the trusties got their cigarettes. Lemley had gotten off work that afternoon after working 16.5 hours at the Miller Steam Plant. Lemley had a commercial driver's license and hauled flash at the steam plant. After leaving work, Lemley was driving home in his personal vehicle, a white Chevrolet Silverado, on Sullivan Road. Lemley testified that, as he topped the rise on Sullivan Road, he saw the knuckle-boom truck in the roadway. He further testified: "About the time I seen the knuckle truck, [Christopher] come out and stepped out in the road and throwed [sic] his hand up." He testified that Christopher kept going and threw up both hands. He further testified that he thought Christopher said 5 1130160 "Stop." He also testified that he put on his brakes as soon as he saw Christopher and that he "locked [his] truck down and slid 23 feet." Lemley was not able to stop in time, and his vehicle struck Christopher, who died of his injuries. Lemley testified that Christopher came into contact with his vehicle close to the center of his hood. Barbara Holloway, who lived on Sullivan Road, testified that, on the afternoon of the accident, she was sitting on the front porch of her house, which was across the street from the area where the city truck was parked. She also testified that she saw Lemley's vehicle hit Christopher; that the point of impact was in the street at her driveway; and that Lemley was in the lane of travel coming from Sumiton. Holloway further testified that she saw a white vehicle coming up the hill; that it did not look like the vehicle was slowing down; that Christopher was waving his hands and trying to get the vehicle to stop; and that she saw Christopher fly over the hood of the vehicle. When asked if it looked like Lemley had slowed down or if she saw Lemley slow down before he hit Christopher, she replied: "It looked like he was going to go around [Christopher] and then another truck -- I saw the 6 1130160 hood of the other truck as it got up there at the top of the hill." She further testified that it did not look like Lemley tried to brake and that she did not hear squealing tires or any other noise that made her think that Lemley had tried to stop his vehicle before striking Christopher. Regina Higgins testified that she was a passenger in a blue Chevrolet Avalanche truck traveling in the opposite direction of Lemley's vehicle and that her sister-in-law, Janice Gilkey, was driving. She testified that the knuckle- boom truck was stuck at the bottom of the hill and that a flagger had told them to go on; that they were proceeding up the hill; that they saw Christopher and stopped; that Christopher was on the side of the road by the mailboxes; that Christopher turned and saw a vehicle coming; and that Christopher went to the center of the road and motioned with his hands to get the vehicle to stop. Higgins testified that, apparently, the vehicle kept coming because Christopher darted in front of the Avalanche to keep from getting hit and that the driver's side of Lemley's vehicle clipped Christopher on the side. She testified that, at the time he was struck, Christopher "was in the center -- about the center line trying 7 1130160 to get completely out of that lane." Higgins further testified that she did not hear the squealing of brakes or hear brakes being applied; that she did not see Lemley's vehicle move in any way to make it look like it was locked down; and that she did not see any indication of Lemley's slowing down before he struck Christopher. Carr testified that he did not see Christopher get hit; that he heard one of the trusties yell, "'Watch out, Chris'"; that, by the time he turned around, Christopher had already been hit; and that he did not hear the squealing of brakes, did not hear the sound of skid marks being laid down, and did not hear anything to indicate that someone was trying to stop quickly. Carr testified that he then telephoned the dispatcher and reported that there had been an accident, and the dispatcher sent paramedics. He also telephoned his supervisor, George Woods. Evidence was presented indicating that, after Christopher was hit, he was thrown into the air, landed on the road in front of the Avalanche, and rolled underneath the Avalanche. The evidence established that the speed limit on Sullivan Road at the time fo the accident was 25 miles per hour. 8 1130160 Trooper David Larimer, a traffic-homicide investigator with the Alabama Department of Public Safety, and his supervisor, Cpl. Shane Porter, investigated the accident resulting in Christopher's death. Trooper Larimer testified that he talked to Lemley after the accident and that Lemley stated that, as Lemley topped the hill, Christopher stepped into the road and he applied his brakes and started sliding. Trooper Larimer testified that, based on the skid marks and the coefficient of friction, he calculated that Lemley's vehicle was traveling at 40 miles per hour when he applied his brakes, but that he did not calculate Lemley's speed at the top of the rise or until he reached the area where the skid marks started and that he did not know whether Lemley had applied his brakes without leaving a skid mark before that. In his report, Trooper Larimer stated: "[T]his crash occurred due to Frank Richard Lemley speeding and not being able to stop in time." Trooper Larimer also testified that the top of the rise Lemley crested was 460 feet from the area of impact. During further redirect examination of Trooper Larimer by Terry's counsel, the following occurred: "[Terry's counsel:] Is that ample time to have stopped if you are doing 40 miles an hour? 9 1130160 ".... "[Trooper Larimer:] In my opinion in 460 feet, you should be able to stop at 40 miles an hour. "[Terry's counsel:] So, he sees Chris and he has got time to stop, would that be why you didn't contribute any part of the vest to the cause of this fatality? "[Trooper Larimer:] Good question. My answer to that would be the cause of the wreck was the speed and not being able to stop in time. "[Terry's counsel:] That was your only conclusion, nothing to do with the vest or not a vest; correct? "[Trooper Larimer:] Can I expound on my answer? I don't want to say yes or no and not be able to talk. "[Terry's counsel:] Okay. "[Trooper Larimer:] All right. In my report, I have that he wasn't wearing a vest and the reason he wasn't wearing a vest. Under conclusions and recommendations, I am showing what the cause of the crash was. Contributing, if somebody was just out in the road and wasn't with a road crew, the vest wouldn't have come into play. "In any opinion, there needs to be all of that involved. But by just putting down this, it is kind of clearcut in any mind in conclusion and recommendations, if I [am] making any sense of this at all. That is all that I can put down from the evidence that we have. I can't really give my opinion on that. "[Terry's counsel:] From the evidence that you had and what you know and we have mentioned the 10 1130160 vest, and we have mentioned the lack of cones, this, that and the other. Your official conclusion is what you have already stated, that Mr. Lemley's speed was the cause of the fatality? "[Trooper Larimer:] That is right." Finally, Trooper Larimer testified that, a few months after the accident, he returned to the area to determine how fast people typically travel on Sullivan Road. In making that determination, he took the average speed of 10 vehicles that day, and the average speed on the part of Sullivan Road where the accident happened was 39.8 miles per hour. Holloway and Higgins both testified that they thought Lemley was traveling between 40 and 45 miles per hour. Lemley testified that he thought he was traveling between 30 and 35 miles per hour. However, in his deposition, he testified that he was traveling at 35 miles per hour. At trial, Lemley testified that he did not know that Trooper Larimer had found that he was traveling at 40 miles per hour. When asked about testimony that he was going 45 miles per hour, Lemley responded: "I wasn't doing no 45. I don't think I was. It might have been doing 40, but I, you know, didn't look at the speedometer." 11 1130160 Lemley testified that he did not see any flashing lights on the knuckle-boom truck and that he was positive that the flashing lights were not on. He also testified that he did not remember seeing any flashers on the city truck and that he did not see any flashing lights as he came over the hill. Higgins testified that the knuckle-boom truck had an orange light on the top and flashers on the rear. Carr likewise testified that there was a clear flashing light on the back of the knuckle-boom truck and an orange light on the top of the roof of the knuckle-boom truck and that those lights were on when it was stuck. However, the defense presented evidence that, in a statement taken approximately four months after the accident, Carr stated that he did not know if the lights on the knuckle-boom truck were on. At trial, Carr testified that, after the accident, he initially went to Christopher and stayed with him until the paramedics arrived. He testified that, after the paramedics arrived, he went to where the trusties were and then went to talk to Lemley. Carr testified that he talked to Lemley about 10 to 15 minutes after the accident and that Lemley said that he was sorry, that he did not see Christopher, and that he was 12 1130160 blind in one eye. He further testified that Lemley was wearing glasses at that time. However, Lemley denied telling Carr that he was blind in one eye and said that that statement was not true. Additionally, the defense presented evidence indicating that, in the statement he made four months after the accident, Carr said that he had not talked to the driver of the white Chevrolet truck and that he had stayed with Christopher. Higgins testified that she could not see Lemley's face immediately before or at the time he hit Christopher. However, she testified that, after Christopher was struck, Lemley's vehicle rolled forward and came to a stop next to the Avalanche in which she was a passenger; that, when she got out of her vehicle, she saw Lemley; that Lemley appeared to be looking for something in his vehicle; that Lemley was not wearing glasses at that time; and that, by the time law- enforcement officers approached Lemley, he was wearing glasses. Higgins admitted that she did not tell law- enforcement officers that Lemley was not wearing glasses when she first saw him, but she stated that no one had asked her. Higgins testified that the first statement she made about 13 1130160 Lemley's not wearing glasses was in an affidavit she executed two and one-half years after the accident. Lemley testified that his driver's license had a corrective-lenses restriction; that he was wearing his glasses at the time of the accident; and that, as soon as he stopped after the accident, he took off his glasses to wipe tears from his eyes. Additionally, Dr. Sam Hollingsworth, an ophthalmologist, testified that he had seen Lemley one time in July 31, 2008; that Lemley's medical-history questionnaire indicated that Lemley was having problems with his vision, that could not see well, and that his vision limited his daily activities; that he thought Lemley could meet the legal requirements to drive without his glasses, but he would see better with them; that he thought that Lemley would be able to drive, especially during the day; that Lemley's glasses did not have a very big correction; that Lemley's distance vision was pretty good; and that Lemley would not be able to read well without glasses. Finally, he testified that he did not think it was unsafe for Lemley to drive. 14 1130160 Procedural History On July 10, 2009, Terry, as Christopher's father and as the personal representative of Christopher's estate, filed a wrongful-death action against Lemley. In his complaint, he 1 alleged that Lemley "was guilty of negligence and/or wantonness by speeding, by failing to keep a lookout and by needlessly striking Christopher Alton Wilson who was in plain view." He further alleged that Christopher was killed as a proximate consequence of Lemley's "negligence and/or wantonness combining or concurring with the negligence and/or wantonness of any other defendant(s) or alone." Lemley filed an answer in which he denied each and every material allegation in the complaint. He also alleged that Christopher was "guilty of negligence which proximately caused and/or contributed to his damages." Terry also included a claim against Alfa Insurance 1 Company and One Beacon Insurance Company seeking uninsured/underinsured-motorist benefits. Terry dismissed Alfa as a defendant pursuant to a pro tanto settlement agreement. One Beacon ultimately opted out of participating in the trial proceedings. In his complaint, Terry also included several fictitiously named defendants. However, he did not subsequently amend his complaint to substitute any named defendants for those fictitiously named defendants. 15 1130160 Following a trial, the jury returned a verdict in favor of Lemley. On June 13, 2013, the trial court entered a judgment based on the jury's verdict. On July 3, 2013, Terry filed a motion for a new trial in which he argued that the verdict "is not sustained and/or supported by the great preponderance of the evidence." Lemley filed a response in opposition to Terry's motion for a new trial. The trial court set a hearing on the motion for September 25, 2013. On 2 September 27, 2013, the trial court granted Terry's motion for a new trial. This appeal followed. Standard of Review "The standard of review to be applied by this Court in reviewing the granting of a motion for a new trial is set out in Jawad v. Granade, 497 So. 2d 471, at 477 (Ala. 1986): "'[A]n order granting a motion for new trial on the sole ground that the verdict is against the great weight or preponderance of the evidence will be reversed for abuse of discretion where on review it is easily perceivable from the record that the jury verdict is supported by the evidence.' The record on appeal does not include a transcript of any 2 such hearing. 16 1130160 "Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala. 1988), sets out the procedure for the application of the Jawad standard: "'[W]hen the evidence meets the "sufficiency" test, jury verdicts are presumed correct, and this presumption is strengthened by the trial court's denial of a motion for new trial. Therefore, a judgment based upon a jury verdict and sustained by the denial of a post-judgment motion for a new trial, will not be reversed on a weight-of-the-evidence ground unless it is "plainly and palpably" wrong. Ashbee v. Brock, 510 So. 2d 214 (Ala. 1987). See, also, Jawad v. Granade, 497 So. 2d 471 (Ala. 1986).' "539 So. 2d at 162–63. "While the 'new trial' test is a subjective one ... and is measured by a discretionary standard, the range of the trial court's discretion, as announced in Jawad, has been considerably narrowed. Thus, the trial court is left with no discretion to grant a new trial on a 'weight of the evidence' ground, except when the verdict and the judgment entered thereon are so against the great weight and preponderance of the evidence as to be 'plainly and palpably' wrong, i.e., 'manifestly unjust.'" Richardson v. Joines, 574 So. 2d 787, 787-88 (Ala. 1991). Discussion Lemley argues that the trial court erred in granting Terry's motion for a new trial. In his complaint, Terry asserted claims of negligence and wantonness against Lemley. 17 1130160 "To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury. Albert v. Hsu, 602 So. 2d 895, 897 (Ala. 1992). To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains. Smith v. Davis, 599 So. 2d 586 (Ala. 1992). "Proximate cause is an essential element of both negligence claims and wantonness claims. See Albert, supra; Smith, supra. Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new independent causes, produces the injury and without which the injury would not have occurred. Thetford v. City of Clanton, 605 So. 2d 835, 840 (Ala. 1992). An injury may proximately result from concurring causes; however, it is still necessary that the plaintiff prove that the defendant's negligence caused the injury. Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala. 1984); Lawson v. General Telephone Co. of Alabama, 289 Ala. 283, 290, 267 So. 2d 132, 138 (1972)." Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994). A. Initially, Lemley argues that the evidence at trial was sufficient for the jury to determine that he was not negligent. Specifically, Lemley notes that, in his motion for a new trial, Terry argued that Lemley's violation of the speed limit constituted negligence per se but that Terry did not 18 1130160 cite any authority for that position and Alabama law does not support that position. As Lemley points out, in Odom v. Schofield, 480 So. 2d 1217, 1218 (Ala. 1985), this Court stated: "As Chief Justice Torbert pointed out in Fox v. Bartholf, 374 So. 2d 294 (Ala. 1979), however, merely exceeding the statutory speed limit does not, in itself, establish actionable negligence. Several other requirements are involved -- most particularly the requirement that the jury must find that the statutory violation proximately caused the injury." Lemley argues that he presented evidence indicating that his speed was not the cause of Christopher's death and that "required safety devices were not placed at the scene in violation of a City of Sumiton employee policy." He further 3 argues that the evidence indicated that Christopher was not At trial, the following occurred: 3 "[Defense counsel:] The City of Sumiton doesn't have a policy about people working on the side of the road having safety devices set up? "[Carr:] Yes." Defense counsel then went on to elicit testimony that the safety devices in possession of Carr's crew were set up on Bryan Road and were not set up at the scene of the accident. However, the defense did not present evidence regarding what the City's policy regarding safety devices actually was or whether the fact that Carr's crew had not set up safety devices at the site where the knuckle-boom truck was stuck actually violated any City policy. 19 1130160 wearing a safety vest when he was struck, had not been provided with a cautionary sign with which to signal oncoming traffic, and "voluntarily stepped into the roadway and directly in the path of an oncoming vehicle." Thus, Lemley contends that, because evidence was presented of alternative causes of Christopher's death, it would not have been unreasonable for the jury to find that he was not negligent. In this case, Trooper Larimer testified that, in his report, he found that "this crash occurred due to Frank Richard Lemley speeding and not being able to stop in time." However, the evidence was undisputed that there were no warning signs to alert motorists like Lemley that work crews were in the roadway; that Christopher was not wearing a safety vest; that Christopher did not have any safety flags, signs, or devices; and that Christopher was wearing neutral-colored clothing when he was hit. At trial, Carr testified that Christopher had left his safety vest on his mower before lunch as he had been instructed to do. However, Lemley presented evidence indicating that Carr had previously given a statement in which he had said that there were enough safety vests there for everyone on the crew. 20 1130160 Further, there was conflicting evidence regarding when Lemley initially applied the brakes in his vehicle. Holloway testified that it did not look like Lemley tried to brake and that she did not hear squealing tires or any other noise that made her think that Lemley had tried to stop. Higgins and Carr both testified that they did not hear squealing brakes and did hear anything to indicate that the driver was trying to stop quickly. However, Lemley testified that he put on his brakes as soon as he saw Christopher and that he "locked [his] truck down and slid 23 feet." Further, Trooper Larimer testified that there were skid marks on the road. The jury could have resolved these conflicts in favor of Lemley and found that Lemley had applied his brakes as soon as he saw Christopher. Additionally, there was conflicting evidence as to whether the knuckle-boom truck or the city truck had on lights and/or flashers. Lemley testified that he did not see any flashing lights on the knuckle-boom truck and that he was positive that the flashing lights were not on. He also testified that he did not remember seeing any flashers on the city truck and that he did not see any flashing lights when he 21 1130160 crested the hill. Higgins testified that the knuckle-boom truck had an orange light on the top and flashers on the rear. Carr likewise testified that there was a clear flashing light on the back of the knuckle-boom truck and an orange light on the top of the roof of the knuckle-boom truck and that those lights were on. However, Lemley presented evidence indicating that, approximately four months after the accident, Carr gave a statement in which he said that he did not know if the lights on the knuckle-boom truck were flashing. The jury could have resolved those conflicts in favor of Lemley and determined that there were no flashing lights on either the knuckle-boom truck or the city truck. Terry also presented evidence indicating that Lemley's driver's license included a corrective-lenses restriction and that Lemley was not wearing his glasses at the time of the accident. However, Lemley testified that he was, in fact, wearing his glasses at the time of the accident. Carr also testified that he talked to Lemley after the accident and that Lemley had told him that he was blind in one eye and that he did not see Christopher. However, Lemley denied making any such statement and said that that statement was not true. 22 1130160 Also, Lemley presented evidence indicating that, about four months after the accident, Carr gave a statement in which he said that he did not talk to the driver of the white Chevrolet vehicle. Additionally, Lemley presented evidence indicating that his distance vision was not bad and that he could probably pass the vision requirements for an Alabama driver's license without corrective lenses. Thus, the jury was presented with conflicting evidence as to whether Lemley was wearing glasses at the time of the accident and as to whether Lemley's vision was a proximate cause of the accident, and the jury could have resolved those conflicts in favor of Lemley. Terry presented evidence indicating that the speed limit on Sullivan Road was 25 miles per hour and that Lemley was traveling 40 miles per hour at the time of the accident. However, Lemley presented evidence indicating that, a few months after the accident, Trooper Larimer went to the area where the accident occurred to determine how fast people typically traveled on Sullivan Road and that the average speed of 10 vehicles that day was 39.8 miles per hour. Based on the conflicting evidence, the jury could have concluded that Lemley's speed at the time of the accident was 23 1130160 not the proximate cause of Christopher's injuries and that Lemley was not negligent. B. Next, Lemley argues that there was evidence at trial that would have supported a jury determination that Christopher was contributorily negligent. "'In order to prove contributory negligence, the defendant must show that the party charged: (1) had knowledge of the condition; (2) had an appreciation of the danger under the surrounding circumstances; and (3) failed to exercise reasonable care, by placing himself in the way of danger.' Brown v. Piggly–Wiggly Stores, 454 So. 2d 1370, 1372 (Ala. 1984) (citing Hatton v. Chem–Haulers, Inc., 393 So. 2d 950 (Ala. 1980); and Baptist Med. Ctr. v. Byars, 289 Ala. 713, 271 So. 2d 847 (1972))." Lyons v. Walker Reg'l Med. Ctr., 791 So. 2d 937, 944 (Ala. 2000). Even if the jury had concluded that Lemley was negligent, there was evidence that would have supported a finding by the jury that Christopher was contributorily negligent. As we noted in Part A of this opinion, the evidence was undisputed that there were no warning signs in the area; that Christopher was not wearing a safety vest at the time of the accident; that Christopher did not have any warning flags, signs, or devices near him in the roadway; and that Christopher was 24 1130160 wearing neutral-colored clothing when he was struck. Additionally, Lemley presented evidence indicating that Carr had previously made the statement "that there were enough vests for everybody on the crew there." Also, there was conflicting evidence from which the jury could have concluded that the flashing lights or warning lights on the knuckle-boom truck and the city truck were not actually on. However, Christopher stepped out in front of a speeding vehicle, despite the lack of a safety vest, safety equipment, and warning devices. Based on this evidence, the jury could have reasonably concluded that Christopher had knowledge of the dangerous condition; that Christopher appreciated the danger under the circumstances; and that Christopher failed to exercise reasonable care by stepping out in front of a speeding vehicle under such circumstances. Thus, there was evidence that would have supported a finding by the jury that Christopher was contributorily negligently. C. Lemley also argues that there was evidence at trial that would have supported a jury determination that he did not act wantonly. With regard to the wantonness claim, Terry focused on evidence regarding Lemley's health problems; evidence 25 1130160 regarding the number of hours Lemley had worked that week; evidence indicating that Lemley was not wearing his glasses at the time of the accident; and evidence indicating that Lemley was traveling 40 miles per hour in a 25 miles per hour zone. At trial, Terry presented evidence indicating that Lemley was being treated for various health conditions, including uncontrolled diabetes, diabetic renal disease, coronary disease, high cholesterol, hypertension, some arthritis, and obesity. He also presented evidence regarding medications Lemley was taking. Terry further presented evidence indicating that, at the time of the accident, Lemley had gotten off work after working for 16.5 hours and that Lemley had worked a total of 63.5 hours that week preceding the accident. However, Terry did not present any evidence to establish that Lemley's health problems, the medications Lemley was taking, or the hours Lemley had worked that day or that week proximately caused the accident. Further, as we noted in Part A of this opinion, there was conflicting evidence from which the jury could have concluded that Lemley was wearing his glasses at time of the accident. Additionally, although there was evidence indicating that Lemley was traveling 40 miles per hour at the time of the 26 1130160 accident, Trooper Larimer testified that, when he went to the area where the accident occurred a few months after the accident, he determined that the average speed on that part of the road was 39.8 miles per hour. Thus, there was evidence from which the jury could have concluded that Lemley did not act wantonly. Conclusion In this case, the jury was presented with conflicting evidence. When the evidence is viewed in a light most favorable to Lemley and all reasonable inferences the jury was free to draw are indulged, it is easily perceivable from the record that the jury verdict in favor of Lemley as to the negligence and wantonness claims was supported by the evidence. See Syx v. Britton, 894 So. 2d 715, 720-21 (Ala. Civ. App. 2004) ("We cannot say that it is 'easily perceivable' from the record that the jury verdict in favor of Syx and S.P. Richards Company was unsupported by the evidence .... There was conflicting evidence as to whether Syx's negligence was the proximate cause of the injuries for which Britton sought recovery at trial."); Richardson v. Joines, 574 So. 2d at 788 ("While the plaintiffs presented contrary evidence sufficient to support a verdict in their favor, we 27 1130160 cannot agree with their argument that the court properly granted their motion for a new trial. The jury, after hearing the evidence presented by the parties and seeing the witnesses, apparently believed the defendants' evidence and concluded that the defendants were not liable for the damages claimed."). Therefore, the trial court exceeded its discretion when it granted Terry's motion for a new trial. For the above-stated reasons, we reverse the trial court's order and remand this case for the trial court to reinstate the jury's verdict and to enter a judgment on the verdict. REVERSED AND REMANDED. Stuart, Bolin, Parker, Shaw, and Main, JJ., concur. Moore, C.J., and Wise and Bryan, JJ., dissent. 28 1130160 WISE, Justice (dissenting). I respectfully dissent from the majority's decision to reverse the trial court's order granting Terry Wilson's motion for a new trial and to remand this case for the trial court to reinstate the jury's verdict and to enter a judgment thereon. The majority correctly states the standard of review, as follows: "'The standard of review to be applied by this Court in reviewing the granting of a motion for a new trial is set out in Jawad v. Granade, 497 So. 2d 471, at 477 (Ala. 1986): "'"[A]n order granting a motion for new trial on the sole ground that the verdict is against the great weight or preponderance of the evidence will be reversed for abuse of discretion where on review it is easily perceivable from the record that the jury verdict is supported by the evidence."'" ___ So. 3d at ___ (quoting Richardson v. Joines, 574 So. 2d 787, 787 (Ala. 1991)). I agree with the majority's conclusion that it was "easily perceivable from the record" that there was evidence that would support the jury's finding that Frank Lemley had not acted wantonly. However, I disagree with the majority's conclusions that it was "easily perceivable from the record" 29 1130160 that the evidence would have supported a finding by the jury that Lemley had not acted negligently and a finding that Christopher Wilson had been contributorily negligent. In its opinion, the majority finds, based on the conflicting evidence, that the jury could have concluded that Lemley's speed at the time of the accident was not the proximate cause of Christopher's injuries and that Lemley therefore was not negligent. In Odom v. Schofield, 480 So. 2d 1218, 1218 (Ala. 1985), this Court stated: "As Chief Justice Torbert pointed out in Fox v. Bartholf, 374 So. 2d 294 (Ala. 1979), however, merely exceeding the statutory speed limit does not, in itself, establish actionable negligence. Several other requirements are involved -- most particularly the requirement that the jury must find that the statutory violation proximately caused the injury." (First emphasis added.) In this case, Trooper David Larimer testified that he found that "this crash occurred due to Frank Richard Lemley speeding and not being able to stop in time." Thus, the evidence did establish that Lemley's exceeding the speed limit proximately caused Christopher's injuries. Lemley did not present any evidence to dispute this evidence. Additionally, Trooper Larimer testified that a person 30 1130160 traveling at 40 miles per hour should be able to stop in the 460 feet between the hill and the point of impact. The clear implication is that Lemley surely would have been able to stop if he were traveling the posted speed limit, which was 25 miles per hour. The fact that other drivers on a different day were traveling at an average of almost 40 miles per hour in the area of the accident does not change that fact or suggest that Lemley's negligence was not the proximate cause of Christopher's death. There were factual disputes in this case, and the jury could have resolved those disputes in favor of Lemley. Regardless of whether the jury found that Lemley applied his brakes the second Christopher stepped out into the roadway, the undisputed evidence in this case established that the cause of the accident was the fact that Lemley was speeding and was therefore unable to stop before hitting Christopher. Further, there was evidence to support a finding that Lemley should have been able to stop while traveling at 40 miles per hour. However, there was no evidence to support a finding that Lemley would not have been able to stop even if he had been traveling at 25 miles per hour. 31 1130160 It is true that the undisputed evidence established that there were no warning signs in the area where the knuckle-boom truck was stuck partially in the road and where the grass- mowing crew was directing traffic. However, Lemley did not present any evidence indicating that the lack of such warning signs constituted negligence. Although he elicited a vague response that the City had some policy regarding warning signs, he did not present any testimony regarding what those policies actually were. Thus, there was no evidence indicating that the lack of signs in the area of the accident violated any City policy. Further, even if the lack of signs violated a policy, there is no evidence regarding where such signs should have been placed. Therefore, there was no evidence to establish that the failure to comply with any such policy proximately caused the accident. The same is true regarding testimony as to whether the flashing lights on the knuckle-boom truck and the city truck were on. The majority correctly points out that the evidence in that regard was disputed and that the jury could have found that the flashing lights of those two vehicles were not on. However, this does not appear to be evidence of negligence on 32 1130160 the part of Christopher. He was not the driver of either vehicle. Thus, this evidence would not be relevant to the question whether Christopher was contributorily negligent. At most, this appears to be evidence of negligence by a third party. However, "[t]he defendant's negligence need not be the sole cause of an injury in order for an action against the defendant to lie. It is sufficient that the negligence concurred with other causes to produce the injury. Lawson v. General Telephone Co. of Alabama, 289 Ala. 283, 290, 267 So. 2d 132, 138 (1972)." Buchanan v. Merger Enters., Inc., 463 So. 2d 121, 126 (Ala. 1984), superseded by statute, as stated in Jackson v. Azalea City Racing Club, Inc., 553 So. 2d 112 (Ala. 1989). Further, in light of Lemley's testimony that he saw the knuckle-boom truck in the road and that he saw Christopher step out into the roadway when he crested the hill in his vehicle, it appears that any evidence regarding the lack of safety equipment, a safety vest, or flags is irrelevant and nothing more than a red herring. Thus, there was no evidence that actually supported a finding that Lemley was not negligent and that his negligence was not a proximate cause of the accident. 33 1130160 The majority also concludes: "Even if the jury had concluded that Lemley was negligent, there was evidence that would have supported a finding by the jury that Christopher was contributorily negligent. As we noted in Part A of this opinion, the evidence was undisputed that there were no warning signs in the area; that Christopher was not wearing a safety vest at the time of the accident; that Christopher did not have any warning flags, signs, or devices near him in the roadway; and that Christopher was wearing neutral-colored clothing when he was struck. Additionally, Lemley presented evidence indicating that Carr had previously made the statement 'that there were enough vests for everybody on the crew there.' Also, there was conflicting evidence from which the jury could have concluded that the flashing lights or warning lights on the knuckle-boom truck and the city truck were not actually on. However, Christopher stepped out in front of a speeding vehicle, despite the lack of a safety vest, safety equipment, and warning devices. Based on this evidence, the jury could have reasonably concluded that Christopher had knowledge of the dangerous condition; that Christopher appreciated the danger under the circumstances; and that Christopher failed to exercise reasonable care by stepping out in front of a speeding vehicle under such circumstances. Thus, there was evidence that would have supported a finding by the jury that Christopher was contributorily negligently." ___ So. 3d at ___. "In Chilton v. City of Huntsville, 584 So. 2d 822, 824–25 (Ala. 1990), this Court held: "'In order to establish the affirmative defense of contributory negligence [which the defendant bears the burden of proving], there must be a showing 34 1130160 that the party charged had knowledge of the dangerous condition; that he appreciated the danger under the surrounding circumstances; and that, failing to exercise reasonable care, he placed himself in the way of danger. Bridges v. Clements, 580 So. 2d 1346 (Ala. 1991); Knight v. Seale, 530 So. 2d 821 (Ala. 1988). Although contributory negligence may be found to exist as a matter of law when the evidence is such that all reasonable people must reach the same conclusion, the question of the existence of contributory negligence is normally one for the jury. Bridges v. Clements; Knight v. Seale. "'.... "'... In Alabama Power Co. v. Mosley, 294 Ala. 394, 399, 318 So. 2d 260, 263 (1975), this Court, quoting Dwight Mfg. Co. v. Word, 200 Ala. 221, 225, 75 So. 979, 983 (1917), stated: "'"'Contributory negligence is not predicated solely on knowledge of the danger, and the certainty of injury to follow. If such were the rule, contributory negligence would be a synonym for willful suicide or self-injury. If plaintiff had knowledge of facts sufficient to warn a man of ordinary sense and prudence of the danger to be encountered, and of the natural and probable consequences of his own conduct in the premises, then he was guilty of negligence if he failed to exercise ordinary care to discover and avoid the danger 35 1130160 and the injury. [Citations omitted.]'"' "(Emphasis added in Chilton v. City of Huntsville.) See Sprouse v. Belcher Oil Co., 577 So. 2d 443 (Ala. 1991); Campbell v. Alabama Power Co., 567 So. 2d 1222 (Ala. 1990); Electric Service Co. of Montgomery v. Dyess, 565 So. 2d 244 (Ala. 1990); Central Alabama Elec. Co-op v. Tapley, 546 So. 2d 371 (Ala. 1989). Mere heedlessness is not enough. Campbell v. Alabama Power Co., supra; Central Alabama Electric Co-op v. Tapley, supra. "'[C]ontributory negligence, while requiring proof of both knowledge and appreciation of the danger, does not require proof of a voluntary affirmative exposure to the danger [as does assumption of the risk]; rather, it merely requires proof that the plaintiff failed to exercise reasonable care. "'"... [C]ontributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be.... [Contributory negligence involves] risks which he merely might have discovered by the exercise of ordinary care." "'Koshorek v. Pennsylvania R.R., 318 F.2d 364 (3rd Cir. 1963).' "Sprouse v. Belcher Oil Co., 577 So. 2d at 444. (Citation omitted.)" Gulledge v. Brown & Root, Inc., 598 So. 2d 1325, 1327-28 (Ala. 1992). 36 1130160 As I noted previously, in light of Lemley's testimony that he saw the knuckle-boom truck in the road as he crested the hill and saw Christopher step into the road, it appears that any evidence regarding the lack of safety equipment, a safety vest, or flags is irrelevant to the question whether Christopher was contributorily negligent. Therefore, based on the specific facts presented in this case, it appears that the only real question was whether Christopher was negligent because he stepped out into the road and tried to stop Lemley's vehicle. However, in this case, Christopher was an employee of the City, was part of the grass-mowing crew that was supposed to be directing traffic for the knuckle-boom truck that was working in the area, and was merely doing his job. Accordingly, Christopher's stepping into the road was not a departure from the standard of reasonable conduct for a person in his position. It seems wrong to suggest that a person who is tasked with directing traffic fails to exercise reasonable care and acts negligently if he steps into traffic to perform his duties. Thus, under the facts in this case, it was not "easily perceivable from the record" that there was evidence that would have supported a finding by the jury that 37 1130160 Christopher was contributorily negligent. Therefore, the trial court did not exceed its discretion when it granted Terry's motion for a new trial. For the above-stated reasons, this Court should affirm the trial court's order granting Terry's motion for a new trial. Accordingly, I must respectfully dissent. Bryan, J., concurs. 38	March 6, 2015
5c6717e2-a219-4f41-a1db-de91a705e9d0	Ex parte Peter Ferrari et al.	N/A	1130679	Alabama	Alabama Supreme Court	REL: 02/06/2015 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 ____________________ 1130679 ____________________ Ex parte Peter Ferrari et al. PETITION FOR WRIT OF MANDAMUS (In re: D.R. Horton, Inc. - Birmingham v. Peter Ferrari et al.) ____________________ 1130726 ____________________ Peter Ferrari et al. v. D.R. Horton, Inc. - Birmingham Appellate proceedings from Baldwin Circuit Court (CV-13-901249) MURDOCK, Justice. D.R. Horton, Inc. - Birmingham ("DR Horton"), filed a verified petition in the Baldwin Circuit Court, pursuant to Rule 27(a), Ala. R. Civ. P., requesting preaction discovery from Peter Ferrari; Peter's wife, Kimberly Ferrari; Ferrari Capital Partners, LLC; FH Properties, LLC; P6 Holdings, LLC; and Prince 5 Holdings, LLC (collectively "the Ferrari defendants"). The trial court granted the petition. The Ferrari defendants have petitioned this Court for a writ of mandamus ordering the trial court to vacate its order and to dismiss DR Horton's Rule 27(a), Ala. R. Civ. P., petition. Simultaneously, the Ferrari defendants also have appealed the trial court's order on DR Horton's petition. We grant the petition and issue the writ, and we dismiss the appeal. I. Facts and Procedural History Peter Ferrari was employed by DR Horton as a land- acquisition manager for its Gulf Coast division. His responsibilities included researching and acquiring properties for DR Horton to develop. DR Horton asserts that it gave 2 1130679 and 1130726 Ferrari confidential information concerning its business and land-acquisition strategies, including its geographical markets for expansion, and that it empowered Ferrari to arrange land purchases for DR Horton. DR Horton asserts that it received information that Ferrari had supplied third parties with confidential information from DR Horton without DR Horton's permission, including DR Horton's planned land acquisitions, future real- estate developments, markets for expansion, and plans for construction. DR Horton also asserts that it received information that Ferrari had benefited from DR Horton land acquisitions apart from his employment compensation. Based on the information it had received, on July 9, 2013, DR Horton called Ferrari into a meeting with three DR Horton representatives, including its president for Gulf Coast operations, Scott Whitehurst. According to Whitehurst, Ferrari denied making any money "on the side" in DR Horton related transactions, he denied that his wife Kimberly had received any money from third parties, and he denied that the limited-liability companies he and his wife had formed had received any money from DR Horton related transactions or from 3 1130679 and 1130726 third parties. DR Horton requested the tax returns of the Ferrari defendants in order to verify his assertions, but Ferrari refused to provide such information. According to Whitehurst, Ferrari admitted that he had given Brad Zeitlin priority on property deals with DR Horton, but Ferrari was not truthful about the scope and number of DR Horton transactions in which Zeitlin had been involved. Ferrari also claimed that he and his wife had formed their limited-liability companies years before the transactions in question; in fact, however, the formation of those entities coincided with the business dealings DR Horton was scrutinizing. After Ferrari's meeting with the DR Horton representatives, DR Horton placed Ferrari on administrative leave without pay. DR Horton subsequently contacted third parties that it believed had information concerning Ferrari's conduct. Brad Zeitlin agreed to meet with DR Horton representatives to discuss real-property transactions involving DR Horton and Ferrari. Zeitlin was interviewed for over seven hours by a DR Horton attorney who questioned him about transactions in which he had participated with DR Horton and Ferrari. The DR Horton attorney told Zeitlin that it had 4 1130679 and 1130726 reviewed approximately 90,000 e-mails to or from Ferrari as part of its investigation. According to Whitehurst, who was also present during the interview, Zeitlin admitted that he had benefited financially from "tying up" property DR Horton wanted to purchase and then selling it to DR Horton. Whitehurst asserted that Zeitlin admitted that Ferrari had given him priority over other developers, including DR Horton, which allowed Zeitlin to purchase properties that DR Horton wanted. DR Horton terminated Ferrari's employment effective July 31, 2013, allegedly because Ferrari had repeatedly violated several policies of DR Horton as to confidentiality and the purchase of properties. On September 9, 2013, DR Horton filed a petition pursuant to Rule 27(a), Ala. R. Civ. P., in the Baldwin Circuit Court for preaction discovery against the Ferrari defendants. In 1 the petition, DR Horton alleged that Peter Ferrari had supplied confidential information to third parties and that those third parties had benefited financially from DR Horton's Rule 27(a), Ala. R. Civ. P., concerns discovery before 1 an action is filed; Rule 27(b), Ala. R. Civ. P., concerns discovery filed while an action is pending on appeal. 5 1130679 and 1130726 subsequent real-property acquisitions as a result of the confidential business information revealed to them by Ferrari. The petition also alleged that Peter and Kimberly Ferrari "may have received compensation" from the third parties "in exchange for the confidential information Pete Ferrari provided them" and that "the Ferraris may be holding this compensation in their personal bank accounts, in [limited- liability companies] managed or controlled by Pete Ferrari and Kimberly Ferrari, or other unknown entities." The petition stated that DR Horton sought preaction discovery as to this "possible compensation to further determine if causes of action exist against [the Ferrari defendants]." The petition stated that DR Horton "believes that multiple causes of action exist against [the Ferrari defendants]" and that "[t]he allowance of pre-suit discovery from the [Ferrari defendants] may prevent a failure or delay of justice and would benefit all parties by allowing production of relevant and material information, records, and documents, disclosing the identity(ies) of other parties to a potential lawsuit, or preventing a frivolous lawsuit if no claim exists against [the Ferrari defendants]." Attached to the petition were interrogatories, requests for production of documents, and notices for video depositions of the Ferrari defendants. The document requests sought 6 1130679 and 1130726 financial records, including personal bank-account statements, tax returns, and limited-liability-company records. On October 11, 2013, the Ferrari defendants filed their "Objection to Plaintiff's Verified Petition for Pre-suit Discovery and Motion to Dismiss." In their filing, the Ferrari defendants contended that DR Horton's petition was procedurally and substantively deficient under Rule 27(a). On October 24, 2013, DR Horton filed a motion requesting that the court set a hearing on its petition for preaction discovery. On October 30, 2013, without holding a hearing, the trial court entered an order granting DR Horton's petition for preaction discovery in all respects. On November 13, 2013, the trial court entered an order expressly denying DR Horton's motion for a hearing on its Rule 27(a) petition. On November 14, 2013, the Ferrari defendants filed what they styled as a "Motion for Reconsideration, Motion for Stay, for Protective Order, and Supporting Brief." The Ferrari defendants argued that the trial court erred in failing to hold a hearing on DR Horton's Rule 27(a) petition, and they reiterated the defects they believed were present in DR Horton's petition. On November 22, 2013, DR Horton filed 7 1130679 and 1130726 a response in which it contended that Rule 27 does not require a hearing on the merits of a petition. On March 25, 2014, the trial court held a hearing on the Ferrari defendants' motions filed November 14, 2013. In the hearing, the parties argued about whether DR Horton's Rule 27(a) petition demonstrated what was required in order to grant preaction discovery and whether a hearing on DR Horton's petition was required under the rule. DR Horton's counsel admitted in the hearing that DR Horton "could theoretically sue [Ferrari] for breach of fiduciary duty now. But, if he was making a profit and essentially taking bribes and kickbacks from this friend, then the causes of action increase exponentially." He further explained that "[w]hat we want to do is just determine, did he make any money off these transactions or not. That's in his financial records that we can talk to him about so we can sort out what those financial records say." He added: "What we're trying to do is, under Rule 11[, Ala. R. Civ. P.], just assess who are our defendants and what are our claims, and then we'll bring the action." Following further arguments by the parties concerning the propriety of DR Horton's petition, the Ferrari defendants' 8 1130679 and 1130726 counsel interjected that "there is a timing issue that I would like to address." Counsel for the Ferrari defendants proceeded to explain that they had filed their "motion for reconsideration on November 14, 2013, and that "the 90th day after we filed our motion would have been February the 12th, ...." Thus, the Ferrari defendants' counsel believed the motion had been denied by operation of law under Rule 59.1, Ala. R. Civ. P. After hearing more arguments concerning whether the trial court should have held a hearing on DR Horton's petition, the trial court stated: "Since the Court has failed to rule on the respondents' Motion to Reconsider Order and Motion for Protective Order, it's deemed [denied] by rule of law due to the Court's failure to rule within 90 days. So tomorrow is your last day to appeal." On the same day, March 25, 2014, the trial court entered an order granting the Ferrari defendants' request for a stay "of all matters currently pending before this court ... and all discovery in this case ... pending conclusion of the appeal that this court understands will be filed on or before tomorrow March 26, 2014, related to this Court's order granting the Petition for Rule 27 discovery as filed by [DR Horton] in this case." 9 1130679 and 1130726 On March 26, 2014, the Ferrari defendants simultaneously filed with this Court a petition for a writ of mandamus and an appeal challenging the trial court's October 30, 2013, order granting DR Horton's Rule 27 petition for preaction discovery. On April 8, 2014, the trial court entered an order confirming its understanding that the Ferrari defendants' "motion for reconsideration" had been denied "by operation of law due to the passage of more than ninety (90) days without a ruling as set forth in Rule 59.1 of the Alabama Rules of Civil Procedure." Nothing submitted to us indicates that the trial court expressly ruled upon the Ferrari defendants' motion for a protective order. II. Appeal or Mandamus The threshold issue for determination is whether the issues raised by the Ferrari defendants are properly before this Court by way of their petition for a writ of mandamus or their appeal. The Ferrari defendants purport to invoke both avenues of review in the alternative. The precursor to Rule 27 was a set of statutory provisions found at Title 7, §§ 491-505, Ala. Code 1940.2 Predecessors to these statutes date back to 1852. See 2 Ex parte Joiner, 258 Ala. 466, 468, 64 So. 2d 48, 50 (1953). 10 1130679 and 1130726 Noting that "[t]he remedy by appeal 'was entirely unknown to the common law'" and that, "[c]onsequently, the remedy by appeal in actions at law and in equity ... exists only when given by some constitutional or statutory provision," this Court in American Life Insurance Co. v. Powell, 259 Ala. 70, 76, 65 So. 2d 516, 522 (1953), was clear to the conclusion that disputes under Title 7, §§ 491-505, were reviewable only by mandamus: "[T]he resolvement of two questions presented will effectively dispose of this appeal. "The first question, a procedural one, calls for determination of the proper method of reviewing orders granting applications to perpetuate testimony under Title 7, Section 491 et seq., as amended, supra. Our conclusion is that such orders are not appealable, and that mandamus is a proper remedy." 259 Ala. at 72, 65 So. 2d at 518. Consistent with this Court's holding in Powell, we expressly held in Ex parte Renovations Unlimited, LLC, 59 So. 3d 679, 683 (Ala. 2010), that "review of a trial court's grant or denial of a verified petition seeking preaction discovery pursuant to Rule 27 is by a petition for a writ of mandamus." Indeed, since the holding of this Court in Powell, and fully consistent with this Court's express holding in 11 1130679 and 1130726 Renovations Unlimited, this Court and the Court of Civil Appeals typically have reviewed dispositions of Rule 27 petitions by way of mandamus petitions. See, e.g., Ex parte Psychemedics Corp., 987 So. 2d 585 (Ala. 2007); Vesta Fire Ins. Corp. v. Liberty Nat'l Life Ins. Co., 893 So. 2d 395, 411 (Ala. Civ. App. 2003) (addressing a petition for discovery pending appeal under Rule 27(b) and treating an appeal as a petition for a writ of mandamus); Ex parte Norfolk Southern Ry., 816 So. 2d 469 (Ala. 2001); Ex parte Alabama Dep't of Transp., 757 So. 2d 371 (Ala. 1999); and Ex parte Anderson, 644 So. 2d 961 (Ala. 1994). 3 "'An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights There have been a few cases, however, in which either 3 this Court or the Court of Civil Appeals proceeded to address on its merits an appeal of a Rule 27 order. See City of Mobile v. Howard, 59 So. 3d 41 (Ala. 2010); Albert P. Brewer Developmental Ctr. v. Brown, 782 So. 2d 770 (Ala. 2000); Stoor v. Turner, 727 So. 2d 38 (Ala. 1998); and Driskill v. Culliver, 797 So. 2d 495 (Ala. Civ. App. 2001). It does not appear, however, that the proper method of review was raised by the parties, or ex mero motu by the court, in any of these cases, and, unlike some of the cases addressing mandamus petitions, there was no discussion of the proper method of review in any of them. 12 1130679 and 1130726 of the parties.'" Hamilton ex rel. Slate-Hamilton v. Connally, 959 So. 2d 640, 642 (Ala. 2006) (quoting Palughi v. Dow, 659 So. 2d 112, 113 (Ala. 1995)). In contrast, an interlocutory judgment is "[a]n intermediate judgment that determines a preliminary or subordinate point or plea but does not finally decide the case." Black's Law Dictionary 971 (10th ed. 2014). A ruling on a request for preaction discovery under Rule 27(a) merely adjudicates a party's right to engage in certain discovery procedures and is quintessentially interlocutory in nature. Such a ruling does not adjudicate any substantive claim or right of any party. Instead, a ruling on a Rule 27(a) petition is made in contemplation of and in service to a potential future adjudication. Just as a postcomplaint discovery request under Rule 26, Ala. R. Civ. P., furthers the adjudication of a complaint, and the issues that have been or will be raised thereunder, so too does a precomplaint discovery request under Rule 27(a). The difference between the two is one of timing, not the nature of what is sought. 13 1130679 and 1130726 We acknowledge that federal appellate courts review dispositions of preaction-discovery petitions by way of appeal. See, e.g., Ash v. Cort, 512 F.2d 909, 912 (3d Cir. 1975) (finding that "[t]he Rule 27(a) order is deemed final because it is the only matter pending in the district court at a time when no complaint has yet been filed"); Mosseller v. United States, 158 F.2d 380, 383 (2d Cir. 1946) (concluding that an "order authorizing the taking of the deposition is a final order for the purpose of appealability, because it grants all the relief sought in the petition and disposes of the proceeding"). Some states have followed the federal example in this regard. See, e.g., Gernstein v. Lake, 259 Neb. 479, 484, 610 N.W.2d 714, 718 (2000) (concluding that "the order granting the Gernsteins' petition to perpetuate testimony under rule 27 is a final, appealable order"); Powers v. Planned Parenthood of Northern New England, 677 A.2d 534, 536 (Me. 1996) (citing Mosseller and other federal cases in support of the conclusion that orders on preaction-discovery petitions are appealable); and Bainum v. Mackay, 15 Utah 2d 295, 296, 391 P.2d 436, 436 (1964) (holding that "[t]his type of judgment is appealable" and citing Mosseller). 14 1130679 and 1130726 As noted, however, whenever this Court has affirmatively addressed the issue, we have been consistent and clear in holding that the proper method of review is a petition for a writ of mandamus. Moreover, other states have taken the position that orders on preaction-discovery petitions are not subject to appeal. In reaching this conclusion, an Illinois appellate court explained: "Thus, rather than constituting a separate and independent action, a Rule 217 [Illinois's version of Rule 27] proceeding is dependent upon the proposed suit and must be viewed as part of that action. Since a Rule 217 petition seeks no relief other than to take a deposition for use in a contemplated action, an order entered in the course of the deposition is interlocutory and is subject to review only upon appeal from final judgment in the underlying cause." Frye v. Massie, 115 Ill. App. 3d 48, 53, 450 N.E.2d 411, 414-15, 70 Ill. Dec. 938, 941-42 (1983). Likewise, the Supreme Court of Nevada rebuffed an appellant's argument that a ruling on a preaction-discovery request "constitutes a final judgment because it disposes of the issues presented," explaining: "Although entitled a 'petition, 'a pleading filed pursuant to NRCP 27 does not commence a separate action in the district court; instead, the sole purpose of the petition is to perpetuate testimony when no action may presently be commenced. Further, 15 1130679 and 1130726 an order resolving a petition to perpetuate testimony provides no relief to a party other than to permit or deny discovery to the party for use in a contemplated action. ... An order granting or denying a petition to perpetuate testimony is interlocutory in nature and does not adjudicate the rights of any party." Sunrise Hosp. v. Dailey, 109 Nev. 950, 951, 860 P.2d 162, 162-63 (1993). We consider such reasoning to be sound and to align with this Court's frequently expressed understanding of what constitutes a final, appealable judgment. Accordingly, we conclude that the proper avenue for seeking review of a trial court's disposition of a Rule 27(a) petition for preaction discovery is by way of petition for a writ of mandamus, not by way of appeal. The Ferrari defendants' appeal of this matter is therefore dismissed. Possibly because of confusion over the proper avenue for seeking appellate review of this matter, neither party has raised the issue of the timeliness of the Ferrari defendants' petition for a writ of mandamus. This Court has stated that "a petition challenging an order compelling discovery is timely only if (1) a protective order is sought, pursuant to Ala. R. Civ. P. 26(c), within the time set for compliance with the order, Ex parte Orkin, Inc., 960 So. 2d 635, 640 n.5 (Ala. 2006) (citing with approval Wang v. Hsu, 919 F.2d 130, 131 (10th Cir. 1990)), and (2) the mandamus petition is 16 1130679 and 1130726 filed no more than 42 days after the denial of the protective order. 960 So. 2d at 640." Ex parte Meadowbrook Ins. Grp., Inc., 987 So. 2d 540, 546 (Ala. 2007). When the Ferrari defendants filed their "motion for reconsideration" on November 14, 2013, they also requested a stay of all proceedings and the issuance of a protective order. The trial court expressly granted the Ferrari defendants' motion for a stay of proceedings during this Court's review of the trial court's disposition of DR Horton's Rule 27(a) petition, but it did not expressly rule on the motion for a protective order. On April 8, 2014, the trial court belatedly ruled on the Ferrari defendants' "motion for reconsideration," finding that it had been denied by operation of law on February 12, 2014. Of course, because the trial court's order granting preaction discovery was not a final order, the Ferrari defendants' "motion for reconsideration" was not a postjudgment motion under Rule 59, Ala. R. Civ. P., and, therefore, it was not denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.. Be that as it may, the trial court implicitly denied the Ferrari defendants' motion for a protective order when it denied their "motion for 17 1130679 and 1130726 reconsideration." Regardless of whether the motion for a protective order was denied on February 12, 2014, or on April 8, 2014, the Ferrari defendants' petition to this Court was timely filed within 42 days of the denial of the order. III. Analysis "'"A writ of mandamus is an extraordinary remedy that requires a showing of (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on 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 Bruner, 749 So. 2d 437, 439 (Ala. 1999) (quoting Ex parte McNaughton, 728 So. 2d 592, 594 (Ala. 1998))." Ex parte Norfolk Southern Ry., 816 So. 2d at 471. A. Necessity of a Hearing The Ferrari defendants first contend that the trial court erred in granting DR Horton's Rule 27(a) petition because, they say, Rule 27 requires a trial court to hold a hearing on a preaction-discovery petition before it rules on the petition and that the trial court did not do so. The Ferrari defendants note that Rule 27(a)(2) states that after a petitioner files its petition with the circuit court, 18 1130679 and 1130726 "[t]he petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least thirty (30) days before the date of hearing the notice shall be served in the manner provided in Rule 4(c) for service of summons ...." Rule 27(a)(2), Ala. R. Civ. P. (emphasis added). The Ferrari defendants also observe that, in nearly every case in which this Court has reviewed a Rule 27(a) petition, the Court has noted that the trial court held a hearing on the petition. See, e.g., Ex parte Renovations Unlimited, LLC, 59 So. 3d at 682; City of Mobile v. Howard, 59 So. 3d 41, 43 (Ala. 2010); Ex parte Norfolk Southern Ry., 816 So. 2d at 471; and Ex parte Anderson, 644 So. 2d at 962. Likewise, federal courts interpret Rule 27, Fed. R. Civ. P. ("Federal Rule 27"), as requiring a hearing on a preaction-discovery petition. See, 4 e.g., Petition of Delta Quarries & Disposal, Inc., 139 F.R.D. 68, 68 (M.D. Pa. 1991) (stating that, "as required by the rule, a hearing was scheduled to determine whether the Rule 27(a)(2), Fed. R. Civ. P., begins as follows: "At 4 least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing." 19 1130679 and 1130726 'perpetuation of the testimony may prevent a failure or delay of justice.' Fed. R. Civ. P. 27(a)(3)"). Lastly, the Ferrari defendants note that on October 24, 2013, DR Horton itself filed a motion to set a hearing on its Rule 27(a) petition. For its part, DR Horton argues that "[t]he rule does not say that there must be a hearing." It contends that the parties were able to present all of their arguments in written form to the trial court. DR Horton observes that, even though several cases from this Court reviewing preaction-discovery petitions recount that the trial courts in those cases held hearings on the petitions, none of our cases expressly state that Rule 27 requires that a hearing be held. It highlights two opinions from this Court, Ex parte Psychemedics Corp., 987 So. 2d at 587, and Albert P. Brewer Developmental Ctr. v. Brown, 782 So. 2d 770, 771 (Ala. 2000), in which the Court did not state that a hearing was held by the trial courts that entertained the Rule 27(a) petitions. DR Horton discounts 5 Federal Rule 27 by pointing to the fact that this Court observed in Ex parte Anderson that there were differences In their reply brief, the Ferrari defendants attach a 5 copy of the case-action summary from Psychemedics, which indicates that a hearing was held in that action. 20 1130679 and 1130726 between Alabama's Rule 27 and its federal counterpart. 644 So. 2d at 964. DR Horton insists that it filed a motion to set a hearing on its petition "out of an abundance of caution," not because the rule requires such a hearing. Finally, DR Horton contends that even if Rule 27(a) does require a hearing, the Ferrari defendants received one on March 25, 2014, when the trial court heard arguments on the Ferrari defendants' "motion for reconsideration." A plain reading of Rule 27(a)(2) indicates that a hearing must be held on a petition for preaction discovery. The time for filing the notice that a petitioner must provide to persons named in a petition is predicated on a contemplated hearing date, and the notice itself is supposed to include the date for the hearing. Although it is true that the Anderson Court observed that Alabama's Rule 27 is different in certain respects from Federal Rule 27, the Anderson Court was not referring to the requirement that a hearing be held on a petition for preaction discovery when it made that observation. The references to a hearing in subsection (a) of both Federal Rule 27 and the Alabama rule are very similar and therefore the practice in federal courts is helpful to our 21 1130679 and 1130726 interpretation of Rule 27(a) as to whether a hearing is required. The fact that our previous cases have not stated that a hearing is required simply reflects the fact that the issue has not been directly raised; it is telling that a hearing has been held regarding almost all, if not all, preaction-discovery petitions this Court has reviewed before this one. The March 25, 2014, hearing on the Ferrari defendants' "motion for reconsideration" was not a substantive substitute for a hearing on DR Horton's preaction-discovery petition. Although in that hearing the trial court heard arguments about the merits of the petition, the trial court concluded the hearing soon after it was brought to the court's attention that the Ferrari defendants believed that the "motion for reconsideration" already had been denied by operation of law. It is clear that the trial court did not evaluate in the March 25, 2014, hearing the merits of the parties' arguments as to whether DR Horton was entitled to preaction discovery.6 In fact, the trial court's October 30, 2013, order 6 granting DR Horton's preaction-discovery petition leaves some doubt as to whether the trial court even considered the Ferrari defendants' written arguments in response to the petition. In pertinent part, that order stated: "This matter having come before the Court, and the Court having reviewed 22 1130679 and 1130726 Instead, the trial court simply ruled that the "motion for reconsideration" had already been denied. We conclude that the trial court erred in failing to hold a hearing on DR Horton's Rule 27(a) petition before granting the petition. Although this conclusion is sufficient to warrant a vacatur of the trial court's order and an order from this Court requiring the trial court to conduct such a hearing, we note that the Ferrari defendants have raised other possible errors in the trial court's ruling that, for the sake of judicial economy, necessitate further review by this Court. B. The Unavailability of Written Interrogatories The Ferrari defendants argue that the trial court erred in allowing DR Horton to serve written interrogatories on the Ferrari defendants because, they say, Rule 27(a) does not appear to contemplate that such discovery is available in preaction discovery. DR Horton does not respond to this argument. As noted above, Rule 27(a)(1) states, in part: the Petition for Pre-Suit Discovery Pursuant Rule 27 of the Alabama Rules of Civil Procedure filed by [DR Horton], for good cause shown, it is hereby GRANTED" (capitalization in original). 23 1130679 and 1130726 "A person who desires to perpetuate that person's own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party." (Emphasis added.) Likewise, Rule 27(a)(3) states, in part: "If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a). The discovery may then be taken in accordance with these rules." (Emphasis added.) Rule 27(a) contemplates discovery that includes deposition testimony; discovery under Rule 34, which includes the production of documents (as well as the examination of real property and other tangible things); and 7 Rule 34(a), Ala. R. Civ. P., provides: 7 "(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect, copy, test, or sample any designated documents or electronically stored information (including writings, drawings, 24 1130679 and 1130726 discovery under Rule 35, which pertains to mental and physical examinations. Rule 27(a) does not mention the availability 8 of discovery by written interrogatories or Rule 33, Ala. R. Civ. P., which concerns discovery by way of written graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect, copy, test, or sample any designated tangible things that constitute or contain matters within the scope of Rule 26(b) and that are in the possession, custody, or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b)." Rule 35(a), Ala. R. Civ. P., provides: 8 "(a) Order for examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." 25 1130679 and 1130726 interrogatories. The trial court therefore erred in ordering the Ferrari defendants to respond to the written interrogatories. C. The Perpetuation of Evidence under Rule 27 1. The Perpetuation of Testimony Next, the Ferrari defendants contend that the trial court erred by ordering them to submit to depositions and to produce documents that were not sought by DR Horton for the overarching purpose stated in Rule 27(a) of preserving evidence to prevent a failure or delay of justice. With respect to the issue of deposition testimony, we note that Rule 27(a)(1) provides, in pertinent part: "A person who desires to perpetuate that person's own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition. ... The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, ... (3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner's reasons for desiring to perpetuate it, ... and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony or to seek discovery under Rule 34 or Rule 35 from the persons named in the petition." 26 1130679 and 1130726 (Emphasis added.) Similarly, Rule 27(a)(3) provides, in part: "If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions ...." (Emphasis added.) Thus, Rule 27(a) repeatedly frames the authority granted therein in the context of preservation, or "perpetuation." DR Horton did not offer in its petition, and it does not attempt to offer in response to the Ferrari defendants' mandamus petition, any reason it needs to perpetuate the testimony of the Ferrari defendants. Instead, DR Horton openly stated in its Rule 27(a) petition and at the March 25, 2014, hearing that it sought preaction discovery to determine what other causes of action it may have against the Ferrari defendants besides breach of fiduciary duty against Peter Ferrari. DR Horton cites Ex parte Anderson for its right to such preaction discovery. Anderson itself stated, however, that only preaction discovery under Rules 34 and 35, and not deposition testimony, may be compelled for reasons other than perpetuation of 27 1130679 and 1130726 evidence. 44 So. 2d at 962-63. DR Horton did not allege in its Rule 27(a) petition, nor does it argue in its response to the Ferrari defendants' petition for a writ of mandamus, that the deposition testimony it seeks is in danger of being lost. This is not surprising because DR Horton does not seek deposition testimony for the purpose of perpetuating evidence. Therefore, the trial court erred in ordering the Ferrari defendants to submit to depositions absent a showing by DR Horton that it has a need to preserve their testimony. 2. The Perpetuation of Evidence Pursuant to Rule 34 The Ferrari defendants expressly ask this Court to overrule Ex parte Anderson to the extent that it held that preaction discovery under Rules 34 and 35 may be sought for reasons other than the preservation or "perpetuation" of evidence. Among other things, the Ferrari defendants point to Rule 27(a)(3), which, they contend, expressly conditions the availability of discovery under Rule 34 and 35 as follows: "If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall ... make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a)." 28 1130679 and 1130726 (Emphasis added.) The Ferrari defendants also note that the reading of Rule 27(a) in Anderson is contrary to the Committee Comments to that rule: "[T]his rule has been modified [from the federal rule] to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules." (Emphasis added.) (a) The Statutory Precursor to Rule 27 Over the last 160 years, there has been very little decisional law interpreting or applying Rule 27(a), Ala. R. Civ. P., and the statutes that preceded its adoption in 1973. Commenting on those precursor statutes, this Court observed in 1953: "During a period of almost one hundred years, as we have heretofore shown, most of the provisions codified as §§ 491–505, Title 7, Code 1940, were part of the statutory law of this state and were resorted to so infrequently that only three cases, according to our research, reached this court wherein they were directly involved. Consequently, there is very little decisional law on the subject." Ex parte Joiner, 258 Ala. 466, 469, 64 So. 2d 48, 50 (1953). Since 1953, there have been only a handful of additional decisions interpreting Rule 27 or its statutory precursors, one of which, of course, was Anderson. 29 1130679 and 1130726 Insight into the statutes that were the precursors of Rule 27 was provided by this Court in American Life Insurance Co. v. Powell, 259 Ala. at 72, 65 So. 2d at 518, a case decided on the same day as Joiner: "The second question [before us] involves the sufficiency of the affidavits made pursuant to Section 492, Title 7. Specifically, we must decide what is intended by the requirement of Section 492 that 'The applicant must make affidavit before a circuit or probate judge, or register stating ... the facts generally expected to be proved by the witness.' ... Our view is that the affidavits do not meet the requirements of Section 492; that the applications clearly show that the purpose of each is discovery, which is not within the purview of the statutes, supra, authorizing the perpetuation of testimony; and that the judge of the circuit court erred in granting the applications." (Emphasis omitted; emphasis added.) (b) The Text of Rule 27 and the Committee Comments Rule 27 was adopted in 1973; its text has not changed substantively since that time. At this juncture, it is helpful to set out the text of Rules 27(a)(1) and (3) in their entirety: "(1) Petition. A person who desires to perpetuate his own testimony or that of another person or to obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be 30 1130679 and 1130726 entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and his interest therein, (3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner's reasons for desiring to perpetuate it, (4) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony or to seek discovery under Rule 34 or 35 from the persons named in the petition. ".... "(3) Order And Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a). The discovery may then be taken in accordance with these rules. For the purpose of applying these rules to discovery before action, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such discovery was filed." 31 1130679 and 1130726 (Emphasis added.) The original Committee Comments, as adopted by this Court along with Rule 27 itself in 1973, read as follows: "This rule is virtually identical with the corresponding federal rule. Certain 'awkward form' has been eliminated. See Vermont Rule 27, 8 Wright & Miller, Federal Practice and Procedure, Civil, § 2074 (1970).[ ] The only change in substance is 9 extending the time for notice in Rule 27(a)(2) from 20 to 30 days. "This rule supersedes Code of Ala., Tit. 7, §§ 491-505. The rule is similar to the statute –- compare Rule 27(a)(1) 1 with Code of Ala., Tit. 7, § 492 –- in requiring the petition to state the facts which the petitioner desires to establish by the proposed testimony. The statute had been interpreted as requiring 'a narrative of the testimony to be given by the witness.' American Life Ins. Co. v. Powell, 259 Ala. 70, 78, 65 So. 516 (1953). The rule is intended to be somewhat more Section 2074, Federal Practice & Procedure, quotes with 9 approval from Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961): "'The purpose is to make Rules 34 and 35 applicable in proceedings to perpetuate testimony. Common sense says that there will be cases in which they should be applicable where a deposition is not necessary or appropriate. It may frequently occur that the only thing likely to be lost or concealed is a paper or object that should be subject to inspection, etc., under Rule 34, or the physical or mental condition of a party, who should be subject to physical or mental examination by a physician under Rule 35.'" (Emphasis added.) 32 1130679 and 1130726 liberal and to permit the facts to be stated in a brief, generalized form, as distinguished from a particularized and detailed statement of the proposed testimony. But the difference is one of degree only, since all agree that the purpose of the rule, like that of the statute it will supersede, is to perpetuate testimony rather than to make discovery. See Wright & Miller, Federal Practice and Procedure, Civil. § 2071 (1970).[ ]" 10 Section 2071 states as follows: 10 "The scope of discovery available under this rule is not as broad as that provided for discovery generally under Rule 26. Rule 27 is intended only for the perpetuation of testimony or other evidence. It is drafted "'to apply to situations where, for one reason or another, testimony might be lost to a prospective litigant unless taken immediately, without waiting until after a suit or other legal proceeding is commenced. Such testimony would thereby be perpetuated or kept in existence and, if necessary, would be available for use at some subsequent time.' "[Petition of Ferkauf, 3 F.R.D. 89, 91 (S.D. N.Y. 1943).] "At first, some concern was expressed that this rule might be used for the purpose of discovery before action is commenced and might enable a person to fish for some ground for bringing suit. The early commentators agreed that this was not the purpose of the rule, and, despite an occasional intimation to the contrary, the courts have generally agreed that to allow Rule 27 to be used for this purpose would be an 'abuse of the rule.' [Martin v. Reynolds Metals Corp., 297 F.2d 49, 55 (9th Cir. 1961)]." 33 1130679 and 1130726 (Emphasis added.) Beginning in 1986, the committee that drafted Rule 27 and the original Committee Comments to that rule met and considered the issue whether Rule 27 allowed preaction discovery other than for the purpose of preserving evidence. Former Justice Lyons explains the intent of the rule and the result of those meetings in his treatise, Alabama Rules of Civil Procedure Annotated: "When this rule was promulgated it was viewed by the advisory committee as a device for amassing of evidence prior to the institution of an action or pending appeal but, it was not, in the recollection of the author, considered as a vehicle for discovery before commencement of an action in order to determine whether a cause of action exists. "During a series of committee meetings covering a span of approximately one year and commencing in 1986, the committee considered the issue of whether Ala. R. Civ. P. Rule 27 allowed pre-action discovery independent of the need to perpetuate evidence. At its meeting on April 24, 1987, the Committee concluded that 'it was the consensus of the committee that Rule 27 of the Alabama Rules of Civil Procedure does not authorize discovery in advance of the filing of an action except under very limited circumstances.' Minutes of the Advisory Committee, April 27, 1986. The committee then approved the submission to the Supreme Court of revised comments including what now appears as the final paragraph of the Committee Comments. The final paragraph (Emphasis added; footnotes omitted.) 34 1130679 and 1130726 concludes that the reference to discovery under Rules 34 and 35 is for the purpose of perpetuating evidence. The Supreme Court approved and adopted this revision to the comments by order entered on April 5, 1988." 1 Champ Lyons, Jr., and Ally Windsor Howell, Alabama Rules of Civil Procedure Annotated 27.1 (4th ed. 2004). The revision to the Committee Comments that resulted from the committee's work and that was adopted by the Supreme Court in 1988 includes the following: "As is true of the corresponding federal rule, the primary purpose of Rule 27, like that of the state statutes it superseded, is to perpetuate testimony rather than to make discovery. "See 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2071 (1970). "However, this rule has been modified to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules. This rule permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not testimony is perpetuated. See Vermont Rule 27; 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2074 (1970)." (Emphasis added.) (c) Anderson The Court in Anderson held that preaction discovery under Rule 34 may be granted for reasons other than perpetuation of 35 1130679 and 1130726 evidence. The Anderson Court stated: "Rule 27, on its face 11 and stripped of its historical background, does not restrict discovery under Rule 34 to cases where evidence is in danger of being lost or destroyed." 644 So. 2d at 962. The Anderson Court further concluded that Rule 27 "specifically authorizes 'discovery under Rule 34,' without limiting the use of Rule 34 to that of perpetuating evidence." 644 So. 2d at 964. In what is perhaps the most cited passage from the Anderson opinion, the Court stated: "Although Alabama Rule 27 does not give a potential plaintiff 'carte blanche' to 'fish' for a ground for filing an action, it nonetheless provides for preaction 'discovery under Rule 34,' regardless of any need to perpetuate evidence, provided that the requirements of the rule are met and that the trial court is satisfied that such discovery might serve to prevent a failure or delay of justice." 644 So. 2d at 964. The Anderson Court also addressed the matter of the Committee Comments, explaining: The Anderson Court did not specifically address 11 discovery under Rule 35 because such discovery was not requested by the plaintiff in that case. Rule 27 provides for discovery under Rule 35, which allows physical and mental examinations of a party, under the same circumstances in which it provides for discovery under Rule 34, however. 36 1130679 and 1130726 "Although the purpose of the Committee Comments is to explain and clarify the Rules of Civil Procedure, the Committee Comments to Rule 27 actually raise more questions than they answer. For instance, the comments state that Rule 27 is patterned after Federal Rule 27 and Vermont Rule 27 and that the rule's 'primary' purpose is to perpetuate testimony. This statement with respect to the rule's 'primary' purpose probably resulted from the fact that the statutes that the rule superseded focused exclusively on perpetuating testimony. However, although the commentators acknowledged in the third paragraph [of the Committee Comments as amended in 1988 ] that the rule had been changed so 12 as to allow limited preaction discovery under Rule 34, they stated, nonetheless, and with no supporting language from the rule itself, that that discovery was limited to perpetuating evidence. While we are fully aware of the statement of purpose contained in the comments to Rule 27, we cannot give precedence to that statement over the otherwise clear language contained in the rule. Simply put, Rule 27 speaks for itself." 644 So. 2d at 963 (emphasis added). Thus, the Anderson Court held that "clear language" in Rule 27(a) overrode the conflicting explanation of the rule in the Committee Comments and dictated that preaction discovery of documents under Rule 34, and, by implication, physical and mental examinations under Rule 35, could be sought by a prospective plaintiff for the purpose of facilitating the discernment and evaluation of The referenced paragraph is quoted in this opinion in 12 the text at the end of Section III.C.2.(b), above. 37 1130679 and 1130726 potential claims rather than for only the perpetuation of evidence. Since Anderson was decided in 1994, there have been only five occasions in which this Court has reviewed trial court rulings on Rule 27(a) petitions that sought preaction discovery for reasons other than perpetuation of evidence. In none of those cases was the question raised as to whether Anderson correctly interpreted Rule 27(a) in this regard. In 2007, for example, this Court applied Anderson's holding in Ex parte Psychemedics Corp., 987 So. 2d 585 (Ala. 2007), but specifically observed that "Psychemedics's mandamus petition does not ask this Court to revisit its decision in Ex parte Anderson." 987 So. 2d at 588. 13 The opinion in Ex parte Renovations Unlimited, LLC, 59 13 So. 3d 679, 683 (Ala. 2010), quoted the holding in Anderson. That opinion, however, also implied -- and a review of the mandamus petition filed in the case confirms -- that the mandamus petitioners did not ask for Anderson to be overruled. Instead, they succeeded before this Court by arguing merely that the Rule 27 petitioners had affirmatively relinquished their right to pursue legal action against the mandamus petitioners "by executing [a] release and thus no longer have 'an action cognizable in a court of this state' as required by Rule 27(a)(1)." 59 So. 3d at 683. This Court agreed with the mandamus petitioners, and it ordered the trial court to dismiss the petition for preaction discovery on this basis. Likewise, the opinion in City of Mobile v. Howard, 59 So. 3d 41 (Ala. 2010), suggests -- and a review of the mandamus 38 1130679 and 1130726 (d) Anderson Revisited Today, as noted, we have been asked to revisit Anderson. Upon reexamination of the text of Rule 27 itself, the Committee Comments thereto, and the history of both the rule and the Committee Comments, we respectfully must reject the notion that "clear language" in Rule 27(a) dictates that discovery under Rule 34 (and of necessity Rule 35, which in all instances in Rule 27 is referenced in companionship with Rule 34) may be obtained for reasons other than perpetuation of evidence. As noted, Rule 27(a)(1) begins as follows: "A person who desires to perpetuate that person's own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this petition filed in the case confirms -- that the mandamus petitioners did not ask for Anderson to be overruled. Instead, the Howard Court reversed the trial court's Rule 27 order based on the statutory privilege afforded by § 12–21–3.1, Ala. Code 1975, and its conclusion that Howard failed to demonstrate that she "has never tried to obtain the information she seeks from any source other than the City and has failed to demonstrate that she is unable to obtain that information from other sources without undue hardship." 59 So. 3d at 48. See also Albert P. Brewer Developmental Ctr. v. Brown, 782 So. 2d 770 (Ala. 2000) (dismissing the proceeding before us as moot); Ex parte Alabama Dep't of Transp., 757 So. 2d 371, 373-74 (Ala. 1999) (reversing the trial court's Rule 27 order on the ground that a federal statute protected the information sought from discovery). 39 1130679 and 1130726 state may file a verified petition in the circuit court in the county of the residence of any expected adverse party." (Emphasis added.) Admittedly, this language, at least considered in isolation, could be interpreted as meaning that a person seeking testimony under Rule 27(a) may do so only if he or she "desires to perpetuate that person's own testimony or that of another person" but that a Rule 27(a) petitioner seeking discovery under Rule 34 or Rule 35 may do so free of this condition. The language does not require such a reading, however, especially in light of its history, the Committee Comments adopted by this Court, and the text of Rule 27 taken as a whole. Indeed, these factors and others compel us to conclude that the language is due a different construction. First, the structure of the sentence -- the use of two separate infinitive phrases separately referencing deposition testimony and discovery under Rules 34 and 35 -- can be explained rather simply (especially in light of the language of Rule 27(a)(3) discussed below) as an inartful attempt to address an issue that at one time plagued Federal Rule 27, i.e., whether a petitioner may obtain preaction discovery under Rules 34 and 35 only in conjunction with the taking of 40 1130679 and 1130726 deposition testimony. See Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961). In point of fact, this is exactly what the 1988 revision to the Committee Comments to Rule 27 explicitly point to as the import of this particular language: "[T]his rule has been modified to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules. This rule permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not testimony is perpetuated. See Vermont Rule 27; 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2074 (1970)." (Emphasis added.) To like effect are the Reporter's Notes to Rule 27, Vermont R. Civ. P., a rule cited in the foregoing passage from the Committee Comments and which both the Committee Comments and the Anderson Court agree was a model for Alabama's rule: "This rule is based on Federal Rule 27, as modified to fit requirements of state practice. The procedure under it is the equivalent of that under 12 V.S.A. §§ 1281-1286 (now superseded), with the principal difference that the rule also permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not a deposition is taken. In this respect the rule clarifies an ambiguity in the federal rule. See 8 Wright & Miller, Federal Practice and Procedure § 2074 (1970)." 41 1130679 and 1130726 (Emphasis added.)14 Similar to the language of our Rule 27(a)(1), Vermont's 14 Rule 27(a)(1) begins by stating: "A person who desires to perpetuate testimony or to obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court of the state may file a verified petition ...." Vt. R. Civ. P. 27. The Anderson Court observed that "[i]n In re Burlington Bagel Bakery, Inc., 150 Vt. 20, 22, 549 A.2d 1044, 1045 (1988), the Vermont Supreme Court noted: "'V.R.C.P. gives the presiding judge discretion to grant a petition for preaction discovery if he or she "is satisfied that the perpetuation of the testimony or other discovery may prevent a failure or delay of justice."'" 644 So. 2d at 965. Nonetheless, the Anderson Court reasoned: "Burlington Bagel Bakery suggests to us that if the question was presented squarely to it, the Vermont Supreme Court might treat Vermont Rule 27 as a preaction discovery device available for purposes other than the perpetuation of evidence, if the production of the evidence would 'prevent a failure or delay of justice.'" 644 So. 2d at 965 (emphasis added). The Anderson Court's quotation from Burlington Bagel Bakery is nothing more than the Vermont Supreme Court quoting a portion of Vermont's Rule 27, not an explication of the rule. The Burlington Bagel Bakery court expressly "d[id] not reach the merits of this appeal," and instead it reversed the judgment of the trial court on the ground that the hearing on the matter was incomplete because "no evidence was given by either party as to the truth of petitioner's allegation." 150 Vt. at 22-23, 42 1130679 and 1130726 Furthermore, we find it particularly difficult to avoid the clear language in the Committee Comments, as discussed by Justice Lyons and quoted and emphasized in Section III.C.2.(b), above. Again, the 1988 revised Committee Comments resulted from meetings specifically held for the purpose of explaining the original, intended meaning of the very language of the rule at issue here. The result was language explicitly stating that Rule 27 was drafted "to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules." And, of course, this Court adopted these revised Committee Comments. In addition to the history of the rule and the express guidance provided by the same committee that originally drafted it, Rule 27 must be read as an integrated whole. In particular, the provisions of Rule 27(a)(1) must be read in pari materia with those of Rule 27(a)(3). See, e.g., Ex parte Jackson, 614 So. 2d 405, 406 (Ala. 1993) (observing that "[s]ubsections of a statute are in pari materia and 'should be 549 A.2d at 1045. Moreover, Burlington Bagel Bakery was a case in which the petitioner sought to depose the co-owner of a bakery "in order to perpetuate testimony to guard against the 'fading memories of the parties.'" In re Burlington Bagel Bakery, Inc., 150 Vt. at 21, 549 A.2d at 1044. 43 1130679 and 1130726 construed together to ascertain the meaning and intent of each'" (quoting McCausland v. Tide-Mayflower Moving & Storage, 499 So. 2d 1378, 1382 (Ala. 1986))). The pertinent portion of Rule 27(a)(3) reads as follows: "If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a)." (Emphasis added.) Whatever else Rule 27(a)(3) may require, it is clear that it begins by expressly conditioning discovery, including discovery under Rules 34 and 35, on "the court['s being] satisfied that the perpetuation of the testimony may prevent a failure or delay of justice." See Driskill v. Culliver, 797 So. 2d 495, 497 (Ala. Civ. App. 2001) (stating that "[t]he trial court's duty was to determine if discovery of the requested information might 'prevent a failure or delay of justice'" in an action by an inmate seeking preaction discovery of documents). Thus, the language of Rule 27(a) does not "clearly" provide for discovery under Rules 34 and 35 44 1130679 and 1130726 for reasons other than the perpetuation of evidence. To the contrary, the only construction of that rule that is consistent with its history, with the Committee Comments adopted by this Court, and with an in pari materia reading of the language in subsections (a)(1) and (a)(3) of the rule is that Rule 27 was intended merely to make discovery of documents and mental and physical examinations available under the same circumstances or conditions under which it makes deposition testimony available. To the extent there is any language in Rule 27(a)(1) that confuses the issue, that language represents nothing more than an attempt to express the idea that documents and examinations can be procured without also taking a deposition. (e) Yet Further Considerations To the foregoing can be added several other considerations that are by no means necessary for the conclusion reached above, but that do add even more support for it. First, we see no reason to believe that the drafters of Rule 27 would have intended to provide for more liberal access to preaction physical and even mental examinations (given the consistent coupling of references to Rules 34 and 45 1130679 and 1130726 35 throughout Rule 27) than to the perpetuation of deposition testimony. Second, as noted, former Justice Lyons in his treatise, Alabama Rules of Civil Procedure Annotated, provides an unequivocal and clear explication of the intent of Rule 27 itself and of the 1988 revision to the Committee Comments explaining that rule. See Section III.C.2.(b), supra. To that explication may be added the following statement by Justice Lyons, who was not a member of the Court when Anderson was decided: "I do not wish to be understood to embrace the holding of Ex parte Anderson, 644 So. 2d 961, 965 (Ala. 1994). Rule 27 does not provide a vehicle for pre-action discovery to determine whether a cause of action exists. Instead, as the Committee Comments to Rule 27 state, that rule allows only pre-action discovery 'under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules.' (Emphasis added.)" Stoor v. Turner, 727 So. 2d 38, 40 (Ala. 1998) (Lyons, J., concurring in part and dissenting in part as to the rationale and concurring in the result). As already noted, aside from Vermont's comparable rule, the other model for Alabama's Rule 27 was Federal Rule 27. It is clear from federal authorities that "Rule 27 is intended 46 1130679 and 1130726 only for the perpetuation of testimony or other evidence." 8A Charles Alan Wright et al., Federal Practice & Procedure § 2071 (2010).15 Several states have adopted Federal Rule 27 verbatim, along with the view that Rule 27 exists only for perpetuation The Anderson Court correctly observed that Alabama's 15 Rule 27 is different than Federal Rule 27, but whether it is as "significantly different" as the Anderson Court asserted, see 644 So. 2d at 965, is another matter. Rule 27(a)(3), Fed. R. Civ. P., provides, in part: "If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35." Despite this wording, as the Anderson Court itself observed, "[i]t seems to be generally understood now among the federal courts and among legal scholars that the objective of Federal Rule 27 is to perpetuate testimony and evidence in danger of being lost or destroyed, for use in a prospective action, and that, to the extent that use of Federal Rule 34 will serve to preserve evidence, it should be available regardless of whether it is used in conjunction with the taking of a deposition." Ex parte Anderson, 644 So. 2d at 964 (emphasis added). 47 1130679 and 1130726 of testimony and evidence. In other states, the language of 16 preaction-discovery rules differs from Federal Rule 27, but those states likewise interpret their rules as not sanctioning any broader confirmatory or investigatory uses of preaction discovery. The language of New York's rule allows for 17 broader discovery, see N.Y. Civil Practice Law and Rules 3102(c), but even the New York courts have limited that state's rule so that the rule cannot be used by a party to See, e.g., Rule 27, Haw. R. Civ. P.; Rule 27(a)(1)-(c), 16 Idaho R. Civ. P.; Rule 27, Me. R. Civ. P.; Rule 27, Mass. R. Civ. P.; Rule 27.01-03, Minn. R. Civ. P. Dist. Ct.; Rule 57.02, Mo. R. Civ. P.; Rule 27(a)-(c), Mont. R. Civ. P.; Rule 27, Neb. R. Civ. P.; Rule 1-027, N.M. R. Civ. P. Dist. Ct.; Rule 27, S.C. R. Civ. P.; Rule 27, Utah R. Civ. P.; Rule 27, Wash. Super. Ct. Civ. R.; and Rule 27, W. Va. R. Civ. P. See, e.g., McNett v. Alyeska Pipeline Servs. Co., 856 17 P.2d 1165, 1168-69 (Alaska 1993) (discussing Rule 27, Alaska R. Civ. P.); Block v Superior Court, 219 Cal. App. 2d 469, 33 Cal. Rptr. 205 (1963) (discussing Cal. Code Civ. § 2035.010); Rozek v. Christen, 387 P.2d 425 (Colo. 1963) (discussing Rule 27, Colo. R. Civ. P.); Frye v. Massie, 115 Ill. App. 3d 48, 450 N.E.2d 411, 70 Ill. Dec. 938 (1983) (discussing Rule 217, Ill. Sup. Ct. R. Civ. P. Trial Ct.); State v. Jablonski, 590 N.E.2d 598 (Ind. Ct. App. 1992) (discussing Rule 27, Ind. R. Trial P.); Wiles v. Myerley, 210 N.W.2d 619 (Iowa 1973) (discussing Rule 1.721-1.729, Iowa R. Civ. P.); Meredith v. Wilson, 423 S.W.2d 519 (Ky. 1968) (discussing Rule 27.01-.03, Ky. R. Civ. P.); In re Vermillion Parish Sch. Bd., 357 So. 2d 1295 (La. Ct. App. 1978) (discussing La. Code Civ. P. § 1429-1430); and Allen v. Allen, 105 Md. App. 359, 659 A.2d 411 (1995) (discussing Rule 2-204, Md. R. P. Cir. Ct.). 48 1130679 and 1130726 determine if the party has a cause of action. In short, the federal courts and the overwhelming majority of states do not permit preaction discovery for purposes other than the perpetuation of evidence. In point of fact, we have found no jurisdiction, federal or state, with a rule similar to Alabama's Rule 27 that has construed it to permit preaction discovery to investigate or to confirm the presence of a cause of action. Only two states besides Alabama permit broad preaction discovery not conditioned on the need to perpetuate evidence: Pennsylvania and Texas. We have found no state where it has 18 been determined that a person may conduct preaction discovery merely to assess or to confirm the availability of a cause of action without express language to this effect in the applicable rule or statute. The difference between Alabama and the two states -- Pennsylvania and Texas -- where this is permitted is the fact that, as one law review article The Courts in a third state, Ohio, are divided as to the 18 meaning of the analogous rule there, which in any event is significantly different than Alabama's Rule 27. Compare Benner v. Walker Ambulance Co., 118 Ohio App. 3d 341, 344, 692 N.E.2d 1053, 1055 (1997), and Cruz v. Kettering Health Network, (No. 24465) 2012-Ohio-24 (Ohio Ct. App., Jan 06, 2012) (unpublished opinion). 49 1130679 and 1130726 explains, "[t]he Alabama rule does not authorize presuit discovery for investigatory purposes on its face." Lonny Sheinkopf Hoffman, Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery, 40 U. Mich. J.L. Reform 217, 240 (2007) (emphasis added).19 See also Scott Dodson, Federal Pleading and State 19 Presuit Discovery, 14 Lewis & Clark L. Rev. 43, 57 (2010) (explaining that Alabama's "strong policy favoring presuit discovery for claim investigation" was created by the Alabama Supreme Court's construction of Rule 27). In Pennsylvania, Rule 4003.8, Pa. R. Civ. P., provides: "(a) A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party. "(b) Upon a motion for protective order or other objection to a plaintiff's pre-complaint discovery, the court may require the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint. In deciding the motion or other objection, the court shall weigh the importance of the discovery request against the burdens imposed on any person or party from whom the discovery is sought." In Texas, Rule 202.1, Tex. R. Civ. P., provides: "A person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either: 50 1130679 and 1130726 Previous to Anderson, preaction discovery in Alabama concerned testimony or evidence that was in danger of being lost or destroyed. The bright line that existed between preaction discovery and postcomplaint discovery served to prevent intrusive investigations before allegations had been filed against a party. In erasing this line, the Anderson Court contended that its interpretation of Rule 27 was "consistent with the underlying purpose of both Rule 11, Ala. R. Civ. P., and the Alabama Litigation Accountability Act, Ala. Code 1975, § 12-19-270 et seq., in that Rule 27 provides a limited means by which potential plaintiffs (and their attorneys), within the discretion of the trial court, can examine evidence before actually deciding whether they have a reasonable basis for filing an action." 644 So. 2d at 965. Upon further reflection, we see nothing in Rule 11 or the Alabama Litigation Accountability Act that compels a reading of Rule 27 that is contrary to the language of the rule, to the explicit Committee Comments, to the history of both the rule and its Committee Comments, and to the other considerations reviewed above, including the "(a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or "(b) to investigate a potential claim or suit." 51 1130679 and 1130726 uniformly accepted approach in other jurisdictions to language like that at issue here. Before Anderson, plaintiffs were 20 able to discern whether they had causes of action against other parties without using preaction discovery. The same was true of plaintiffs in the 19 years between the adoption of Rules 11 and 27 in 1973 and the release of the Anderson decision in 1994 and, for all that appears, continues to be true. Moreover, one of the reasons "[t]his Court has held that amendments [to complaints] are to be freely allowed," Alabama Farm Bureau Mut. Cas. Ins. Co. v. Guthrie, 338 So. 2d 1276, 1279 (Ala. 1976), is to allow litigants a full and fair opportunity to obtain an adjudication of their rights. See also Atlas Coal Co. v. O'Rear, 161 Ala. 591, 593, 50 So. 63, 64 (1909). Rule 11, Ala. R. Civ. P., provides only that an 20 attorney's signature on a complaint constitutes a certificate that the attorney has read the complaint and "that to the best of the attorney's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay." The Alabama Litigation Accountability Act provides for sanctions against attorneys who file actions that are "frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose." See Ala. Code 1975, §§ 12-19-271 and -272. 52 1130679 and 1130726 Conclusion Based on the foregoing, we overrule Ex parte Anderson's holding that Rule 27, Ala. R. Civ. P., does not limit preaction discovery under Rule 34 to perpetuating evidence. Given that DR Horton expressly sought preaction discovery not for the purpose of perpetuating evidence, but for the purpose of evaluating its claims against the Ferrari defendants, we grant the Ferrari defendants' petition for a writ of mandamus, and we instruct the trial court to dismiss DR Horton's petition for preaction discovery. 1130679 –- PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Parker, Main, and Wise, JJ., concur. Bryan, J., concurs in the result. Moore, C.J., and Shaw, J., dissent. 1130726 –- APPEAL DISMISSED. Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur. Bryan, J., concurs in the result. Moore, C.J., dissents. 53 1130679 and 1130726 SHAW, Justice (dissenting in case no. 1130679). I respectfully dissent. I. I do not believe that the petitioners--the Ferrari defendants--have demonstrated either a clear legal right to a hearing or that the trial court exceeded its discretion in refusing to grant such a hearing. First, I am not convinced that a "plain reading" of the language of Rule 27, Ala. R. Civ. P., indicates that a hearing is always per se required before a petition filed pursuant to that rule can be granted. Specifically, Rule 27(a)(2) states that "[a]t least thirty (30) days before the date of hearing the notice shall be served." The lack of an article--such as the word "the" or "a"--before the word "hearing" makes it unclear to me whether the rule is contemplating that an actual in-court proceeding must take place or whether the rule is simply stating that the parties must have an opportunity to be heard. See Sharpe v. State, 560 So. 2d 1107, 1111 (Ala. Crim. App. 1989) (noting that the word "hearing" can be synonymous with "an opportunity to be heard" and holding that the use of the latter in Rule 15.4(b), Alabama Temporary Rules of Criminal Procedure, did 54 1130679 and 1130726 not require an "adversarial hearing or oral argument" and could instead include a party's "respon[se] in writing to the merits"). I see nothing in the facts of this case indicating that the Ferrari defendants' challenge to DR Horton's verified petition for preaction discovery could be communicated only in a hearing and not in writing. In other words, I see nothing demonstrating the need for the parties to present arguments and evidence in open court. See D.B. Clayton & Assocs. v. McNaughton, 279 Ala. 159, 160, 182 So. 2d 890, 891-92 (1966) ("[A] 'hearing' ordinarily is defined, in matters not associated with full trials, as a proceeding in which the parties are afforded an opportunity to adduce proof and to argue inferences from the evidence."). In any event, I believe that Rule 27 should be interpreted in the same manner as Rule 56, Ala. R. Civ. P. Rule 56(c)(2) states that a motion for a summary judgment "shall be served at least ten (10) days before the time fixed for the hearing." Here, the word "hearing" is preceded by the article "the," thus making clear that it is referring to a proceeding, and not just an opportunity to be heard. Further, this rule, like Rule 27(a)(2), sets a timeline calculated from 55 1130679 and 1130726 the date of the hearing. This 10-day period in Rule 56(c)(2), this Court has held, exists to give the nonmovant the opportunity to respond before the hearing. Hill v. Chambless, 757 So. 2d 409, 411 (Ala. 2000). Despite the clear language in Rule 56(c)(2) that an actual hearing is to occur and the fact that a deadline hinges on the occurrence of this hearing, this Court has held that a hearing is not necessarily required. Hill v. Chambless, 757 So. 2d 409, 411 (Ala. 2000) ("[T]his Court has stated that a trial court may, within its discretion, dispense with the hearing altogether and rule on the [Rule 56] motion without any further proceedings."). As we have stated: "We agree with the general proposition that Rule 56(c) contemplates a hearing before the trial court rules on a motion for summary judgment. Certainly, the nature of summary judgment dictates against a hasty and arbitrary action. As Tharp v. Union State Bank, 364 So. 2d 335 (Ala. Civ. App. 1978), and Brown v. Piggly–Wiggly Stores, 454 So. 2d 1370 (Ala. 1984), indicate, the requirement of a 10–day notice before the hearing on the motion is based on due process considerations. ... But where, as here, the policy considerations of the Rule have been fully satisfied, literal adherence is not required." Cofield v. City of Huntsville, 527 So. 2d 1259, 1260 (Ala. 1988). I see nothing in the language of Rule 27(a)(2) requiring the conclusion that a hearing is mandated when Rule 56 1130679 and 1130726 56(c)(2), which calls for a hearing more strongly than does Rule 27(a)(2), has been interpreted otherwise. Furthermore, to show reversible error resulting from a failure to conduct a hearing under Rule 56(c)(2), a party must demonstrate prejudice. See Lightsey v. Bessemer Clinic, P.A., 495 So. 2d 35, 38 (Ala. 1986) (stating that, while "Rule 56(c) does by its language contemplate a hearing upon a motion for summary judgment," the failure of the trial court to hold a hearing was harmless); cf. Hilliard v. SouthTrust Bank of Alabama, N.A., 581 So. 2d 826, 828 (Ala. 1991). Before concluding that the Ferrari defendants had "a clear legal right" to a hearing, I would determine whether they were actually prejudiced by the trial court's failure to hold a hearing. In the instant case, the trial court ruled on the verified petition more than 30 days after it was served, and the Ferrari defendants responded to the verified petition within that time. There was thus ample opportunity for the Ferrari defendants to have notice of the petition and to respond accordingly. The mandamus petition is silent as to how the lack of a hearing prejudiced the Ferrari defendants in any way. I see nothing indicating that a lack of a hearing in 57 1130679 and 1130726 this case was prejudicial; I would not hold that a trial court per se exceeds its discretion by failing to hold a hearing under Rule 27. II. The first sentence of Rule 27(a)(1) states: "A person who desires to perpetuate that person's own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party." A person may file a petition if he or she desires "to perpetuate that person's own testimony or that of another person" or if he or she desires "to obtain discovery under Rule 34 or Rule 35 regarding any matter." The grammar and content of the language shows that there are two different things that may be obtained if desired: testimony to be perpetuated or discovery under Rule 34, Ala. R. Civ. P., or Rule 35, Ala. R. Civ. P. The main opinion "[a]dmittedly" concedes that the language reads this way but states that it "does not require such a reading" when read in light of materials outside the actual text of the rule. ___ So. 3d at ___. It then suggests that this language "inartful[ly]" 58 1130679 and 1130726 states a different point. I would not reject a clear meaning found in the actual text in favor of an "inartful" reading suggested by outside sources. The main opinion goes on to propose that this sentence actually means that a person may obtain discovery under Rule 34 or Rule 35 only for purposes of perpetuating testimony. This is clearly not what the first sentence of Rule 27(a)(1) says. However, in support of its selection of this reading, the main opinion resorts to, among other things, the Committee Comments. The pertinent comments state: "As is true of the corresponding federal rule, the primary purpose of Rule 27, like that of the state statutes it superseded, is to perpetuate testimony rather than to make discovery. ".... "However, this rule has been modified to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules. This rule permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not testimony is perpetuated. See Vermont Rule 27; 8 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2074 (1970). The discovery permitted under Rule 27(a) and (b) is expressly limited to that available under Rule 34 and Rule 35." The Committee Comments--just like Rule 27(a)(1)--make a distinction between "perpetuat[ing] testimony" and "mak[ing] 59 1130679 and 1130726 discovery." As the emphasized portions in the first paragraph indicate, although the "primary purpose" of the rule "is to perpetuate testimony," the language of the rule and Committee Comments identify a secondary purpose: "to make discovery." 21 The next quoted paragraph states: "However, this rule has been modified to allow limited discovery under Rules 34 and 35 for the purpose of perpetuating evidence pursuant to those rules." This would seem to suggest that a prior federal rule might not have allowed "discovery" under Rules 34 and 35 for the purpose of perpetuating evidence but that the Alabama rule does. This does not state that discovery under Rules 34 and 35 is only for the purpose of perpetuating evidence because the next sentence states: "This rule permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not testimony is perpetuated." The language of Rule 27(a)(1) suggests that a petitioner may seek to perpetuate testimony and may also seek discovery under Rules 34 and 35. The comments above confirm that the rule allows both purposes (one is primary and the other If there is a "primary purpose"--here, to perpetuate 21 testimony--then there must be a secondary purpose; otherwise, the primary purpose would be the only purpose. 60 1130679 and 1130726 secondary) and that discovery under Rules 34 and 35 can be for perpetuation purposes but is also "permit[ted] ... whether or not testimony is perpetuated."22 The main opinion also suggests that Rule 27(a)(1) must be read in pari materia with Rule 27(a)(3). I freely concede that subsection (a)(3) seems to imply that if the trial court is satisfied that the "perpetuation of the testimony may prevent a failure or delay of justice," then it may grant discovery under Rules 34 and 35. However, it seems odd to describe discovery under those rules as acquiring "testimony." The production of documents and things and entry upon land for inspection and other purposes under Rule 34 seem to implicate no testimony at all. And although a physical or mental examination of persons under Rule 35 might result in testimony, it does not seem that such testimony is of the sort that could be in need of perpetuation. Further, if we must The main opinion cites the reporter's notes to Vermont's 22 version of Rule 27 in support of its holding. Those notes state that "the rule also permits production and inspection under Rule 34 and physical or mental examination under Rule 35, whether or not a deposition is taken." The notes further state: "Rule 27(a)(1) provides for a verified petition for perpetuation of testimony or other appropriate discovery ...." Again, there is a clear distinction between perpetuation of testimony and "other" discovery. 61 1130679 and 1130726 read the rule in pari materia, what of Rule 27(b), which deals with discovery pending appeal? It states, in part: "If the court finds that the perpetuation of the testimony or other discovery is proper to avoid a failure or delay of justice, it may make an order as provided in paragraph (3) of subdivision (a) of this rule and thereupon discovery may be had and used in the same manner and under the same conditions as are prescribed in these rules for discovery in actions pending in the circuit court." This section characterizes what is available under Rules 34 and 35 as "other discovery [that] is proper to avoid a failure or delay of justice," which is clearly distinguishable from testimony to be perpetuated, but nevertheless references subsection (a)(3). Reading the entire rule in pari materia, I am unconvinced that we should abandon the clear language of Rule 27(a)(1). Therefore, I would not overrule this Court's prior decision in Ex parte Anderson, 644 So. 2d 961 (Ala. 1994). 23 I am also not convinced by the petition for a writ of 23 mandamus that the trial court per se exceeded its discretion in ordering answers to written interrogatories. Rule 27(a)(1) speaks generally to the perpetuation of testimony, and the rule as a whole clearly contemplates the use of depositions in doing so. Rule 27(a)(4) specifies that "[i]f a deposition to perpetuate testimony is taken," then it may be used in accordance with the provisions of Rule 32(a) and (b), Ala. R. Civ. P. Interrogatories are answered under oath (Rule 33(a), Ala. R. Civ. P.), are functionally little different from 62 1130679 and 1130726 Most problematic to me, however, is the paucity of argument by the Ferrari defendants on this issue. Specifically, the petition for a writ of mandamus contains one paragraph advancing the argument adopted by the main opinion. Comparing this one paragraph, which cites one case, the federal rule, and our rule and comments, with the complex, scholarly, detailed, and lengthy analysis in the main opinion encompassing many pages, I do not think that the petition demonstrated "a clear legal right in the petitioner to the order sought." I therefore respectfully dissent.24 written depositions, and are generally used in court under Rule 32(a) in the same manner as depositions. Committee Comments on the 1973 Adoption of Rule 33, Ala. R. Civ. P. ("[T]he use of interrogatories is limited by Rule 32(a), as well as by the ordinary rules of evidence."). Based upon the argument in the petition, I am hard-pressed to see a material difference between answering interrogatories for the purpose of perpetuating testimony and participating in a deposition for the same purpose. I express no opinion at this time as to the Ferrari 24 defendants' arguments pretermitted by the holding of the main opinion, including their other objections to the scope of the trial court's order, including the scope of any written interrogatories. 63	February 6, 2015
038cd068-d069-467b-8947-d0be9ff6fd03	Ex parte Davon Lashon Davis.	N/A	1140018	Alabama	Alabama Supreme Court	Rel: 1/30/15 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 ____________________ 1140018 ____________________ Ex parte Davon Lashon Davis PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Davon Lashon Davis v. State of Alabama) (Houston Circuit Court, CC-13-337; Court of Criminal Appeals, CR-13-0215) BRYAN, Justice. WRIT DENIED. NO OPINION. 1140018 Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. Moore, C.J., dissents. 2 1140018 MOORE, Chief Justice (dissenting). Davon Lashon Davis and Christy Flowers began dating in October 2012; Flowers eventually decided to end the relationship after Davis's ex-girlfriend kept interfering. After the breakup, Davis came to Flowers's apartment to retrieve some of his belongings. After Flowers threw some of Davis's property out of the window, Davis grabbed Flowers by the throat and threw her against the wall. Flowers could not breathe or speak while she was being held by her throat against the wall, but she never lost consciousness. After holding Flowers against the wall for a few seconds, Davis threw her to the ground. Davis was charged with committing domestic violence by strangulation or suffocation, a violation of § 13A-6-138, Ala. Code 1975. Davis was tried by a jury, was convicted, and was sentenced, apparently as a habitual felony offender, to 30 years' imprisonment. On appeal, Davis first argued that § 13A-6-138 is unconstitutional because it is vague and overly broad. The Court of Criminal Appeals held that this argument had not been preserved for appellate review because Davis did not raise it in the trial court. The court also held that the 3 1140018 other arguments in Davis's appellate brief did not comply with Rule 28(a)(10), Ala. R. App. P., and it thus affirmed Davis's sentence and conviction by an unpublished memorandum. Davis v. State (No. CR-13-0215, Aug. 22, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014) (table). Davis now petitions this Court for certiorari review, arguing as a matter of first impression that § 13A-6-138 is unconstitutionally vague. Section 13A-6-138 provides: 1 "(a) For the purposes of this section, the following terms have the following meanings: "(1) Qualified relationship. The victim is a spouse, former spouse, parent, stepparent, child, stepchild, or a person with whom the defendant has a child in common, or with whom the defendant has or had a dating or engagement relationship within 10 months preceding this event. "(2) Strangulation. Intentionally causing asphyxia by closure or compression of the blood vessels or air passages of the neck as a result of external pressure on the neck. I realize that the Court of Criminal Appeals held that 1 Davis did not preserve this issue for appeal. However, this Court has held that it may consider the constitutionality of a statute if "the act is so palpably void on constitutional grounds that the court, for the protection of public interests, deems it wise to sound the alarm by calling attention to such status." Cooper v. Hawkins, 234 Ala. 636, 638, 176 So. 329, 330 (1937). 4 1140018 "(3) Suffocation. Intentionally causing asphyxia by depriving a person of air or by preventing a person from breathing through the inhalation of toxic gases or by blocking or obstructing the airway of a person, by any means other than by strangulation as defined in this section. "(b) A person commits the crime of domestic violence by strangulation or suffocation if the person commits an assault with intent to cause physical harm or commits the crime of menacing pursuant to Section 13A-6-23, by strangulation or suffocation or attempted strangulation or suffocation against a person with whom the defendant has a qualified relationship. "(c) Domestic violence by strangulation or suffocation is a Class B felony punishable as provided by law." (Emphasis added.) Davis argues that, because § 13A-6-138 does not define "asphyxia," the definition of "asphyxia" is unclear and that it is unclear whether a professional medical opinion is necessary to establish asphyxia. I agree. Neither § 13A-6-138 nor any other provision in the Alabama Code defines "asphyxia." Ordinarily, "[w]ords used in a statute must be given their natural, plain, ordinary, and commonly understood meaning." IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 5 1140018 2d 344, 346 (Ala. 1992). However, "asphyxia" is not a word commonly used by lay people. Even commonly used dictionaries have materially different definitions of "asphyxia"; some define it simply as a lack of oxygen, whereas others require unconsciousness or death. Compare Merriam-Webster's Collegiate Dictionary 73 (11th ed. 2003) (defining asphyxia as "a lack of oxygen or excess of carbon dioxide in the body that results in unconsciousness and often death and is usu. caused by interruption of breathing or inadequate oxygen supply"), and The American Heritage Dictionary 133 (2d coll. ed. 1991) (defining asphyxia as "[u]nconsciousness or death caused by lack of oxygen"), with Webster's Third New International Dictionary 129 (2002) (defining asphyxia as "local or systemic deficiency of oxygen and excess of carbon dioxide in living tissues usu. as a result of interruption of respiration"), and Random House Webster's Unabridged Dictionary 124 (2d ed. 2001) (defining asphyxia as "the extreme condition caused by lack of oxygen and excess of carbon dioxide in the blood, produced by interference with respiration or insufficient oxygen in the air; suffocation"), and I The Oxford English Dictionary 695 6 1140018 (2d ed. 1991) (defining asphyxia variously as "1. lit. Stoppage of the pulse. ... 2. The condition of suspended animation produced by a deficiency of oxygen in the blood; suffocation"). Even if the jury was aware of the different definitions of asphyxia, jurors would have to guess which definition was correct. Under the void-for-vagueness doctrine, "men of common intelligence cannot be required to guess as the meaning of the enactment." Winters v. New York, 333 U.S. 507, 515 (1948) (citing Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)). I believe that neither an ordinary defendant nor an ordinary juror would understand this word. Davis's conduct was reprehensible and certainly deserves to be punished. Grabbing a person by the throat and throwing her to the ground certainly is punishable as assault in the third degree or as menacing, violations of §§ 13A-6-22 and -23, Ala. Code 1975, respectively, both of which are misdemeanors. However, Davis was convicted of a Class B felony and was sentenced, apparently as a habitual felony offender, to 30 years' imprisonment. We cannot allow someone to serve a 30-year prison term if the only basis for his conviction is a vague statutory provision. I would grant Davis's petition and 7 1140018 consider his vagueness argument and allow the State to present arguments in response. 8	January 30, 2015
c57fc39b-9f0b-43c9-8ae2-b6ec2131edbb	Walter Energy, Inc. v. Audley Capital Advisors, LLP	N/A	1131104	Alabama	Alabama Supreme Court	REL: 02/20/2015 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 ____________________ 1131104 ____________________ Walter Energy, Inc. v. Audley Capital Advisors LLP et al. Appeal from Jefferson Circuit Court (CV-13-425) STUART, Justice. Walter Energy, Inc., appeals the order of the Jefferson Circuit Court dismissing claims it had asserted against investor Julian A. Treger, his firm Audley Capital Advisors LLP, and other associated investment entities (hereinafter 1131104 referred to collectively as "the Audley defendants" ) stemming 1 from their alleged involvement in a scheme to improperly manipulate the share price of Walter Energy stock. We affirm. I. In late 2010, Birmingham-based Walter Energy agreed to purchase Western Coal Corporation, a Canadian energy company in which the Audley defendants held a significant minority stake. Between then and April 1, 2011, when the acquisition closed, the Audley defendants exchanged millions of shares of Western Coal stock for approximately $770 million in cash and Walter Energy stock. Walter Energy asserts that the Audley defendants thereafter conspired to execute a "pump and dump" scheme to drive up the price of Walter Energy stock and to further profit from Walter Energy's purchase of Western Coal.2 Besides Treger and Audley Capital Advisors, the Audley 1 defendants also include Audley European Opportunities Master Fund Limited, Audley Natural Resources Master Fund, Audley Capital Management Limited, and Audley Investment Management Limited. Treger and Audley Capital Advisors are based in London, England; the other entities are based in Guernsey and the Cayman Islands. The United States Court of Appeals for the Eleventh 2 Circuit has succinctly described a pump and dump scheme as follows: "A pump and dump scheme involves artificially inflating the price and volume of an owned stock –– 2 1131104 Walter Energy alleges that the Audley defendants initiated their scheme on July 17, 2011, when Treger sent a letter to Walter Energy stating that Audley Capital Advisors had directed an investment bank to gauge various third parties' interest in acquiring Walter Energy and intimating that Walter Energy could be sold at double its then current share price. The letter also advised that other large institutional shareholders in Walter Energy had been contacted and that they would support an acquisition of the company at the appropriate price. The letter, marked "private & confidential," requested a response from Walter Energy by August 5, 2011; however, Audley Capital Advisors publicly released the letter on July 18, 2011, before receiving any response from Walter Energy. The share price of Walter Energy stock, which trades publicly on the New York Stock Exchange, thereafter spiked, and, in the days and weeks that followed, the Audley by promotional or trading activity –– to sell the stock at a higher price. Once the overvalued shares are dumped, the price and volume of shares plummet and unsuspecting investors lose their money." United States v. Curshen, 567 Fed. App'x 815, 816 (11th Cir. 2014) (not selected for publication in the Federal Reporter). 3 1131104 defendants sold approximately 900,000 shares of Walter Energy stock. In September 2011, The Times, a London newspaper, reported that another mining company was considering making an offer to purchase Walter Energy and that it had in fact already arranged financing to do so. Shares of Walter Energy again spiked, and the Audley defendants sold approximately 300,000 more shares of Walter Energy stock that month. In October 2011, there were more media reports that various mining and energy companies were targeting Walter Energy for a takeover, and the Audley defendants sold approximately 200,000 shares of Walter Energy stock that month. Finally, in December 2012, the Daily Mail in London reported that an Australian mining company was poised to make an offer to acquire Walter Energy. To date, however, no company has made a formal bid to acquire Walter Energy or has attempted any other sort of a takeover. Walter Energy now asserts that all the media reports indicating that an acquisition of Walter Energy was imminent were false and that they were generated by the Audley defendants in an attempt to create interest in Walter Energy stock so the share price would rise and the Audley defendants 4 1131104 could sell their shares of Walter Energy stock at the new artificially high price. Walter Energy further argues that the Audley defendants perpetuated the idea that the board of directors of Walter Energy was declining merger opportunities based on the directors' own self interest. On March 22, 2013, the Audley defendants gave notice that they would present their own slate of directors at the April 25, 2013, annual meeting of Walter Energy shareholders by filing the required information with the Securities and Exchange Commission and distributing a letter to all Walter Energy shareholders seeking support for their proposed slate of directors. However, Walter Energy alleges that, in fact, the intent of the March 22 letter was to hinder Walter Energy's attempt to raise $350 million by way of a debt offering. Although neither the Audley defendants' proposed slate of candidates nor the attempt to stop the debt offering was ultimately successful, Walter Energy alleges that both efforts were part of a continued effort to manipulate the share price of Walter Energy stock. In May 28, 2013, Walter Energy sued the Audley defendants in the Jefferson Circuit Court seeking damages based upon 5 1131104 their alleged improper manipulation of the share price of Walter Energy stock, as well as an injunction barring any further attempts to do so. As eventually amended, Walter 3 Energy's complaint alleged violations of the Alabama Securities Act, § 8-6-1 et seq., Ala. Code 1975; various species of fraud; felonious injury; conspiracy; intentional interference with contractual or business relations; negligent misrepresentation; and unjust enrichment. Following the filing of Walter Energy's initial complaint, and again following the filing of three amended complaints, the Audley defendants moved the trial court to dismiss all the claims asserted against them on Rule 12(b)(6), Ala. R. Civ. P., grounds. On May 20, 2014, the trial court granted the Audley defendants' motion to dismiss and dismissed with prejudice all the claims asserted against them by Walter Energy. On June Walter Energy also named as defendants Scoggin Capital 3 Management, LLC, and related entities ("the Scoggin defendants") that Walter Energy alleged had made an investment in Walter Energy to assist the Audley defendants in their attempt to replace the board of directors of Walter Energy and that had entered into an agreement with the Audley defendants to give them a percentage of any profit the Scoggin defendants ultimately made on their investment in Walter Energy. However, the Scoggin defendants' motion to dismiss for lack of personal jurisdiction was eventually granted by the trial court, and Walter Energy has not appealed their dismissal. 6 1131104 30, 2014, Walter Energy filed its notice of appeal to this Court. II. We explained the standard of review applicable to an appeal of a trial court's order granting a motion to dismiss in Crosslin v. Health Care Authority of Huntsville, 5 So. 3d 1193, 1195 (Ala. 2008): "In considering whether a complaint is sufficient to withstand a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., a 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) (emphasis omitted). '"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."' Smith v. National Sec. Ins. Co., 860 So. 2d 343, 345 (Ala. 2003) (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)). In determining whether this is true, a court considers only whether the plaintiff may possibly prevail, not whether the plaintiff will ultimately prevail. Id. Put another way, '"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."' Id. (emphasis added)." Thus, we afford the trial court's order of dismissal no presumption of correctness, and we review the sufficiency of Walter Energy's complaint de novo. See also DGB, LLC v. 7 1131104 Hinds, 55 So. 3d 218, 223 (Ala. 2010) (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)) ("'On appeal, a dismissal is not entitled to a presumption of correctness.'"). Although the trial court dismissed all the claims Walter Energy had asserted against the Audley defendants, Walter Energy challenges only the trial court's dismissal of its Alabama Securities Act claim and its intentional-interference- with-contractual-or-business-relations claim, arguing that those claims were adequately pleaded and not due to be dismissed under Rule 12(b)(6). We first consider Walter Energy's claim that the Audley defendants violated the Alabama Securities Act. III. Walter Energy specifically argues that the Audley defendants violated § 8-6-17(a), Ala. Code 1975, a provision of the Alabama Securities Act, which provides: "It is unlawful for any person, in connection with the offer, sale, or purchase of any security, directly or indirectly, to: "(1) Employ any device, scheme, or artifice to defraud; "(2) Make any untrue statement of a material fact or to omit to state a material fact necessary in order to make 8 1131104 the statements made, in the light of the circumstances under which they are made, not misleading; or "(3) Engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person." The facts as alleged by Walter Energy in its third and final amended complaint, which we must accept as true at this stage of the proceedings, do indicate that the Audley defendants engaged in conduct that appears to fall within the list of activities prohibited by § 8-6-17(a). Indeed, although it appears that the Audley defendants will dispute whether they actually engaged in such conduct at a later time if the need to do so arises, their arguments in support of the trial court's order of dismissal do not include an argument that their alleged conduct, if proven, would not constitute conduct prohibited by the terms of § 8-6-17(a). Rather, the Audley defendants argue that § 8-6-17(a) does not apply to any of their activities in connection with the sale of Walter Energy stock because, they argue, § 8-6-12(a), Ala. Code 1975, provides that the Alabama Securities Act applies only "to persons who sell or offer to sell [securities] when (1) an offer to sell is made in this state, 9 1131104 or (2) an offer to buy is made and accepted in this state." Subsection 8-6-12(c) further provides that "[a]n offer to sell or to buy is made in this state, whether or not either party is then present in this state, when the offer (1) originates from this state, or (2) is directed by the offeror to this state and received at the place to which it is directed." There has been no allegation that there was an offer to buy in this case, and the Audley defendants argue that they have never made any offer to sell Walter Energy stock in Alabama. 4 More importantly at this stage of the proceedings, the Audley defendants argue that Walter Energy has failed even to allege that any offer to sell was made in Alabama. The Audley defendants argue that Walter Energy's failure to allege that the Audley defendants made an offer to sell Walter Energy stock in Alabama requires the dismissal of the § 8-6-17(a) We note that the petitioner in Ex parte Kohlberg Kravis 4 Roberts & Co., L.P., 78 So. 3d 959, 977-79 (Ala. 2011), similarly argued that the Alabama Securities Act did not apply to certain transactions because none of the offers to sell or offers to buy the subject securities occurred in Alabama; however, this Court ultimately declined to consider that argument, holding instead that mandamus review of the trial court's decision denying a motion to dismiss on that ground was inappropriate. 10 1131104 claim in the trial court and is now a sufficient basis for this Court to affirm that dismissal. In its third amended complaint, Walter Energy never directly alleges that the Audley defendants made an offer to sell anything in Alabama. However, Walter Energy does state four times, in paragraphs 45, 55, 59, and 120 of the complaint, that the Audley defendants' sales of Walter Energy stock "occurred on the New York Stock Exchange, and the offers to sell were directed to Alabama." An allegation that an offer to sell securities was directed to Alabama can be sufficient to constitute an allegation that an offer to sell was made in Alabama for purposes of the Alabama Securities Act if that allegation is accompanied by an allegation that the offer to sell was also received in Alabama. See § 8-6-12(c) ("An offer to sell ... is made in this state ... when the offer ... is directed by the offeror to this state and received at the place to which it is directed ...." (emphasis added)). However, Walter Energy has failed to make any allegation regarding the receipt of an offer in Alabama. For this reason, the trial court dismissed Walter Energy's Alabama Securities Act claim, stating: 11 1131104 "[Section] 8-6-17 does not apply because Walter Energy has not alleged that the Audley defendants sold Walter Energy stock in Alabama, see § 8-6-12(a) stating that Article I of the [Alabama Securities] Act, which includes § 8-6-17, applies only 'to persons who sell or offer to sell when ... an offer to sell is made in this state'), or that the Audley defendants directed an offer to sell Walter Energy stock to Alabama that was received 'at the place to which it [was] directed,' see § 8-6-12(c) ('An offer to sell ... is made in this state ... when the offer (1) originates from this state, or (2) is directed by the offeror to this state and received at the place to which it is directed (or at any post office in this state ....'). "Walter Energy seeks to overcome these requirements by alleging that the Audley defendants' sales of Walter Energy stock 'occurred on the New York Stock Exchange, and the offers to sell were directed to Alabama.' This allegation concerning transactions on the New York Stock Exchange is a legal conclusion, not a factual allegation. In any event, even assuming that this allegation is effectual, Walter Energy still has not alleged that any offer was actually received in Alabama 'at the place to which it [was] directed.' See § 8-6-12(c). As a result, no matter how it is construed, Walter Energy's claim under the [Alabama] Securities Act fails to satisfy the two-pronged requirement of § 8- 6-17 that the offers be both (1) directed to persons located in Alabama and (2) received by the persons located in Alabama to which the offers were directed." We agree with the conclusion of the trial court and similarly hold that Walter Energy has failed to plead a claim for which relief can be granted under the Alabama Securities Act. We further note that the argument Walter Energy is essentially 12 1131104 making –– that every transaction that occurs on the New York Stock Exchange or, presumably, any other national securities exchange, is within the scope of the Alabama Securities Act –– has not previously been accepted by this Court, and Walter Energy has cited no cases from other jurisdictions that have adopted a version of the Uniform Securities Act in which a state securities act has been read so expansively. To the contrary, it has been noted that the drafters of the Uniform Securities Act intended for it to have a limited scope. See Lintz v. Carey Manor Ltd., 613 F. Supp. 543, 550 (W.D. Va. 1985) (quoting Joseph C. Long, Blue Sky Law Handbook § 3-6 (1985)) ("'[I]t is clear that the draftsmen of the Uniform [Securities] Act consciously elected to limit the scope of the Uniform [Securities] Act to those transactions which took part at least partially within the state.'").5 Moreover, we also note that the mere fact that the transactions in question involve the stock of an Alabama-based corporation is an insufficient basis upon which to apply the Walter Energy potentially could have asserted a claim 5 against the Audley defendants based on similar federal securities-regulation statutes; however, it has elected not to do so, stating in its complaint that "the claims asserted herein are based entirely on Alabama law, and no claims are asserted under any federal law." 13 1131104 Alabama Securities Act. As one leading commentator on state securities laws has explained: "A major question under the blue sky laws of most states involves their jurisdictional provisions. The statutes generally are directed at the locus where the securities are offered for sale, regardless of the issuer's state of incorporation, state of organization, or principal place of business." 2 Thomas L. Hazen, Treatise on the Law of Securities Regulation § 8.1[1][F] (5th ed. 2005) (footnote omitted). Because the Alabama Securities Act claim made by Walter Energy in its third amended complaint does not allege that the Audley defendants made an offer to sell Walter Energy stock in Alabama or, in the alternative, that this case involves an offer to buy Walter Energy stock that was made and accepted in Alabama, an essential element of an Alabama Securities Act claim, the trial court's dismissal of that claim is due to be affirmed. See Belcher v. Jefferson Cnty. Bd. of Educ., 474 6 Our holding on this issue obviates the need to review the 6 trial court's alternate basis for dismissing Walter Energy's Alabama Securities Act claim, specifically, that Walter Energy lacks standing to pursue such a claim because it has not alleged that it purchased any shares of Walter Energy stock following the Audley defendants' alleged scheme to manipulate the share price. See, e.g., Cowin v. Bresler, 741 F.2d 410 (D.C. Cir. 1984) (holding that a party that was neither a purchaser nor a seller of the securities involved lacked standing to seek injunctive relief under the federal 14 1131104 So. 2d 1063, 1068 (Ala. 1985) (affirming the dismissal of a claim where "the appellants did not sufficiently allege the requisite elements"), and Lloyd v. Community Hosp. of Andalusia, Inc., 421 So. 2d 112, 113 (Ala. 1982) ("[W]hen the complaint is devoid of averments of the requisite elements of any legal claim upon which plaintiff might be entitled to relief, the motion is to be granted."). IV. We next consider the trial court's dismissal of Walter Energy's claim of intentional interference with contractual or business relations. In fact, this appears to be a two-part claim because Walter Energy alleges that the Audley defendants improperly interfered with (1) its relationship with its other shareholders and (2) its relationship with lenders inasmuch as the Audley defendants' March 22 letter announcing that they would be sponsoring a new slate of directors at the upcoming shareholders meeting was allegedly timed to interfere with Walter Energy's plans announced that same day to complete a $350 million debt offering. In White Sands Group, L.L.C. v. 7 counterpart to § 8-6-17). Walter Energy does not explain in its complaint how the 7 Audley defendants allegedly interfered with its relationship 15 1131104 PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009), this Court restated the elements of a claim of intentional interference with contractual or business relations, explaining that, "properly stated, the elements of the tort are (1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage." This appeal hinges on the third element –– Walter Energy asserts that the Audley defendants were strangers to its relationships with its other shareholders and lenders, while the Audley defendants argue that the undisputed facts conclusively establish that they were not strangers to those relationships. For the reasons that follow, we agree with the Audley defendants. The seminal case discussing the "stranger" requirement of an intentional-interference-with-contractual-or-business- relations claim is Waddell & Reed, Inc. v. United Investors with other Walter Energy shareholders. In its brief to this Court, Walter Energy explains that the reports of an upcoming sale or merger spread by the Audley defendants were untrue, "but shareholders believed them, and when Walter Energy failed to act on any of the purported acquisition offers, shareholders justifiably assumed that Walter Energy's board and management were resistant to change and indifferent to shareholder' interests." Walter Energy's brief, p. 25. 16 1131104 Life Insurance Co., 875 So. 2d 1143 (Ala. 2003). After noting that a party to a contract or business relationship clearly cannot be liable for tortious interference with that relationship, this Court in Waddell & Reed explained that a defendant need not be a signatory to the subject contract or one of the primary actors in the business relationship to effectively be a party to it, but that "[a] defendant is a party in interest to a relationship if the defendant has any beneficial or economic interest in, or control over, that relationship." 875 So. 2d at 1154. The Court relied on cases applying Georgia law to articulate its position: "We also find support in ... LaSonde v. Chase Mortgage Co., 259 Ga. App. 772, 577 S.E.2d 822 (2003), in which the Court of Appeals of Georgia stated: "'In order to be liable for interference with a contract, a defendant must be a stranger to both the contract and the business relationship giving rise to and underpinning the contract. One is not a stranger to the contract just because he is not a party to the contract. A tortious interference claim requires, among other things, wrongful conduct by the defendant without privilege; "privilege" means legitimate economic interests of the defendant or a legitimate relationship of the defendant to the contract, so that he is not considered a stranger, interloper, or meddler. A person with a direct 17 1131104 economic interest in the contract is not a stranger to the contract. Parties to an interwoven contractual arrangement are not liable for tortious interference with any of the contracts or business relationships.' "259 Ga. App. at [773], 577 S.E.2d at 824 (emphasis added; footnotes omitted)." Waddell & Reed, 875 So. 2d at 1157. See also Britt/Paulk Ins. Agency, Inc. v. Vandroff Ins. Agency, Inc., 952 F. Supp. 1575, 1584 (N.D. Ga. 1996) ("[A] defendant is not a 'stranger' to a contract or business relationship when: (1) the defendant is an essential entity to the purported injured relations; (2) the allegedly injured relations are inextricably a part of or dependent upon the defendant's contractual or business relations; (3) the defendant would benefit economically from the alleged injured relations; or (4) both the defendant and the plaintiff are parties to a comprehensive interwoven set of contracts or relations."). Ultimately, the Waddell & Reed Court summarized its analysis of the stranger requirement as follows: "For the sake of clarity, we adopt the term 'participant' to describe an individual or entity who is not a party, but who is essential, to the allegedly injured relationship and who cannot be described as a stranger. One cannot be guilty of interference with a contract even if one is not a 18 1131104 party to the contract so long as one is a participant in a business relationship arising from interwoven contractual arrangements that include the contract. In such an instance, the participant is not a stranger to the business relationship and the interwoven contractual arrangements define the participant's rights and duties with respect to the other individuals or entities in the relationship. If a participant has a legitimate economic interest in and a legitimate relationship to the contract, then the participant enjoys a privilege of becoming involved without being accused of interfering with the contract." 875 So. 2d at 1157. In applying Waddell & Reed to this case, the trial court concluded that the Audley defendants had sufficient interests in the relationships in which they are alleged to have interfered to render them participants in those relationships, stating: "As shareholders of Walter Energy, the Audley defendants had direct beneficial and economic interests in Walter Energy's business and its relationships with its other shareholders and its lenders. The Audley defendants had the right to participate in Walter Energy's affairs by engaging in the 2013 proxy contest and to influence the business decisions made by Walter Energy's directors and management, even to challenge those decisions privately and publicly. The Audley defendants are not 'strangers' to Walter Energy's relationships with its shareholders and lenders and cannot be liable for intentional interference with business and contractual relations." 19 1131104 We agree. A decision made by a corporation's board of directors to issue debt securities is presumably made in the best interest of the corporation's shareholders, and any gain or loss resulting from such a business decision will ultimately be for those shareholders' benefit or to their detriment. See, e.g., Massey v. Disc Mfg., Inc., 601 So. 2d 449, 457 (Ala. 1992) (explaining that corporate directors have a fiduciary duty to act in the best interests of the corporation and its shareholders). Thus, as relates to the facts alleged in this case, the Audley defendants, as shareholders in Walter Energy, have a direct interest in any business relationships Walter Energy has with its lenders; accordingly, they are not strangers to those relationships. Similarly, the shareholders of a corporation literally share ownership of the corporation with each other, and their economic interests are necessarily interwoven. Every shareholder has the same rights and privileges, and the corporation's board of directors and officers owe all the shareholders the same fiduciary duties. How any specific shareholder votes on corporate matters, such as the election of directors, amendment of bylaws, or approval of significant 20 1131104 mergers and acquisitions, necessarily affects the other shareholders, and even a shareholder's decision to buy, hold, or sell stock can affect other shareholders inasmuch as trading activity affects share price and the actions of management. Thus, each shareholder has a beneficial or economic interest in its fellow shareholders' relationship with the corporation they jointly own. Those relationships are necessarily interwoven, and we conclude that the Audley defendants are participants in the relationships with which they are alleged to have interfered and that the stranger requirement cannot be met. Accordingly, the trial court correctly dismissed Walter Energy's intentional-interference- with-contractual-or-business-relations claim. V. Walter Energy sued the Audley defendants alleging various claims stemming from their alleged involvement in a "pump and dump" scheme to manipulate the share price of Walter Energy stock. After affording Walter Energy three opportunities to amend its complaint, the trial court dismissed all the claims on Rule 12(b)(6) grounds. Walter Energy thereafter appealed the dismissal of two of its claims to this Court; however, 21 1131104 upon review, we conclude that the dismissal of those claims was proper, and the judgment of the trial court is accordingly affirmed. AFFIRMED. Moore, C.J., and Parker, Shaw, and Wise, JJ., concur. 22	February 20, 2015
a7754617-5fbe-406c-9f6c-d96f4a61aa72	Norfolk Southern Railway Company v. Goldthwaite	N/A	1131375	Alabama	Alabama Supreme Court	rel: 03/13/2015 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 ____________________ 1131375 ____________________ Norfolk Southern Railway Company v. James H. Goldthwaite Appeal from Jefferson Circuit Court (CV-13-804) STUART, Justice. Norfolk Southern Railway Company ("Norfolk Southern") petitioned this Court for permission to appeal, pursuant to Rule 5, Ala. R. App. P., the circuit court's denial of its motion to dismiss an action against it. We granted permission 1131375 to appeal, and we reverse the order denying the motion to dismiss and render a judgment for Norfolk Southern. Facts and Procedural History James H. Goldthwaite has lived in Birmingham in the house he currently lives in for approximately 45 years. The house is adjacent to or near property on which are actively used railroad tracks owned by Norfolk Southern. The record indicates that Norfolk Southern now uses one of the railroad tracks located near Goldthwaite's house as a staging or temporary storage area for coal trains, which consist of empty rail cars and cars loaded with coal. It further appears that while a train is temporarily being stored on the railroad tracks at least one locomotive remains running. In October 2013, Goldthwaite filed a complaint in Jefferson Circuit Court against Norfolk Southern alleging that his "life, health, liberty and possessions" have been harmed by noise and "noxious fumes" from the diesel locomotives that are left running in coal trains that are temporarily stored near his house. In January 2014, Norfolk Southern had the case removed to the United States District Court for the Northern District 2 1131375 of Alabama, Southern Division, on the ground that Goldthwaite's claims were completely preempted by the Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. § 10101 et seq. ("the ICCTA"), and that the federal district court, pursuant to 28 U.S.C. § 1331, had federal- question jurisdiction for the limited purpose of dismissing the action. In April 2014, the federal district court held that it lacked subject-matter jurisdiction over the action because Goldthwaite's state-law claims were not completely preempted by the ICCTA. Specifically, the federal district court held that Norfolk Southern had failed to satisfy its burden of proving complete preemption because the evidence did not establish that Goldthwaite had pleaded a clear-cut federal cause of action; rather, the court held, Goldthwaite had pleaded a state-law cause of action that may be preempted by federal law. Holding that removal of the action from state court was not proper, the federal district court remanded the case to the Jefferson Circuit Court. In its order, the federal district court stated: "On remand, Norfolk Southern is free to raise its preemption defense because '[s]tate courts are competent to determine whether state law has been preempted by federal law and they must be permitted 3 1131375 to perform that function in cases brought before them, absent a Congressional intent to the contrary.' Geddes [v. American Airlines, Inc.], 321 F.3d [1349], 1357 [(11th Cir. 2003)]." In May 2014, on remand to state court, Norfolk Southern moved the circuit court to dismiss the action, arguing, among other things, that Goldthwaite's claims were preempted under the ICCTA because, it maintained, the nuisance action was an attempt to regulate transportation by rail carrier and actions related to the regulation and operation of rail carriers, pursuant to the ICCTA, were within the exclusive jurisdiction of the Surface Transportation Board. In support of its motion, Norfolk Southern submitted an affidavit from Justin Meko, an assistant division superintendent for Norfolk Southern, in which he averred: "1. I am Justin A. Meko, and I am over the age of nineteen (19) years and in no way disqualified from making this affidavit, which is made from personal knowledge. "2. I am currently employed as Assistant Division Superintendent for the Alabama Division of Norfolk Southern Corporation and its operating subsidiaries, including Norfolk Southern Railway Company (hereafter referred to simply as 'Norfolk Southern'). Norfolk Southern is a rail carrier. Its Alabama Division is based in Irondale, Alabama, where my office is located. I have held this position since April 2013 and have worked for Norfolk Southern since 2004. 4 1131375 "3. I have reviewed the complaint filed by the plaintiff, Mr. Goldthwaite, in this lawsuit, and have spoken in the past to him and his wife. As I understand it, Mr. Goldthwaite is complaining about the fact that, on occasion (primarily on weekends), Norfolk Southern has to use one of the railroad tracks located near his house as a staging or temporary storage area for coal trains (containing both empty rail cars and cars loaded with coal) traveling between the coal mine at Berry, Alabama (operated by Walter Energy, Inc.) and Alabama Power Company's coal-fired electric generating plant located near Wilsonville, Alabama (the Gaston Steam Plant, often referred to on the railroad as the 'Yellowleaf' plant). I understand that Mr. Goldthwaite is further complaining about the fact that, when the coal trains are temporarily left in this area, at least one locomotive of the train consist is kept running, resulting (according to Mr. Goldthwaite) in noise and fumes. "4. As I have attempted to explain to Mr. Goldthwaite, the reason why the area of track near his house is sometimes used as a staging or temporary storage area as described above pertains directly to the rail transportation services provided by Norfolk Southern. In particular, the track capacity at the Berry coal mine and Yellowleaf steam plant facilities is such that these coal trains must on occasion (again, normally on weekends) be temporarily stored somewhere between the two facilities. The best location for that temporary storage, considering all of the rail transportation services provided by Norfolk to its various customers and the available track, is the area of track that happens to be near [Goldthwaite's] house. Using any other location for this needed temporary storage would disrupt Norfolk Southern's operations and the transportation services it provides to a number of customers. 5 1131375 "5. As I have also attempted to explain to Mr. Goldthwaite, the reason why at least one locomotive of the train consist is kept running when the coal trains are temporarily stored on the area of track near his house also pertains directly to the rail transportation services provided by Norfolk Southern. In particular, if all of the locomotives of a train consist are shut down, the air line that operates the train's main air-brake system is shut down. If that happens (referred to as the train being 'off air') for more than four hours, a Class I brake inspection and test must be done by a qualified person for each locomotive and each car in the train before the train may be operated again. This is required by federal regulation, namely 49 C.F.R. § 232.205, as well as by Norfolk Southern's Rules for Equipment Operation and Handling, specifically Rule A-6. Coal trains such as the ones which are on occasion being temporarily stored on the area of the track near Mr. Goldthwaite's house are typically comprised of approximately one hundred (100) rail cars (hopper cars, for this kind of train) plus locomotives. To have to do a Class I brake test for each of the cars and locomotives on each of the trains stored in this area would require considerable resources and would adversely affect Norfolk Southern's ability to provide rail transportation services to its customers. Indeed, Norfolk Southern's Rules for Equipment Operation and Handling, specifically Rule L-2389(k) require that the lead locomotive of the trains which are temporarily stored must remain running. Furthermore, in addition to the efficiencies saved by this practice, there is also a direct safety benefit in that, if all locomotives of the train are shut down, the train's air brake system would not be operable while the train is stored. By leaving the lead locomotive running, the train's air brake system can be engaged while the train is stored." 6 1131375 After conducting a hearing, the circuit court entered an order denying Norfolk Southern's motion to dismiss. Subsequently, the circuit court amended the order to certify that Norfolk Southern's motion to dismiss involved controlling questions of law and that an appeal would materially advance the ultimate termination of the litigation. On August 29, 2014, Norfolk Southern petitioned this Court for a permissive appeal, pursuant to Rule 5, Ala. R. App. P. On October 27, 2014, this Court granted the petition for a permissive appeal to address whether Goldthwaite's nuisance claims are preempted by the ICCTA. Standard of Review "This Court reviews de novo a trial court's conclusions of law. See State Farm Mut. Auto. Ins. Co. v. Harris, 882 So. 2d 849, 852 (Ala. 2003). "'The appropriate standard of review of a trial court's denial of a motion to dismiss 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 [the pleader] to relief." Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993); Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d 640, 641 (Ala. 1985). This Court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. Nance, 622 7 1131375 So. 2d at 299. A "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." Nance, 622 So. 2d at 299; Garrett v. Hadden, 495 So. 2d 616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala. 1986).' "Lyons v. River Road Constr., Inc., 858 So. 2d 257, 260 (Ala. 2003)." BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So. 2d 310, 312-13 (Ala. 2004). Discussion Norfolk Southern contends that the circuit court erred in denying its motion to dismiss because, it says, Goldthwaite's nuisance claims are expressly preempted by the ICCTA. This Court has not had occasion to address a case dealing specifically with the preemption of nuisance claims by the ICCTA. A state-law action is preempted under the Supremacy Clause of the federal Constitution if the intent of Congress 1 to preempt state law is clear and explicit in the statute. English v. General Elec. Co., 496 U.S. 72 (1990). To determine whether Goldthwaite's nuisance claims are expressly preempted by the ICCTA, this Court must determine whether See U.S. Const. art. VI, cl. 2. 1 8 1131375 Congress specifically stated in the ICCTA that regulation of railroad operations and side tracks is reserved to the federal government. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983). "If the statute contains an express preemption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). The ICCTA, effective January 1, 1996, abolished the Interstate Commerce Commission and created the Surface Transportation Board. 49 U.S.C. § 10101 et seq. Section 10501(b) provides: "(b) The jurisdiction of the [Surface Transportation] Board over -- "(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and "(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities even if the 9 1131375 tracks are located or intended to be located, entirely in one State, "is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under federal or State law." 49 U.S.C. § 10102(9)(A) and (B) define "transportation" as used in § 10501(b)(1) to include: "(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use; and "(B) services related to that movement, including receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, and interchange of passengers and property ...." The definition of transportation as used in the ICCTA is expansive; the language identifying the Surface Transportation Board's exclusive jurisdiction over transportation by rail carriers is unambiguous and precise. Congress specifically provided that the Surface Transportation Board has exclusive jurisdiction over railroad operations and unequivocally preempted remedies otherwise provided by federal or state law. Cf. Pace v. CSX Transp., Inc., 613 F.3d 1066 (11th Cir. 10 1131375 2010)(holding that the ICCTA preempted state-law nuisance claim with respect to operation of side track); Friberg v. Kansas City S. Ry., 267 F.3d 439, 444 (5th Cir. 2001)(holding that the ICCTA preempted claims of negligence and negligence per se with respect to railroad's alleged road blockages); Pejepscot Indus. Park, Inc. v. Maine Cent. R.R., 297 F. Supp. 2d 326, 334 (D. Maine 2003)(holding that the ICCTA preempted state-law tortious-interference claim); Guckenberg v. Wisconsin Cent. Ltd., 178 F. Supp. 2d 954, 958 (E.D. Wis. 2001)(holding that the ICCTA preempted state-law nuisance claim with regard to railway traffic); Rushing v. Kansas City S. Ry., 194 F. Supp. 2d 493, 500–01 (S.D. Miss. 2001)(holding that the ICCTA preempted state-law negligence and nuisance claims intended to interfere with railroad's operation of switchyard); and South Dakota R.R. Auth. v. Burlington N. & Santa Fe Ry., 280 F. Supp. 2d 919, 934–35 (D.S.D. 2003)(holding that the ICCTA preempted state-law claims alleging tortious interference and seeking punitive damages). Here, Goldthwaite seeks damages for the nuisance he alleges is created by Norfolk Southern's use of the railroad tracks near his house as a storage area. The preemptive 11 1131375 power, pursuant to the ICCTA, over rail transportation includes regulatory power over movement of property by rail and storage of property. Goldthwaite's action seeks to use Alabama nuisance law to regulate Norfolk Southern's operation of the railroad tracks, i.e., for the movement of property and its storage. Congress expressly provided that such matters, however, are within the exclusive jurisdiction of the Surface Transportation Board. Therefore, in this case, only the Surface Transportation Board has jurisdiction to hear Goldthwaite's claim, and the ICCTA preempts state law. Conclusion Because Goldthwaite's claims are preempted by the ICCTA, the circuit court erred in denying Norfolk Southern's motion to dismiss. Therefore, we reverse the circuit court's order denying Norfolk Southern's motion to dismiss and render a judgment for Norfolk Southern, dismissing Goldthwaite's state- court action. REVERSED AND JUDGMENT RENDERED. Moore, C.J., and Bolin, Parker, and Shaw, JJ., concur. Wise, J., recuses herself. 12	March 13, 2015
d7e1222f-26b3-4ed0-bf3f-acc035e21522	Stallworth v. AmSouth Bank of Alabama	709 So. 2d 458	1960326	Alabama	Alabama Supreme Court	709 So. 2d 458 (1997) N. Jack STALLWORTH v. AmSOUTH BANK OF ALABAMA, et al. 1960326. Supreme Court of Alabama. December 19, 1997. 460 Andrew P. Campbell and Charles M. Elmer of Campbell & Waller, L.L.C., Birmingham, for appellant. Louis E. Braswell, David R. Quittmeyer, and Henry A. Callaway of Hand Arendall, L.L.C., Mobile, for appellees. SHORES, Justice. This case involves questions of corporate conduct and allegations of minority shareholder oppression and self-dealing by directors of a corporation. N. Jack Stallworth appeals from a summary judgment in favor of AmSouth Bank of Alabama, as the executor of the estates of Stella Stallworth and D.R. Stallworth, and in favor of Carroll E. Blow, Jr., Richard E. Bass, and Markel Wyatt. We affirm. The facts of this case are as follows: Stallworth Land Company, Inc. ("the Company"), is a family-owned Alabama corporation. The appellant N. Jack Stallworth ("Stallworth") owns 8.7573% of the shares of stock in the Company, sits on its board of directors, and is a vice president of the company. When Stella Stallworth died in 1989 and D.R. Stallworth died in 1991, their two estates together included over 58% of the shares in the Company. AmSouth Bank of Alabama ("AmSouth") is the executor of those two estates, which hold the Company stock pending distribution to, or for the benefit of, family members in accordance with Stella and D.R.'s wills. Two other family members, Una Mae Stallworth and Genevieve Henley, had also died owning Company stock. First Alabama Bank and Jean Turner, who is the appellant Stallworth's sister, are co-executors of those estates. Stallworth and Turner are beneficiaries of the estate of Una Mae Stallworth. AmSouth, as executor of the estates of D.R. Stallworth and Stella Stallworth, appointed a majority of the Company's board of directors: the appellees Carroll E. Blow, Jr., Richard E. Bass, and Markel Wyatt, who are also AmSouth employees. As of May 10, 1996, the Company was structured as follows: On February 1, 1996, AmSouth, acting as executor of the estates of D.R. Stallworth and Stella Stallworth; Blow; Bass; and Wyatt filed a complaint in the Circuit Court of Mobile County, seeking declaratory relief pursuant to § 6-6-220 et seq., Ala.Code 1975. The complaint alleged that Stallworth had requested that a special meeting of the directors of the Company be called in order to consider and act upon an option, which he claimed was exercisable by the Company pursuant to its bylaws, to acquire the stock held by the estates of deceased shareholders D.R. Stallworth, Stella Stallworth, Una Mae Stallworth, and Genevieve Henley. AmSouth and the other plaintiffs requested that the court enter a judgment declaring (1) whether the Company then had the right to exercise the alleged purchase option and (2) if the option existed, which of the parties were disqualified from voting on the matter. On February 9, 1996, Stallworth filed an answer in which he joined the plaintiffs in asking the court to resolve these issues. On March 21, 1996, Stallworth filed a counterclaim against AmSouth, both in its individual capacity and as executor of the estates of Stella Stallworth and D.R. Stallworth, and against Blow, Bass, and Wyatt. Stallworth sought damages and equitable relief derivatively on behalf of the Company and individually as a minority shareholder. With regard to his derivative claims, Stallworth asserted generally that AmSouth, as executor of the estates of Stella Stallworth and D.R. Stallworth, controlled a majority of the outstanding shares of stock in the Company and had used that control to appoint AmSouth employees Bass, Blow, and Wyatt as a majority of the board of directors, which he said then managed the Company in such a way as to advance AmSouth's interests at the Company's expense. Stallworth made broad charges that the plaintiffs had breached fiduciary duties of care and loyalty by failing to properly manage the corporation so as to maximize profits and by providing false and misleading information to the shareholders, including him. As to how these fiduciary duties were breached, Stallworth made two specific allegations. First, Stallworth charged that, pursuant to its bylaws, the Company possessed an option to purchase the shares held by the estates of D.R. Stallworth and Stella Stallworth, but the plaintiffs, in order that AmSouth could retain control of the Company, had failed to give notice of, or to act upon, the Company's option. Second, Stallworth asserted that the plaintiffs had engaged in a conspiracy to preserve a timber management contract between the Company and AmSouth, under which, Stallworth says, the Company paid excessive fees to AmSouth. Particularly, Stallworth claimed that when the Company entered into the management contract in 1992, the agreement specified that a majority vote of the shares other than those owned by the estates of D.R. Stallworth and Stella Stallworth, which were controlled by AmSouth, could terminate the contract, with or without cause, upon 90 days' notice. However, Stallworth maintained that when the contract was up for renewal in 1995, Bass, Blow, and Wyatt, without notice to the other shareholders, directed corporate counsel to change the contract to provide that the Company could terminate the contract only by a majority vote of owners and beneficial owners of all outstanding shares. Stallworth also sought to recover in his individual capacity through an allegation of minority shareholder oppression by the plaintiffs. Stallworth claimed he could recover individually because, he said, Bass, Blow, and Wyatt had excluded him from the management of the corporation in an effort to "squeeze" him out of the corporation. Stallworth prayed for $10 million in compensatory 462 and punitive damages on his oppression counterclaim. After answering Stallworth's counterclaim, and before discovery in the case, the plaintiffs filed a motion to stay discovery until the shareholders of the Company could hold a meeting to discuss a course of action and take action regarding the issues raised in the lawsuit. Despite opposition from Stallworth, the trial court issued an order staying discovery. On May 10, 1996, a special joint meeting of the shareholders and directors of the Company was held in order to address the issues of the lawsuit. All shareholders and directors were present at the meeting, either in person or by proxy. After all of the other shareholders besides Stallworth stated for the record that Stallworth did not fairly and adequately represent the interests of the shareholders situated similarly as to him, the shareholders and directors then turned to consider the specific allegations of Stallworth's counterclaim. Each shareholder besides Stallworth voted to adopt resolutions declaring that even if the right to purchase stock from the estates of any of the deceased shareholders existed and had not lapsed, the Company should not pursue the purchase of those shares. Also, each shareholder besides Stallworth voted to adopt a resolution stating that the shareholders ratified and approved the conduct of Blow, Bass, and Wyatt in not requesting or taking any action toward purchasing those shares. The shareholders also addressed the challenged conduct relating to the Company's timber management contract with AmSouth. The shareholders approved resolutions that ratified all actions of the directors in entering into and maintaining the relationship with AmSouth under the 1992 and 1995 management contracts. Stallworth did vote to ratify entering into the contract in 1992, although he cast the only negative votes in the other ballots. However, there was also a unanimous vote authorizing the officers to revise the 1995 contract to substitute the 1992 contract termination language, which would allow termination of the contract by a majority vote of the shares other than those shares in the estates of D.R. Stallworth and Stella Stallworth, of which AmSouth was the executor. On May 24, 1996, the plaintiffs, as counterclaim defendants, moved for a summary judgment based on the shareholder actions taken at the meeting of May 10, 1996. The motion was accompanied by a copy of a certified transcript of the meeting of shareholders and directors. The trial court entered a summary judgment against Stallworth on each of his counterclaims. The trial court concluded that judicial action on all of Stallworth's derivative and individual counterclaims was barred by the provisions of Division F of the new Alabama Business Corporation Act, § 10-2B-8.60 et seq., Ala. Code 1975, because, pursuant to § 10-2B-8.61, the shareholders had, according to the procedures outlined in § 10-2B-8.63, ratified the director conduct underlying all of Stallworth's counterclaims. The trial court also held that Stallworth lacked standing under Rule 23.1, Ala. R. Civ. P., to pursue his derivative counterclaims because, it held, Stallworth was an inadequate representative of similarly situated shareholders. Finally, in light of the Company's affirmative decision not to purchase any shares from the estates of the deceased shareholders, the trial court dismissed, without prejudice and as moot, the original complaint for a declaratory judgment. This Court has stated the following in regard to our review of a summary judgment: Chatham v. CSX Transportation, Inc., 613 So. 2d 341, 343 (Ala.1993) (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989) (other citations omitted)). Although the trial court did not state this as its basis for entering the summary judgment, we agree with the plaintiffs (the counterclaim defendants) that Stallworth lacks standing to bring his derivative claims, because he failed to comply with the "director demand" requirement of Rule 23.1, Ala. R. Civ. P.[1] That rule, which is modeled on a comparable Federal Rule of Civil Procedure, requires that a derivative plaintiff "allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for the plaintiff's failure to obtain the action or for not making the effort." This language is referred to as a provision for "director demand." Elgin v. Alfa Corp., 598 So. 2d 807, 814 (Ala.1992). It has been noted that Rule 23.1 does not create a substantive demand requirement of any particular dimension and, on its face, speaks only to the adequacy of the shareholder representative's pleadings. Kamen v. Kemper Fin. Services, Inc., 500 U.S. 90, 111 S. Ct. 1711, 114 L. Ed. 2d 152 (1991). However, the rule clearly contemplates both the demand requirement and the possibility that demand may be excused. Id. Thus, it is not a mere formality, but rather an important aspect of substantive corporate law that limits the respective powers of the individual shareholder and of the directors to control corporate litigation. Blasband v. Rales, 971 F.2d 1034 (3d Cir. 1992); Kamen, supra. "One of the reasons for the directordemand requirement is that it allows the derivative corporation, on whose behalf the action is brought in the first place, to take over the litigation, thus permitting the directors the opportunity to act in their normal status as conductors of the corporation's affairs." Elgin at 814, citing Shelton v. Thompson, 544 So. 2d 845, 849 (Ala.1989). "`Practically speaking, the demand requirement promotes a form of "alternative dispute resolution" that is, the corporate management may be in a better position to pursue alternative remedies, resolving grievances without burdensome and expensive litigation.'" Shelton, 544 So. 2d at 850, quoting Kaufman v. Kansas Gas & Electric Co., 634 F. Supp. 1573, 1577 (D.Kan.1986), citing Lewis v. Graves, 701 F.2d 245, 247 (2d Cir.1983). See also Kamen, supra. Because the purpose of a demand upon the board of directors is to alert the board so that it can take corrective action, if it feels any is merited, the shareholder should allow sufficient time for the directors to act upon the demand before instituting a derivative action. Quincy v. Steel, 120 U.S. 241, 7 S. Ct. 520, 30 L. Ed. 624 (1887); Shlensky v. Dorsey, 574 F.2d 131 (3d Cir.1978); Nussbacher v. Continental Illinois Nat'l Bank & Trust Co., 518 F.2d 873 (7th Cir.1975), cert. den., 424 U.S. 928, 96 S. Ct. 1142, 47 L. Ed. 2d 338 (1976). Rule 23.1 requires the plaintiff to plead with particularity his or her efforts to obtain from the directors the actions desired or the reasons for the failing to make such efforts. At a minimum, the demand should identify the alleged wrongdoers, describe the factual basis of the wrongful acts and the harm caused to the corporation, and request 464 remedial relief. Allright Missouri, Inc. v. Billeter, 829 F.2d 631 (8th Cir.1987). However, demand on the directors may be excused if that demand would be futile. Elgin at 814. To show futility, the plaintiff shareholder must demonstrate such a degree of antagonism between the directors and the corporate interest that the directors would be incapable of performing their duty. Id. at 815. See also Cooper v. USCO Power Equip. Corp., 655 So. 2d 972 (Ala.1995). A bare allegation that a majority of the directors are wrongdoers is insufficient, although a trial court may consider the facts underlying that allegation in support of a plaintiff's argument of futility. Elgin, supra. Stallworth alleges that making a demand upon the directors to obtain the actions he desires would have been futile, although he also appears to make some attempt at alleging that he previously did make demands upon the directors. In his counterclaim, Stallworth stated the following: (C.R.26.) Stallworth has asserted that a majority of the board had committed wrongs against the corporation, but we believe Stallworth has failed to demonstrate that a demand upon the directors would have been futile. He refers generally to the fact that he has in the past made "demands" that the majority directors "act in the best interest of the corporation" and that those demands met with rejection, leading him to the conclusion, he argues, that to make a demand before filing his counterclaim in this instance would have been similarly futile. There is some authority to support the position that demand may be excused where it is alleged that a similar demand has been made and refused by the board. See Schwartz v. Romnes, 357 F. Supp. 30 (S.D.N.Y.), rev'd on other grounds, 495 F.2d 844 (2d Cir.1974); In re Pittsburgh & L.E.R.R. Secur. & Antitrust Litigation, 392 F. Supp. 492 (E.D.Pa.1975); Zimmerman v. Bell, 585 F. Supp. 512 (D.Md. 1984). But see Kaufman v. Safeguard Scientifics, Inc., 587 F. Supp. 486 (E.D.Pa.1984). However, Stallworth fails to state what the subjects of his prior demands were, when they were made, what specific relief he requested, or how those demands related to the actions he desires in this case. Thus, these alleged "demands" are far too vague in themselves either to satisfy the particularity-ofpleading requirement of Rule 23.1, see Allright Missouri, supra, or to give rise to the inference that a demand seeking relief in this instance would be so similar that it would be futile. Even assuming that the directors had in the past failed to acquiesce to Stallworth's desires in governing the Company, there is nothing to indicate antagonism so severe in this case that the majority directors were unable to perform their duties. To the contrary, it appears that the directors were willing to consider, and potentially to act upon, proposals made by Stallworth, and that they were even attempting doing so in this case when Stallworth filed his derivative counterclaims.[2] One of the major specific 465 allegations of Stallworth's derivative counterclaim is that the majority directors had failed to act upon the Company's option to purchase the stock held by the estates of D.R. Stallworth and Stella Stallworth. But it was in response to Stallworth's insistence that the majority directors initiated this litigation by seeking a declaratory judgment to determine voting eligibility, so that they might act on this very issue. It is true that the majority directors appointed by AmSouth took the position that the Company could no longer exercise the option to purchase those shares, but their seeking the declaratory judgment before Stallworth filed his claim indicates that they were willing to listen to Stallworth's arguments and to fulfill their duties as directors. That the directors disagree with the merits of an argument does not mean that demand is futile. A demand is futile only if the directors' minds are closed to argument. Opposition should not be confused with futility. Kamen v. Kemper Fin. Services, Inc., 939 F.2d 458, 462 (7th Cir.), cert. den., 502 U.S. 974, 112 S. Ct. 454, 116 L. Ed. 2d 471 (1991). It also appears that Stallworth may have recognized the possibility that the majority directors had sought the declaratory judgment in order to allow them to take action within the corporation that could potentially operate to bar at least some of Stallworth's derivative claims. Provisions of Division F of the new Alabama Business Corporation Act prevent judicial action challenging a transaction on the grounds of a director's conflict of interest, where qualified directors or the owners of qualified shares approve the transaction pursuant to specific procedures. See § 10-2B-8.60 et seq., Ala.Code 1975. In addition, this Court has held that the "business judgment rule" prevents a derivative action where a special committee of disinterested directors determines in good faith, after a thorough investigation, that it is not in the corporation's best interests for the derivative action to proceed. See Roberts v. Alabama Power Co., 404 So. 2d 629 (Ala.1981). Whether the actions taken by the shareholders after Stallworth filed his derivative counterclaim were actually effective to bar judicial action pursuant to the new Alabama Business Corporation Act, as the trial court held they were, is not dispositive of the question whether a prior demand would have been futile. Rather, having recognized the possibility that the majority directors might be able to preempt his derivative claims by referring them to disinterested directors or stockholders, Stallworth seems to have made a strategic election to forgo making a demand. Under the circumstances of this case, we conclude that Stallworth has failed to show that a demand upon the directors would have been futile. Having disposed of Stallworth's derivative claims, we now address his individual claim of minority shareholder oppression or squeeze-out. Stallworth's counterclaim alleges the following: As noted previously, the trial court found that at the shareholders' meeting of May 10, 1996, a majority of the qualified shareholders "approved and ratified the actions of the directors" that Stallworth alleged constituted conflicts of interest. The trial court also concluded that Stallworth's "oppression" or "squeeze-out" counterclaim was based purely on an alleged conflict of interest. Therefore, the trial court reasoned that, pursuant to Division F of the new Alabama Business Corporation Act, the shareholders' ratification of the conduct underlying the alleged conflict of interest was effective to bar judicial action not only on Stallworth's derivative counterclaims, but also on his individual squeeze-out counterclaim as well. We do not agree with the trial court that Stallworth's individual squeeze-out claim is based solely upon the majority directors' alleged conflict of interest. So even if we were to assume that the provisions of Division F of the new Alabama Business Corporation Act would bar a squeeze-out claim that is based purely on an alleged conflict of interest, we conclude that those provisions would not do so in this case. However, while, again, we do not completely agree with the reasoning of the trial court, we affirm its judgment because the record demonstrates that Stallworth cannot produce substantial evidence of a squeeze-out by the majority shareholders. In Burt v. Burt Boiler Works, Inc., 360 So. 2d 327 (Ala.1978), this Court first recognized that minority shareholders have an actionable individual claim against the majority in a close corporation. In rejecting the view that "a majority may always regulate and control the lawful exercise of corporate powers," this Court stated, "It is no longer seriously debated that majority stockholders owe a duty to at least act fairly to the minority interests, and the majority cannot avoid that duty merely because the action taken is legally authorized." Id. at 331. We noted: "Where several owners carry on an enterprise together (as they usually do in a close corporation), their relationship should be considered a fiduciary one similar to the relationship among partners. The fact that the enterprise is incorporated should not substantially change the picture." Id. at 332, quoting F.H. O'Neal, Close Corporations § 8.07. We concluded, therefore, that should majority shareholders in a close corporation "deprive the minority stockholders of their just share of the corporate gains," that conduct would be a breach of the duty owed to the minority and would be actionable. Burt Boiler Works at 332. In that case, however, this Court held that the plaintiffs could not recover, because they "show[ed] only that the majority [had] taken control of the corporation," and they failed to show "that they [had] been deprived of any rights they have as stockholders in the corporation." Id. We reaffirmed our recognition of the squeeze-out cause of action in Galbreath v. Scott, 433 So. 2d 454 (Ala.1983), stating that it represented our adoption of "attitudes towards close corporations which reflect the realities of the situation and which recognize a distinction between closely and widely held corporations." Id. at 457. We explained as follows: Id. See also Michaud v. Morris, 603 So. 2d 886 (Ala.1992); Ex parte Brown, 562 So. 2d 485 (Ala.1990). However, the Galbreath Court held that the plaintiff, who had alleged that the majority shareholders had committed waste of the corporation's assets, could not recover individually under a squeeze-out theory: Galbreath, at 457 (citations omitted). See also Pegram v. Hebding, 667 So. 2d 696, 702 (Ala.1995) ("[i]t is well settled that when individual damages sought to be recovered by a plaintiff are incidental to his or her status as a stockholder in a corporation, the claim is a derivative one and must be brought on behalf of the corporation"). Although this Court has held that majority shareholders in a close corporation "owe a duty to at least act fairly to the minority interests," Burt Boiler Works, 360 So. 2d at 331, the squeeze-out cause of action is not a panacea for any and all conduct undertaken by majority shareholders of a close corporation that could be deemed "unfair" to the minority. As our holding in Galbreath indicates, a minority shareholder cannot parlay a wrong committed primarily against the corporation, which gives rise to a derivative claim only, into a personal recovery of damages under a squeeze-out theory by simply stating that the injury to the corporation is also "unfair" to him as well. Stallworth asserts that the majority shareholders have engaged in "oppressive" conduct that has resulted "in a depreciation in the value of his stock, instead of an enhancement thereof, and deprivation of assets of the corporation, all to the detriment of [Stallworth] and other shareholders." The lost value of a minority shareholder's stock resulting from director self-dealing or mismanagement could certainly be characterized as "unfair" to the minority stockholder in some sense, but this is a quintessential derivative injury, merely incidental to one's status as a stockholder, and thus not a harm cognizable under a squeeze-out theory. Galbreath; Pegram, supra. A minority shareholder has a remedy for such an injury, but that remedy is a derivative action brought on behalf of the corporation. Stallworth has also alleged that the majority shareholders have "willfully and systematically excluded him from the business and management of [the] corporation." The exclusion of a minority stockholder in a close corporation from employment or participation in management, and the resulting deprivation of salary for the performance of such duties, is the kind of personalized injury for which an individual shareholder may seek a remedy via a squeezeout action. See Michaud v. Morris; Ex parte Brown, supra. Under the principles of corporation law, Stallworth, as a minority shareholder, has no "right" to participate in managing the business or affairs of the corporation generally. See, e.g., Shelton v. Thompson, 544 So. 2d at 849 ("`[a] cardinal rule of corporate law is that directors, rather than shareholders, manage the business and affairs of a corporation' "(quoting Kaufman v. Kansas Gas, supra)); Fulton v. Callahan, 621 So. 2d 1235 at 1252 (Ala.1993) ("`[t]hose who embark in a corporate enterprise as stockholders do so under an implied agreement that the business shall be controlled and directed by a majority of the stockholders'"). However, our adoption of a cause of action for the squeeze-out of minority shareholders in a close corporation is based to a significant degree upon the recognition that a close corporation enterprise often "acquires many of the attributes of a partnership or sole proprietorship and ceases to fit neatly into the classical corporate scheme." Galbreath, 433 So. 2d at 457 (citation omitted). Thus, unlike a minority shareholder in a widely held corporation, a minority shareholder in a closely held corporation could possibly have a reasonable expectation of continuing employment by the corporation[3] or of a continuing 468 right to take part in management decisions. See F. Hodge O'Neal and R. Thompson, Oppression of Minority Shareholders § 3:06 (2d ed.1985). But in this case, the record affirmatively shows that Stallworth has participated in management decisions in his role as a corporate director and, indeed, that he continues to do so. Stallworth also retains his status as vice president of the Company. Stallworth has not even suggested that the majority has sought to oust him from either post or to discontinue any salary he might be entitled to receive for his performance of his duties in these posts. Nor does Stallworth allege that he has been deprived of any other benefit he might have had reason to expect from his status as a stockholder. Thus, the alleged oppression of which Stallworth complains amounts to nothing more than the fact that the majority shareholders, apparently with the backing of every minority shareholder other than Stallworth, will not accede to his wishes on matters of corporate management. We hold that this allegation, under the facts presented in this case, is insufficient to support Stallworth's claim of squeeze-out. Stallworth complains, however, that the trial court erred in entering the summary judgment against him while discovery, which he says was crucial, was pending. With regard to a court's entering a summary judgment while allegedly crucial discovery is pending, this Court, in Reeves v. Porter, 521 So. 2d 963 (Ala.1988), stated: 521 So. 2d at 965 (footnote added). See also Copeland v. Samford University, 686 So. 2d 190, 194-95 (Ala.1996); Diamond v. Aronov, 621 So. 2d 263, 265-66 (Ala.1993). 469 Because we have determined that Stallworth lacked standing to bring his derivative claims, we are concerned only with whether he has carried his burden to show that matters sought in discovery were crucial to his individual squeeze-out counterclaim. Stallworth did file an affidavit pursuant to Rule 56(f), Ala. R. Civ. P. However, relevant to his squeeze-out counterclaim, Stallworth's affidavit makes only the following assertion: Stallworth's conclusory affidavit fails even to identify what crucial evidence pertaining to his squeeze-out claim discovery might disclose. As explained above, the shortcoming of Stallworth's squeeze-out claim lies primarily in the lack of even an allegation that the majority shareholders have deprived him individually of anything except the ability to singlehandedly direct corporate business in a manner contrary to the wishes of every other stockholder. Surely, Stallworth, a director and officer in the Company, did not require discovery to ascertain which benefits of stock ownership he alleges the majority shareholders denied him. Thus, as with his derivative claims, we also conclude that the trial court properly entered the summary judgment on Stallworth's squeeze-out counterclaim. AFFIRMED. HOOPER, C.J., and HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur. ALMON and SEE, JJ., concur in the result. MADDOX, J., dissents. MADDOX, Justice (dissenting). The facts giving rise to this action are adequately stated in the majority opinion. The majority concludes, upon a review of Stallworth's complaint and the facts of this case, that Stallworth asserted derivative claims only and did not state a claim alleging minority shareholder oppression. From this conclusion, I must respectfully dissent. I believe that the appropriate framework for understanding the nature of close corporations is that of the joint venture or partnership.[5] By considering the claims raised in this case from that perspective, one may understand the creation of the corporation as the creation of "a long-term relational contract which contemplates that each participant will contribute capital or services and that proceeds will be equitably shared." J.A.C. Hetherington, Defining the Scope of Controlling Shareholders' Fiduciary Responsibilities, 22 Wake Forest L.Rev. 9, 22 (1987). The articles of incorporation embody the contract establishing the corporation, and that contract governs the duties and responsibilities of the shareholders, directors, and officers. It may be, however, that that written contract does not contain an explicit statement of all the parties' understandings, but it is implicit that "parties who form closely held firms intend an equitable sharing of returns." Id. at 28. Consequently, I believe that if the articles do not explicitly reflect that intention, then it is, necessarily, implied. My view of the nature of the cause of action for minority shareholder "squeeze-out" is based on the theory of an implicit agreement to share the proceeds from corporate activities. "Squeeze-out" claims "can only be given concrete meaning by reference to the explicit or implicit ex ante understanding of the parties and reasonable expectations based upon that understanding." Id. at 25. That understanding, as this Court recognized in Burt v. Burt Boiler Works, Inc., 360 So.2d *470 327 (Ala.1978), includes a requirement of acting fairly. I believe that a violation of the duty to act fairly is a breach of the parties' explicit or implicit agreement and that the appropriate remedy for a breach of that agreement is one that would protect the reasonable expectations of the shareholders. As the late Dean Hodge O'Neal, whose opinions have had a great impact on the development of close corporation law in Alabama, wrote: F. Hodge O'Neal, Introduction (Symposium: Rights of Minority Shareholders), 22 Wake Forest L.Rev. 1, 5 (1987). Because I believe that the most appropriate framework for understanding the nature of close corporations is one based on contract principles, I cannot agree with the majority's conclusion that the claims stated in this case are derivative ones. I believe that the claims stated are minority shareholder "squeezeout" claims that ought to be resolved by applying the principles of contract law; therefore, I respectfully dissent. [1] Stallworth argues that it would be "manifest injustice" to affirm the summary judgment on a ground that he had no opportunity in the trial court to oppose with evidence and legal argument. However, this Court can affirm a judgment on a basis not asserted to the trial court, so long as the judgment itself is proper. Progressive Specialty Ins. Co. v. Hammonds, 551 So. 2d 333 (Ala.1989). [2] Despite his failure to plead with particularity that he had made the required demand, one might reasonably find from the record that Stallworth had made an actual demand upon the directors regarding one of his principal counterclaims. The initial complaint seeking the declaratory judgment alleges that Stallworth had requested a special meeting of the directors to consider and act upon his proposal to exercise the option, which Stallworth claimed still existed, to purchase the shares of stock held by the estates of D.R. Stallworth and Stella Stallworth. This strongly suggests that Stallworth had proposed to the directors that the Company should purchase those shares, although it is unclear exactly when this request might have been made. However, even assuming, for the sake of argument, that this was a proper "demand" as to his derivative claims relating to the directors' failure to act upon the Company's option, we would still conclude that Stallworth failed to comply with Rule 23.1. The complaint for the declaratory judgment shows that the majority directors had not rejected the demand but were, instead, in the process of acting upon it. There has been no allegation that the directors engaged in any unreasonable sort of delay once they were presented with Stallworth's demand; thus, we conclude that Stallworth did not permit them sufficient time to act upon his demand. The premature filing of a complaint or claim after a demand has been made is equivalent to a failure to make a demand, and that premature filing warrants dismissal. Recchion on behalf of Westinghouse Electric Corp. v. Kirby, 637 F. Supp. 290 (W.D.Pa. 1986). [3] In Michaud v. Morris, supra, a shareholder who owned a 25% interest in a close corporation contended that he had been squeezed out; he contended this solely because the majority had used its control to terminate his employment with the corporation's failing restaurant enterprise. This Court stated that the minority shareholder "might have had a legitimate expectation that he would be retained as general manager of the corporation." 603 So. 2d 889. Despite the legitimacy of that expectation, however, this Court held that, "given the poor performance of the restaurant," "expectations, standing alone, are not enough under the facts of this case to show oppression at the hands of the majority." Id. Therefore, this court held, the majority shareholders were entitled to a directed verdict on the minority shareholder's "oppression" claim. Id. [4] On October 1, 1995, since our decision in Reeves v. Porter, the language of Rule 56(f), Ala. R. Civ. P., was amended, but the amendment was "technical" and "[n]o substantial change [was] intended." Committee Comments to October 1, 1995, amendment to Rule 56. [5] In Galbreath v. Scott, 433 So. 2d 454, 457 (Ala. 1983), we recognized that "[w]hen shareholders serve on the board of directors and appoint themselves as officers, the enterprise acquires many of the attributes of a partnership or sole proprietorship and ceases to fit neatly into the classical corporate scheme."	December 19, 1997
cb23faf1-9cd1-40bb-9651-5ac6af6394f2	Mobile Infirmary Association , d/b/a Mobile Infirmary Medical Center, et al. v. The Estate of Madeline Kidd, deceased, by and through its personal representative James O. Kidd, Sr.	N/A	1140752	Alabama	Alabama Supreme Court	Rel: 01/29/2016 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, 2015-2016 ____________________ 1140706 ____________________ Roger Alvarado, M.D., et al. v. The Estate of Madeline Kidd, deceased, by and through its personal representative James O. Kidd, Sr. ____________________ 1140752 ____________________ Mobile Infirmary Association, d/b/a Mobile Infirmary Medical Center, et al. v. The Estate of Madeline Kidd, deceased, by and through its personal representative James O. Kidd, Sr. Appeals from Mobile Circuit Court (CV-14-903164) PER CURIAM. This case concerns the application of the relation-back doctrine to wrongful-death claims. The trial court allowed James O. Kidd, Sr., the personal representative of the estate of Madeline Kidd, deceased, to use relation back to sustain his claims against various health-care providers. Some of those providers –– Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center, Dr. Roger Alvarado, Dr. Barbara Mitchell, and IMC-Diagnostic and Medical Clinic, P.C. (hereinafter referred to collectively as "the defendants") –– sought review of the trial court's order by filing separate petitions for permissive appeals, which we are granting today by separate order. We reverse and remand. While she was a patient at Mobile Infirmary Medical Center, Madeline underwent a discectomy and fusion of her cervical spine. On November 16, 2012, Madeline died while still a patient at the medical center; she died intestate. Almost two years later, on November 10, 2014, James, Madeline's husband, petitioned the probate court for letters of administration. On November 11, 2014, one day after James 2 1140706, 1140752 had petitioned for letters of administration, he sued the defendants, alleging wrongful death and medical malpractice. The personal representative of Madeline's estate is the proper person to bring a wrongful-death action in this case. See § 6-5-410(a), Ala. Code 1975. Despite alleging in the complaint that he was the personal representative of Madeline's estate, James had not been appointed to that position when he filed the wrongful-death action. On November 26, 2014, 10 days after the expiration of the 2-year limitations period for filing a wrongful-death action, the probate court granted James's petition and issued letters of administration, making him the personal representative of the estate. See § 6-5- 410(d), Ala. Code 1975 ("The action must be commenced within two years from and after the death of the testator or intestate."). 1 Because the wrongful-death act is a "statute of 1 creation," Ogle v. Gordon, 706 So. 2d 707, 708 (Ala. 1997), the limitations period in the act is not a statute of limitations. "'The statute requires suit brought within two years after death. This is not a statute of limitations, but of the essence of the cause of action, to be disclosed by averment and proof.'" Wood v. Wayman, 47 So. 3d 1212, 1218 (Ala. 2010) (quoting Parker v. Fies & Sons, 243 Ala. 348, 350, 10 So. 2d 13, 15 (1942) (overruled on other grounds by King v. National Spa & Pool Inst., Inc., 607 So. 2d 1241 (Ala. 1992))). In a statute of creation, the "'limitation [period] is so inextricably bound up in the statute creating the right 3 1140706, 1140752 In December 2014, the defendants filed motions to dismiss or, alternatively, for a summary judgment; because matters outside the pleadings were presented to and considered by the trial court, those motions were summary-judgment motions. See Rule 12(b), Ala. R. Civ. P. In pertinent part, the defendants argued in their motions that the two-year limitations period for a wrongful-death action barred James's action. The defendants noted that only the personal representative could bring the wrongful-death action and that James was not appointed personal representative until after the expiration of the two-year limitations period. In response, James argued that the relation-back doctrine could be used to prevent his claim from being time-barred. The trial court agreed with James and denied the summary-judgment motions. The defendants sought certifications for permissive appeals under Rule 5, Ala. R. App. P. The trial court certified the following question for permissive appeal: "Whether a Plaintiff in a medical malpractice wrongful death action has the capacity to file suit, when that Plaintiff applies for Letters of that it is deemed a portion of the substantive right itself.'" Etheredge v. Genie Indus., Inc., 632 So. 2d 1324, 1326 (Ala. 1994) (quoting Cofer v. Ensor, 473 So. 2d 984, 987 (Ala. 1985)). 4 1140706, 1140752 Administration and files an action for wrongful death before the expiration of the applicable time for suit limitation, but is not appointed personal representative of the estate until 10 days after the time limitation expires." The defendants subsequently filed in this Court petitions for permission to appeal, which we are granting today by separate order. We must determine whether the trial court properly allowed James to relate his appointment as personal representative, which occurred after the two-year limitations period had expired, back to his filing of the petition for letters of administration, which occurred before the limitations period expired. There are two key cases to consider in making that determination: Ogle v. Gordon, 706 So. 2d 707 (Ala. 1997), and Wood v. Wayman, 47 So. 3d 1212 (Ala. 2010). In Ogle, Ogle petitioned the probate court for letters of administration about four months after his wife's death. Ogle filed a wrongful-death action on the same day he filed the petition for letters of administration. For unexplained reasons, there was a long delay in issuing the letters of administration. The probate court did not appoint Ogle as 5 1140706, 1140752 personal representative until about 27 and one-half months after the petition was filed and about 8 months after the 2- year limitations period had expired. The trial court entered a summary judgment in favor of the defendants, concluding that Ogle's action was time-barred. This Court reversed the trial court's judgment, concluding that Ogle's appointment as personal representative related back to the date he filed his petition, which was within the two-year limitations period. 706 So. 2d at 711. The Court stated that "we must determine whether the doctrine of relation back applies to our wrongful death limitations provision." 706 So. 2d at 708-09. We then observed that the "doctrine of relation back with respect to the powers of a personal representative has been in existence for approximately 500 years" and quoted extensively from a 1927 Alabama case discussing relation back in that context, McAleer v. Cawthon, 215 Ala. 674, 112 So. 251 (1927). 706 So. 2d at 709 (emphasis added). The Court then noted that, "in 1993, the Alabama Legislature codified this doctrine by adopting ... § 43-2-831, Ala. Code 1975." 706 So. 2d at 710. Section 43- 2-831, Ala. Code 1975, provides, in part, that "[t]he powers 6 1140706, 1140752 of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter." (Emphasis added.) The Court in Ogle overruled the holding in Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So. 2d 98 (1974), "regarding the application of the doctrine of relation back, insofar as it [was] inconsistent with" what the Court held in Ogle. 706 So. 2d at 710. Strickland was a wrongful-death case in which relation back had not been allowed. In overruling Strickland, the Court in Ogle noted that the opinion in Strickland was released long before the enactment of § 43-2-831. Id. Following the above analysis, the Court in Ogle also noted that the relation-back doctrine was "especially applicable" in that case because "the probate court has no discretion in issuing letters of administration when there is no question relating to the qualification of the person requesting the letters. The probate court had no right to delay the issuance of the letters for 27 1/2 months." 706 So. 2d at 710. The Court stated that the "probate court, through inadvertence, did not issue the letters of administration 7 1140706, 1140752 until [after the two-year limitations period had expired].... That dereliction should not bar [Ogle's] action." 706 So. 2d at 711. The second key case is Wood, decided in 2010, 13 years after Ogle was decided. In Wood, Wayman filed a wrongful- death action shortly before the expiration of the limitations period. Although the opinion does not specifically state when Wayman petitioned for letters testamentary, the appellate record in that case indicates that she filed her petition after the two-year limitations period had expired. The probate court appointed Wayman personal representative of her deceased husband's estate several months after the limitations period had expired. The defendants argued that the wrongful- death claim was time-barred, but the trial court concluded that Wayman's appointment as personal representative related back either to the date of her husband's death or the date the wrongful-death action was filed. We granted the defendants' petition for a permissive appeal. The certified question asked whether the appointment of Wayman as personal representative in that case "can relate back to the filing of 8 1140706, 1140752 the lawsuit." 47 So. 3d at 1213. We answered that question in the negative, concluding that the action was time-barred. In concluding that relation back did not apply in Wood, the Court distanced itself from some of the analysis in Ogle. The Court in Ogle stated that § 43-2-831 codified the relation-back doctrine with respect to actions maintained by a personal representative. Wood, however, noted caselaw stating that a wrongful-death action, although brought by the personal representative, is not derivative of the decedent's rights and that damages awarded in a wrongful-death action are not part of the decedent's estate (damages are distributed to the heirs according to the laws of intestate succession). Thus, the Court in Wood determined that a wrongful-death action would not be "beneficial to the estate," a condition to allowing a personal representative to use relation back under § 43-2-831. Therefore, the Court in Wood concluded that "the relation-back provision in § 43-2-831 does not apply to a wrongful-death action brought under § 6-5-410." 47 So. 3d at 1217. Thus, the Court in Wood, distancing itself from certain language in Ogle, removed § 43-2-831 as a foundation for 9 1140706, 1140752 applying relation back to personal representatives in wrongful-death cases. With § 43-2-831 no longer a permissible basis to support relation back in a wrongful-death case, Wood characterized Ogle as having "allowed relation back in that wrongful death case solely because of the 'inadvertence' of the probate court, which caused the long delay after Ogle timely filed both his petition and his complaint within four months of the decedent's death." 47 So. 3d at 1218. The Court in Wood further stated: "Because there must be something to which the appointment as a personal representative may relate back, the [Ogle] Court related the appointment back to the filing of the petition for such appointment. Although Ogle's appointment was permitted to relate back to the date he filed his petition for that appointment, nothing in Ogle supports Wayman's argument that her appointment as personal representative of Charles's estate relates back to the date of the filing of the wrongful-death action." 47 So. 3d at 1218-19. Thus, in Wood the Court concluded that Wayman's claim was barred by the two-year limitations period for wrongful-death actions. In this case, James relies heavily on Ogle in arguing that his action is not time-barred, and the defendants rely 10 1140706, 1140752 heavily on Wood in arguing that it is. Wood did not purport to overrule Ogle. However, Wood, by reading Ogle as having allowed relation back solely because of the "inadvertence" of the probate court, construed Ogle in a way that narrows the application of relation back in wrongful-death cases. Wood indicates that relation back generally cannot be used to prevent a wrongful-death claim from being time-barred where the personal representative is appointed after the two-year limitations period has expired. However, Wood also indicates that an exception to that general rule exists: A personal representative appointed after the limitations period has expired may relate the appointment back to the filing of the petition within the limitations period if the delay in appointment is due to inadvertence by the probate court, as in Ogle. We must determine whether the general rule in Wood or the limited Ogle exception applies in this case. We conclude that the general rule in Wood applies here. Unlike Ogle, the probate court's failure to issue the letters of administration within the two-year limitations period cannot be attributed to the probate court's inattentiveness. In Ogle, the probate court waited about 27 and one-half months 11 1140706, 1140752 before issuing the letters of administration. In this case, James filed his petition for letters of administration six days before the two-year limitations period ended. Nothing before us shows what efforts, if any, James made to bring the impending expiration of the two-year limitations period to the attention of the Mobile County Probate Judge. The probate court issued the letters of administration only 16 days after the petition was filed, 10 days after the two-year limitations period had ended. The probate court's delay in this case was significantly shorter than the delay in Ogle. Unlike Ogle, we cannot rightly blame the probate court for "inadvertence" or "dereliction." Ogle, 706 So. 2d at 711. Thus, James cannot use relation back in this case. Accordingly, we reverse the trial court's order denying the defendants' summary-judgment motions, and we remand the case for proceedings consistent with this opinion. 1140706 –– REVERSED AND REMANDED. 1140752 –– REVERSED AND REMANDED. Stuart, Parker, Shaw, and Main, JJ., concur. Bolin, J., concurs specially. Moore, C.J., and Murdock, Wise, and Bryan, JJ., dissent. 12 1140706, 1140752 BOLIN, Justice (concurring specially). I concur with the main opinion and the result reached in it. I write specially to reemphasize that a wrongful-death action in Alabama brought pursuant to § 6-5-410, Ala. Code 1975, a cause of action unknown at common law, is purely statutory and that this Court's role is to strictly enforce the wrongful-death statute as written, and intended, by the legislature. Golden Gate Nat'l Sr. Care, LLC v. Roser, 94 So. 3d 365, 369 (Ala. 2012). In other words, "[w]here a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its effect all things not expressly mentioned." Geohagan v. General Motors Corp., 291 Ala. 167, 171, 279 So. 2d 436, 439 (1973). In the present case, there are two specific conditional elements of the wrongful-death statute that I deem worthy of discussion. First, § 6-5-410 grants to only a legally appointed personal representative, i.e., an administrator or an executor, the right to bring a wrongful-death action for the benefit of, and on behalf of, the decedent's heirs at law based on the death of the decedent by a wrongful act. See Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993)("The 13 1140706, 1140752 Wrongful Death Act, § 6-5-410, creates the right in the personal representative of the decedent to act 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." (emphasis added)). To effectuate the purpose of the wrongful-death statute, the legislature had to empower some individual or entity to act as the plaintiff to initiate the proceeding to punish the wrongdoer and thereby to collect punitive damages to distribute to the decedent's heirs at law. The legislature chose a personal representative to fill that role. Acting in this capacity, the personal representative, whether in a testate or intestate probate proceeding, prosecutes the wrongful-death action as a fiduciary for the heirs at law. This is true even in a testate estate, when the terms of the decedent's will may well provide for an entirely different dispositive testamentary scheme than that embodied in the statute of distributions, and, again, this is true because the wrongful-death statute so provides. Accordingly, one who files a wrongful-death action pursuant to § 6-5-410 without being properly appointed, i.e., without becoming a personal 14 1140706, 1140752 representative, has not complied with the provisions of the wrongful-death statute and therefore does not qualify to bring the wrongful-death action. Secondly, § 6-5-410(d) requires that the wrongful-death action be filed "within two years from and after the death of the testator or intestate." This Court has consistently held that "the wrongful death statute, which provides a two-year limitations period, is a statute of creation, otherwise known as a nonclaim bar to recovery, and that it is not subject to tolling provisions." Ogle v. Gordon, 706 So. 2d 707, 708 (Ala. 1997)(emphasis added); Ex parte FMC Corp., 599 So. 2d 592, 594 (Ala. 1992)("It is well settled that the time limitation set out in § 6-5-410(d) is part of the substantive cause of action and that it is not subject to any provision intended to temporarily suspend the running of the limitations period. The two-year period is not a limitation against the remedy only, because after two years the cause of action expires."); see also Cofer v. Ensor, 473 So. 2d 984, 991 (Ala. 1985)(discussing the differences between a statute of creation and a statute of limitations for tolling purposes). The distinction between these types of limitations was explained 15 1140706, 1140752 at length in 34 Am. Jur. Limitation of Actions § 7 (1941), as follows: "A statute of limitations should be differentiated from conditions which are annexed to a right of action created by statute. A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such a provision will control, no matter in what form the action is brought. The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability. Whether an enactment is of this nature, or whether it is a statute of limitations, should be determined from a proper construction of its terms. Generally, the limitation clause is found in the same statute, if not in the same section, as the one creating the new liability, but the fact that this is the case is material only as bearing on questions of construction; it is merely a ground for saying that the limitation goes to the right created, and accompanies the obligation everywhere. The same conclusion may be reached if the limitation is in a different statute, provided it is directed to the newly created liability so specifically as to warrant saying that it qualifies the right. On the other hand, as the result of differences in the statutory provisions under consideration, enactments requiring notice of claim prior to the commencement 16 1140706, 1140752 of suit variously have been held to impose conditions upon the existence of a right of action, to impose upon the jurisdiction of the court, or to constitute statutes of limitation merely affecting the remedy." See also, e.g., In re Paternity of M.G.S., 756 N.E.2d 990, 997 (Ind. Ct. App. 2001)("While equitable principles may extend the time for commencing an action under statutes of limitations, nonclaim statutes impose a condition precedent to the enforcement of a right of action and are not subject to equitable exceptions."); Negron v. Llarena, 156 N.J. 296, 300, 716 A.2d 1158, 1160 (1998)("The running of a procedural statute of limitations bars only the remedy, not the right. ... In contrast, substantive statutes of limitations restrict statutory causes of action that did not exist at common law. ... A substantive statute of limitations, as a condition precedent to bringing suit, bars not only the remedy, but also the right itself. 22A Am. Jur. 2d Death at §§ 57, 76 (1988)."); General Motors Corp. v. Arnett, 418 N.E.2d 546, 548 (Ind. Ct. App. 1981)("It was a condition precedent that the action against G.M. be brought by someone in the capacity of the personal representative. Mrs. Arnett failed to meet that condition, because she did not have that capacity within two 17 1140706, 1140752 years of her husband's death. She lost her statutorily conferred right to bring a wrongful death action under I.C. 34-1-1-2 and thus cannot maintain her action against G.M."); Fowler v. Matheny, 184 So. 2d 676, 677 (Fla. Dist. Ct. App. 1966)("F.S.A. § 517.21 created an entirely new right of action that did not exist at common law and expressly attached thereto, without any exception, the proviso that the action must be brought within two years from the date of sale. Such a limitation of time is not like an ordinary statute of limitation affecting merely the remedy, but it enters into and becomes a part of the right of action itself, and if allowed to elapse without the institution of the action, such right of action becomes extinguished and is gone forever."); Simon v. United States, 244 F.2d 703, 705 (5th Cir. 1957)("The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability."); and Bowery v. Babbit, 99 Fla. 1151, 128 So. 801 (1930)("[W]here a statute confers a right and expressly fixes 18 1140706, 1140752 the period within which suit to enforce the right must be brought, such period is treated as the essence of the right to maintain the action, and ... the plaintiff or complainant has the burden of affirmatively showing that his suit was commenced within the period provided."). Accordingly, the two-year limitations period in § 6-5-410(d) was created by the legislature as part of the statutory right to bring the wrongful-death action, and, in strictly construing the statute, I conclude that nothing therein allows a plaintiff in a wrongful-death action to toll the limitations period so that his or her appointment subsequent to the expiration of the limitations period can relate back. I note that neither Rule 9(h) nor Rule 15(c), Ala. R. Civ. P., is applicable to this case insofar as this case does not implicate fictitious-party pleading. See, e.g., Ex parte FMC Corp., supra, concerning relation back in the context of Rules 9(h) and 15(c): "Rules 9(h) and 15(c) do not combine to provide a mechanism whereby the running of any limitations period –- whether the limitations provision is characterized as a statute of limitations or as part of a statute of creation –- is temporarily suspended. Instead, these rules combine to provide a mechanism whereby a statute of limitations, or a time limitation provision such as the one found in § 6-5-410, can be satisfied in a case where the plaintiff has been unable through due diligence to 19 1140706, 1140752 identify by name the person or entity responsible for his injury." 599 So. 2d at 594. I reiterate, as correctly concluded in Wood v. Wayman, 47 So. 3d 1212 (Ala. 2010), that the relation-back provision in § 43-2-831, Ala. Code 1975, by its own specific language, does not apply to a wrongful-death action filed pursuant to § 6-5- 410 insofar as § 43-2-831 specifically provides that "[t]he powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter." (Emphasis added.) As fully and adequately explained in Wood, a wrongful-death action filed pursuant to § 6-5-410 is not, and can never be, "beneficial to the estate" because "[a]ny damages awarded as the result of a wrongful-death action are not a part of the decedent's estate, and the action, therefore, cannot benefit the estate. '[D]amages awarded pursuant to [§ 6-5-410, Ala. Code 1975,] are distributed according to the statute of distribution and are not part of the decedent's estate. The damages from a wrongful death award pass as though the decedent had died without a will.' Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993)." 20 1140706, 1140752 47 So. 3d at 1216. Put another way, a wrongful-death action must be brought by the personal representative, not any individual who may become a personal representative in the future, on behalf of the decedent's next of kin, and any damages recovered pass outside the estate and are not subject to the payment of the debts and/or liabilities of the decedent; thus, the portion of § 43-2-831 allowing a personal representative to use relation back in certain instances, by its own terms, is not applicable to actions brought pursuant to § 6-5-410, such actions not accomplishing anything for the benefit of the estate. The case of Ogle v. Gordon, supra, relying on the fact that § 43-2-831 became effective 20 years after Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So. 2d 98 (1974), was decided, embraced § 43-2-831 as a relation-back savior and expressly overruled Strickland regarding its holding concerning the inapplicability of the doctrine of relation back in wrongful-death/personal-representative issues. Stating a correct principle of law that "[t]he doctrine of relation back with respect to the powers of a personal representative has been in existence for 21 1140706, 1140752 approximately 500 years," 706 So. 2d at 709, Ogle then made an awkward leap from that principle to a discussion of the relation-back doctrine by the Florida Supreme Court in Griffin v. Workman, 73 So. 2d 844, 846 (Fla. 1954)(quoting 21 Am. Jur. Exec. & Admin. § 211, and 2 Schouler on Wills, Executors and Administrators p. 1176 (5th ed.), stating that, "'[u]nder this [relation-back] doctrine "all previous acts of the [personal] representative which were beneficial in their nature to the estate ..., are validated."'" 706 So. 2d at 709 (emphasis added). From here, Ogle made its final unexplainable leap to the Alabama probate-procedures provision bearing a similarity to the above but having no relevance to the issue actually before the Court. That section, § 43-2-831, effective January 1, 1994, had absolutely nothing to do with relation back for any purpose other than acts performed prior to appointment by the personal representative, or others, that are beneficial to the estate. In my judgment, Ogle is a decision that arrived at an equitable result but that otherwise stands alone and was decided, as stated therein, "[b]ased on these facts," i.e., that a probate court improperly failed to act on a petition for letters of administration and appointment of a personal 22 1140706, 1140752 representative for an unexplained 27 ½ months. Rather than calling it what it was, Ogle simply made a double leap to nowhere, pulling in an inapposite statute to justify relation back to remedy a clear judicial wrong that had occurred. Accordingly, as the main opinion notes, § 43-2-831 should never have been and now is "no longer a permissible basis to support relation back." ___ So. 3d at ___. I further note that §§ 43-2-45 and 43-2-80, Ala. Code 1975, set out the only substantive and procedural limitations upon the granting of a petition for letters of administration immediately upon filing. Therefore, if James O. Kidd, Sr., had a good and sufficient fiduciary bond pursuant to § 43-2- 80, there were no limitations in § 43-2-45 that would have prevented him from having his petition granted and letters of administration issued immediately upon filing, which occurred six days before the two-year limitations period expired. As the main opinion notes, "[n]othing before us shows what efforts, if any, James made to bring the impending expiration of the two-year limitations period to the attention of the Mobile County Probate Judge." ___ So. 3d at ___. Rather than bringing to the attention of the Mobile County Probate Judge, 23 1140706, 1140752 or to the attention of his office, the fact that the 2-year limitation on his filing a wrongful-death action would expire in 6 days unless a personal representative was appointed (as a former probate judge, I submit that if this had been done in any of the 67 counties in Alabama, the great likelihood is that there would have been no need for any relation-back argument, because the petition would have been addressed by the probate court and granted), for all the record shows the petition was simply left to be considered in the due course of the probate court's operations, which occurred 16 days later. In summary, in wrongful-death actions, unless and until the Alabama Legislature amends § 6-5-410, it is a duly appointed and lettered personal representative that may "commence an action [for wrongful death]" and the action "must be commenced within two years from and after the death of the testator or intestate." § 6-5-410. In the present case, in order to have the legal capacity to file a wrongful-death action, James had a condition precedent to obtain from the probate court his appointment as personal representative and the attendant letters of administration and, thereafter, to file the civil wrongful-death action before the expiration of 24 1140706, 1140752 the two-year limitations period expressed in § 6-5-410(d). Because James waited almost two years to become appointed and to file a wrongful-death action and was not appointed personal representative of Madeline Kidd's estate until after the two- year limitations period had expired, James lacked the legal capacity to institute the wrongful-death action on behalf of Madeline's heirs, and his subsequent appointment after the two-year period was too late and to no avail. Although I recognize that the result here may be unfair and/or inequitable, I emphasize that any revision of the wrongful- death statute, § 6-5-410, to provide for the possibility of the invocation of the relation-back doctrine, or any other savings provision, is within the wisdom and responsibility of the legislature and not a task for this Court. See, e.g., Thomas v. Grayson, 318 S.C. 82, 86, 456 S.E.2d 377, 379 (1995)("The rule prohibiting an amendment to relate back was established when the period of limitation was a part of the wrongful death act. The limitation period has been moved from the wrongful death act to the general statute for limitation of civil actions. § 15-3-530(6). This change indicates a legislative intent to no longer consider it a condition 25 1140706, 1140752 precedent to a wrongful death action, but rather a statute of limitations that would allow the relation back of an amendment."). 26 1140706, 1140752 MOORE, Chief Justice (dissenting). I respectfully dissent for the reasons expressed in my dissent in Richards v. Baptist Health, Inc., 176 So. 3d 179, 179-83 (Ala. 2014)(Moore, C.J., dissenting). I believe that, in the case before us, the application for letters of administration naming James O. Kidd, Sr., the personal representative of the Estate of Madeline Kidd, deceased ("the estate"), relates back to the timely filing of a wrongful- death action against Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center, Dr. Roger Alvarado, Dr. Barbara Mitchell, and IMC-Diagnostic and Medical Clinic, P.C. (hereinafter referred to collectively as "the defendants"). Section 43-2-831, Ala. Code 1975, states, in part: "The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to the appointment the same effect as those occurring thereafter." In Wood v. Wayman, 47 So. 3d 1212, 1216 (Ala. 2010), this Court addressed the issue whether, under § 43-2-831, the appointment of a personal representative occurring after the expiration of the limitations period for a wrongful-death claim relates back to 27 1140706, 1140752 the filing of that claim. This Court held that proceeds awarded in a wrongful-death action are not part of the estate and, hence, cannot benefit the estate. Wood, 47 So. 3d at 1216. Therefore, this Court determined, in Wood, that the issuance of letters of administration did not relate back to the filing of a wrongful-death action by the personal representative, even though, under § 6-5-410, Ala. Code 1975, only the personal representative of an estate is authorized to bring a wrongful-death action. Wood, 47 So. 3d at 1216. I question whether the conclusion that wrongful-death proceeds do not benefit the estate necessitates a prohibition on the relation-back doctrine in wrongful-death actions. It is true that proceeds collected as a result of a wrongful-death action are not part of the estate because they are distributed according to the statute of distributions. See Ex parte Rogers, 141 So. 3d 1038, 1042 (Ala. 2013); Golden Gate Nat'l Sr. Care, LLC v. Roser, 94 So. 3d 365, 365 (Ala. 2012); Ex parte Taylor, 93 So. 3d 118, 118 (Ala. 2012)(Murdock, J., concurring specially); and Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993). That does not mean, however, that the estate does not benefit from the acts of the personal representative 28 1140706, 1140752 who brings a wrongful-death action. Strictly speaking, wrongful-death proceeds are not "for the benefit of the estate, but of the widow, children, or next of kin of the deceased." Hicks v. Barrett, 40 Ala. 291, 293 (1866)(discussing Ala. Code of 1852, § 1938). However, the appointment of a personal representative and all the fiduciary duties, actions, and responsibilities that attach to that position do benefit the estate; accordingly, I do not believe we must extrapolate from Rogers, Roser, Taylor, Steele, and other like cases a bright-line rule abrogating the application of the ancient relation-back doctrine under which it is 2 immaterial whether wrongful-death proceeds are poured into the estate or are distributed to statutory beneficiaries. 3 "The doctrine that whenever letters of administration or 2 testamentary are granted they relate back to the intestate's or testator's death is an ancient one. It is fully 500 years old." J.B.G., Annotation, Relation Back of Letters Testamentary or of Administration, 26 A.L.R. 1359, 1360 (1923)(cited in Ogle v. Gordon, 706 So. 2d 707, 709 n. 1 (Ala. 1977)). This principle is recognized in Blackwell v. Blackwell, 33 Ala. 57 (1858); McAleer v. Crawthon, 215 Ala. 674, 112 So. 251 (1927); and Nance v. Gray, 143 Ala. 234, 38 So. 916 (1905). In this case, Madeline Kidd died intestate, so there is 3 no "estate" –- all is distributed to the statutory beneficiaries. In my view, this fact makes the case for the relation-back doctrine even stronger because it reveals that there are instances when the estate may "benefit" from acts of 29 1140706, 1140752 A case quoted in Ogle v. Gordon, 706 So. 2d 707 (Ala. 1977), which held that the issuance of letters of administration did relate back to the time the petition for letters of administration was filed, opines: "We think it idle to urge that the rule [of relation back] cannot apply in this case because the proceeds of any judgment obtained would go to next of kin only, and not in the usual course of administration. There is no valid reason for sustaining the rule in one case and disregarding it in the other." Archdeacon v. Cincinnati Gas & Elec. Co., 76 Ohio St. 97, 107, 81 N.E. 152, 154 (1907). The court then reasoned that the appointment of the personal representative was "an act done ... which was for the benefit of the estate." Archdeacon, 76 Ohio St. at 107, 81 N.E. at 154. According to this 4 rationale, if the appointment of James as the personal representative of the estate in this case benefited the estate, as I believe it did, then James's appointment relates back to the timely filing of the wrongful-death action. Generally the good-faith act of the personal representative of a personal representative even if it does not stand to gain monetary proceeds. This holding harmonizes with the statutory mandate that 4 the "duties and powers of a personal representative commence upon appointment." § 43-2-831, Ala. Code 1975. 30 1140706, 1140752 an estate in bringing a wrongful-death action for the decedent's next of kin does benefit the estate, in part because the personal representative has no existence or interest apart from the estate. This does not mean, of course, that creditors may assert claims against the wrongful-death proceeds. 5 The Court in Wood adopted the narrow view that an estate does not "benefit" from a wrongful-death action simply because any proceeds awarded as a result of that action are One purpose of wrongful-death statutes is to allow 5 certain beneficiaries to obtain wrongful-death proceeds without having to undergo the lengthy administration of the estate, which is subject to the claims of creditors. The following cases, from a period of our nation's history when the terms of wrongful-death statutes varied from state to state and courts were tasked with deciphering the application of those diverse statutes, distinguish actions for the benefit of individual beneficiaries from those that benefit the estate: Hatas v. Partin, 278 Ala. 65, 68, 175 So. 2d 759, 761- 62 (1965); Elliot v. Day, 218 F. Supp. 90, 92 (D. Or. 1962); Bradshaw v. Moyers, 152 F. Supp. 249, 251 (S.D. Ind. 1957); Smith v. Bevins, 57 F. Supp. 760, 763-64 (D. Md. 1944); Rose v. Phillips Packing Co., 21 F. Supp. 485, 488 (D. Md. 1937); Gross v. Hocker, 243 Iowa 291, 295, 51 N.W.2d 466, 468 (1952); Howard v. Pulver, 329 Mich. 415, 420, 45 N.W.2d 530, 533-34 (1951); Ghilain v. Couture, 84 N.H. 48, 53, 146 A. 395, 398 (1929); and Wiener v. Specific Pharm., Inc., 298 N.Y. 346, 349, 83 N.E. 2d 673, 674 (1949). These cases collectively reveal the manner in which the phrase "benefit the estate" became associated with the narrow view that estates benefit only if they receive assets, rather than with the more general view that an estate may benefit for reasons besides the direct receipt of assets. 31 1140706, 1140752 distributed directly to the next of kin and do not pass through the estate. Wood, 47 So. 3d at 1216. But because wrongful-death statutes allow an estate, on behalf of other beneficiaries, to litigate claims that accrued before the death of the decedent, wrongful-death proceeds may be considered assets of the estate even if they do not pass to the beneficiaries through the estate. "[I]t has been held generally under [wrongful-death] statutes that a right of action had accrued in favor of the decedent before his death, and that it became an asset of the estate upon his death, with the result that the personal representative, and not the beneficiary, should bring the action." 105 A.L.R. 834 (originally published in 1936). The narrow view adopted in 6 Wood focuses on the method of distribution and the identity of the distributees rather than on the role and function of the See Gross v. Hocker, 243 Iowa 291, 295, 51 N.W.2d 466, 6 468 (1952), for the competing view that a wrongful-death action "is not an asset of the estate in the ordinary sense" (emphasis added); the distinction here is made not because the estate does or does not receive assets but because "resident creditors of [the] decedent are in no way prejudiced." Gross, 243 Iowa at 295, 51 N.W.2d at 468. See also Ghilain v. Couture, 84 N.H. 48, 53, 146 A. 395, 398 (1929) (holding that damages recovered by wrongful-death actions "are not assets of the estate within the ordinary meaning of the word" (emphasis added)). 32 1140706, 1140752 personal representative of the estate, the only individual authorized to bring a wrongful-death action under § 6-5-410. In fact, however, the estate, through its personal representative, seeks the wrongful-death benefits on behalf of the next of kin. Accordingly, the interests of the next of kin and the estate, through its personal representative, are the same in wrongful-death actions, particularly here, where the next of kin and the "estate" are, for all practical purposes, the same. Although the personal representative who brings a wrongful-death action "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," Hatas v. Partin, 278 Ala. 65, 68, 175 So. 2d 759, 761 (1965)(emphasis added)(interpreting a predecessor statute to § 6-5-410), he does act "'as a quasi trustee for those [distributees] who are entitled [to the wrongful-death proceeds] under the statute of distribution.'" Ex parte Rodgers, 141 So. 3d 1038, 1042 (Ala. 2013)(quoting United States Fid. & Guar. Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149, 155, 274 So. 2d 615, 621 (1973)). 33 1140706, 1140752 As a practical matter, the statutory distributees who receive wrongful-death proceeds are often also the beneficiaries of the estate. That fact led this Court to conclude that the recently enacted wrongful-death statute was designed "for the benefit of the next of kin entitled to take as distributees of his estate." Bruce v. Collier, 221 Ala. 22, 23, 127 So. 553, 554 (1930)(emphasis added)(overruled on other grounds by King v. National Spa & Pool Inst., Inc., 607 So. 2d 1241, 1246 (Ala. 1992)). A more accurate statement is that the personal representative acts as "a quasi trustee for those who stand in the relation of distributees to the estate strictly so called." Holt v. Stollenwerck, 174 Ala. 213, 216, 56 So. 912, 912-13 (1911)(emphasis added). Regardless, the estate benefits from the good-faith acts of its personal representative in bringing a wrongful-death action. To suggest otherwise is to imply that the estate, through its personal representative, has no business or interest in bringing a wrongful-death action at all, even though no other entity besides the estate, through its personal representative, may bring such an action under § 6-5-410. The estate is the only 34 1140706, 1140752 plaintiff in a wrongful-death action that may receive a favorable judgment. Finally, I do not believe that a party must ask this Court to overrule prior cases in order for us to overrule them. Therefore, I would overrule Wood, which makes 7 satisfaction of the limitations period found in § 6-5-410(d), Ala. Code 1975, contingent on the punctuality or promptness of the probate judge who issues the letters testamentary. Under Wood, the limitations period may lapse though the plaintiff has been nothing but diligent and timely in asserting his or her rights. In my view, the trial court properly determined that James's appointment as the personal representative, which occurred after the expiration of the two-year limitations period under § 6-5-410(d), related back to James's filing of the wrongful-death complaint, which occurred within the two- year limitations period. See Travelers Indem. Co. of Connecticut v. Miller, 86 So. 7 3d 338, 347 (Ala. 2011)(overruling a prior decision while noting that the parties had not asked the Court to overrule a prior decision); Ex parte J.E. Estes Wood Co., 42 So. 3d 104, 112 (Ala. 2010)(Lyons, J., concurring specially and noting that this Court may overrule a prior case without being asked to do so); and Ex parte Carter, 889 So. 2d 528, 533 (Ala. 2004)(overruling cases the parties did not ask the Court to overrule). 35 1140706, 1140752 MURDOCK, Justice (dissenting). Consistent with the view I have expressed in previous cases, see Wood v. Wayman, 47 So. 3d 1212, 1220 (Ala. 2010) (Murdock, J., dissenting), and Richards v. Baptist Health System, Inc., 176 So. 3d 179, 179 (Ala. 2014) (Murdock, J., dissenting), I believe this Court should return to the holding in Ogle v. Gordon, 706 So. 2d 707 (Ala. 1997), and to a straightforward, simple rule that the subsequent appointment of a person as the personal representative relates back so as to validate a timely filing of a wrongful-death action by that person. This Court held otherwise in Wood, embracing a rule that can lead to disparate results in similar cases. Furthermore, today's decision construes this Court's opinion in Wood in a way that, I believe, injects an additional layer of uncertainty into this area of the law. Simultaneously with the release today of the decision in the present case, this Court releases a no-opinion affirmance in Marvin v. Healthcare Authority for Baptist Health, [Ms. 1140581, January 29, 2016] ___ So. 3d ___ (Ala. 2015), a case involving the same relation-back issue presented here. The trial court's order in Marvin reflects some of the 36 1140706, 1140752 above-stated concerns. In an order in which the trial court ultimately concluded that it was bound by this Court's opinion in Wood v. Wayman, it nevertheless took the opportunity to state: "The Court is left to decipher the Ogle [v. Gordon, 706 So. 2d 707 (Ala. 1997)], and [Wood] decisions which are seemingly contradictory. In Ogle, the Court explicitly held that the issuance of the letters related back to the time of the filing of the petition in probate court. [Wood] concluded that Ogle had nothing to do with relation back despite all evidence to the contrary including: the express statement of the issue, the holding, and fourteen references to 'relation back' or a derivative thereof. Ultimately, [Wood] decided that there was no relation back .... ".... "Accordingly, this court has no choice but to follow the most recent pronouncement and to dismiss this action .... The bar should be forewarned that the two year statute of limitations in a wrongful death case is no more -- the time limit is actually two years less whatever time it will take for a probate judge to issue letters. Better hope the judge is not on vacation, that the heirs are easily located, etc." As I have previously noted, the purpose of a statute of limitations is to provide a "bright-line" time limit that provides uniformity and certainty. Moreover, it is a time limit for one thing and one thing only: the filing of a complaint to commence a legal action. (I am unfamiliar with 37 1140706, 1140752 any line of thought that satisfaction of a statute of limitations depends upon both the filing of a complaint and the filing of other documents, or put differently, that a statute of limitations is intended as a deadline for filing a petition for letters testamentary.) Further, and of even more fundamental import to the manner in which statutes of limitations are intended to function, whether a plaintiff meets the statute-of-limitations deadline should be within that plaintiff's control and not the control of a third party, e.g., a probate court acting on a petition for letters testamentary or of administration. When meeting a statute of limitations depends upon the acts of a third party, two plaintiffs who take exactly the same actions at the same time to pursue their claims face the distinct possibility of different outcomes. The bottom line for me -- and, I think, a rule that is the most logical, simple, and just -- is the common-law rule. It is a rule that is not dependent upon the precise wording of § 43-2-831, Ala. Code 1975 (that affirmatively provides for relation back for acts by the personal representative that benefit an estate). It is a well established rule that this 38 1140706, 1140752 Court acknowledged with approval in Ogle (authored by Justice Maddox and joined by Chief Justice Hooper, and Justices Kennedy, Butts, and See, with a "concurring in the result" vote from Justice Cook and no dissents) as one that treats the eventual appointment of a personal representative as relating back as far as the date of death so as to give validity to interim acts by the person so appointed that align with the powers granted personal representatives. It is a rule that operates on the court's issuance of letters testamentary or of administration whenever that occurs, and it amounts to nothing more than an ab initio formal ratification of the role played by the recipient of those letters in the weeks or months before they are ultimately issued: "The doctrine of relation back with respect to the powers of a personal representative has been in existence for approximately 500 years, and this Court first recognized it in Blackwell v. Blackwell, 33 Ala. 57 (1858). See also, McAleer v. Cawthon, 215 Ala. 674, 112 So. 251 (1927), and Nance v. Gray, 143 Ala. 234, 38 So. 916 (1905). In McAleer v. Cawthon, this Court stated: "'[I]t is a rule of practically universal recognition that: "'"When letters testamentary or of administration are issued, they relate back so as to vest t h e pr operty in t h e 39 1140706, 1140752 representative as of the time of death and validate the acts of the representative done in the interim; but such validation or ratification applies only to acts which might properly have been d o n e b y a p e r s o n a l representative, and the estate ought not to be prejudiced by wrongful or injurious acts performed before one's appointment." 23 Corp. Jur. 1180, § 400.' "215 Ala. at 675–76, 112 So. at 251. In Griffin v. Workman, 73 So. 2d 844 (Fla. 1954), the Florida Supreme Court, citing this Court's opinion in McAleer, supra, discussed the doctrine and stated: "'We think, therefore, that the issue is ruled by the ancient doctrine "that whenever letters of administration or testamentary are granted they relate back to the intestate's or testator's death.... The doctrine has been accepted with virtual unanimity, since it was promulgated, in a long line of cases." Annotation, 26 A.L.R. 1360. Under this doctrine "all previous acts of the representative which were beneficial in their nature to the estate and ... which are in their nature such that he could have performed, had he been duly qualified, as personal representative at the time, are validated." 21 Am. Jur., Exec. & Admin., section 211; Schouler on Wills, Executors and Administrators, 5th ed., Vol. 2, p. 1176. "'A wide variety of acts and conduct by a party acting in behalf of an estate when he was not properly qualified have been held to be validated or ratified by 40 1140706, 1140752 his subsequent qualification as administrator. A few of the many examples that might be cited are: an advancement to a distributee, McAleer v. Cawthon, 215 Ala. 674, 112 So. 251; the sale of estate property, Shawnee Nat. Bank v. Van Zant, 84 Okl. 107, 202 P. 285, 26 A.L.R. 1349 [(1921)]; the execution of a deed, Wilson v. Wilson, 54 Mo. 213 [(1873)]. "'More specifically in point, it has been held that where a wrongful death action was instituted by a party "as administrator," his subsequent appointment as such validated the proceeding on the theory of relation back. Archdeacon v. Cincinnati Gas & Electric Co., 76 Ohio St. 97, 81 N.E. 152 [(1907)]. In the opinion the court pointed out that the institution of suit "was not a void performance, being an act done during the interim which was for the benefit of the estate. It could not be otherwise, for it was an attempt to enforce a claim which was the only asset of the estate. This rule is sustained by a large number of authorities, and ... appears, also, to be just and equitable.... [T]he proceeding was not a nullity. It was, on the other hand, a cause pending in which, by the liberal principles of our Code, the party plaintiff, though lame in one particular, might be allowed to cure that defect and proceed to a determination of the merits." Archdeacon v. Cincinnati Gas & Electric Co., supra....[ ] Followed 8 In addition to noting that the rule in question was 8 supported by "a large number of authorities" and was "just and equitable," the court in Archdeacon noted that the delay in the formal issuance of notice had no prejudicial effect and that the rule in question was applicable even if the proceeds from the wrongful-death action inured to heirs at law who were 41 1140706, 1140752 in Anderson v. Union Pac. R. Co., 76 Utah 324, 289 P. 146 [(1930)]. "'Upon the same theory, it was held in Clinchfield Coal Corp. v. Osborne's Adm'r, 114 Va. 13, 75 S.E. 750 [(1912)], that a wrongful death action instituted by a party prior to the time he was appointed administrator may be deemed validated and ratified upon subsequent qualification of the personal representative; and in Bellheimer v. Rerucha, 124 Neb. 399, 246 N.W. 867 [(1933)], that an amended petition was properly filed to show appointment of a plaintiff widow as administratrix after commencement of suit but before answer.' not beneficiaries of the estate: "The plaintiff having fully qualified as administrator before the case was reached for trial, every right of the defendants upon the merits of the case was fully preserved, and in no possible aspect could the delay in perfecting the bond and receiving the letters of administration prejudice the defense of the fendants upon the real meritorious question involved in the controversy, which was whether or not the defendants' negligence was the cause of the death. ".... "... We think it idle to urge that the rule [of relation back] cannot apply in this case because the proceeds of any judgment obtained would go to next of kin only, and not in the usual course of administration. There is no valid reason for sustaining the rule in one case and disregarding it in the other." Archdeacon v. Cincinnati Gas & Elec. Co., 76 Ohio St. 97, 103-07, 81 N.E. 152, 152-54 (1907). 42 1140706, 1140752 "73 So. 2d at 846–47."9 Ogle, 706 So. 2d at 709-10 (footnote omitted; emphasis added). I recognize that the common-law cases sometimes speak of acts of the eventually appointed personal representative that are beneficial "to the estate"; that, however, appears to be true simply because the estate is historically the entity on whose behalf the personal representative acted, and was acting, in those cases. When a special statute, like Alabama's wrongful-death statute, imparts to the personal representative authority and responsibility to act on behalf of the heirs directly, the same relation-back principle applies with equal reason. After all, under Alabama's statutory scheme, such acts are in fact "acts which might properly have been done by a personal representative." And, indeed, that was the holding of this Court in Ogle when it applied this relation-back principle to an Alabama wrongful- death action brought, not on behalf of an estate, but on In dicta in Griffin v. Workman, 73 So. 2d 844 (Fla. 9 1954), the Florida Supreme Court noted that a different result had been reached in some cases where a statute of limitations had expired in the interim, but cited Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 198 (1939), in support of its position that this should make no difference. 73 at So. 2d at 847-48. 43 1140706, 1140752 behalf of the heirs, by one who, at the time he filed the action, had not been appointed personal representative and who was not appointed as such until two years after the statute of limitations had run.10 Both the main opinion and the special concurrence make 10 the point that the limitations period for the commencement of a wrongful-death action is a "statute of creation," or a "substantive statute of limitations." This difference did not alter the force of reasoning and result reached in Ogle or the application of the common-law principle employed therein. And, indeed, Alabama cases commonly refer simply to the "statute of limitations" in reference to the timeliness of the filing of wrongful-death claims under Alabama law. See, e.g., Ex parte Tyson Foods, Inc., 146 So. 3d 1041, 1045 (Ala. 2013); Ex parte Noland Hosp. Montgomery, LLC, 127 So. 3d 1160, 1169 (Ala. 2012); Precise v. Edwards, 60 So. 3d 228, 229 (Ala. 2010); Henderson v. MeadWestvaco Corp., 23 So. 3d 625, 628 (Ala. 2009); Okeke v. Craig, 782 So. 2d 281, 283 (Ala. 2000); Hall v. Chi, 782 So. 2d 218, 220 (Ala. 2000); Hogland v. Celotex Corp., 620 So. 2d 621, 622 (Ala. 1993); Dukes v. Jowers, 584 So. 2d 524, 526 (Ala. 1991); Liberty Mut. Ins. Co. v. Lockwood Greene Eng'rs, Inc., 273 Ala. 403, 406, 140 So. 2d 821, 823 (1962). Whether considered substantive or remedial, there is less difference in the operative effect of the two concepts than at first might be supposed. In Dorsey v. United States Pipe & Foundry Co., 353 So. 2d 800, 802 (Ala. 1977), this Court observed: "Where a statute creates a cause of action which did not theretofore exist, and where it provides that such cause of action must be brought within the time specified in the statute, the general rule is that fraud does not toll the statute of limitations unless the statute in question expressly so provides. See, e.g., Central of Georgia Railway Company v. Ramsey, 275 Ala. 7, 151 So. 2d 725 44 1140706, 1140752 (1962). This rule has met with widespread dissatisfaction, however, and is replete with exceptions. See, e.g., [H.D. Warren, Annotation,] Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action. 15 A.L.R.2d 500, at 519-526 [(1951)]. See also, 3 Larson, Workmen's Compensation Law, § 78.45." Among the authorities noted by the Court was Central of Georgia Ry. v. Ramsey, 275 Ala. 7, 151 So. 2d 725 (1962), which in turn quoted from a case decided by the United States Court of Appeals for the Fourth Circuit: "'[T]he distinction between a remedial statute of limitations and a substantive statute of limitations is by no means so rockribbed or so hard and fast as many writers and judges would have us believe. Each type of statute, after all, still falls into the category of a statute of limitations. And this is none the less true even though we call a remedial statute a pure statute of limitations and then designate the substantive type as a condition of the very right of recovery. There is no inherent magic in these words.'" 275 Ala. at 14-15, 151 So. 2d at 731 (quoting Scarborough v. Atlantic Coast Line Ry., 178 F.2d 253, 259 (4th Cir. 1949)). In this same vein, I note that Rule 9(h), Ala. R. Civ. P., which deals with an amendment changing the name of an "opposing party," would not appear by its terms to be apposite to this discussion. Nonetheless, it is instructive to note that, even if the issue here were the naming of an "opposing party," this Court stated in Ex parte FMC Corp., 599 So. 2d 592, 594-95 (Ala. 1992): "When this Court stated in [Columbia Engineering International, Ltd. v.] Espey[, 429 So. 2d 955, 959 (Ala. 1983),] that the purpose of Rule 9(h) is to 'toll' the statute of limitations in emergency 45 1140706, 1140752 I disagree with the Wood Court's reading of Ogle as recounted in the main opinion and, in turn, with the construction of Wood in the main opinion. In my view, neither Ogle nor Wood held that the reason a plaintiff is not appointed as personal representative before the filing of a cases, it did not mean that the running of the statutory period would be temporarily suspended, only to recommence upon the happening of some future event. Therefore, it makes no difference that § 6–5–410 is a statute of creation. If the plaintiffs complied with the requirements of Rule 9(h), their action was timely filed within two years of Garry Spence's death and the subsequent amendment correctly designating FMC as one of the fictitiously named defendants related back to the date on which the complaint was filed." Compare Ex parte Tyson Foods, Inc., 146 So. 3d 1041, 1045 n.5 (Ala. 2013): "The Tyson petitioners also argue that the wrongful-death statute contains its own limitations period and thus is a 'statute of creation' not subject to tolling. See § 6-5-410(d), Ala. Code 1975; Cofer v. Ensor, 473 So. 2d 984, 991 (Ala. 1985). This fact, however, does not affect the capacity analysis. Rule 17(a) does not toll the statute of limitations. '[A]pplication of relation back does not extend the limitation period' but merely allows substitution of a party in a suit otherwise timely filed." (Emphasis added.) In other words, the relation-back doctrine does not "toll" a statute of limitations; it simply recognizes and clarifies what has already occurred. 46 1140706, 1140752 wrongful-death complaint or the expiration of the statute of limitations matters. In Wood, the Court held simply that, "[b]ecause Wayman was not a personal representative appointed by the probate court when she filed the action or at the expiration of the statutory two-year period for filing a wrongful death action, ... Wayman's appointment as a personal representative ... could not relate back to the date of [the decedent's] death or to the date of the filing of the wrongful-death action." 47 So. 3d at 1219. As for Ogle, it is true that the Court stated in that case that "[t]he probate court, through inadvertence did not issue the letters of administration" in a timely manner and that "[t]hat dereliction should not bar [Ogle's] action." 706 So. 2d at 711. That fact of "inadvertence" or "dereliction" on the part of the probate court, however, was not the ratio decidendi for the Court's holding. Instead, the Ogle Court embraced a clear, bright-line rule of relation back and, in the quoted passages, was simply making the point that the rule it adopted would avoid the undesirable outcome described. I must add that I am not sure what circumstance would qualify as "inadvertence" or "dereliction" such that it would 47 1140706, 1140752 affect the inquiry at issue (or what would constitute sufficient "efforts [by a plaintiff] to bring the impending expiration of the ... limitations period to the attention of the [probate court]"). ___ So. 3d at ___. Nor am I sure by what judicial mechanism we are to take the measure of the probate court's acts or omissions, or even its state of mind, in this regard. To my way of thinking, the stated condition is not one that bespeaks of the type of bright-line rule necessary for uniform and certain results. Based on the foregoing and on my previously expressed position, I respectfully dissent. I would return to the holding in Ogle, which I see as producing just results within the context of a straightforward, bright-line rule that allows for certainty and uniformity of results. 48 1140706, 1140752 WISE, Justice (dissenting). I respectfully dissent based on my writing in Marvin v. Healthcare Authority for Baptist Health, [Ms. 1140581, January 29, 2016] ___ So. 3d ___, ___ (Ala. 2016). 49 1140706, 1140752 BRYAN, Justice (dissenting). I respectfully dissent. I find Wood v. Wayman, 47 So. 3d 1212 (Ala. 2010), to be problematic, and I would consider overruling it. However, that request is not before us. Regardless, I do not believe Wood precludes the application of the relation-back doctrine in this case. It appears that Wood, as the main opinion notes, indicates that the appointment of a personal representative after the limitations period has expired may relate back to the filing of the petition within the limitations period if the delay in the appointment is the result of the probate court's "inadvertence" or "dereliction." That was the situation in Ogle v. Gordon, 706 So. 2d 707 (Ala. 1997), and that is why the Court in Wood said that relation back had been allowed in Ogle. At its heart, it appears that this standard is based on a concept of fairness –– whether it would be fair to allow relation back in a particular case. I think the fairer solution here would be to allow the claim to proceed by applying the doctrine of relation back. James O. Kidd, Sr., filed both his petition for letters of administration and his complaint six days before the end of 50 1140706, 1140752 the two-year limitations period. The probate court appointed James administrator 16 days later –– 10 days after the limitations period had expired. Like Ogle, this case involves a straightforward petition for letters of administration. It is quite plausible that the probate court could have appointed James administrator within the limitations period, and he should not be penalized because the probate court did not. I conducted an electronic-database search of relatively recent Alabama cases in which I could determine the length of the delay between the filing of a petition for letters of administration and the granting of the petition. Of the first 12 such cases found, an administrator was appointed on the same day as the petition in 5 cases. In the other 7 cases, the delays ranged from 3 to 31 days, and the average delay for all 12 cases was approximately 7.3 days. 11 I say "approximately" because in one case the exact 11 number of days is unclear but is no more than five; I used five days for purposes of averaging the days. The 12 cases are: Diversicare Leasing Corp. v. Hubbard, [Ms. 1131027, Sept. 30, 2015] ___ So. 3d ___ (Ala. 2015) (6 days); Richards v. Baptist Health Sys., 176 So. 3d 179 (Ala. 2014) (22 days); Ex parte Grant, 170 So. 3d 652, 654 (Ala. 2014) (no more than 5 days); Ingram v. Van Dall, 70 So. 3d 1191, 1193 (Ala. 2011) (same day); Allen v. Estate of Juddine, 60 So. 3d 852, 853 (Ala. 2010) (same day); Affinity Hosp., L.L.C. v. Williford, 21 So. 3d 712, 713 (Ala. 2009) (same day); Bolte v. Robertson, 941 So. 2d 920, 921 (Ala. 2006) (same day); Boyd v. Franklin, 51 1140706, 1140752 Had the probate court appointed James as administrator within six days of his filing the petition, his claim would have been safe. See Ellis v. Hilburn, 688 So. 2d 236 (Ala. 1997) (stating that, in a wrongful-death action, when a complaint is timely filed and letters of administration are later granted to the plaintiff within the limitations period, the plaintiff may use relation back under Rule 17(a), Ala. R. Civ. P., to amend the complaint). It would not have been unusual for a probate court to have acted that promptly. Of course, the relation-back exception in Ogle for the "inadvertence" or "dereliction" of the probate court involved a long delay by the probate court, which is absent in our case. However, because, under Wood's characterization of Ogle, we will allow relation back based on a probate court's mere delay, I think even a short delay should fairly permit the application of the doctrine to avoid a plaintiff's claim hinging on the luck of the draw. An overworked probate court may take longer to resolve cases than a neighboring probate 919 So. 2d 1166, 1167 (Ala. 2005) (12 days); Douglas v. King, 889 So. 2d 534, 535 (Ala. 2004) (same day); Flannigan v. Jordan, 871 So. 2d 767, 768 (Ala. 2003) (9 days); Smith v. N.C., 98 So. 3d 546, 547 (Ala. Civ. App. 2012) (31 days); and Eustace v. Browning, 30 So. 3d 445, 447 (Ala. Civ. App. 2009) (3 days). 52 1140706, 1140752 court with a smaller workload. A claim should not depend on whether the probate court processes a petition quickly enough; the law should be more certain and equitable than that. Thus, I believe the trial court properly allowed the appointment to relate back to the filing of the petition for the letters of administration, which was filed within the two- year period. 53	January 29, 2015
c8da0e85-0a0c-4b6b-9171-a7ede1c962d8	Ex parte T.G.	N/A	1140276	Alabama	Alabama Supreme Court	Rel: 02/27/2015 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 ____________________ 1140276 ____________________ Ex parte T.G. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: T.G. v. Tuscaloosa County Department of Human Resources) (Tuscaloosa Juvenile Court, JU-12-425.02 and JU-12-426.02; Court of Civil Appeals, 2130792) MAIN, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 1140276 MOORE, Chief Justice (dissenting). I would grant T.G.'s petition for a writ of certiorari in this termination-of-parental-rights case to determine whether there is "evidence of current conditions or conduct" relating to T.G.'s alleged "inability or unwillingness to care for his ... children." D.O. v. Calhoun Cnty. Dep't of Human Res., 859 So. 2d 439, 444 (Ala. Civ. App. 2003). Therefore, I respectfully dissent. 2	February 27, 2015
24355298-4cd9-4c5e-a015-0d7a363f8986	Magee v. Boyd	N/A	1130987	Alabama	Alabama Supreme Court		March 2, 2015
299d9b5e-d159-4692-af99-00537c58e149	Ex parte B.C.	N/A	1130250	Alabama	Alabama Supreme Court	REL:01/30/2015 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 ____________________ 1130250 ____________________ Ex parte B.C. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: A.H. v. B.C.) (Limestone Juvenile Court, JU-13-25.01; Court of Civil Appeals, 2120877) BOLIN, Justice. This Court granted B.C.'s petition for certiorari review based on our recent decision in Ex parte L.J., [Ms. 1121462, 1130250 September 30, 2014] So. 3d (Ala. 2014), in which this Court held that a juvenile court may exercise jurisdiction under § 12-15-114, Ala. Code 1975, of the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala. Code 1975 ("the AJJA"), over a termination-of-parental-rights action 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." We reverse and remand. Facts and Procedural History In 2008, B.C. ("the mother") gave birth to a child. In October 2010, the Limestone Juvenile Court entered a judgment adjudicating A.H. ("the father") to be the father of the child. On February 13, 2013, the mother filed a petition in the juvenile court seeking to terminate the father's parental rights to the child. In her petition, the mother alleged that the father had abandoned the child, that he had failed to maintain contact with the child, that he had failed to adjust his circumstances to fit the needs of the child, and that he had failed to provide financial support for the child. The mother did not allege that the child was dependent, delinquent, or in need of supervision. 2 1130250 On June 25, 2013, the juvenile court conducted a hearing on the mother's petition at which ore tenus evidence was presented. The father did not attend the hearing, but he was represented by legal counsel at that hearing. The father's attorney moved to dismiss the termination-of-parental-rights proceeding on the ground of lack of subject-matter jurisdiction because, he argued, § 12–15–114(a), Ala. Code 1975, grants the juvenile court exclusive original jurisdiction only over those juvenile proceedings in which 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." Before an amendment to the AJJA effective April 9, 2014, § 12–15–114(c) provided that the juvenile court also had exclusive original jurisdiction over proceedings "arising out of the above juvenile court proceedings," i.e., arising out of dependency, delinquency, and child-in-need-of-supervision proceedings, as set out in subsection (a). The father noted that former § 12–15–30(b)(6), Ala. Code 1975 (which had been part of the AJJA prior to 2008 amendments to the AJJA revising, renumbering, and merging the AJJA with the Child 3 1130250 Protection Act, § 26-18-1 et seq., Ala. Code 1975 ("the CPA")), provided that the juvenile court had jurisdiction over all termination-of-parental-rights proceedings. The father asserted that the legislature, when it enacted § 12-15-114, 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 proceedings. Because the mother did not allege that the child was dependent, i.e., without a fit parent to provide for the child's care, the father argued that she, as a custodial parent, could not seek termination of his parental rights in the juvenile court. The juvenile court denied the father's motion to dismiss. On June 27, 2013, the juvenile court entered a judgment terminating the father's parental rights. In that judgment, the juvenile court did not make a finding that the child was dependent, delinquent, or in need of supervision. The father timely filed his notice of appeal. A majority of the Court of Civil Appeals reversed the judgment of the juvenile court, holding that the judgment was void because the mother's petition to terminate the father's parental rights did not 4 1130250 arise out of a dependency, delinquency, or child-in-need-of- supervision proceeding as required by § 12-15-114. A.H. v. B.C., [Ms. 2120877, November 13, 2013] So. 3d (Ala. Civ. App. 2013). Discussion In Ex parte L.J., supra, this Court explained that the 2008 amendments to the AJJA, which became effective January 1, 2009, revised and reorganized the CPA, which, until then, governed cases involving the termination of parental rights, and essentially merged the CPA and the AJJA. The 2008 amendments to the AJJA also revised and renumbered an earlier version of the AJJA, resulting in what we referred to in Ex parte L.J. as "the 2008 AJJA." Former § 12–15–30(b)(2), Ala. Code 1975, for example, has been revised and is now set out in § 12–15–115(a)(1) and (a)(2), Ala. Code 1975. In L.J. we noted: "Under the former Juvenile Justice Act, § 12–15–30(a)[, Ala. Code 1975,] 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.'" 5 1130250 ___ So. 3d at ___. Under the CPA, before the 2008 amendments merging the CPA and the AJJA, the legislature had allowed a parent to initiate such an action. In Ex parte Beasley, 564 So. 2d 950 (Ala. 1990), construing the CPA, this Court held that a finding of dependency was not a requisite element of proof when one parent sought to terminate the parental rights of the other parent of the child. Ex parte L.J., So. 3d at . In 2008, when the legislature merged the AJJA with the CPA and revised and renumbered both, the legislature set out the juvenile court's jurisdiction in §§ 12–15–114, 12–15–115, and 12–15–116, Ala. Code 1975. With regard 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 does not involve a child alleged "to have committed a delinquent act, to be dependent, or to be in need of supervision," this Court stated in Ex parte L.J.: "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 6 1130250 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 [1] court jurisdiction over all termination-of-parental- rights proceedings. 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 As noted earlier and as noted in Ex parte L.J., an 1 amendment to the AJJA effective April 9, 2014, deleted this language. 7 1130250 [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 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 8 1130250 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 § 12–15–114. 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[, 564 So. 2d 950 (Ala. 1990),] 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. "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 9 1130250 rights of the other parent. As Judge Pittman noted in his dissent in C.C. v. L.J., [[Ms. 2120534, September 6, 2013] ___ So. 3d ___ (Ala. Civ. App. 2013),] 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 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 10 1130250 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 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 be 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 '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." So. 3d at . 11 1130250 We recognized in Ex parte L.J. that, while that appeal was pending, the legislature amended § 12-15-114 to indicate that its intent in enacting the 2008 amendments to the AJJA was not to change the juvenile court's jurisdiction over all termination-of-parental-rights cases. We held 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.'" Ex parte L.J., ___ So. 3d at ___. In the present case, we conclude, based on our holding in Ex parte L.J., that the judgment of the juvenile court was not void because it did not find the child to be delinquent, dependent, or in need of supervision. 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 of the effect of § 12-15-114. REVERSED AND REMANDED. Stuart, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. Shaw, J., concurs in the result. 12	January 30, 2015
5b115eee-6628-4c95-94ac-72da96b53c29	Dannelly Enterprises, LLC v. Palm Beach Grading, Inc.	N/A	1140504	Alabama	Alabama Supreme Court	Rel: 01/29/2016 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, 2015-2016 ____________________ 1140504 ____________________ Dannelly Enterprises, LLC v. Palm Beach Grading, Inc. Appeal from Dale Circuit Court (CV-2013-900071) PARKER, Justice. Dannelly Enterprises, LLC ("Dannelly"), appeals the order of the Dale Circuit Court ("the circuit court") granting a motion to compel arbitration filed by Palm Beach Grading, Inc. ("PBG"). We reverse the circuit court's order. 1140504 Facts and Procedural History In the fall of 2006, PBG entered into negotiations with Corvias Military Living, LLC, f/k/a Picerne Military Housing LLC ("Corvias"); Picerne Construction/FRK, LLC; Rucker-Picerne Partners, LLC; and Rucker Communities, LLC (hereinafter collectively referred to as "the contractors"), to perform work on a project known as the Ft. Rucker RCI Family Housing, Munson Heights, Phase 1A, at Fort Rucker, Alabama ("the project"). Apparently, in preparing to bid on the project, PBG contacted various subcontractors, including Dannelly, to get bids for various aspects of the project that PBG would be responsible for if it entered into an agreement with the contractors to complete the project. PBG had not signed any agreement with the contractors at that time. PBG requested that Dannelly submit a bid for the construction of four segmental retaining walls and an associated drainage system. On September 21, 2006, Dannelly submitted a bid to PBG. On or about September 26, 2006, PBG accepted Dannelly's bid by issuing a work order to Dannelly; the work order was signed by a representative of PBG and by David Dannelly, the managing member of Dannelly. Neither the 2 1140504 bid submitted by Dannelly nor the work order issued by PBG contained an arbitration provision. Although the work order issued by PBG stated that "[a] Sub-contract will be created by PBG for billing purposes," neither party submitted into evidence such a contract between PBG and Dannelly. PBG did submit the affidavit testimony of Gene Eichelberger, the manager of PBG, in which Eichelberger stated that PBG and Dannelly had entered into PBG's "standard subcontract agreement"; PBG's standard subcontract agreement contains an arbitration agreement. However, PBG did not submit to the circuit court a copy of its standard subcontract agreement signed by PBG and Dannelly. In fact, Eichelberger's affidavit testimony states that "PBG has not at this time been able to locate signed copies of the PBG [s]ubcontract [a]greement" with Dannelly. In direct contradiction to Eichelberger's affidavit testimony, David Dannelly's affidavit testimony states that Dannelly "has not entered into or agreed to be bound by the terms and conditions [of PBG's standard subcontract agreement], including any arbitration provision, within [PBG's] standard [s]ubcontract [a]greement." 3 1140504 On October 20, 2006, PBG, apparently having won the right to act as subcontractor for the project, entered into a "master subcontract agreement" with Corvias for the completion of the project ("the master subcontract agreement"). The master subcontract agreement contains the following arbitration provision: "7.5. Disputes. If [PBG] is not satisfied with the decision on a Claim,[ ] or in the event of any 1 other dispute between [Corvias] and [PBG] arising under or relating to this Agreement, the dispute shall be settled pursuant to the following procedures. "7.5.1. Any Claim arising out of or relating to the Agreement, but only at the election of [Corvias], may be subject to non-binding mediation in accordance with the Construction Industry Mediation Rules of the American Arbitration Association. If [Corvias] elects non-binding mediation, [PBG] agrees to mediate the disputed portions of its Claim, with the parties "Claim" is defined as follows in the master subcontract 1 agreement: "7.1. Definition. A Claim is a demand or assertion by [PBG] seeking, as a matter of right, adjustment or interpretation of this Agreement's terms, payment of money, extension of time or other relief with respect to the terms of this Agreement. The term 'Claim' also includes other disputes and matters in question between [Corvias] and [PBG] arising out of or relating to this Agreement. The responsibility to substantiate Claims rests with [PBG]." 4 1140504 agreeing to share all mediator and filing fees equally. [PBG] shall not have the right to seek non-binding mediation of any Claim over the objection of [Corvias]. If mediation is elected by [Corvias], mediation shall be a condition precedent to any arbitration proceeding held pursuant to Paragraph 7.5.2. "7.5.2. If [PBG] is not satisfied with [Corvias's] decision on a Claim, and that Claim is not resolved through non-binding mediation, if any, the dispute shall be settled pursuant to binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect, unless the parties agree otherwise. The parties agree that there will be no recourse to trial or appeal courts, except as may be allowed by law, and that their exclusive recourse and remedy is ARBITRATION. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law of the State of Rhode Island. An award of reasonable attorneys' fees and related arbitration costs shall be awarded to the party that prevails at the binding arbitration. "7.5.3. [PBG] agrees to include in any and all of its subcontracts and purchase orders the same provisions as are included in this Paragraph 7.5 and its subparts, modified only as to the appropriate identification of the parties." (Capitalization in original.) On May 3, 2013, the contractors sued PBG. Neither party explains what took place between the time PBG and the 5 1140504 contractors entered into the master subcontract agreement and the time the contractors sued PBG. In its complaint against PBG, the contractors allege that, "[o]n or about April 9, 2013, the collapse of one retaining wall on the [p]roject was discovered. In addition, it has been discovered that there is movement from vertical bulging in at least one other retaining wall on the project." The contractors alleged that the problems with the retaining walls are evidence that PBG breached the master subcontract agreement. Accordingly, the contractors asserted claims of breach of contract and negligence against PBG. The contractors and PBG filed a joint motion for the action to be held in abeyance "pending further analysis of the issues central to the [c]omplaint filed herein, and discussions between and among the [p]arties." The circuit court granted the contractors and PBG's joint motion. On August 14, 2014, the contractors filed a motion to stay the proceedings and to compel arbitration of their claims against PBG. The circuit court granted the contractors' motion to stay and to compel arbitration on the same day. On August 22, 2014, PBG filed a motion to reconsider the circuit 6 1140504 court's order granting the contractors' motion to compel arbitration. On September 22, 2014, the circuit court entered an order indicating that the contractors and PBG had reached an agreement to partially lift the stay entered by the circuit court on August 14, 2014, "for the sole and limited purpose of allowing PBG to file and serve a third party complaint against its appropriate subcontractors." The circuit court's order also stated that, "[o]nce service of the third party complaint has been effected upon PBG's subcontractors, PBG will file notice of service with the court and the court will issue an order applying the stay to the third party complaint and third party defendants." Lastly, the circuit court's order states that the contractors and PBG "will jointly file with the American Arbitration Association ('AAA') a motion for joinder, pursuant to AAA Construction Industry Arbitration Rule 7, to join in the arbitration all claims asserted in this matter, all Plaintiffs, and PBG's subcontractors." On September 22, 2014, PBG filed a third-party complaint against Dannelly and Scott Miller Consulting Engineer, Inc. ("SMCE"), alleging negligence, breach of contract, "third- 2 Dannelly had hired SMCE to create the engineering design 2 for the retaining walls Dannelly constructed pursuant to its 7 1140504 party beneficiary," "common-law indemnity," and breach of implied warranty. Dannelly answered the third-party complaint filed against it on November 10, 2014. On December 1, 2014, PBG filed a motion to compel arbitration of its third-party claims against Dannelly and SMCE. PBG argued that Dannelly and SMCE are bound by the arbitration provision in the master subcontract agreement. PBG also argued that Dannelly and SMCE "agreed to the arbitration provisions contained in the PBG [s]ubcontract [a]greement" and, thus, are bound by that arbitration provision. PBG acknowledged that neither Dannelly nor SMCE 3 agreement with PBG. The arbitration provision in PBG's standard subcontract 3 agreement states: "ARBITRATION. At the CONTRACTORS option, should the parties hereto fail to agree upon the valuation of any work to be added, substituted, or omitted, or upon the amount of any damages whatsoever resulting from the default of SUBCONTRACTOR, or as to the interpretation of this Contract, or as to any other matter pertaining thereto or arising thereunder, including but not limited to a determination of the occurrence of a substantial breach or repudiation by either party, any and all these matters shall be determined by arbitration in accordance with the construction industry arbitration rules of the American Arbitration Association then in effect. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. 8 1140504 signed the master subcontract agreement or the PBG standard subcontract agreement but argues that Dannelly and SMCE performed work under those agreements, demanded payment under those agreements, and were paid for their work under those agreements; PBG submitted no evidence in support of these assertions. PBG argued that "[p]arties cannot avail themselves of the benefits of an agreement while at the same time avoiding the arbitration provisions contained in those agreements." On December 31, 2014, Dannelly filed a response in opposition to PBG's motion to compel arbitration. Dannelly argued that it is not a signatory to any agreement requiring arbitration, that it is not a third-party beneficiary under the master subcontract agreement, and that the arbitration provision in the master subcontract agreement is too narrow to encompass PBG's third-party claims against Dannelly. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in any court having jurisdiction thereof." (Capitalization in original.) 9 1140504 On January 9, 2015, after holding a hearing on January 5, 2015, the circuit court granted PBG's motion to compel arbitration. Dannelly appeals. Standard of Review "'[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 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). Discussion 10 1140504 The sole issue in this case is whether Dannelly agreed to arbitrate PBG's third-party claims against Dannelly. PBG, as the party seeking to compel arbitration, has "the initial burden of proving the existence of a contract calling for arbitration and of proving that the contract evidences a transaction affecting interstate commerce." Bear Stearns Sec., Inc. v. Jones, 789 So. 2d 161, 164 (Ala. 2000). The parties do not dispute the fact that the transaction at issue in this case affects interstate commerce. Dannelly argues that PBG has not met its burden of proving the existence of a contract providing for arbitration. Dannelly argues that there is no signed arbitration agreement requiring Dannelly to arbitrate PBG's third-party claims against it. PBG agrees that there is no signed contract in the record requiring Dannelly to arbitrate PBG's third-party claims against Dannelly, but PBG argues that a signed contract is not necessary. PBG asserts several theories as to why Dannelly, even though it did not sign either contract at issue in this case, may be required to arbitrate PBG's third-party claims against Dannelly. 11 1140504 First, PBG argues that Dannelly's assent to the master subcontract agreement and to PBG's standard subcontract agreement may be "inferred from other external and objective manifestations of mutual assent." PBG's brief, at p. 21. In support of this argument, PBG relies primarily on Ex parte Rush, 730 So. 2d 1175 (Ala. 1999). In Ex parte Rush, a pest-control company mailed a contract to Steve and Kim Rush agreeing to provide pest- control protection to the Rushes' newly constructed home in exchange for the payment of an annual fee; the contract contained an arbitration provision. The contract designated Steve Rush as the "purchaser" and was executed by the president of the pest-control company and by the local manager of the company; neither Steve Rush nor Kim Rush signed the contract. The Rushes later sued the pest-control company asserting various tort claims, and the company filed a motion to compel arbitration based on the arbitration provision in the contract. The Rushes argued that the arbitration provision in the contract was not binding because they had not signed the contract. The circuit court ordered the Rushes to arbitrate 12 1140504 their claims against the pest-control company. The Rushes petitioned this Court for a writ of mandamus ordering the circuit court to vacate its order compelling them to arbitrate their claims against the pest-control company. The Rushes' sole argument before this Court was that the circuit court erred in compelling arbitration because the Rushes had not signed the contract. This Court disagreed with the Rushes' argument and determined that, under the particular facts of that case, the Rushes' signatures were not necessary "to bring them within the arbitration provision set out in the [contract]." 730 So. 3d at 1177. In making its decision, this Court set forth the following applicable law: "Whether a contract exists must be determined under general state-law contract principles. Crown Pontiac, Inc. v. McCarrell, 695 So. 2d 615 (Ala. 1997). The purpose of a signature on a contract is to show mutual assent, see Ex parte Holland Mfg. Co., 689 So. 2d 65 (Ala. 1996); Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297 (Ala. 1986); Ex parte Pointer, 714 So. 2d 971 (Ala. 1997); however, the existence of a contract may also be inferred from other external and objective manifestations of mutual assent. Unless a contract is required by a statute to be signed (the [Federal Arbitration Act] contains no such requirement), or by the Statute of Frauds to be in writing (the contract here is not subject to Alabama's Statute of Frauds, Ala. Code 1975, § 8–9–2, which requires the signature of the 13 1140504 party against whom enforcement is sought), or unless the parties agree that a contract is not binding until it is signed by both of them (there is no evidence of such an agreement), it need not be signed by the party against whom enforcement is sought, provided it is accepted and acted upon. See Paterson & Edey Lumber Co. v. Carolina–Portland Cement Co., 215 Ala. 621, 112 So. 245 (1927), wherein this Court, relying heavily on Hardwood Package Co. v. Courtney Co., 253 F. 929 (C.C.A. 4th Cir. 1918), noted the general rule that, in the absence of a statutory requirement, a signature on a writing is not required in order to form a contract, provided the writing is accepted and acted upon as the agreement of the parties. The court in Hardwood Package stated: "'Apart from the statute of frauds, which is not set up in this case, it is well settled that if the minds of contracting parties meet at all points, and their agreement is fully set forth in an unsigned memorandum, which they both accept as correct, a binding obligation results, although it was their intention to have a formal contract prepared and signed.' "253 F. at 930. See, also, 17A Am. Jur. 2d Contracts, §§ 185, 186, 187 (1991). Conduct of one party from which the other may reasonably draw the inference of assent to an agreement is effective as acceptance. See Deeco, Inc. v. 3–M Co., 435 So. 2d 1260 (Ala. 1983); SGB Construction Services, Inc. v. Ray Sumlin Construction Co., 644 So. 2d 892 (Ala. 1994); Holland v. Continental Telephone Co. of the South, 492 So. 2d 998 (Ala. 1986); Lilley v. Gonzales, 417 So. 2d 161 (Ala. 1982). See, also, Anderson Brothers Chrysler Plymouth Dodge, Inc. v. Hadley, 720 So. 2d 895 (Ala. 1998) (held that the failure of a party to sign a contract where indicated next to an arbitration provision did not render the arbitration provision unenforceable); and 14 1140504 Quality Truck and Auto Sales, Inc. v. Yassine, 730 So. 2d 1164 (Ala. 1999)." 730 So. 2d at 1177-78. This Court then concluded that the Rushes had accepted and acted upon the contract: "The record indicates that the Rushes are joint owners of the house serviced by [the pest-control company]; that [the pest-control company] mailed the [contract] to the Rushes; that the Rushes received that contract; that the contract specifically designated Steve Rush as a 'Purchaser'; that the Rushes paid an annual fee to [the pest-control company] for 9 or 10 years; that both Steve Rush and Kim Rush signed as a 'Customer' on '[the pest- control company's] Reinspection Report[s]'; that the Rushes made a claim under, and substantially benefited from, the contract; and that the Rushes actively supervised the repairs [the pest-control company] undertook to make. We conclude from these facts that, as a matter of law, the Rushes agreed to the terms of the [the contract], including the arbitration provision contained therein." 730 So. 2d at 1778. As Dannelly argues in its reply brief, Ex parte Rush is distinguishable from the present case. Unlike Ex parte Rush, there are no facts before us indicating other external and objective manifestations of mutual assent from which to infer that Dannelly accepted and acted upon the master subcontract agreement or PBG's standard subcontract agreement. Instead, the record indicates that Dannelly performed the work it had agreed to perform in its bid and memorialized in the work 15 1140504 order issued by PBG, which was signed by representatives of PBG and Dannelly. PBG asserts that Dannelly performed its work on the project and submitted bills to PBG for the work Dannelly had performed "pursuant to [PBG's] standard [s]ubcontract [a]greement." PBG's brief, at p. 24. However, PBG offers no argument as to why it believes that Dannelly was operating under the master subcontract agreement and/or PBG's standard subcontract agreement rather than under the executed work order issued by PBG; we see nothing in the record indicating that Dannelly was operating under any agreement other than the work order issued by PBG. Accordingly, PBG's argument that the lack of a signature from a representative of Dannelly on either the master subcontract agreement or PBG's standard subcontract agreement is not necessary is unpersuasive. PBG's argument does not demonstrate that a contract between PBG and Dannelly calling for arbitration exists; thus, the circuit court erred to the extent that it based its decision on this argument. Second, PBG argues that Eichelberger's affidavit testimony is evidence indicating that a contract between PBG 16 1140504 and Dannelly calling for arbitration exists. Eichelberger's 4 affidavit testimony states that PBG's standard subcontract agreement "was agreed to and entered into by and between" PBG and Dannelly. Eichelberger's affidavit testimony also indicates that PBG has been unable to locate the signed copy of the PBG standard subcontract agreement. PBG argues that this evidence is sufficient to prove the existence of a contract calling for arbitration. In Jenkins v. Atelier Homes, Inc., 62 So. 3d 504 (Ala. 2010), this Court considered a similar situation. In Jenkins, a homebuilder was sued by a customer. The homebuilder filed a motion to enforce an arbitration provision in the contract between the homebuilder and the customer. However, the homebuilder had misplaced the executed copy of the contract and, thus, could not present the contract to the circuit court in support of its motion to compel arbitration. Instead of the lost contract, the homebuilder presented the affidavit testimony of the custodian PBG did not make this argument before the circuit court 4 in its motion to compel arbitration but did, of course, attach Eichelberger's affidavit testimony to its motion to compel arbitration. We will consider this argument because "this Court will affirm a judgment for any reason supported by the record that satisfies the requirements of due process." Smith v. Mark Dodge, Inc., 934 So. 2d 375, 380 (Ala. 2006) (citing Taylor v. Stevenson, 820 So. 2d 810, 814 (Ala. 2001)). 17 1140504 of its records. The custodian's affidavit testimony stated, in pertinent part: "'7. The contract for construction of the residence between [the homebuilder] and the [customer] provided that [the homebuilder] would construct a residence, subject to certain terms and conditions. A true and correct copy of the unexecuted [contract] is attached hereto as Exhibit 1. The executed [c]ontract is currently lost. I have conducted a diligent search at every place the executed [c]ontract would likely be found and have not located the [c]ontract to date. [The homebuilder] has not intentionally or negligently lost or destroyed the [c]ontract. A true and correct copy of the executed [c]ontract was provided to the [customer] and should be in their custody or control. I will continue to diligently search for the executed [c]ontract and, if located, will supplement this record with the document.'" Jenkins, 62 So. 3d at 507. The customer did not present any evidence rebutting the custodian's affidavit testimony. This Court concluded that, based on the affidavit testimony of the custodian alone, the homebuilder had met its initial evidentiary burden of proving that an arbitration agreement existed. This case is similar to Jenkins. Based on the above analysis from Jenkins, we conclude that Eichelberger's affidavit testimony satisfies PBG's initial evidentiary burden of proving the existence of a contract calling for 18 1140504 arbitration. Eichelberger's affidavit testimony indicates that PBG and Dannelly entered into PBG's standard subcontract agreement, but that PBG was unable to locate the executed copy of that contract. The circuit court properly concluded that PBG met its initial evidentiary burden of proving the existence of a contract calling for arbitration. The burden then shifted to Dannelly to demonstrate that the arbitration agreement is not valid or does not apply to the dispute in question. Dannelly argues on appeal, as it did before the circuit court, that David Dannelly's affidavit testimony is sufficient to create a genuine issue of material fact concerning whether a contract calling for arbitration exists between PBG and Dannelly. As set forth above, David Dannelly's affidavit testimony states that Dannelly "has not entered into or agreed to be bound by the terms and conditions [of PBG's standard subcontract agreement], including any arbitration provision, within [PBG's] standard [s]ubcontract [a]greement." In support of its argument, Dannelly relies upon Ex parte Meadows, 782 So. 2d 277 (Ala. 2000). In SSC Selma Operating Co. v. Gordon, 56 So. 3d 598, 603 (Ala. 2010), this Court 19 1140504 summarized and applied the relevant portion of Ex parte Meadows, as follows: "This Court stated in Ex parte Meadows, 782 So. 2d 277, 280 (Ala. 2000): "'"'To make a genuine issue entitling the [party seeking to avoid arbitration] to a trial by jury [on the arbitrability question], an unequivocal denial that the agreement had been made [is] needed, and some evidence should [be] produced to substantiate the denial.'" "'[Chastain v. Robinson–Humphrey Co., 957 F.2d 851, 854 (11th Cir. 1992)] (quoting T & R Enters., v. Continental Grain Co., 613 F.2d 1272, 1278 (5th Cir. 1980)).' "In the present case, [the party seeking to avoid arbitration] filed a response to the defendants' motions to compel arbitration and attached to the response her affidavit, in which she denied that she had signed an arbitration agreement with SSC. Under Meadows, [the party seeking to avoid arbitration's] affidavit constitutes sufficient evidence that the arbitration agreement did not exist. Therefore, a genuine issue of material fact has been raised concerning the existence of the arbitration agreement. 'If the party opposing arbitration presents sufficient evidence to create a fact question as to the existence of a valid arbitration agreement, then the issue must be resolved by the trial court or by a jury, if one is requested.' Ex parte Caver, 742 So. 2d [162,] 172 n. 4 [(Ala. 1999)]." 20 1140504 In the present case, David Dannelly's unequivocal denial of the existence of an executed copy of PBG's standard subcontract agreement was sufficient to raise a genuine issue of material fact as to whether a contract calling for arbitration exists. Based on the competing affidavits of Eichelberger and David Dannelly, a genuine issue of material fact exists as to whether PBG and Dannelly entered into PBG's standard subcontract agreement. PBG's argument does not 5 demonstrate that a contract between PBG and Dannelly calling for arbitration exists, only that a genuine question of material fact exists as to whether PBG and Dannelly entered into PBG's standard subcontract agreement. Accordingly, the circuit court erred to the extent that it based its decision to grant PBG's motion to compel arbitration on this argument of PBG's. Third, PBG argues that Dannelly is a third-party beneficiary of the master subcontract agreement and, as such, is subject to its arbitration provision. In UBS Financial 6 We note that PBG requested a jury trial in its third- 5 party complaint filed against Dannelly. It is necessary for us to consider this argument even 6 though we have concluded that there is a genuine issue of material fact concerning whether Dannelly is bound by the 21 1140504 Services, Inc. v. Johnson, 943 So. 2d 118, 122 (Ala. 2006), this Court explained the third-party-beneficiary exception to the general rule that a nonsignatory cannot be bound by an arbitration agreement: "This Court has held that a nonsignatory can be bound by an arbitration provision when the nonsignatory is an intended third-party beneficiary of the contract containing the arbitration provision. See Edward D. Jones & Co. v. Ventura, 907 So. 2d 1035 (Ala. 2005), and Ex parte Dyess, 709 So. 2d 447 (Ala. 1997). '[I]n order for a person to be a third-party beneficiary of a contract, the contracting parties must have intended to bestow benefits on third parties.' Locke v. Ozark City Bd. of Educ., 910 So. 2d 1247, 1251 (Ala. 2005) (citing H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18, 24 (Ala. 2002)); see also Ex parte Stamey, [776 So. 2d 85 (Ala. 2000)] (holding that the intent of the parties as expressed in the contract determines whether a nonsignatory is a third-party beneficiary)." PBG does not argue that it and Corvias intended to bestow upon Dannelly a benefit when they entered into the master subcontract agreement, but only that Dannelly generally benefited from the master subcontract agreement in the sense that Dannelly was hired as a subcontractor of PBG's to complete certain work on the project. Thus, PBG argues, arbitration provision in PBG's standard subcontract agreement because Dannelly could alternatively be bound by the arbitration provision in the master subcontract agreement. 22 1140504 Dannelly is bound by the arbitration provision in the master subcontract agreement. Dannelly, relying upon MTA, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 114 So. 3d 27 (Ala. 2012), argues that, regardless of whether the third-party-beneficiary exception applies in this case, the arbitration provision in the master subcontract agreement is too narrow to encompass PBG's third-party claims against Dannelly. In MTA, an employer entered into a deferred-compensation agreement with its employee wherein the employer agreed to pay $750,000 to the employee's two children in the event the employee died before reaching her 50th birthday; the employee died at the age of 43. The employer then paid an amount less than $750,000 into a trust established for the benefit of the employee's children. The trustee of the trust had entered into three agreements with a brokerage firm to open an account into which the trustee deposited the money received from the employer; each of those agreements included an arbitration provision. The employer never paid the children the full $750,000. 23 1140504 The employee's children sued the employer to recover the entire $750,000 owed them. The employer filed a third-party complaint against the trustee and the brokerage firm. The brokerage firm then filed a motion to compel arbitration of the employer's third-party claims based on the agreements between the trustee and the brokerage firm to which the employer was not a signatory. The circuit court granted the brokerage firm's motion to compel arbitration. The employer appealed. This Court reversed the circuit court's order compelling the employer to arbitrate its third-party claims against the trustee and the brokerage firm. In so doing, this Court set forth "the general rule that '"'a nonsignatory to an arbitration agreement cannot be forced to arbitrate [its] claims.'"' [Custom Performance, Inc. v. Dawson, 57 So. 3d 90, 97 (Ala. 2010)] (quoting Edward D. Jones & Co. v. Ventura, 907 So. 2d 1035, 1042 (Ala. 2005), quoting in turn Cook's Pest Control, Inc. v. Boykin, 807 So. 2d 524, 526 (Ala. 2001))." 114 So. 3d at 30. After setting forth the third-party- beneficiary exception explained above, this Court determined that it was irrelevant whether the third-party-beneficiary exception applied in that case because the arbitration 24 1140504 provisions in the agreements between the trustee and the brokerage firm were too narrow to encompass the claims of any party other than the trustee and the brokerage firm. This Court stated: "In Cook's[ Pest Control, Inc. v. Boykin, 807 So. 2d 524 (Ala. 2001)], a pest-control company moved the trial court to require a patient in a hospital who was bitten by fire ants while in the hospital to arbitrate her claims against the pest-control company based on an arbitration provision in the contract between the hospital and the pest-control company. 807 So. 2d at 525. The trial court denied the motion, and, on appeal, this Court affirmed that decision, declining to apply the third-party-beneficiary or equitable-estoppel exception[ ] and noting that, 'under the facts of 7 this present case, it appears [the nonsignatory hospital-patient plaintiff] relies on theories of recovery that do not depend upon the existence of the contract.' 807 So. 2d at 527. However, the Court further explained that the narrow scope of the arbitration provision in the contract between the pest-control company and the hospital also precluded enforcing that provision against the plaintiff, stating: "'The narrow scope of the arbitration agreement serves as an independent basis for affirming the trial court's order denying [the pest-control company's] motion to compel arbitration of [the plaintiff's] claims against [the pest-control company]. The text of the arbitration clause limits The "equitable-estoppel exception" is another exception 7 to the general rule that a nonsignatory to an arbitration agreement cannot be compelled to arbitrate their claims; the equitable-estoppel exception is not relevant to this appeal. 25 1140504 its application to disputes arising between [the pest-control company] and the "customer" ([the hospital]).... This Court has held that a nonsignatory cannot require arbitration of a claim by the signatory against the nonsignatory when the scope of the arbitration agreement is limited to the signatories themselves. See Southern Energy Homes, Inc. v. Gary, 774 So. 2d 521 (Ala. 2000). Here, a signatory ([the pest-control company]) is trying to require arbitration by a nonsignatory ([the plaintiff]), where the scope of the arbitration agreement can be read as being limited to disputes between [the pest-control company] and [the hospital]. We have recognized that the rule requiring that a contract be construed most strongly against the party who drafted it applies to an agreement to arbitrate. See Homes of Legend, Inc. v. McCollough, 776 So. 2d 741 (Ala. 2000). We conclude that [the pest-control company] is attempting to enforce the clause beyond its scope, and the motion to compel arbitration fails for this reason.' "807 So. 2d at 527. See also Porter Capital Corp. v. Thomas, 101 So. 3d 1209, 1220 (Ala. Civ. App. 2012) (holding that an arbitration agreement limited to disputes between 'lender' and 'borrower' was not susceptible to an interpretation that would have the agreement cover a dispute between the lender and the borrower's shareholder or the lender and the borrower's guarantor), and Ex parte Stamey, 776 So. 2d 85, 90–91 (Ala. 2000) (comparing limiting arbitration provision applying to '"all disputes and controversies of every kind between buyer and seller arising out of or in connection with [this transaction]"' with broader nonlimiting provision applying to '"[a]ll disputes, claims or controversies arising from or relating to this 26 1140504 Contract or the relationships which result from this Contract"' (some emphasis omitted)). "In the instant case, the arbitration provisions in the identified contracts are broad in the sense that they apply to 'any controversies' and 'all controversies,' but narrow in the sense that they apply only to controversies between 'the parties,' 'the customer' and [the brokerage firm], or 'the client' and [the brokerage firm]. The contracts containing the arbitration provisions do not define the terms 'the customer' or 'the client' in such a way that would encompass [the employer], and although [the brokerage firm] argues that [the employer] is effectively a party to the contracts containing the arbitration provisions because it was a party to the [agreement between the employer and the employee] and the grantor of the trust, we disagree. Regardless of [the employer's] involvement in establishing or funding the trust, it is neither the trust nor the trustee and is accordingly a nonsignatory to the contracts and can be held subject to the arbitration provisions only as set forth supra. See also Porter Capital Corp., 101 So. 3d at 1209 (arbitration agreement entered into by borrower did not apply to borrower's shareholder or borrower's guarantor). Thus, regardless of whether the third-party-beneficiary ... exception might otherwise apply, the narrow scope of the arbitration provisions in the [agreements between the trustee and the brokerage firm] precludes this Court from requiring [the employer] to arbitrate its third-party claims against [the brokerage firm]. The trial court accordingly erred by granting [the brokerage firm's] motion to compel arbitration." 114 So. 3d at 31-33. The present case is very similar to MTA. In fact, the scope of the arbitration provision in the master subcontract 27 1140504 agreement is even narrower than the scope of the arbitration provision at issue in MTA. As set forth above, the arbitration provision in the master subcontract agreement applies only to a "claim." The term "claim" is defined in the master subcontract agreement as "a demand or assertion by [PBG] seeking, as a matter of right, adjustment or interpretation of [the master subcontract agreement's] terms, payment of money, extension of time or other relief with respect to the terms of [the master subcontract agreement]." The definition of the term "claim" "also includes other disputes and matters in question between [Corvias] and [PBG] arising out of or relating to [the master subcontract agreement]." (Emphasis added.) The arbitration provision also states numerous times that the arbitration provision applies to disputes "arising out of or relating to" the master subcontract agreement. Further, the arbitration provision in the master subcontract agreement makes clear that it applies to disputes between only Corvias and PBG. Lastly, the master subcontract agreement specifically requires PBG "to include in any and all of its subcontracts and purchase orders the same provisions as are included in [the master subcontract 28 1140504 agreement], modified only as to the appropriate identification of the parties." This clearly indicates that Corvias and PBG did not intend for the arbitration provision in the master subcontract agreement to apply to any party other than the signatories to the master subcontract agreement -- Corvias and PBG. Given all of these facts, as was the case in MTA, regardless of whether Dannelly is a third-party beneficiary of the master subcontract agreement, the narrow scope of the arbitration provision in the master subcontract agreement precludes Dannelly from being required to arbitrate PBG's third-party claims against it. As a result, we need not consider whether the third-party-beneficiary exception applies in this case. This argument of PBG's also fails to demonstrate that the arbitration provision in the master subcontract agreement applies to the third-party claims it filed against Dannelly. Accordingly, the circuit court erred to the extent that it based its decision to grant PBG's motion to compel arbitration on this argument of PBG's. Lastly, we note that PBG argues that Dannelly cannot accept the benefit of the master subcontract agreement and 29 1140504 PBG's standard subcontract agreement, while avoiding the burdens or limitations of those contracts. PBG cites Georgia Power Co. v. Partin, 727 So. 2d 2 (Ala. 1998), in support of its argument; Partin, however, is distinguishable. In Partin, signatories to a contract were sued by a nonsignatory alleging, among other things, breach of contract; the contract contained an arbitration provision. The signatories then filed a motion to compel arbitration arguing that the nonsignatory could not accept the benefit of the contract -- by suing on a breach-of-contract theory -- and avoid the burdens of the contract -- which included the arbitration provision. The circuit court granted the signatories' motion. The nonsignatory appealed the circuit court's judgment, arguing that it was not a signatory to the contract and, thus, that it could not be compelled to arbitrate its claims under the contract. This Court affirmed the circuit court's judgment, holding, in pertinent part: "It is a well-established principle of Alabama law that a contract made for the benefit of a third person may, at his election, be accepted and enforced by him. Michie v. Bradshaw, 227 Ala. 302, 149 So. 809 (1933). However, '[i]f he claims the benefits [of the contract], he also assumes the burdens.' Michie, 227 Ala. at 308, 149 So. at 814. See, also, Ex parte Dyess, 709 So. 2d 447 (Ala. 30 1140504 1997) (nonsignatory plaintiff claiming the benefit of a contract as a third-party beneficiary is subject to arbitration agreement within that contract). 'The law is clear that a third party beneficiary is bound by the terms and conditions of the contract that it attempts to invoke. "The beneficiary cannot accept the benefits and avoid the burdens or limitations of a contract."' Interpool Ltd. v. Through Transport Mut. Ins. Ass'n Ltd., 635 F. Supp. 1503, 1505 (S.D. Fla. 1985), quoting Trans–Bay Engineers & Builders, Inc. v. Hills, 551 F.2d 370, 378 (D.C. Cir. 1976). See, also, Dunn Constr. Co. v. Sugar Beach Condominium Ass'n, Inc., 760 F. Supp. 1479 (S.D. Ala. 1991); Lee v. Grandcor Medical Systems, Inc., 702 F. Supp. 252, 255 (D. Colo. 1988) ('A third party beneficiary must accept a contract's burdens along with its benefits'). It is thus clear that a third-party beneficiary cannot accept the benefit of a contract, while avoiding the burdens or limitations of that contract." 727 So. 2d at 5. In the present case, as explained above, PBG has failed to direct this Court's attention to any evidence in the record indicating that Dannelly received benefits under either the master subcontract agreement or PBG's standard subcontract agreement. As set forth above, PBG argues that Dannelly accepted benefits under those contracts because Dannelly was hired by PBG to perform work on the project and was paid for the work it completed. However, PBG has not presented this Court with any argument as to why it believes that Dannelly was not simply operating under and benefiting from the 31 1140504 agreement between PBG and Dannelly, which was memorialized by the work order issued by PBG. Further, unlike in Partin, PBG, a signatory to the master subcontract agreement, sued Dannelly, a nonsignatory. This is the exact opposite situation from that presented in Partin. PBG has failed to demonstrate that Dannelly has accepted any benefit under the master subcontract agreement; thus, PBG's argument is not persuasive.8 Conclusion Based on the foregoing, we conclude that PBG failed to demonstrate that the arbitration provision in the master subcontract agreement applies to the third-party claims it asserts against Dannelly. We further conclude that there is a genuine issue of material fact as to whether Dannelly and PBG entered into PBG's standard subcontract agreement. Accordingly, we reverse the circuit court's order compelling Dannelly to arbitrate the third-party claims filed against it by PBG. We remand this case for the circuit court to conduct PBG makes a similar argument concerning PBG's standard 8 subcontract agreement. See PBG's brief, at p. 25. We find PBG's argument concerning PBG's standard subcontract agreement unpersuasive for the same reasons given above concerning the master subcontract agreement. 32 1140504 a jury trial to determine whether Dannelly and PBG entered into PBG's standard subcontract agreement. REVERSED AND REMANDED. Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs in the result. Moore, C.J., concurs in part and dissents in part. 33 1140504 MOORE, Chief Justice (concurring in part and dissenting in part). I concur in the holding of the main opinion that the trial court's order compelling arbitration of the underlying dispute is due to be reversed. However, I respectfully dissent from the remand instruction that the trial court "conduct a jury trial to determine whether Dannelly [Enterprises, LLC ('Dannelly'),] and [Palm Beach Grading, Inc. ('PBG'),] entered into PBG's standard subcontract agreement." ___ So. 3d at ___. As I have written before, I believe that predispute arbitration agreements are unenforceable under the Seventh Amendment to the United States Constitution. See American Bankers Ins. Co. of Fla. v. Tellis, [Ms. 1131244, June 26, 2015] ___ So. 3d ___ (Ala. 2015) (Moore, C.J., dissenting); see also Selma Med. Ctr., Inc. v. Fontenot, 824 So. 2d 668, 676 (Ala. 2001) (Moore, C.J., dissenting) (explaining how the courts have erroneously interpreted the Federal Arbitration Act). Thus, even if Dannelly and PBG entered into PBG's standard subcontract agreement, I would hold that the predispute arbitration provision would be unenforceable under the Seventh Amendment. Therefore, I believe that the trial 34 1140504 court's order compelling arbitration is due to be reversed and the case remanded to proceed to trial on PBG's third-party claims against Dannelly. 35	January 29, 2015
7708f106-6438-45ef-b135-6375e8eeded4	Ex Parte State	708 So. 2d 911	1961986	Alabama	Alabama Supreme Court	708 So. 2d 911 (1997) Ex parte State of Alabama. (Re Willie Elijah SHEFFIELD v. STATE). 1961986. Supreme Court of Alabama. December 12, 1997. Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for petitioner. No brief filed for respondent. Prior report: Ala.Cr.App., 708 So. 2d 899. PER CURIAM. 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 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. HOOPER, C.J., and ALMON, SHORES, HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur.	December 12, 1997
e0121f34-7abe-4b01-b1e8-03bad5300ab2	Rachell Prince et al. v. Daniel Boyd et al.	N/A	1131020	Alabama	Alabama Supreme Court		March 2, 2015
d18a15d4-c73b-4fd2-a0db-0e3d3875c7e8	Kmart Corp. v. Perdue	708 So. 2d 106	1950845, 1950846	Alabama	Alabama Supreme Court	708 So. 2d 106 (1997) KMART CORPORATION and Doug Sharp v. Sonja PERDUE. KMART CORPORATION and Doug Sharp v. Deborah CAMERON. 1950845, 1950846. Supreme Court of Alabama. June 13, 1997. As Modified on Denial of Rehearing December 19, 1997. 107 Walter R. Byars, Peck Fox, and Debra T. Lewis Loard of Steiner, Crum & Baker, Montgomery; and Mark Boardman of Boardman & Tyra, Birmingham, for appellants. James R. Morgan, Birmingham; Daniel B. Feldman of Hammond, Feldman & Lehane, P.C., Birmingham; and Mark D. McKnight, Birmingham, for appellees. BUTTS, Justice. Deborah Cameron and Sonja Perdue brought separate actions against Kmart Corporation and its agent/employee Doug Sharp, alleging claims of malicious prosecution and false arrest. Perdue also included claims alleging conversion and assault and battery. Each complaint alleged that Sharp, acting as a loss control manager of a Kmart store in Bessemer, had detained the plaintiff on suspicion of shoplifting and had done so without probable cause and that the plaintiff was wrongfully arrested on the charge. Perdue alleged that Sharp used undue force in detaining her on suspicion of the charge. Perdue's complaint also alleged that a Kmart employee stole a watch belonging to Perdue, while she and Cameron were being detained. The cases were consolidated for trial. The jury returned a general verdict for Cameron, awarding damages of $2 million, and a general verdict for Perdue, likewise awarding her $2 million; the trial court then entered judgments on these verdicts. Kmart Corporation and Sharp filed motions challenging the verdict and, in the alternative, seeking a remittitur of the damages awards. In these motions, they alleged, among many other things, that the trial court had erred in submitting general verdict forms to the jury. On the 91st day from the filing of these motions, the trial court entered an order purporting to grant the motion for a new trial, holding that it had erred in denying the defendants' objection to the general verdict forms. However, because the motion was not ruled on within 90 days, the motion was deemed to have been denied. Thus, the court's order entered on the 91st day was a nullity. See Rule 59.1, Ala. R. Civ. P. Kmart and Sharp appealed from the judgments. 108 The defendants first argue that the plaintiffs failed to establish the elements of their claim of malicious prosecution and that this claim was therefore a "bad count" and should not have been submitted to the jury. In an action alleging malicious prosecution, the plaintiff must prove (1) that there was a judicial proceeding initiated by the present defendant; (2) that it was initiated without probable cause; (3) that it was initiated with malice on the part of the present defendant; (4) that that judicial proceeding was terminated in favor of the present plaintiff; and (5) that the present plaintiff suffered damage from the prosecution of that earlier action. Alabama Power Co. v. Neighbors, 402 So. 2d 958 (Ala.1981). The record reveals the following: At some point before March 23, 1994, Roger Hurt, the regional loss control supervisor for Kmart, contacted the control loss officers in all Birmingham area Kmart stores and alerted them that two females, Deborah Cameron and Sonja Perdue, had been repeatedly bringing merchandise into Kmart stores without a receipt and requesting cash refunds. Hurt told Doug Sharp, the loss control supervisor for the Bessemer Kmart store, that the two women had visited most of the Kmart stores in the Birmingham area, bringing in expensive items of merchandise, without sales receipts, and that Kmart had sustained thousands of dollars in losses from supplying the two women with cash "refunds" for the merchandise. He stated that, based on this pattern of activity, he believed the two were repeatedly shoplifting merchandise from Kmart and then returning it for cash. Hurt instructed all the area Kmart loss control managers, including Sharp, to watch for the two women and to closely monitor their activities to determine whether they were conducting such a scheme. Sharp duly informed the employees at the Bessemer Kmart store to watch for Cameron and Perdue and to alert him if they came into the store. On the evening of March 24, after Sharp had gone home for the night, Cameron and Perdue approached the service desk, with Cameron standing behind Perdue. Perdue presented a shower curtain to the service desk employee, Teresa White, and asked to exchange it. Perdue did not have a receipt for the shower curtain; she stated that she had bought the shower curtain at a different Kmart store, but she could not say with certainty which Kmart store she had bought it from. When White asked Perdue for identification, White recognized that Perdue was one of the women Sharp had been instructed to watch for. She alerted the store manager, who immediately telephoned Sharp and informed him that Perdue was in the store. After about five minutes, White told Perdue that she could not exchange the shower curtain without a receipt. Although White said she thought Perdue had left the store after being refused the exchange, she could not later say whether Perdue had re-entered the store through the "Garden Center" entrance, and she could not say how long Perdue had been in the store before she approached the service counter to attempt the exchange. At some point, Perdue left the Kmart store and went into a store next door, while Cameron remained in the Kmart store. Cameron was also carrying merchandise, but she did not ask for a cash refund for that merchandise; instead, after Perdue was refused a cash refund, Cameron put the package she had been carrying into a shopping cart and began to walk around the store. Sharp subsequently arrived and viewed a store security videotape supplied to him by the loss control officer on duty in the store. Sharp then went next door to the store where Perdue had gone and asked to speak with her. According to Perdue, Sharp held her arm as he led her back into the Kmart store. The evidence conflicts as to who took Perdue to a loss control room in the Kmart store; however, after she was detained, Sharp returned to the main part of the store to observe Cameron. According to Sharp, Cameron lingered in the drapery department, then took a set of drapes and put them into her purse. She then began pushing her shopping cart through the store, while Sharp followed her. At the front of the store, Cameron pushed her shopping cart up to a closed check-out line, left the cart, and took her purse to leave. Sharp then apprehended her; however, it is disputed as to whether he 109 did so while Cameron was still inside the store. Cameron and Perdue were detained in separate control loss rooms, both with Kmart personnel, and Sharp recovered two sets of draperies. There is evidence that each woman accused the other of "making her steal this merchandise," and both Sharp and the store manager testified that Cameron confessed to taking the draperies. The Bessemer police then arrived and arrested the two women on charges of third-degree theft. Perdue pleaded guilty on this charge, but Cameron pleaded not guilty and was tried in the Bessemer Municipal Court. During this proceeding, Sharp testified that a loss control officer, Odora Beckwood, had assisted him in detaining the two women, and Beckwood corroborated this. Cameron was convicted, and the two women were sentenced to 30 days in jail. Cameron and Perdue appealed to the Jefferson Circuit Court, Bessemer Division. Before the trial de novo in the circuit court, and after her employment with Kmart had been terminated for unrelated reasons, Beckwood recanted her testimony. At trial the evidence conflicted as to whether Sharp personally had seen Perdue stealing merchandise or had merely viewed this on a store security tape before he apprehended her at a store next to the Kmart store. The two women were acquitted in the circuit court, and they then filed against Kmart and Sharp the actions that led to the judgments now here on appeal. The defendants argue that, while some of the evidence conflicts, the plaintiffs did not present sufficient evidence of the elements of malicious prosecution to justify sending that claim to the jury. The defendants argue that the convictions in the municipal court were prima facie evidence of probable cause to initiate the criminal prosecution. We first note that malicious prosecution cases are not favored at law; this Court has consistently recognized that public policy requires that all persons be able to resort freely to the courts for redress of wrongs and to enforce their rights, and that they be able to do so without the peril of an action for damages in the event of an unfavorable judgment by jury or judge. Delchamps, Inc. v. Morgan, 601 So. 2d 442 (Ala.1992). Moreover, there is a different standard for determining whether there was a want of probable cause where the prior proceeding was a criminal case rather than a civil case. Brown v. Parnell, 386 So. 2d 1137 (Ala.1980). Where, as here, there was a prior conviction in a criminal case, the judgment of conviction is prima facie evidence of the existence of probable cause for initiating the action, even if the conviction was later vacated and the accused discharged. Parnell. This prima facie showing of probable cause for the arrest may be rebutted only when the evidence clearly overcomes the presumption arising from the fact of the conviction. Parnell. This is so because, while a subsequent reversal of the conviction may indicate that the accused was not guilty, it does not prove or suggest that the present defendant did not have probable cause to believe that the accused was guilty. Delchamps. The defendants also argue that Sharp's testimony that he observed Cameron and Perdue conceal merchandise belonging to Kmart and then attempt to leave the store without paying for that merchandise also constitutes probable cause for initiating the judicial proceedings against them. The defendants point out that this Court has defined "probable cause" as that term is used in a malicious prosecution case to mean "`such state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.'" Delchamps, 601 So. 2d at 445 (quoting Birwood Paper Co. v. Damsky, 285 Ala. 127, 134, 229 So. 2d 514, 521 (1969)). The question is not whether Cameron and Perdue were guilty of shoplifting, but whether Sharp in fact saw events that would have led him to believe that they were. Delchamps. The evidence clearly shows that Sharp had been warned by his regional loss control supervisor that Cameron and Perdue had a suspicious pattern of returning expensive merchandise without a receipt and asking for cash refunds, that this practice was costing Kmart stores thousands of dollars, and that 110 there was strong reason to suspect them of shoplifting. On the night in question, Perdue attempted to return merchandise without having a cash receipt, and Sharp saw Cameron putting a set of draperies into her purse. Eyewitnesses testified that, while being separately detained, each of the two incriminated the other and that neither denied to the police that she was guilty. There was evidence, although disputed, that while being detained each woman indicated to Kmart employees that the other woman had instigated taking the draperies. Finally, in the municipal court proceedings Cameron was found guilty of shoplifting and Perdue pleaded guilty to that same offense. Based upon this evidence, we conclude that Cameron and Perdue failed to establish that Sharp and Kmart acted without probable cause in initiating the criminal proceedings against them; thus, the malicious prosecution claims should not have been submitted to the jury. We likewise agree with the defendants that the plaintiffs' claims alleging false arrest should not have been submitted to the jury. False arrest, or false imprisonment, consists of "the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty." Ala.Code 1975, § 6-5-170. An Alabama statute provides: Ala.Code 1975, § 15-10-14. The evidence is sufficient to show that Kmart, acting through its agent Sharp, had probable cause to detain Cameron and Perdue and had reason to believe that detaining them might lead to the recovery of goods that Kmart held for sale. The trial court thus erred in denying the defendants' motions for a directed verdict and then later for a JNOV on the false arrest and malicious prosecution claims. Kmart and Sharp next argue that the evidence was insufficient to prove assault and battery. According to Perdue, Sharp held her arm when, after apprehending her, he led her into the loss control room; she argued at trial that his holding her arm amounted to assault and battery. Cameron testified that Sharp threatened to handcuff her when he detained her. In Wright v. Wright, 654 So. 2d 542, 544 (Ala.1995), quoting from Allen v. Walker, 569 So. 2d 350, 351 (Ala.1990), the Court defined "assault": A battery occurs when one actually touches another in a hostile manner. Surrency v. Harbison, 489 So. 2d 1097 (Ala.1986). The only evidence as to this claim is evidence that Sharp held Perdue's arm to detain her, after he had viewed the security tape and determined that there was probable cause to detain her on suspicion of shoplifting. There is no evidence that Sharp used any more force than was necessary to ensure that Perdue and Cameron were detained; thus, the trial court erred in denying the defendants' motion for directed verdict, and then, later, their motion for JNOV, on Perdue's assault and battery claim. Kmart and Sharp also argue that the evidence does not support Perdue's claim of conversion. To establish a conversion, the plaintiff must show that the defendant wrongfully exercised dominion over property in exclusion or defiance of a plaintiff's rights, where the plaintiff has the immediate right to possession of the property. Green Tree Acceptance, Inc. v. Tunstall, 645 So. 2d 1384 (Ala.1994). According to Perdue, she was carrying a watch in her purse when she entered the loss control room at Kmart after Sharp apprehended her. She claims that the *111 contents of the purse were spread out onto a counter and that the watch was missing from her purse when the purse was returned to her. Perdue concludes from this that a Kmart employee, possibly Sharp himself, stole the watch, or is at least responsible for its loss because, she says, it was placed on the table during a detention that she believes was unlawful. The record reveals no evidence, other than Perdue's testimony, that a watch was among the contents in her purse. Sharp testified that he did not see a watch on the table with Perdue's other belongings and that he had no knowledge of the watch. The evidence shows only that the contents of Perdue's purse were searched in the course of a lawful detention. Because there is nothing more than Perdue's own allegations to support her claim that a Kmart employee took the watch from her, the defendants were entitled to a directed verdict, or a JNOV, on Perdue's conversion claim. In view of the foregoing, the judgment entered by the trial court on the jury verdict in favor of Cameron and Perdue is reversed, and the cause is remanded for the entry of an order consistent with this opinion. 1950845 REVERSED AND REMANDED. 1950846 REVERSED AND REMANDED. HOOPER, C.J., and MADDOX, SHORES, KENNEDY, and SEE, JJ., concur. ALMON, HOUSTON, and COOK, JJ., concur in part and dissent in part. HOUSTON, Justice (concurring in part and dissenting in part). Perdue presented substantial evidence of conversion; therefore, I dissent as to that issue. However, I concur with the remainder of the opinion, using the reasoning in Aspinwall v. Gowens, 405 So. 2d 134 (Ala. 1981). ALMON and COOK, JJ., concur.	December 19, 1997
ba6dc2bf-288e-4061-9e46-164abd571c04	Ex Parte Walls	711 So. 2d 490	1960352	Alabama	Alabama Supreme Court	711 So. 2d 490 (1997) Ex parte Tony Alan WALLS. (Re Tony Alan Walls v. State). 1960352. Supreme Court of Alabama. November 14, 1997. Rehearing Denied January 23, 1998. 492 Thomas M. Goggans, Montgomery, for petition. Bill Pryor, atty. gen., and Stephen N. Dodd, asst. atty. gen., for respondent. SHORES, Justice. The opinion of August 8, 1997, is withdrawn and the following is substituted therefor. Tony Alan Walls was indicted for the crime of receiving stolen property, § 13A-8-16, Ala.Code 1975. At trial, the jury was charged on receiving stolen property in the first, second, and third degrees. Sections 13A-8-17 through -19, Ala.Code 1975. The jury returned a conviction of receiving stolen property in the first degree; Walls was given a five-year suspended sentence, conditioned upon his performing 200 hours of community service and paying a $10,000 fine, court costs, and a $50 victim compensation assessment. The Court of Criminal Appeals reversed his conviction because of an erroneous jury instruction and remanded the case for a new trial. See Walls v. State, 711 So. 2d 483 (Ala.Cr.App.1996). In light of this holding, the Court of Criminal Appeals did not address Walls's arguments that the state had not presented sufficient evidence to convict him of receiving stolen property. Walls petitioned this Court for a writ of certiorari, claiming that the evidence was insufficient, and, therefore, that the Court of Criminal Appeals not only should have reversed his conviction, but should have rendered a judgment in this favor. We granted the petition and issued the writ. Because we hold that the evidence was insufficient to convict Walls for the completed offense of receiving stolen property, we reverse the decision of the Court of Criminal Appeals to the extent that it would have permitted the state to retry Walls on that charge. Further, because the jury was not charged on the lesser included offense of attempting to receive stolen property, we conclude that Walls is entitled to a judgment in his favor. The facts of this case are set out in the opinion of the Court of Criminal Appeals; yet, because this case involves questions of the sufficiency of the evidence, it is appropriate to summarize the facts again here. In the morning hours of October 4, 1994, police officers observed Orville Ladon Haygood on the sales lot of the Gilbert-Baker Ford automobile dealership in Albertville. Haygood was carrying three radios that he had just stolen from cars parked on the lot. Before 493 he was able to make his getaway, Haygood spotted the police and ran into the woods adjacent to the dealership, leaving on the ground the three radios. The police retrieved the radios and apprehended Haygood several hours later. When Richard Baker, the president of the Ford dealership, arrived for work, the police returned the three radios to him. While questioning Haygood, the Albertville police learned that he had intended to sell the radios to Walls, who operates a retail establishment that sells new and used car parts and accessories. Detective Alan Whitten then spoke with Baker about assisting the police in setting up Walls. Baker agreed to do so, giving the police his permission to use the three radios Haygood had stolen and supplying the police with eight additional radios, which had never been stolen, in order to make a controlled sale to Walls. Before conducting the sale, Albertville police obtained an "anticipatory search warrant" for Walls's business, expecting that he would later be in possession of the radios. The following day, October 5, 1994, Haygood, wired with an electronic monitoring device, entered Walls's place of business and proceeded to sell the 11 radios to Walls for $40 each. Just after Walls closed his store, police executed the anticipatory search warrant and recovered the radios. At trial, Walls was convicted of receiving stolen property. Walls argues that the evidence was insufficient to sustain his conviction for the offense of receiving stolen property. Relying principally upon Farzley v. State, 231 Ala. 60, 163 So. 394 (1935), Walls specifically contends that the evidence was insufficient to sustain a conviction for receiving stolen property because, he says, there is no basis on which to conclude that any of the 11 radios were "stolen," within the meaning of § 13A-8-16, Ala.Code 1975, at the time he received them. He argues that it is undisputed that eight of the radios had never been stolen, and he contends the other three had lost their "stolen" character when they were recovered by law enforcement officers before the controlled sale. We agree. Section 13A-8-16, Ala.Code 1975, provides in pertinent part: For the purposes of this section, the word "stolen" is defined by statute as "[o]btained by theft, theft by appropriating lost property, robbery or extortion." Section 13A-8-1(12), Ala.Code 1975. In Farzley, police detectives arranged for two men to "burglarize" a store, in the detectives' presence and with the consent of the store owner. Testimony indicated that the "burglars," under the direction of the detectives, removed from the store various items, which were then delivered to the detectives. In turn, one of the detectives sold these goods to the defendant, who was later convicted of receiving stolen property. The Farzley Court began its analysis by stating: 231 Ala. at 61, 163 So. at 395, citing Copertino v. United States, 256 F. 519 (3d Cir.1919); People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906); Kirby v. United States, 174 U.S. 47, 63-64, 19 S. Ct. 574, 580, 43 L. Ed. 890 (1899); State v. Alderman, 83 Conn. 597, 78 A. 331 (1910); 53 C.J. 506, § 10. Applying these common-law principles, the Farzley Court concluded that the defendant could not be convicted for receiving stolen goods, because the goods were not "stolen" goods when they were delivered to the defendant. Indeed, the Court held that the goods had never been truly stolen at all: 231 Ala. at 61,163 So. at 395-96. It is undisputed that eight of the radios supplied to the police by Baker and later purchased by Walls had never been stolen. Therefore, under Farzley, they cannot be the subject of the offense of receiving stolen property. "[I]f as a matter of fact [the goods] had not been stolen, there could be no conviction, no matter how strong the evidence tending to show that a defendant had reasonable grounds for believing they were stolen." Smitherman v. State, 340 So. 2d 896, 900 (Ala.Cr.App.1976), interpreting Farzley. In other words, a defendant may possess the requisite guilty mind, but if the property is not actually stolen property, then a circumstance that is unknown to him prevents him from committing the completed act prohibited by statute, i.e., the offense of receiving stolen property. The state nonetheless urges that we should allow a conviction for receiving stolen property under § 13A-8-16 whenever a defendant has reasonable grounds to believe that property received has been stolen, without respect to whether the property received had been stolen in fact. The state refers us to cases from other jurisdictions in which courts have held that a defendant may be criminally liable for receiving, notwithstanding that the property received was not in fact stolen property. See State v. Bujan, 274 N.J.Super. 132, 643 A.2d 628 (App.Div.1994); State v. Sweeney, 701 S.W.2d 420 (Mo.1985); State v. Pappas, 705 P.2d 1169 (Utah 1985). These cases demonstrate that some states have eliminated from their statutory "receiving" offense the requirement that the property received have been stolen in fact. While our legislature could similarly eliminate this requirement as an element of the completed "receiving" offense in this state, we conclude that to adopt such an interpretation of § 13A-8-16, as that section presently reads, would be directly contrary to the statutory language. As noted previously, § 13A-8-16(a) states that "[a] person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen." (Emphasis added.) Thus, the state would have us read out of the statute the express requirement that the property received, retained, or disposed of by the defendant have been stolen. This we decline to do. Ex parte Mutrie, 658 So. 2d 347, 349 (Ala. 1993) (emphasis omitted). The New Jersey, Missouri, and Utah cases cited by the state are distinguishable. The courts in those cases were interpreting state statutes based upon a provision of the Model Penal Code specifying that a "person is guilty of theft if he purposely receives, retains, or disposes of moveable property of another knowing that it has been stolen, or believing that it has probably been stolen." Model Penal Code (U.L.A.) § 223.6 (1996 Supp.). See Bujan, supra, 274 N.J.Super. at 133-36, 643 A.2d at 629-30. One will note 495 that, in contrast with § 13A-8-16, the Model Penal Code provision and each state statute interpreted in the cases cited by the state omit the requirement that the received "property of another" have been "stolen" in order for the offense to be completed. The state itself points out that those states that have sought to follow a view that an element of the crime of receiving is that the property is stolen property have accomplished this by drafting their statutes so as to insert the word "stolen" into their Model Penal Code based provisions before the phrase "property of another." Respondent's brief at 10 n. 1, citing Bujan, supra. Because our statute does in fact contain the word "stolen" before the word "property," it is clear that the legislature intended to retain the requirement that the property received actually be stolen property. Accordingly, we hold that because eight of the radios were undisputedly never stolen, they could not be the subject of the offense of receiving stolen property. In contrast, three of the radios purchased by Walls were, at one point, undoubtedly stolen. But, as noted above, the rules articulated in Farzley state that, in order to establish the offense of receiving stolen property, the property not only must be stolen but also must retain that status until it is delivered to the defendant. Further, if property is stolen, it continues to be stolen property only until it is recovered by the owner or someone for the owner. Farzley, 231 Ala. at 61, 163 So. at 395. Under those statements of law, the evidence concerning the three radios stolen by Haygood would not support a conviction for receiving stolen property, because they lost their stolen character once they were recovered by police for the owner, and, indeed, restored to the owner before they were delivered to Walls. However, as the state points out, Farzley is not, strictly speaking, controlling authority on the question whether the three radios taken by Haygood still retained their "stolen" character at the time Walls received them. The Farzley Court held that the goods in that case were never stolen, because of a lack of felonious intent. Therefore, the Court's pronouncements that property must retain its stolen status until it is delivered to the defendant and that property continues to be stolen property until it is recovered by the owner or someone for the owner are technically dicta.[1] Notwithstanding, we believe that the rules declared in Farzley on this issue are correct statements of the law. Thus, we adopt the rule stated in 76 C.J.S. Receiving Stolen Goods § 5 (1994): This rule is in accord with the reasoning employed in Farzley, and it is widely followed in other jurisdictions that retain the element that the property received be in fact stolen.[2] 496 The state argues that there is a split of authority on this issue, citing Vargas v. State, 818 S.W.2d 875 (Tex.App.1991); and People v. Towery, 174 Cal. App. 3d 1114, 220 Cal. Rptr. 475 (1985), cert. denied sub nom. Johnson v. California, 478 U.S. 1006, 106 S. Ct. 3297, 92 L. Ed. 2d 712 (1986). We find these cases also distinguishable. The Texas court in Vargas, supra, upheld a conviction for theft by receiving where the defendant pawnbroker purchased jewelry that had been stolen but had been recovered by police before it was delivered to the defendant. The court relied entirely, however, upon a Texas statute specifically providing that stolen property does not lose its character as stolen property when it is recovered by a law enforcement agency. 818 S.W.2d at 879; Tex. Penal Code Ann. § 31.03(c)(5) (Vernon 1989). Alabama has no similar statute, and, in light of the apparently unanimous contrary authority, we decline to establish such a rule judicially. If the requirement of § 13A-8-16 that property must in fact be "stolen" is to have any substance, then property must, at some point, lose its character as stolen. It can hardly be argued that property that has been restored to the physical custody of its owner, as in this case, is still "stolen" so as to allow a conviction for receiving it subsequent to its return. This is because, after its restoration to the owner, the property received has not been "obtained by theft," as required by § 13A-8-1(12), but has been obtained, rather, by the owner's consent. See McCord v. State, 501 So. 2d 520 (Ala.Cr.App.1986) (nonconsent to the taking of the property is a necessary element in proving theft). Such is also the case where the police have physical custody over goods that were previously stolen, for we believe that the property "is held by the police in trust for, or for the account of, the owner." People v. Rojas, 55 Cal. 2d 252, 358 P.2d 921, 925, 10 Cal. Rptr. 465, 469 (1961). The California case of People v. Towery is distinguishable on its facts. There, an informant who worked as a truck driver told police that his employer was involved in a scheme to purchase and sell stolen property, specifically fuel oil. The police asked the informant to return to his usual activities and to tape record any conversations concerning illegal conduct. The informant alerted police after subsequently receiving stolen fuel oil and delivering it to his employer. After being convicted of receiving stolen property, the employer argued that the evidence allowed no more than a conviction for attempting to receive stolen property because, he argued, the involvement of police in the sting operation had given law enforcement officers constructive possession of the property and thus had deprived it of its "stolen" character. The court disagreed, holding that the use of the "feigned accomplice" did not divest the property of its stolen character, for the police had never taken possession of the property but rather had "merely observed the stolen property incident to the ongoing investigation." 174 Cal. App. 3d at 1137, 1140, 220 Cal. Rptr. at 490, 492. Towery does not support the state's position, because that case does not hold that stolen property retains its nature as stolen property even after it is reduced to actual physical possession by the police. Rather, the court simply recognized a distinction between police conduct that constitutes mere observation of stolen property during an investigation, which does not strip property of its "stolen" character, and the actual physical recovery of stolen property by police, which does.[3] The Towery court itself recognized, 497 "Factually, of course, the instant case differs markedly from People v. Rojas," a case in which the California Supreme Court held that the defendant could be convicted only for attempting to receive stolen property, rather than the completed offense, because police had actually seized the stolen property before it was delivered to the defendant. 174 Cal. App. 3d at 1138, 220 Cal. Rptr. at 490. Indeed, Rojas, rather than Towery, is the California precedent parallel to the instant case. We conclude that the evidence showed that none of the 11 radios were in fact "stolen" at the time Walls received them; thus, Walls could not consummate the completed offense of receiving stolen property under § 13A-8-16. Eight of the radios purchased by Walls had never been stolen, and the other three had lost their "stolen" character when the police took actual physical possession of them before they were delivered to Walls. Therefore, we reverse the judgment of the Court of Criminal Appeals insofar as it allows Walls to be retried for the completed offense of receiving stolen property. Because we conclude that the evidence is insufficient to support Walls's conviction for the completed offense of receiving stolen property, the constitutional prohibition against double jeopardy prevents a retrial on that charge. See Ex parte Roberts, 662 So. 2d 229 (Ala.1995); Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). However, the question still remains whether the state may attempt to reprosecute Walls for the lesser offense of attempting to receive stolen property; it is clear that the evidence presented at Walls's trial would have supported a conviction on that charge. Section 13A-4-2, Ala.Code 1975, provides as follows: As we have explained, the fact that none of the radios were in fact "stolen" when Walls received them prevented the commission of the completed offense of receiving stolen property. However, this does not mean that the defendant could not be found to have committed a criminal act. Under § 13A-4-2(b), if the "attendant circumstances" had been as Walls believed them to be, then the crime of receiving stolen property could have been committed; thus, the fact, unknown to Walls, that the radios were not actually stolen would not have prevented a conviction for an attempt to receive stolen property. Cf. Rhodes v. State, 686 So. 2d 1288 (Ala.Cr.App. 1996) (where defendant believed substance he attempted to purchase was cocaine, fact that it was imitation did not prevent conviction for attempted possession of controlled substance). See also, e.g., Rojas, Zaborski, Hageman, Bandy, supra, n. 2. However, Walls argues that the state cannot retry him even for the attempted offense, because he says such a retrial would also violate the rule against double jeopardy. It is a well-established principle of constitutional law that the prohibition against double jeopardy does not generally preclude retrial of a defendant whose conviction has been reversed on appeal because of an error in the trial proceedings. United States v. Tateo, 377 U.S. 463, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964); Ex parte Collins, 385 So. 2d 1005 (Ala.1980). But as we have recognized above, reversal of a judgment of conviction on the basis of insufficient evidence bars a retrial on the same offense upon which the conviction was laid. Burks, supra. However, this Court has held that where a conviction for a greater offense is reversed because of an insufficiency of the evidence, retrial upon lesser included offenses upon which the jury was charged is not barred by double jeopardy. Ex parte Beverly, 497 So. 2d 519, 524-25 (Ala.1986). Similarly, where an appellate court concludes that the evidence was insufficient to support the defendant's conviction for a greater offense, the 498 rule against double jeopardy is not violated where the case is remanded to the trial court for resentencing based upon lesser included offenses upon which the jury was instructed. Ex parte Edwards, 452 So. 2d 508 (Ala.1984). In contrast, where a conviction for the greater offense is reversed because of insufficiency and the jury was not charged on lesser included offenses, a criminal defendant may not be retried for those lesser included offenses. Ex parte Beverly, 497 So. 2d at 525; Ex parte Roberts, 662 So. 2d at 229. It is undisputed that Walls's jury was instructed only on receiving stolen property in the first, second, and third degrees, §§ 13A-8-17 through -19, Ala.Code 1975, and not on attempting to receive stolen property. It is also clear that attempting to receive stolen property is a lesser offense that is included in the completed crime. Under § 13A-1-9(2), Ala.Code 1975, "[a]n offense is a lesser included one if ... it consists of an attempt... to commit the offense charged." Therefore, under Ex parte Beverly and Ex parte Roberts, we are forced to hold that Walls cannot be retried on the lesser included offense of attempting to receive stolen property, upon which the jury was not charged. We conclude that the evidence was insufficient to support Walls's conviction for the completed offense of receiving stolen property. Therefore, the judgment of the Court of Criminal Appeals is reversed insofar as it would have permitted the state to retry him on that charge. Because of the constitutional prohibition against double jeopardy, the state is similarly prevented from trying him on the lesser included offense of attempting to receive stolen property, upon which the jury was not charged. A judgment is hereby rendered in favor of the defendant, Walls. APPLICATION GRANTED; OPINION OF AUGUST 8, 1997, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND JUDGMENT RENDERED. HOOPER, C.J., and KENNEDY and COOK, JJ., concur. SEE, J., concurs in the result. SHORES, Justice. APPLICATION OVERRULED. HOOPER, C.J., and KENNEDY, COOK, and SEE, JJ., concur. MADDOX, J., dissents. MADDOX, Justice (dissenting). On November 14, 1997, this Court withdrew its original opinion in this case and replaced it with one holding, in part, that "where a conviction for the greater offense is reversed because of insufficiency [of the evidence] and the jury was not charged on lesser included offenses, a criminal defendant may not be retried for those lesser included offenses." 711 So. 2d at 498, citing Ex parte Beverly, 497 So. 2d 519, 525 (Ala.1986), and Ex parte Roberts, 662 So. 2d 229 (Ala.1995). (Emphasis original.) The State now applies for a rehearing, asking that this Court overrule Beverly and Roberts, to the extent that they stand for the position quoted above. I would grant the State's application for rehearing; therefore, I respectfully dissent. See my special writing in Ex parte Roberts, 662 So. 2d at 232. [1] Later Alabama decisions have interpreted the principle set out in Farzley concerning the necessity that property be "stolen" at the time it comes into the hands of the defendant in order to sustain a conviction for receiving stolen property. See Ashurst v. State, 462 So. 2d 999, 1009 (Ala.Cr. App.1984); Mefford v. State, 363 So. 2d 1050, 1053 (Ala.Cr.App.1978); Davidson v. State, 360 So. 2d 728, 730 (Ala.Cr.App.1978) writ denied; Smitherman v. State, 340 So. 2d 896, 900 (Ala.Cr. App.1976); see also Collins v. State, 385 So. 2d 993, 1004-05 (Ala.Cr.App.1979) ("property remains stolen until such time [as] it is returned to its rightful owner"), reversed on other grounds, Ex parte Collins, 385 So. 2d 1005 (Ala.), on remand, 385 So. 2d 1010 (Ala.Cr.App.1980). However, it does not appear that any Alabama case has dealt squarely with the particular question now before us, that is, whether stolen goods continue to be "stolen" despite their actual recovery by law enforcement officers. [2] See State v. Vitale, 23 Ariz.App. 37, 530 P.2d 394 (1975); Felker v. State, 254 Ark. 185, 492 S.W.2d 442 (1973); People v. Rojas, 55 Cal. 2d 252, 358 P.2d 921, 10 Cal. Rptr. 465 (1961); People v. Dabrowski, 162 Ill.App.3d 684, 515 N.E.2d 1345, 114 Ill.Dec. 74 (1987); State v. Sterling, 230 Kan. 790, 640 P.2d 1264 (1982); Darnell v. State, 92 Nev. 680, 558 P.2d 624 (1976); State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982); People v. Zaborski, 59 N.Y.2d 863, 452 N.E.2d 1255, 465 N.Y.S.2d 927 (1983); State v. Diephaus. 55 Ohio App.3d 90, 562 N.E.2d 523 (1989); Booth v. State, 398 P.2d 863 (Okla.Crim. App.1964); Bandy v. State, 575 S.W.2d 278 (Term.1979); United States v. Johnson, 767 F.2d 1259 (8th Cir.1985); United States v. Monasterski, 567 F.2d 677 (6th Cir.1977); United States v. Cawley, 255 F.2d 338 (3d Cir.1958). See also Wharton's Criminal Law § 465 (13th ed.1972); Jay M. Zitter, Annotation, Conviction of Receiving Stolen Property, or Related Offenses, Where Stolen Property Previously Placed Under Police Control, 72 A.L.R.4th 838 (1989); 66 Am.Jur.2d, Receiving Stolen Property § 7 (cum.supp.1995). [3] While other courts have also recognized this difference between police observation and physical recovery, see, e.g., People v. Dabrowski, supra, n. 2; United States v. Dove, 629 F.2d 325 (4th Cir.1980); State v. Schmidt, 20 O.O.3d 264 (Ohio Comm.P1.1981), we need not address it here because it is undisputed that police took physical possession of the three radios before they were delivered to Walls.	November 14, 1997
58c07e91-c6b3-473a-913a-6708468883b1	Ex Parte Metropolitan Life Ins. Co.	707 So. 2d 229	1961801	Alabama	Alabama Supreme Court	707 So. 2d 229 (1997) Ex parte METROPOLITAN LIFE INSURANCE COMPANY. (In re Susette E. WILLIAMS, et al. v. METROPOLITAN LIFE INSURANCE COMPANY, et al.). 1961801. Supreme Court of Alabama. November 26, 1997. C.C. Torbert, Jr., of Maynard, Cooper & Gale, P.C., Montgomery; and Lee E. Bains, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for petitioner. Richard F. Pate, Donna Ward Black, and Amanda S. Hunter of Richard F. Pate & Associates, P.C., Mobile, for Respondents. 230 HOUSTON, Justice. Metropolitan Life Insurance Company ("Met Life") petitions for a writ of mandamus directing Mobile County Circuit Judge Douglas I. Johnstone: (1) to refrain from exercising jurisdiction over any discovery matters in a certain action pending in the Mobile Circuit Court, Susette E. Williams, et al. v. Metropolitan Life Ins. Co., et al., CV-96-3247 ("Williams"); and (2) to vacate the discovery order entered by Judge Johnstone on July 16, 1997, in Williams. This mandamus petition relates to ostensibly conflicting discovery orders relating to Williams. Judge Ferrill D. McRae, also of the Mobile County Circuit Court, had previously entered an order purporting to consolidate Williams with all other cases against Met Life brought by the law firm of Richard F. Pate & Associates ("the Pate firm"). The cases were consolidated for discovery purposes only. When Susette Williams filed her case in the Mobile Circuit Court, the Pate firm had approximately 13 other cases against Met Life pending in the Mobile Circuit Court, assigned to 4 different judges. Judge McRae presided over the initial case filed by the Pate firm, which was styled Walter H. Rice III v. Metropolitan Life Ins. Co., et al., CV-96-1371 ("Rice").[1]Williams was assigned to Judge Johnstone. Pursuant to Rule 42(a), Ala.R.Civ.P., Met Life moved to consolidate all of the cases against it that had been filed by the Pate firm. Met Life later filed an amended motion for consolidation, particularly mentioning Williams. The Williams plaintiffs later amended their complaint to include class action allegations. While the motion to consolidate was pending, Met Life removed the Williams case to a federal district court. Then, on January 10, 1997, Judge McRae issued an order ("the January 10 order") consolidating all of the cases for discovery and other pretrial purposes. Williams was among the cases consolidated.[2] The order further provided that when a party submitted a motion or other filing relating to one of the cases mentioned, "the document [was to] bear the instruction `TO BE DECIDED BY JUDGE MCRAE' in boldface and all-capital type."[3] The federal court remanded Williams to the Mobile Circuit Court on February 5, 1997. On February 12, 1997, Judge Johnstone conditionally certified the Williams case as a class action. Met Life objected to Judge Johnstone's exercise of jurisdiction over that issue, asserting that class determinations are a pretrial matter and that the class action question was subject to the January 10 order of Judge McRae that consolidated all of the Met Life cases before him. Judge Johnstone rejected that argument, stating that Judge McRae had "inadvertently" included Williams among the consolidated cases. Met Life subsequently requested a special hearing in front of Judge McRae in order to clarify the scope of his jurisdiction over discovery matters. Judge McRae set the hearing for July 10, 1997. On July 11, 1997, Judge McRae again issued a clarifying order, stating, "[T]his Court has jurisdiction over all discovery in these Met Life cases, and all discovery issues shall be submitted to this Court for resolution...." About the same time, the plaintiffs in Williams sought a hearing by Judge Johnstone, requesting a clarification as to who had jurisdiction over Williams. In addition, they asked Judge Johnstone for an order compelling discovery. In open court, on July 11, Judge Johnstone stated: On July 16, 1997, Judge Johnstone issued a discovery order purporting to relate to the Williams case. Because of the apparent conflict between Judge McRae's orders and Judge Johnstone's orders, Met Life petitions this Court for a writ of mandamus in order to resolve the conflict. Met Life argues that by allowing Judge Johnstone to issue discovery orders involving the Williams case, conflict has arisen, and will continue to arise, with respect to discovery orders issued in the other Met Life cases. Met Life also argues that the plaintiffs' counsel in Williams improperly attempted to avoid Judge McRae's order, asserting that counsel should have petitioned this Court for mandamus relief to have Judge McRae's order set aside. Instead, Met Life asserts, the Williams plaintiffs simply ignored Judge McRae's order and failed to use the proper means for seeking relief from that order. The plaintiffs, on the other hand, argue that because the federal court had jurisdiction over Williams when the January 10 order was entered, Judge McRae lacked jurisdiction over that case and therefore had no authority to include Williams in that order. The plaintiffs assert that upon remand to the circuit court Williams merely resumed its position as if it had not been removed to the federal court. The plaintiffs also point out that six days after the federal court remanded Williams, Judge Johnstone stated that he "specifically retained" jurisdiction over that case, which had been initially assigned to his docket. Essentially, the plaintiffs argue that any orders issued by the Mobile Circuit Court referring to a case pending in the federal court are void and have no effect unless or until the case is remanded to the state court. Thus, the plaintiffs assert that Judge Johnstone's order, dated February 12, 1997, reestablished jurisdiction over Williams and, thus, that Judge Johnstone had the authority to issue the July 16 discovery order, regardless of the apparent conflict with Judge McRae's orders. Alabama courts have long recognized "that an order issued by a court with jurisdiction over the subject matter [and the person] must be obeyed by the parties subject to the order until it is reversed by orderly and proper proceedings." Ex parte Purvis, 382 So. 2d 512, 514 (Ala.1980); see Walker v. City of Birmingham, 279 Ala. 53, 181 So. 2d 493 (1966), affirmed, 388 U.S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967); and United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947). Met Life correctly asserts that parties subject to a court order "are expected to obey [it] until it is modified or reversed, even if they have proper grounds to object to [it]." Celotex Corp. v. Edwards, 514 U.S. 300, 306, 115 S. Ct. 1493, 1498, 131 L. Ed. 2d 403 (1995). In Howat v. Kansas, 258 U.S. 181, 190, 42 S. Ct. 277, 281, 66 L. Ed. 550 (1922), the United States Supreme Court stated: See Celotex Corp., 514 U.S. at 313, 115 S. Ct. at 1501; Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S. Ct. 2697, 49 L. Ed. 2d 599 (1976) (disobedience of outstanding injunctive order subjects the violator to contempt even though the order may later be reversed, vacated, or amended); United Mine Workers, 330 U.S. 258, 67 S. Ct. 677; Walker v. City of Birmingham, 388 U.S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (parties, generally, may not violate an injunction or temporary restraining order and then attempt to challenge the constitutionality of the order in contempt proceedings, unless the injunction or TRO is transparently invalid); Ex parte Purvis, supra, 382 So. 2d at 514-15. In re Providence Journal Co., 820 F.2d 1342, 1346 (1st Cir.1986), cert. dismissed, 485 U.S. 693, 108 S. Ct. 1502, 99 L. Ed. 2d 785 (1988). "Court orders are accorded a special status in American jurisprudence." In re Providence Journal Co., supra, 820 F.2d at 1347. However, because a court "may exercise only those powers entrusted to it by law," orders entered by a court without jurisdiction are not afforded this "special status." Id. In King v. Landrum, 370 So. 2d 945, 947 (Ala.1979), this Court adopted this language of the Minnesota Supreme Court: Doerr v. Warner, 247 Minn. 98, 106, 76 N.W.2d 505, 512 (1956). (Emphasis omitted.) This Court went on to state in King that while a federal court considers a removal petition, a state court's jurisdiction is "stayed" and that it "immediately quicken[s]" upon remand. Id. In King, the trial court entered a summary judgment for two named defendants and made the judgment final pursuant to Rule 54(b), Ala.R.Civ.P. The plaintiff appealed from that judgment five days after the remaining defendants had removed the case to a federal court. Upon remand, the plaintiff did not renew her notice of appeal against the two prevailing defendants. The prevailing defendants claimed that the 42-day time limit for appeal had lapsed and that the previous notice of appeal was null and void. This Court disagreed; it held ("[a]ssuming, without deciding, that the Federal Court did obtain jurisdiction over all parties to the cause") that the notice of appeal, filed after removal to the federal court and pursuant to a final judgment, was not void, but, rather, that the notice "was merely stayed" and that it was "quickened again" upon remand from the federal court, so that the plaintiff did not need to renew her notice of appeal. 370 So. 2d at 947. That is, actions taken in a state court immediately become effective again upon remand and have the same effect as if no removal had taken place. King, we note, implicitly overruled an earlier line of cases holding that the proper removal of an action from a state court to a federal court immediately divests the state court of jurisdiction and makes any subsequent action by the state court coram non judice. See Ex parte City Bank & Trust Co., 200 Ala. 440, 76 So. 372 (1917); Stix v. Keith, 90 Ala. 121, 7 So. 423 (1890); Great Atlantic & Pacific Tea Co. v. Miller, 229 Ala. 313, 156 So. 834 (1934). However, we see no reason to question the authority of King. Therefore, we conclude that Judge McRae had jurisdiction to enter the order and that his order, as it relates to the Williams case, quickened upon the remand of that case from the federal court. Rule 42(a), Ala.R.Civ.P., grants the "trial court" the authority to consolidate actions involving common questions of law or fact. In addition, the trial court also may make such orders as may tend to avoid unnecessary costs or delay involved in litigation. See Rule 42(a). The purpose of the Rules of Civil Procedure is to promote the efficient functioning of judicial administration and to 233 secure the "just, speedy and inexpensive" resolution of disputes. See Rule 1. Clearly, the Rules contemplate granting a "trial court" the authority to make orders necessary to consolidate actions for discovery purposes. However, we do not think the conflict involved in this case was contemplated when this Court adopted Rule 42(a). While Rule 42(a) grants the "trial court" the authority to consolidate actions for discovery purposes, nothing in the Rules deals with the question which judge may make such an order when two or more judges in the same circuit have cases that are subject to a consolidation motion. Counsel for both sides indicate that, as a general rule, local custom in the Mobile Circuit would have the consolidation decisions in such a situation made by the judge with the earliest-filed case. However, Rule 83, Ala.R.Civ.P., abolished all local rules. As the plaintiffs' counsel correctly points out, there exists no rule stating that when one judge issues a consolidation order relating to a case that is assigned to another judge of the same circuit, the other judge cannot specifically retain jurisdiction over the case assigned to his docket. This Court may issue a writ of mandamus only when the petitioner "has shown a clear legal right to the order sought; an imperative duty on the respondent to perform, accompanied by a refusal to do so; the lack of another adequate remedy; and properly invoked jurisdiction." Ex parte Holland, 692 So. 2d 811, 814 (Ala.1997); see Rule 21, Ala.R.App.P.; Ex parte State ex rel. McKinney, 575 So. 2d 1024, 1026 (Ala.1990). This Court will not issue a writ of mandamus unless, from a review of the record, it determines that the trial court acted in an arbitrary and capricious manner, thereby abusing its discretion. Ex parte State ex rel. McKinney, supra; Ex parte Thompson, 474 So. 2d 1091 (Ala.1985). Mandamus is a drastic and extraordinary remedy, not a writ of right. Ex parte Adams, 669 So. 2d 128, 132 (Ala.1995); Ex parte State ex rel. McKinney, supra; Ex parte Baker, 459 So. 2d 873 (Ala. 1984). Essentially, Met Life asks this Court to enter an order resolving a conflict between two judges sitting in the same judicial circuit (the 13th Judicial Circuit of Alabama). Section 12-17-24, Ala.Code 1975, grants presiding circuit judges general supervisory authority over their respective judicial circuits: "The presiding circuit judge shall exercise a general supervision of the judges ... and see that they attend strictly to the prompt, diligent discharge of their duties." (Emphasis added.) The Rules of Civil Procedure do not contemplate the resolution of conflicts between two trial judges who may issue competing orders while sitting in the same judicial circuit. Logically, we think, the resolution of such disputes should be made, initially, by the presiding circuit judge, under that judge's general supervisory authority. We conclude that the presiding judge of the 13th Judicial Circuit is in the best position to resolve this dispute and that he should do so.[4] The petition is denied. PETITION DENIED. *234 HOOPER, C.J., and MADDOX, SHORES, KENNEDY, COOK, and SEE, JJ., concur. BUTTS, J., concurs in the result. [1] Currently, in addition to Williams, there are 36 other cases against Met Life filed by the Pate firm that are pending in the Mobile Circuit Court and consolidated for discovery purposes with the Rice case. [2] Judge McRae later clarified the January 10 order so that as to Williams it applied only to matters of discovery, not to substantive matters. [3] Met Life asserted, in its brief filed with the mandamus petition, that the Williams plaintiffs had failed to adhere to this order in regard to later motions and other filings. [4] We understand that a presiding circuit judge's authority is not unlimited. In Resolute Insurance Co. v. Ervin, 285 Ala. 575, 234 So. 2d 867 (1970), this Court held that a presiding judge may not exercise supervisory authority so as to usurp the ministerial functions of the circuit clerk. In so holding, this Court stated: "This section [§ 172, Title 13, Code of Alabama 1940, the predecessor to § 12-17-24] is not to be construed to mean that a presiding judge can direct and usurp the functions and duties of the named officials. His supervision is limited by the statute to see only that such officials promptly and diligently discharge their duties." 285 Ala. at 579, 234 So. 2d at 870. Our decision today should not be construed as authorizing a presiding circuit judge to unjustly intrude upon the office or functions of other circuit judges in the same judicial circuit. In Resolute Insurance Co. v. Ervin, the respondent circuit judges, acting without authority, had interfered with the circuit clerk's duty to approve appeal bonds. The present situation is different. Here, § 12-17-24 expressly authorizes a presiding judge to see that officials promptly and diligently discharge their duties. It is, therefore, within the authority of the presiding judge of the 13th Judicial Circuit to intervene in this dispute between Judge Johnstone and Judge McRae, so as to ensure the "just, speedy and inexpensive determination" of the cases before them. Rule 1(c), Ala.R.Civ.P. See, also, In re Ingram, 356 So. 2d 618 (Ala. 1978).	November 26, 1997
25cc34b7-e555-4fd0-9fe1-3025d991ce60	Ex Parte HealthSouth Corp.	712 So. 2d 1086	1961758, 1970010	Alabama	Alabama Supreme Court	712 So. 2d 1086 (1997) Ex parte HEALTHSOUTH CORPORATION and Richard M. Scrushy. (Re LLOYD NOLAND FOUNDATION, INC. v. HEALTHSOUTH CORPORATION and Richard M. Scrushy). 1961758, 1970010. Supreme Court of Alabama. December 19, 1997. Rehearing Denied April 17, 1998. Edward L. Hardin, Jr., and Jeffrey G. Blackwell of Hardin & Hawkins, Birmingham, for petitioners. William C. Knight, Jr., Joseph W. Letzer, and Gerald P. Gillespy of Burr & Forman, L.L.P., Birmingham, for respondent. PER CURIAM. HealthSouth Corporation and its chief executive officer, Richard M. Scrushy, defendants 1087 in an action pending in the Jefferson Circuit Court, petition for a writ of mandamus directing Judge Jack D. Carl to modify his discovery order of June 5, 1997, by which he granted the defendants' motion to compel as to three discovery requests but denied it as to five others, and to grant the motion to compel in its entirety. We grant the writ. On December 4, 1996, Lloyd Noland Foundation, Inc. ("Lloyd Noland"), a nonprofit hospital, sued HealthSouth and Scrushy, alleging slander, libel, tortious interference with business relationships, and conspiracy. The action arose out of a newspaper article printed in the Birmingham News, which reported statements made by Scrushy following the denial of Lloyd Noland's application for a "certificate of need" ("CON") by the CON Review Board, of which Scrushy is a member. Lloyd Noland's CON application sought to convert some of its general hospital beds to long-term acute-care hospital beds. If granted, the CON would have classified Lloyd Noland as a specialty hospital and Lloyd Noland would have been exempt from the Medicare program's prospective payment system. The CON also would have allowed reimbursement by Medicare based on the actual costs of the healthcare service provided, rather than reimbursement based upon a national average cost. The alleged defamatory statements made by Scrushy were stated in the complaint as follows: The defendants denied that Scrushy was accurately quoted in the newspaper, and, as an alternative defense, they answered that certain statements from the printed article could be shown to be true. On May 9, 1997, the defendants moved to compel production of documents that had been requested in the defendants' "Notice of Taking Deposition" of Gary Glasscock, Lloyd Noland's executive director. Lloyd Noland moved for a protective order limiting discovery to specific issues of the case. On June 5, 1997, the trial court granted the motion to compel production as to the following three sets of items: The trial court denied the defendants' motion to compel as to their first five discovery requests, which sought production of the following: In Ex parte Compass Bank, 686 So. 2d 1135 (Ala.1996), we set out the applicable standard governing this Court's review of discovery disputes in cases similar to this one: Ex parte Compass Bank, 686 So. 2d at 1137. Ex parte Sullivan, Long & Hagerty, 567 So. 2d 314, 314-15 (Ala.Civ.App.1990). The defendants contend that Lloyd Noland, a nonprofit hospital, by alleging defamation, has put its business reputation and character in issue generally, and that, therefore, the additional five sets of items should be produced. See, Longmire v. Alabama State Univ., 151 F.R.D. 414, 419 (M.D.Ala. 1992). They also argue that because the alleged statements characterize Lloyd Noland's plan as a scam, evidence indicating whether Lloyd Noland's plans and its corresponding CON application were in any way dishonest or deceptive would clearly be admissible under Rule 405(b), Alabama Rules of Evidence. Rule 405(b) states: The defendants argue that the additional items of discovery are relevant on the question whether Lloyd Noland's CON application violated applicable regulations and, therefore, was an effort to improperly receive Medicare reimbursement. The defendants aver that at the time of Lloyd Noland's CON application and the subsequent CON Review Board decision, Lloyd Noland, acting in large part through its executive director, Gary Glasscock, who also presented Lloyd Noland's proposal to the CON Review Board, was intending to sell Lloyd Noland Hospital 1089 to a for-profit entity, Tenet, Inc. The defendants allege that Gary Glasscock is being paid over $250,000 annually by Lloyd Noland to serve as its executive director and is receiving an additional salary as an officer of Tenet, Inc. Lloyd Noland contends that the defendants are not entitled to a writ of mandamus because, it argues, they have failed to show that Judge Carl abused his discretion in limiting discovery. Lloyd Noland argues, "[T]he right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party." Quoting Assured Investors Life Ins. Co. v. National Union Assocs., Inc., 362 So. 2d 228, 231 (Ala.1978). We must determine whether the trial judge abused his discretion in limiting discovery. Although a trial court possesses broad discretion in the discovery process, it is the duty of this Court to review the exercise of that discretion. Ex parte Compass Bank, supra. After reviewing the briefs and supporting materials, we conclude that the trial judge abused his discretion in limiting discovery. The requested documentation the defendants seek is relevant to the subject matter involved in the pending action. See Rule 26(b)(1), Ala. R. Civ. P. Therefore, the trial judge abused his discretion by not compelling production as to items 1 through 5. The petition for the writ of mandamus in case 1961758 is granted. The trial judge is directed to grant the motion to compel in its entirety. HealthSouth and Scrushy filed a second petition, in case 1970010, which seeks in substance the same relief as the petition in case 1961758. That second petition is due to be dismissed as moot. 1961758WRIT GRANTED. 1970010PETITION DISMISSED AS MOOT. HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, COOK, BUTTS, and SEE, JJ., concur.	December 19, 1997
2ed92eb2-3ac5-4ab0-a865-b28e2e0f6683	Ex parte R.G.	N/A	1140191	Alabama	Alabama Supreme Court	Rel: 1/30/15 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 ____________________ 1140191 ____________________ Ex parte R.G. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: R.G. v. Limestone County Department of Human Resources) (Limestone Juvenile Court, JU-12-145.02; Court of Civil Appeals, 2130582) BRYAN, Justice. WRIT DENIED. NO OPINION. 1140191 Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. Moore, C.J., dissents. 2 1140191 MOORE, Chief Justice (dissenting). I respectfully dissent. The Limestone Juvenile Court terminated the parental rights of R.G., the petitioner, who challenges Alabama courts' use of the ore tenus standard of review in termination-of-parental-rights cases. Judge Moore discussed this issue thoroughly in his special concurrence in J.C. v. State Department of Human Resources, 986 So. 2d 1172, 1197-1202 (Ala. Civ. App. 2007) (analyzing Santosky v. Kramer, 455 U.S. 745 (1982), which adopted the clear-and-convincing evidence standard of proof in termination-of-parental-rights cases). Judge Moore concluded that the "constitutional concerns implicated in every termination-of-parental-rights case command stricter scrutiny than the ore tenus rule provides." 986 So. 2d at 1199. I agree with Judge Moore's constitutional concerns about the standard of review in termination-of-parental-rights cases; therefore, I would grant the petition and ask the parties to submit additional briefs regarding the constitutionality of the ore tenus standard of review in such cases. 3	January 30, 2015
c3dab7b7-9d6e-44e0-b3f2-7404f393c824	Ex parte Alabama ex rel. Alabama Policy Institute et al.	N/A	1140460	Alabama	Alabama Supreme Court	REL: 03/03/2015 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 ____________________ 1140460 ____________________ Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County EMERGENCY PETITION FOR WRIT OF MANDAMUS (In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al.) PER CURIAM. The State of Alabama, on relation of the Alabama Policy Institute ("API"), the Alabama Citizens Action Program ("ACAP"), and John E. Enslen, in his official capacity as Judge of Probate for Elmore County, seeks emergency and other relief from this Court relating to the issuance of marriage 1140460 licenses to same-sex couples. Named as respondents are Alabama Probate Judges Alan L. King (Jefferson County), Robert M. Martin (Chilton County), Tommy Ragland (Madison County), Steven L. Reed (Montgomery County), and "Judge Does ## 1-63, each in his or her official capacity as an Alabama Judge of Probate." API and ACAP ask on behalf of the State for "a clear judicial pronouncement that Alabama law prohibits the issuance of marriage licenses to same-sex couples." To the same end, Judge Enslen "requests that this Supreme Court of Alabama, by any and all lawful means available to it, protect and defend the sovereign will of the people of the State of Alabama." Chapter 1 of Title 30, Ala. Code 1975, provides, as has its predecessor provisions throughout this State's history, a comprehensive set of regulations governing what these statutes refer to as "marriage." See, e.g., § 30-1-7, Ala. Code 1975 (providing for the solemnization of "marriages"), and § 30-1-9, Ala. Code 1975 (authorizing probate judges to issue "marriage" licenses). In 1998, the Alabama Legislature added to this chapter the "Alabama Marriage Protection Act," codified at § 30-1-19, Ala. Code 1975 ("the Act"), expressly stating that "[m]arriage is inherently a unique relationship 2 1140460 between a man and a woman" and that "[n]o marriage license shall be issued in the State of Alabama to parties of the same sex." § 30-1-19(b) and (d), Ala. Code 1975. In 2006, the people of Alabama ratified an amendment to the Alabama Constitution known as the Alabama's "Sanctity of Marriage Amendment," § 36.03, Ala. Const. 1901 ("the Amendment"), which contains identical language. § 36.03(b) and (d), Ala. Const. 1901. The petitioner here, the State of Alabama, by and through the relators, contends that the respondent Alabama probate judges are flouting a duty imposed upon them by the Amendment and the Act and that we should direct the respondent probate judges to perform that duty.1 The petition notes that API 1 "is a 501(c)(3) non-partisan, non-profit research and education organization with thousands of constituents throughout Alabama, dedicated to influencing public policy in the interest of the preservation of free markets, rule of law, limited government, and strong families, which are indispensable to a prosperous society. API achieves these objectives through in-depth research and policy analysis communicated through published writings and studies which are circulated and cited throughout the state and nation. Over the years, API has published a number of studies showing the great benefits to families of marriage between one man and one woman and the detriments associated with divorce, cohabitation, and same-sex unions, particularly when children are involved. API has consistently cautioned against the gradual shift 3 1140460 The circumstances giving rise to this action are the result of decisions and orders recently issued by the United States District Court for the Southern District of Alabama ("the federal district court") in Searcy v. Strange, [Civil Action No. 14-0208-CG-N, Jan. 23, 2015] ___ F. Supp. 3d ___ (S.D. Ala. 2015) ("Searcy I"), and Strawser v. Strange (Civil Action No. 14-0424-CG-C, Jan. 26, 2015) and a subsequent order by that court, in each of those cases, refusing to extend a stay of its initial order pending an appeal. In its initial decision in Searcy I, the federal district court issued a "Memorandum Opinion and Order" in which that toward sanctioning same-sex marriage on this basis. API was a leading proponent of both the ... Act, passed in 1998, and the ... Amendment, which was approved by 81% of Alabama voters in 2006." The petition notes that ACAP "is a non-profit 501(c)(4) organization with thousands of constituents throughout Alabama, which exists to promote pro-life, pro-family and pro-moral issues in [Alabama]. In addition to lobbying the Alabama Legislature on behalf of churches and individuals who desire a family-friendly environment in Alabama, [ACAP] provides a communication link between Alabama legislators and their constituents. After passage of the ... Act, [ACAP] vigorously promoted passage of the ... Amendment to both legislators and citizens, making [ACAP] instrumental in the resulting 81% vote approving the ... Amendment in 2006." 4 1140460 court came to the conclusion that the "prohibition and non-recognition of same-sex marriage" in the Amendment and the Act violate the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Searcy I, the federal district court enjoined Alabama Attorney General Luther Strange -- the only remaining defendant in that action -- from enforcing the Amendment and the Act. On January 26, the federal district court entered a preliminary injunction in Strawser, a case in which a same-sex couple had been denied a marriage license in Mobile. The federal district court, relying on the reasons it provided in Searcy I for the unconstitutionality of the Amendment and the Act, enjoined Attorney General Strange and "all his officers, agents, servants and employees, and others in active concert or participation with any of them" from enforcing "the marriage laws of Alabama which prohibit same-sex marriage." In the wake of the federal district court's orders, Attorney General Strange has refrained from fulfilling what would otherwise have been his customary role of providing advice and guidance to public officials, including probate judges, as to whether or how their duties under the law may 5 1140460 have been altered by the federal district court's decision. Similarly, consistent with the federal district court's order, Attorney General Strange has refrained from taking any other official acts in conflict with those orders. On January 28, 2015, the federal district court issued an "Order Clarifying Judgment" in Searcy I, in which it responded to "statements made to the press by the Alabama Probate Judges Association" that indicated that, "despite [the federal district court's] ruling, [probate judges] must follow Alabama law and cannot issue marriage licenses to same-sex couples." In that order, the federal district court observed that "'[r]easonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney's fees. ... The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk's obligation to follow the law arises from sources other than the preliminary injunction.'" 6 1140460 (Quoting Brenner v. Scott (No. 4:14cv107, Jan. 1, 2015) (N.D. Fla.) (emphasis added).) The federal district court entered stays of the execution of its injunctions in Searcy I and Strawser until February 9, 2015, in order to allow Attorney General Strange to seek a further stay, pending appeal, from the United States Court of Appeals for the Eleventh Circuit. On February 3, 2015, the Eleventh Circuit declined Attorney General Strange's request for a stay. Thereafter, Attorney General Strange sought a stay from the United States Supreme Court. On February 9, 2015, the United States Supreme Court also declined to enter a stay over a strongly worded dissent from Justice Clarence Thomas that was joined by Justice Antonin Scalia. Strange v. Searcy, ___ U.S. ___, 135 S. Ct. 940 (2015). On February 8, 2015, the Chief Justice of this Court entered an administrative order stating that the injunctions issued by the federal district court in Searcy I and Strawser were not binding on any Alabama probate judge and prohibiting any probate judge from issuing or recognizing a marriage license that violates the Amendment or the Act. On February 9, 2015, the stays of the injunctions in Searcy I and Strawser were lifted. It is undisputed that at 7 1140460 that time respondent probate Judges King, Martin, Ragland, and Reed began issuing marriage licenses to same-sex couples in their respective counties. Probate judges in some other counties refused to issue any marriage licenses pending some further clarification concerning their duty under the law. Still other probate judges continued to issue marriage licenses to opposite-sex couples and refused to issue marriage licenses to same-sex couples. Also on February 9, 2015, the plaintiffs in Searcy I filed a motion seeking to hold Mobile Probate Judge Don Davis in contempt for "fail[ing] to comply with [the federal district court's] January 23, 2015 Order." The federal district court denied the motion, stating: "Probate Judge Don Davis is not a party in this case and the Order of January 23, 2015, did not directly order [Judge] Davis to do anything. Judge Davis's obligation to follow the Constitution does not arise from this court's Order. The Clarification Order noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law. However, no such action is before the Court at this time." (Footnote omitted.) On February 10, 2015, the federal court granted the plaintiffs' motion in Strawser to amend their complaint to add three additional same-sex couples as plaintiffs and to add 8 1140460 Judge Davis as a defendant. On February 12, 2015, the federal district court entered an order requiring Judge Davis to issue marriage licenses to each of the four couples named as plaintiffs in that case. As noted, on February 11, 2015, API and ACAP filed their petition. On February 13, 2015, this Court ordered answers and briefs in response to the petition, "as to the issues raised by the petition, including, but not limited to, any issue relating to standing or otherwise relating to this Court's subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition." On February 18, 2015, the named respondent probate judges and Probate Judges Don Davis and John E. Enslen filed their respective responses to the petition. In his response, Judge Davis "moved this ... Court to enter an Order that the Emergency Petition for Writ of Mandamus filed on February 11, 2015, with this Court does not apply to [him] due to changing circumstances that are not reflected in the Mandamus Petition." He states that the petition does not apply to him because he is a defendant, in his official capacity as probate judge, in Strawser, and he has been "enjoined from refusing to issue marriage licenses to 9 1140460 the plaintiffs [in that case] due to the Alabama laws which prohibit same-sex marriage." For his part, Judge Enslen stated in his response that he "has thus far refused to issue same sex marriage licenses." Judge Enslen expressly requested that this Court "by any and all lawful means available to it, protect and defend the sovereign will of the people of the State of Alabama as expressed in the Constitution of the State of Alabama, as amended." We treat Judge Enslen's response as a motion to join this proceeding in the place of one of the "Judge Doe" defendants, and we grant that motion. Also, in light of the fact that the legal positions of API, ACAP, and respondent Judge Enslen are clearly aligned, we hereby modify the record to reflect that alignment. Judge 2 Realignment of the parties in civil actions in Alabama 2 is not uncommon. See, e.g., Richards v. Izzi, 819 So. 2d 25, 28 (Ala. 2001) ("Jefferson County, although originally a defendant, was realigned as a plaintiff."). Realignment is not uncommon, even when the jurisdiction of the court is called into question. Indeed, when cases are removed to federal court based on diversity jurisdiction, federal courts allow post-removal realignment of parties in order to create diversity. See Lott v. Scottsdale Ins. Co., 811 F. Supp. 2d 1220, 1223 (E.D. Va. 2011) (noting that "[t]he first question presented -- whether post-removal party realignment to create diversity is permissible -- is easily answered in the affirmative based on settled authority in this circuit and elsewhere" and providing footnote citing multiple authorities). In this regard, the United States Court of 10 1140460 Enslen has been realigned as an additional relator seeking an order from this Court requiring, among other things, that Alabama probate judges continue to perform their duty in accordance with Alabama law. API, ACAP, and Enslen are hereinafter collectively referred to as "the relators." Appeals for the Eleventh Circuit has observed: "[F]ederal courts are required to realign the parties in an action to reflect their interests in the litigation. The parties themselves cannot confer diversity jurisdiction upon the federal courts by their own designation of plaintiffs and defendants. City of Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 17, 86 L.Ed. 47 (1941). This Court concludes that the converse of this principle -- that parties cannot avoid diversity by their designation of the parties -- is also true. Rather it is the 'duty ... of the lower federal courts[] to look beyond the pleadings and arrange the parties according to their sides in the dispute,' Northbrook Nat'l Ins. Co. v. Brewer, 493 U.S. 6, 16 n.5, 110 S.Ct. 297, 302 n.5, 107 L.Ed.2d 223 (1989) (citations and quotations omitted), as determined by 'the principal purpose of the suit' and 'the primary and controlling matter in dispute,' City of Indianapolis, 314 U.S. at 69, 62 S.Ct. 15." City of Vestavia Hills v. General Fid. Ins. Co., 676 F.3d 1310, 1313-14 (11th Cir. 2012) (emphasis omitted). As the Eleventh Circuit explained, it is a court's duty to align the parties on their proper sides without regard to the effect of the realignment on jurisdiction. By doing so, we merely "'"look beyond the [nomenclature of the] pleadings and arrange the parties according to their sides in the dispute."'" Northbrook Nat'l Ins. Co. v. Brewer, 493 U.S. 6, 16 n.5 (1989) (quoting other cases). 11 1140460 The relators assert that Alabama's probate judges have a ministerial duty to follow Alabama law limiting marriage to a union of one man and one woman. In contrast, the respondents contend that granting the relief the relators request necessarily would require this Court to determine the validity of that law when tested against the United States Constitution because there would be no ministerial duty of the nature asserted if the law is unconstitutional. The ministerial duty of probate judges in Alabama is, of course, a function of Alabama law, which probate judges swear by oath to support, except to the extent that that duty may be altered or overridden by the United States Constitution, to which they likewise swear an oath. Before the federal district court issued its decisions in Searcy I and Strawser, the named respondents and all other probate judges in this State were performing their ministerial duty in accordance with the express provisions of the Act and the Amendment. They did so even though numerous federal courts had already declared other states' laws limiting marriage to opposite-sex couples to be unconstitutional. See, e.g., Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456 (9th 12 1140460 Cir. 2014); and Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014). The respondents stopped following Alabama law, however, following the Searcy I and Strawser decisions. Clearly, the respondents, who were not bound by the federal district court's decision, assumed a new position as to the nature of their duty in accordance with the position taken by the federal district court. Therefore, in order to determine whether the respondents are correct to now treat their ministerial duty as being altered or overridden by the United States Constitution, we must examine the reasoning of the federal district court's decision in Searcy I, which triggered their change of position. Absent our doing so, we cannot resolve the dispute that exists in this adversarial proceeding; we cannot provide the relators the relief that they request and that the respondents oppose. It would not be enough for this Court merely to order that the respondents "follow their ministerial duty." Such an order would beg the question whether they are or are not doing so at the present time, the very question the parties contest. Accordingly, in order to resolve the dispute before us and to discharge the supervisory duties and responsibilities imposed upon this Court by law, we must address that question. 13 1140460 I. The Significance and Meaning of Marriage The family is the fundamental unit of society. Marriage is the foundation of the family. There is no institution in a civilized society in which the public has any greater interest. "The contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society." Joseph Story, Commentaries on the Conflict of Laws Foreign and Domestic § 109 (3d ed. 1846). "[Marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress." Maynard v. Hill, 125 U.S. 190, 211 (1888). It "creat[es] the most important relation in life, ... having more to do with the morals and civilization of a people than any other institution." Id. at 205. "'[Marriage] is not then a contract within the meaning of the clause of the constitution which prohibits the impairing the obligation of contracts. It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.'" 14 1140460 Id. at 211-12 (quoting Adams v. Palmer, 51 Me. 480, 484-85 (1863)). "[M]arriage is a contract sui generis, and the rights, duties, and obligations which arise out of it, are matters of so much importance to the well- being of the State, that they are regulated, not by private contract, but by the public laws of the State, which are imperative on all, who are domiciled within its territory." Story, supra, at § 111. According to one observer, marriage is a "prepolitical" "natural institution" "not created by law," but nonetheless recognized and regulated by law in every culture and, properly understood, an institution that must be preserved as a public institution based on the following rationale: "The family is the fundamental unit of society. ... [F]amilies ... produce something that governments need but, on their own, they could not possibly produce: upright, decent people who make honest law-abiding, public-spirited citizens. And marriage is the indispensable foundation of the family." Robert P. George, Law and Moral Purpose, First Things, Jan. 2008; see also Sherif Girgis, Robert P. George & Ryan T. Anderson, What is Marriage?, 34 Harv. J.L. & Pub. Pol'y 245, 270 (2011) (discussing the bases for laws supporting "conjugal" or "traditional" marriage and noting that 15 1140460 "[m]arriages ... are a matter of urgent public interest, as the record of almost every culture attests -– worth legally recognizing and regulating. Societies rely on families, built on strong marriages, to produce what they need but cannot form on their own: upright, decent people who make for reasonably conscientious, law-abiding citizens. As they mature, children benefit from the love and care of both mother and father, and from the committed and exclusive love of their parents for each other. ... In the absence of a flourishing marriage culture, families often fail to form, or to achieve and maintain stability). Thus it is for the stability and welfare of society, for the general good of the public, that a proper understanding and preservation of the institution of marriage is critical. It is the people themselves, not the government, who must go about the business of working, playing, worshiping, and raising children in whatever society, whatever culture, whatever community is facilitated by the framework of laws that these same people, directly and through their representatives, choose for themselves. It is they, who on a daily basis must interact with their fellow man and live out their lives within that framework, who are the real 16 1140460 stakeholders in that framework and in the preservation and execution of the institutions and laws that form it. There is no institution more fundamental to that framework than that of marriage as properly understood throughout history. In 1885, the United States Supreme Court expressed the axiomatic nature of marriage as follows: "[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Murphy v. Ramsey, 114 U.S. 15, 45 (1885). See, also, Smith v. Smith, 141 Ala. 590, 592, 37 So. 638, 638-39 (1904), describing marriage as "the sacred relation." Even in decisions suggesting that marriage is simply a "civil status," courts have recognized "the fair point that same-sex marriage is unknown to history and tradition." Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012). As the United States Supreme Court acknowledged in United States v. Windsor, ___ U.S. ___, 133 S. Ct. 2675 (2013): 17 1140460 "It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization." ___ U.S. at ___, 133 S.Ct. at 2689 (also noting that "[t]he limitation of lawful marriage to heterosexual couples ... for centuries had been deemed both necessary and fundamental," id.). "It is beyond dispute, as the Court of Appeal majority in this case persuasively indicated, that there is no deeply rooted tradition of same-sex marriage, in the nation or in this state. Precisely the opposite is true. The concept of same-sex marriage was unknown in our distant past, and is novel in our recent history, because the universally understood definition of marriage has been the legal or religious union of a man and a woman." In re Marriage Cases, 43 Cal. 4th 757, 866, 183 P. 3d 384, 460, 76 Cal. Rptr. 3d 683, 773 (2008) (Baxter, J., concurring in part and dissenting in part) (footnote omitted). 3 "For better, for worse, or for more of the 3 same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world." 18 1140460 From its earliest days, Alabama has recognized so-called common-law marriages. See, e.g., Campbell's Adm'r v. Gullatt, 43 Ala. 57, 69 (1869) ("[A] marriage good at the common law, is to be held a valid marriage in this State."). Also from its earliest days, the State has by legislation provided a statutory scheme for the formal licensing and recognition of marriages by the State. H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. 1, § 1 (1823). The present statutorily prescribed scheme for the licensing and solemnization of marriages is found in Chapter 1 of Title 30, Ala. Code 1975. Further, both the caselaw and the statutory law of Alabama incorporate or contemplate the institution of marriage in many areas. The meaning and significance of marriage as an institution, as prescribed or recognized throughout all of these statutes and all of Alabama's decisional laws, reflects DeBoer v. Snyder, 772 F.3d 388, 395-96 (6th Cir. 2014). As Blackstone stated: "[T]he most universal relation in nature" is that between a parent and child, and that relationship proceeds from the first natural relation, that between husband and wife." 1 William Blackstone, Commentaries 446. The "main end and design of marriage" is "to ascertain and fix upon some certain person, to whom the care, protection, the maintenance, and the education of the children should belong." Id. at 455. And those duties are duties of natural law. Id. at *447-50. 19 1140460 the truths described above: that marriage, as a union between one man and one woman, is the fundamental unit of society. As the Alabama Supreme Court stated in 1870: "Archbishop Rutherford, one of the most able and eminent of the commentators on Grotius, has placed marriage among the natural rights of men. He defines it in these words: 'Marriage is a contract between a man and woman, in which, by their mutual consent, each acquires a right in the person of the other, for the purpose of their mutual happiness and for the production and education of children. Little, I suppose, need be said in support of this definition, as nothing is affirmed in it, but what all writers upon natural law seem to agree in.' –- Ruthf. Insts. of Nat. Law, p. 162; 1 Bish. on Mar. and Div. § 3, 29; 2 Kent, 74, 75; 6 Bac. Abr. Bouv. p. 454; 2 Bouv. Law Dict. 12th ed. p. 105. "Mr. Parsons, referring to the same subject, in a late work of the highest authority, uses like language. He declares that 'the relation of marriage is founded on the will of God, and the nature of man; and it is the foundation of all moral improvement, and all true happiness. No legal topic surpasses this in importance; and some of the questions which it suggests are of great difficulty.' –- 2 Pars. on Contr. p. 74." Goodrich v. Goodrich, 44 Ala. 670, 672-75 (1870). II. This Court's Authority And Responsibility To Act A. This Court Has Subject-Matter Jurisdiction As discussed, the federal district court's order in Searcy I enjoined Attorney General Strange from enforcing the Amendment and the Act, thus effectively preventing the Attorney General from giving much needed advice to Alabama's 20 1140460 probate judges as to their legal duties under the law. The federal district court's order in Strawser specifically relied upon the legal reasoning set out in Searcy I. Neither order specifically discusses or analyzes the remainder of Chapter 1 of Title 30. Neither order analyzes the import of its approach to the term "marriage" for such related terms as "husband," "wife," "spouse," "father," and "mother" so entrenched in much of the caselaw and other statutory law of this State. See discussion infra. The probate judges of this State, in both their judicial and ministerial capacities, continue to be bound by that caselaw and by those statutes. Furthermore, 67 of this State's 68 probate judges are not the subject of any restraint by the federal district court, including as to the interpretation and application of the Act and the Amendment. Yet there is the federal district court decision. And, in the wake of that decision, the refusal of the federal district court to stay that decision and the unavailability of the Attorney General as a source of guidance, uncertainty has become the order of the day. Confusion reigns. Many judges, including the respondents, are issuing marriage licenses to both same-sex couples and opposite-sex couples. Others are 21 1140460 issuing no marriage licenses at all. Still others, like relator Judge Enslen, are issuing marriage licenses only to opposite-sex couples. There is no order or uniformity of practice. But the problems that lie before us are not limited to the confusion and disarray in the ministerial act of licensing marriages. If the same-sex marriage licenses being issued by respondents and other probate judges are given effect by those judges and their colleagues in other circuits throughout the State, this will work an expansive and overnight revolution in countless areas of caselaw and statutory law that incorporate or contemplate the traditional definition of marriage. To name but a few examples, there is caselaw and/or statutory law that presumes, accommodates, or contemplates man-woman marriage in such wide-ranging areas as the laws of inheritance and the distribution of estates, the administration of estates, postmarital support, custodial and other parental rights as to children, adoption of children, dissolution of 4 The history of the Searcy litigation appears to be yet 4 another manifestation of the confusion that has been generated by this matter. According to the complaint in Searcy I, the plaintiffs, C.D.S. and K.M., a same-sex couple, had been married in California, and K.S. was K.M.'s biological son. In December 2011, C.D.S. filed a petition in the Mobile Probate Court seeking to adopt K.S. under a provision of Alabama's 22 1140460 marriages, testimonial privileges in both the civil and criminal law, certain defenses in the criminal law, interests in land, the conveyance and recording of such interests, compensation for the loss of consortium, and the right to statutory or contractual benefits of many types. Indeed, most adoption code that allows a person to adopt a "spouse's child." § 26-10A-27, Ala. Code 1975. In April 2012, the Mobile Probate Court, acting through Judge Don Davis, entered a final judgment denying C.D.S.'s petition for adoption as a matter of law based on the Amendment and the Act. C.D.S. appealed, and the Court of Civil Appeals affirmed the April 2012 judgment. See In re K.R.S., 109 So. 3d 176 (Ala. Civ. App. 2012). C.D.S. did not seek further appellate relief. In May 2014, C.D.S. and K.M. filed their complaint in Searcy I; the defendants included Attorney General Strange and Mobile Probate Judge Davis, among others. The complaint sought an order requiring, among other things, that the defendants grant the adoption of K.S. by C.D.S. The claims against Judge Davis were subsequently dismissed with prejudice. It is unclear to this Court whether the claims against Judge Davis were dismissed because he would function as a court of law, rather than as an executive minister of the law, in relation to any petition within the state judicial system seeking an adoption. (Alternatively, it is unclear whether the claims against Judge Davis were dismissed because the final judgment he entered in April 2012, based as it was on a matter of law, represented a res judicata bar to the relief being sought in the federal court in Searcy I.) By the same token, it is unclear on what basis a "case or controversy" existed between the plaintiffs in Searcy I and the Attorney General given the Attorney General's lack of authority to affect the actions of the court of law responsible for adjudicating adoption cases. See also note 16, infra. 23 1140460 of the matters falling within the jurisdiction of the probate courts involve rights that are affected by marital status because of the rights of a spouse or legal preferences given to a spouse or parent. Section 12-13-1, Ala. Code 1975, states, in part: "(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. "(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." Without a clear understanding as to whether a marriage exists, how is a probate court to know whether a same-sex 24 1140460 partner must be served with process as a surviving spouse for purposes of a petition to probate a deceased partner's will; how is the probate court to know whether a same-sex partner has a priority right, as a surviving spouse, to appointment as administrator of a deceased partner's estate; how is the probate court to know whether a deceased partner has the right of a surviving spouse to an intestate share of the estate, or to homestead allowance, to exempt property, to family allowance, or to other rights of a surviving spouse; and how is the probate court to determine priority rights as to the appointment of guardians and conservators? And the problems will not be confined to probate courts. Circuit courts must assess marital status in regard to whether to grant a petition for a legal separation or a divorce and in making property divisions and alimony awards. And marital status is part of our law concerning the legitimation of children and paternity, including presumptions as to married persons to whom a child is born, a matter that affects both circuit courts and juvenile courts. Likewise, circuit courts will be confronted with claims of loss of consortium and wrongful-death claims brought on behalf of the heirs of decedents, and all trial courts will have to assess the 25 1140460 applicability of evidentiary privileges belonging to a spouse. The Governor of Alabama recently highlighted in an amicus brief to the United States Court of Appeals for the Eleventh Circuit (filed in support of Attorney General Strange's request for a stay of the order in Searcy I) some of the laws and practices that potentially would be affected by a redefinition of marriage: "[A]ll of the statutes governing marital and domestic relations, Ala. Code Title 30, and the judicial decisions interpreting them; the presumption of paternity, Ala. Code § 26-17-204, and other rules for establishment of the parent-child relationship, Ala. Code § 26-17-201; laws governing consent to adopt, Ala. Code § 26-10A-7(3), and all other laws governing adoption, Ala. Code Title 26, Chapter 10A; termination of parental rights, Ala. Code § 12-15-319; all laws that presuppose different people occupying the positions of 'father,' 'mother,' 'husband,' and 'wife,' e.g., Ala. Code § 40-7-17; laws governing intestate distribution, the spousal share, Ala. Code § 43-8-41, and the share of pretermitted children, Ala. Code § 43-8-91; legal protections for non-marital children, Ala. Code § 26-17-202; registration of births, Ala. Code § 22-9A-7, J.M.V. v. J.K.H., 149 So. 3d 1100 (Ala. Civ. App. 2014); conflict-of-interest rules and other ethical standards prohibiting marital relations, Ala. Code § 45-28-70(f)(1), Cooner v. Alabama State, 59 So. 3d 29 (Ala. 2010); and laws presupposing biological kin relations, Ala. Code § 38-12-2. "This does not include laws governing forms issued by the State that identify mothers, fathers, husband, or wife; tax laws; education curricula; accreditation standards for educational 26 1140460 institutions; licensing standards for professions; public accommodations rules; religious liberty protections; health care regulations; and many other areas of law. What are children to be taught in Alabama's schools about the nature of marriage? How will it be defined in textbooks and other instructional materials? Will all private schools, colleges, and universities be required to go along with the new definition, whatever it is? Will there be moral or religious exemptions for those who perceive inherent differences between marital unions and non-marital unions?" Every day, more and more purported "marriage licenses" are being issued to same-sex couples by some of the probate judges in this State. Every day, the recipients of those licenses and others with whom they interact may be, and presumably are, relying upon the validity of those licenses in their personal and business affairs. Every probate judge in this State, regardless of his or her own stance on the issuance of such licenses, will soon enough be faced, in his or her judicial capacity, with a universe of novel derivative questions unprecedented in their multiplicity, scope, and urgency. The circuit courts of this State will confront a similar experience. The probate judges of this State are members of the judicial branch of government. Accepting the position suggested by all relators and respondents, that insofar as their execution of the authority to issue marriage licenses 27 1140460 they function not as courts of inferior jurisdiction, but as executive ministers of the law, the fact remains that each probate judge in this State also functions as a "court of inferior jurisdiction" with responsibility to administer the law in many types of cases. Their ability to do so with any semblance of order and uniformity, with due regard for the lives their decisions impact, and with respect for the law and the constitutions of this State and of the United States, which they have sworn an oath to uphold, is in peril. Indeed, given the disparate views of the law held among these judges, and no doubt the circuit judges as well, we see no way for there to be uniform and even-handed application of the law among the circuits of this State unless and until this Court speaks. Section 140(b), Ala. Const. 1901, states that this Court "shall have original jurisdiction ... to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction." Section 12-2-7(3), Ala. Code 1975, echoes § 140, stating that "[t]he Supreme Court shall have authority ... [t]o issue writs of injunction, habeas corpus, and such other remedial and original writs as are necessary to give to it a general 28 1140460 superintendence and control of courts of inferior jurisdiction." A separate provision of § 12-2-7, subsection (2), provides the following jurisdiction to the Supreme Court: "To exercise original jurisdiction in the issue and determination of writs of quo warranto and mandamus in relation to matters in which no other court has jurisdiction." Alabama is not alone in its adoption of provisions such as those cited above. "Constitutional or statutory provisions expressly granting to various courts superintending control over inferior tribunals are common, although not universal, in the states of this country." P.V. Smith, Annotation, Superintending Control Over Inferior Tribunals, 112 A.L.R. 1351, 1352 (1938). The language used by most states in granting courts this power is very similar to the language found in Alabama's Constitution. Generally, concerning the origin of the superintending control over inferior tribunals, Smith states: "The following conclusion was drawn by the annotator in 51 L.R.A. 33, loc. cit. p. 111: 'The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, 29 1140460 being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. And, if required, the tribunals having authority to exercise it will, by virtue of it, possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted.'" 112 A.L.R. at 1356 (emphasis added). Further, "[i]n Kelly v. Kemp (1917) 63 Okla. 103, 162 P. 1079, in regard to the constitutional provision vesting the Supreme Court with a general superintending control over inferior tribunals, the court said: 'This provision placed the Supreme Court in practically the same position with reference to the inferior courts of the State, as that occupied by the court of King's Bench to the inferior courts of England under the common law, which court, as stated by Blackstone, was vested with power to keep all inferior courts within the bounds of their authority and, to do this, could remove their proceedings to be determined by it, or prohibit their progress below (3 Bl. Com. 42), and that court was also possessed of authority to enforce in inferior tribunals the due exercise of those judicial or ministerial powers which had been vested in them, by restraining their excesses and quickening their negligence and obviating their denial of justice (2 Bl. Com. 111).'" 112 A.L.R. at 1356-57 (emphasis added). "The power of superintending control is not limited by forms of procedure or by the writ used for its exercise." 112 A.L.R. at 1357. "Accordingly, in State v. Long (1911) 129 La. 777, 56 So. 884, where it was argued as to the conditions under which writs of certiorari, mandamus, and prohibition might issue, the Supreme Court said 30 1140460 that, in the exercise of its supervisory powers, it was not tied down by the provisions of the Code of Practice regarding such writs. "And in Thomas v. Doughty (1927) 163 La. 213, 111 So. 681, the Supreme Court said: 'This court, in the exercise of its general supervision and control over inferior courts, is not tied down by forms of procedure, and will look at the substance of the right sought to be vindicated and the need for speedy relief, rather than to the form in which such relief is sought.' "In Dinsmore v. Manchester (1911) 76 N.H. 187, 81 A. 533, in answer to an objection to the scope of review by the Supreme Court on certiorari under its statutory general superintendence of all inferior tribunals, the court said that it was unimportant that the proceeding was called 'certiorari,' and that 'the superintending power of the court over inferior tribunals does not depend upon, and is not limited by, technical accuracy of designation in legal forms of action.' "And in Lowe v. District Ct. (1921) 48 N.D. 1, 181 N.W. 92, the Supreme Court said that the nature and extent of its superintending control are 'not reflected by the name of the writ that has been used for its exercise.'" 112 A.L.R. at 1357-58 (emphasis added). See also Thompson v. Lea, 28 Ala. 453, 463 (1856) (Rice, C.J.) (noting that this Court's appellate jurisdiction and its superintending control over inferior tribunals are "distinct things, and must not be confounded" and stating that "'[a] general superintendence and control of inferior jurisdictions' is, by the constitution, granted to this court unconditionally. 'Appellate 31 1140460 jurisdiction' is, by the very terms of the grant, subjected to 'such restrictions and regulations, not repugnant to this constitution, as may, from time to time, be prescribed by law.'" (emphasis added)). "The generally accepted view is that a court will exercise its superintending control over inferior tribunals only in extreme cases and under unusual circumstances." Smith, 112 A.L.R. at 1373. This sentiment is consistent with our Court's precedent. In Ex parte Alabama Textile Products Corp., 242 Ala. 609, 613, 7 So. 2d 303, 306 (1942), this Court exercised jurisdiction over an original action on the ground that the Montgomery Circuit Court could not provide the complete relief necessary, observing that "the higher court will not take jurisdiction where the application can be made to a lower court, unless for special reasons complete justice cannot otherwise be done, as where the case is of more than ordinary magnitude and importance to prevent a denial of justice or where no application can be made to the lower court in time to prevent the consummation of the alleged wrong." See also Roe v. Mobile Cnty. Appointment Bd., 676 So. 2d 1206 (Ala. 1995), overruled on other grounds by Williamson v. Indianapolis Life Ins. Co., 741 So. 2d 1057 (1999), in which this Court relied upon the unified nature of our court system and the supervisory authority granted to it under what is now 32 1140460 § 140 of our constitution to "reach down" and "pull up" to it the record in a still pending lower court proceeding in order to create a framework for its assessment of a related matter. The respondents' briefs focus on Alabama Textile and make three arguments as to why the holding in that case does not support jurisdiction in this Court over the present matter. First, the respondents argue that Alabama Textile involved a petition for a writ of certiorari rather than a petition for a writ of mandamus. The respondents give no explanation, and cite no authority, as to how or why this makes a difference. We cannot see that it does. Second, the respondents argue that the Court in Alabama Textile determined that it should exercise jurisdiction "because all parties consented to the jurisdiction of the Supreme Court." This assertion is incorrect. Parties cannot vest this Court with jurisdiction by agreeing that it has jurisdiction. 242 Ala. at 612, 7 So. 2d at 305 ("[T]his Court can only act within the jurisdiction conferred by law, and this cannot be enlarged by waiver or the consent of the parties."). And the parties did not do so in Alabama Textile. What they did agree to do was to waive the necessity of a writ of certiorari calling up the case for review. But the issue 33 1140460 of a formal writ of certiorari is irrelevant here because the present case comes to us as a petition for a writ of mandamus or similar relief. The case therefore is already before us without the necessity of our calling it up from some lower court. 5 The third and final argument of the respondents -- which they refer to as their "most important[] argument" -- is as follows: The holding of Alabama Textile has been recognized in subsequent cases, but only as dicta. The fact that Alabama Textile, itself, held as it did, however, is in itself sufficient precedent for the action taken by this Court today. In any event, one would expect that extraordinary circumstances justifying this Court's action, rather than action by a circuit court, would be rare. In addition, as the respondents themselves note, the principle recognized by this Court in Alabama Textile has in fact been reiterated by this Court on several occasions, including in this Court's decision The opinion in Alabama Textile did note that the parties 5 agreed that it was necessary to complete relief that the Court act, but as discussed below, that agreement was considered by the Court only in making the discretionary determination delegated by law to the Court with respect to whether action by it was necessary to provide the relief needed. Ultimately, and most importantly as to this point, the Court was quite clear in its conclusion that such consent is neither necessary nor sufficient to such a determination. 34 1140460 in Ex parte Tubbs, 585 So. 2d 1301, 1302 (Ala. 1991). See also Denson v. Board of Trustees of the University of Alabama, 247 Ala. 257, 258, 23 So. 2d 714, 715 (1945), and Ex parte Barger, 243 Ala. 627, 628, 11 So. 2d 359, 360 (1942). An additional argument that might have been, but was not, made by the respondents is that the probate court, in exercising its authority to issue marriage licenses, acts not as a "court" or a "court of inferior jurisdiction" in relation to this Court, but as an executive minister. API and ACAP themselves cite authority for the proposition that "'[t]he issuance of a marriage license by a judge of probate is a ministerial and not a judicial act.'" (Quoting Ashley v. State, 109 Ala. 48, 49, 19 So. 917, 918 (1896).) There are several problems with attempting to conclude that this Court lacks jurisdiction on the basis of such a purported distinction in Alabama Textile. First, the respondent in Alabama Textile was not a "court" either. It was the Alabama Department of Industrial Relations, an agency of the executive branch of government. Although its internal procedures for decision-making might have been quasi-judicial in nature, its eventual action or inaction was that of an executive agency, not a court. 35 1140460 It would further appear that the exact nature of the party before the Court in Alabama Textile was of no moment to the Court, and would have been of no moment even if examined more closely, given the provisions of § 12-2-7(2). As noted, that section states simply that the Supreme Court "shall have authority ... [t]o exercise original jurisdiction in the issue and determination of writs of quo warranto and mandamus in relation to matters in which no other court has jurisdiction." The text refers not to writs directed to lower "courts" but to "matters in which no ... court" (other than the Supreme Court) would have jurisdiction. In addition, of course, there is the fact that the writ of quo warranto authorized thereby is not a writ issued only to courts acting as courts, but is in the normal course a writ issued to individuals purporting to hold (or exercise the authority of) offices of all sorts in all three branches of government. In fact, this Court recently exercised its original jurisdiction under § 12-2-7(2) to issue a writ of mandamus to a probate judge in his administrative capacity where no circuit court had the ability to do so. 6 In Ex parte Jim Walter Resources, Inc., 91 So. 3d 50 6 (Ala. 2012), the Court considered the question whether it had original jurisdiction over an original petition filed in this Court seeking a writ of mandamus to direct a probate judge to record a mortgage document. The Tuscaloosa County Probate 36 1140460 It is clear that no other court in this State has the jurisdiction to provide the relief necessary in this most unusual of cases. There is a need for immediate, uniform relief among all the probate judges of this State, and no circuit court has jurisdiction over any probate judge outside its territorial jurisdiction. See Brogden v. Employees' Ret. Sys., 336 So. 2d 1376 (Ala. Civ. App. 1976) (explaining that the Constitution authorized the Legislature to divide the state into judicial circuits with geographical or territorial boundaries, that within such boundaries each circuit court exercises the authority granted it exclusive of other circuit courts, and therefore the statutory grant to a circuit court of supervisory power over inferior jurisdictions could be applied only to such inferior judicial bodies that sat or acted within the territorial limits of the circuit), cert. Court had refused to record the mortgage documents filed by Jim Walters Resources ("JWR") unless a recordation tax was first paid. See § 40-22-2, Ala. Code 1975. We explained that "imposing the recordation tax on a mortgage recorded in a county is part of the administrative duties of the probate judge of the county and, as such, is a ministerial function," and that "[a] writ of mandamus will lie to compel a court to perform ministerial duties." Jim Walter, 91 So. 3d at 53. Further, we explained our ability to exercise our original jurisdiction over the petition filed with us by explaining that a circuit court's appellate jurisdiction over probate matters is limited under § 12-22-21, Ala. Code 1975, and did not include the taxing issue involved in that case. Id. 37 1140460 denied sub nom., Ex parte State ex rel. Baxley, 336 So. 2d 1381 (1976). Alabama Textile offers a helpful framework for assessing the necessity of action by this Court under § 12-2-7(2) in this case: "The necessity is not wholly dependent upon whether some court inferior to this has the legal power by certiorari to review the order in question. See Ex parte Boynton, 44 Ala. 261 [(1870)]. But the rule observed elsewhere with a similar provision of the constitution seems to be that the higher court will not take jurisdiction where the application can be made to a lower court, unless for special reasons complete justice cannot otherwise be done, as where the case is of more than ordinary magnitude and importance to prevent a denial of justice or where no application can be made to the lower court in time to prevent the consummation of the alleged wrong. 14 Corpus Juris Secundum, Certiorari, p. 204, § 57. That authority cites Halliday v. Jacksonville [& Alligator] Plank Road Co., 6 Fla. 304 [(1855)]. The report of that case quotes the constitution of Florida in identical language as our section 140, supra, as here material, and observes: 'It is not doubted, but that under the latitude given by the said proviso, a writ of certiorari will lie from this Court to any of the inferior jurisdictions, whenever an appropriate case may be presented, or it shall become necessary for the attainment of justice.' [6 Fla. at 304.] "We do not think that the requirement of the Constitution that we shall issue such writs only when necessary to give us a general superintendence fixes an iron-clad rule that we cannot do so when another court inferior in grade to us has a like power. 38 1140460 "While we hold that the Circuit Court of Montgomery County may review by appropriate remedial writs the boards and commissions of the State sitting in Montgomery, we also think that this Court may do so when in our judgment it is necessary to afford full relief and do complete justice. An exercise of such discretion will receive more favorable consideration when the interested parties appear and virtually agree that there is such necessity by submitting the cause without making the objection that there is an absence of it. We have the right to determine whether a necessity exists, influenced by the magnitude and importance of the question involved, and the convenience of the parties in presenting it, rather than in first going to the Circuit Court of the county where the board sits. "On account of the importance of the question here involved, its state-wide application, the need of an early decision, the territorially restricted jurisdiction of the circuit court and the consent of the parties, we have concluded in the exercise of our power and discretion to give consideration to the merits of the question and make decision of it." 242 Ala. at 613-14, 7 So. 2d at 306 (emphasis added). The "magnitude and importance" of the issue before us is unparalleled. And the "special reasons" that compel us to act are unlike any other in the history of our jurisprudence. Given the textual grant of authority described above, the sui generis nature of this matter, the unprecedented existing and potential confusion and disarray among the probate and other judges of this State, the multiplicity and magnitude of the substantive issues presented, the resulting need for an 39 1140460 immediate resolution of this matter, the unavailability in any other court of the immediate statewide relief that is needed, and this Court's ultimate responsibility for the orderly administration of justice in this State, we are clear to the conclusion that this Court has the authority to act in this matter to maintain and restore order in the administration of our laws by the probate judges and the courts of this State. B. This Proceeding Is Between Adverse Parties with Standing The respondents argue that the relators lack "standing" to bring this action because, they say, the relators have no private interest or private right in the performance by Alabama's probate judges of their duty to issue marriage licenses only in accordance with Alabama law. The respondents fail to allow for the fact, however, that the present petition is filed in the name of the State for the purpose of securing performance by public officials of a duty owed to the public, not in the name of a private party to enforce a private right or duty. The rule of public-interest standing, sometimes referred to as the public-interest exception, has been widely and long- recognized. Consistent with this principle, this Court has 40 1140460 stated that a relator has standing to bring a petition for mandamus or comparable relief, in the name of the State, seeking to uphold a State statute and to secure performance by respondents of a duty owed to the public. "It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public ...." Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 213, 54 So. 2d 442, 447 (1951); see also Morrison v. Morris, 273 Ala. 390, 392, 141 So. 2d 169, 170 (1962) (same); Homan v. State ex rel. Smith, 265 Ala. 17, 19, 89 So. 2d 184, 186 (1956) (same). Indeed, this has been well settled in Alabama for over 100 years: "There is no doubt that, where the writ is sued out to require the performance of a definite duty to the public, the proceeding must proceed in the name of the state as plaintiff." Bryce v. Burke, 172 Ala. 219, 230, 55 So. 635, 638 (1911) (opinion on rehearing). This Court did not fundamentally change the law of standing in Alabama in 2003 when it adopted the federal formulation of the general standing rule focusing on injury. See Alabama Alcoholic Beverage Control Bd. v. Henri–Duval 41 1140460 Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003). Rather, the Court "effectively restated the standard ... using language adopted from the Supreme Court of the United States." Town of Cedar Bluff v. Citizens Caring for Children, 904 So. 2d 1253, 1256 (Ala. 2004) (emphasis added). The Cedar Bluff Court explained the development as follows: "In Jones v. Black, 48 Ala. 540 (1872), this Court first articulated a test for determining whether a party has the necessary standing to challenge the constitutionality of an act of the Legislature. We stated then: "'A party who seeks to have an act of the legislature declared unconstitutional, must not only show that he is, or will be injured by it, but he must also show how and in what respect he is or will be injured and prejudiced by it. Injury will not be presumed; it must be shown.' "48 Ala. at 543. In Alabama Alcoholic Beverage Control Board v. Henri–Duval Winery, LLC, 890 So. 2d 70, 74 (Ala. 2003), a party challenged the constitutionality of Alabama's Native Farm Winery Act, § 28–6–1 et seq., Ala. Code 1975. In that case, this Court effectively restated the standard articulated in Jones, using language adopted from the Supreme Court of the United States: "'A party establishes standing to bring a challenge [on constitutional grounds] when it demonstrates the existence of (1) an actual, concrete and particularized "injury in fact" -- "an invasion of a legally protected interest"; (2) a "causal connection between the injury and the conduct complained of"; and (3) a likelihood that the injury will be 42 1140460 "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).'" 904 So. 2d at 1256-57 (emphasis omitted). 7 By comparing this Court’s own standing formulation from Jones v. Black, 48 Ala. 540 (1872) (focusing on injury), with the adopted, three-pronged formulation from Lujan v. Defenders Rarely, if ever, could a party attempt to bring a viable 7 public-interest action in the name of the state for the purpose of challenging the state's laws, because the state normally would have no interest in such an action. Thus, public-interest standing generally is limited to cases in which a relator seeks on behalf of the state to secure the enforcement of the state's laws. See discussion of cases below. Where a party seeks to halt enforcement of a duty otherwise owed to the public, as is common in an action seeking to invalidate a state statute, he or she generally must be able to show a private interest to be vindicated. See, e.g., Town of Cedar Bluff v. Citizens Caring for Children, 904 So. 2d at 1256 (action seeking to invalidate a state statute) (noting that "[i]n Jones v. Black, 48 Ala. 540 (1872), this Court first articulated a test for determining whether a party has the necessary standing," and explaining that "'[a] party who seeks to have an act of the legislature declared unconstitutional, must ... show that he is, or will be injured by it'" (quoting Jones, 48 Ala. at 543)); Alabama Alcoholic Beverage Control Board v. Henri–Duval Winery, L.L.C., 890 So. 2d at 74 (stating that "[a] party establishes standing to bring a challenge" to a state statute when it demonstrates the Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992), elements). Compare, e.g., State ex rel. Highsmith v. Brown Serv. Funeral Co., 236 Ala. 249, 251, 182 So. 18, 19 (1938) (allowing the suit to go forward on other grounds, but agreeing with the defendants' general assertion that "relator shows no interest in the controversy, and that one without interest cannot attack an act of the Legislature because it is unconstitutional, which is the attack here made"). 43 1140460 of Wildlife, 504 U.S. 555 (1992) (focusing on injury), the Cedar Bluff Court showed that this was no seismic shift in Alabama standing law. The Court simply used the federal formulation to state its own entrenched standing law more precisely. See Ex parte King, 50 So. 3d 1056, 1059 (Ala. 2010) ("[I]n 2003 this Court adopted the ... more precise[] rule regarding standing based upon the test used by the Supreme Court of the United States."); Muhammad v. Ford, 986 So. 2d 1158, 1162 (Ala. 2007) ("In [Henri–Duval], this Court adopted a more precise rule regarding standing articulated by the United States Supreme Court."). What this Court did not do in Henri-Duval in 2003, and has not done since, is overrule those cases recognizing the equally entrenched standing rule applicable in mandamus cases seeking to compel performance of a public duty. To be sure, the rule is known in the modern law of other states under such labels as the "public-standing exception," the "public- standing doctrine," and "public-interest standing," etc. For example, the Indiana Supreme Court in 2003 concluded, after surveying the laws of numerous accordant states: "The public standing doctrine, which applies in cases where public rather than private rights are at issue and in cases which involve 44 1140460 the enforcement of a public rather than a private right, continues to be a viable exception to the general standing requirement." State ex rel. Cittadine v. Indiana Dep't of Transp., 790 N.E.2d 978, 983 (Ind. 2003) (emphasis added). In affirming the viability of the rule, the court explained: "Under our general rule of standing, only those persons who have a personal stake in the outcome of the litigation and who show that they have suffered or were in immediate danger of suffering a direct injury as a result of the complained-of conduct will be found to have standing. Absent this showing, complainants may not invoke the jurisdiction of the court. It is generally insufficient that a plaintiff merely has a general interest common to all members of the public. "[Relator] seeks to avoid this general rule by invoking the public standing exception. He does not contend that he has suffered a specific injury, but argues that, because the object of the mandate is to procure the enforcement of a public duty, he has standing under Indiana's public standing doctrine. As we recently noted in Schloss [v. City of Indianapolis, 553 N.E.2d 1204 (Ind. 1990)]: "'Indiana cases recognize certain situations in which public rather than private rights are at issue and hold that the usual standards for establishing standing need not be met. This Court held in those cases that when a case involves enforcement of a public rather than a private right the plaintiff need not have a special interest in the matter nor be a public official.' "Schloss, 553 N.E.2d at 1206 n. 3 (quoting Higgins, 476 N.E.2d at 101). Specifically, the public standing doctrine eliminates the requirement that 45 1140460 the relator have an interest in the outcome of the litigation different from that of the general public. "The public standing doctrine has been recognized in Indiana case law for more than one hundred and fifty years." 790 N.E.2d at 979-80 (emphasis added; some citations omitted). More recently, the historical yet still vital "public- interest standing" was invoked in a 2013 New York mandamus proceeding: "However, in matters of great public interest, a citizen may maintain a mandamus proceeding to compel a public officer to do his or her duty. The office which the citizen performs is merely one of instituting a proceeding for the general benefit, the only interest necessary is that of the people at large. One who is a citizen, resident and taxpayer has standing to bring an Article 78 proceeding for the performance by officials of their mandatory duties, even without a personal grievance or a personal interest in the outcome. The public interest standing of a citizen has been extended to corporations as well as other organizations. "In fact, as far back as the Nineteenth Century, the Court of Appeals held, the writ of mandamus may, in a proper case, and in the absence of an adequate remedy by action, issue ... on the relation of one, who, in common with all other citizens, is interested in having some act done, of a general public nature, devolving as a duty upon a public officer or body, who refuse to perform it." Marone v. Nassau Cnty., 967 N.Y.S.2d 583, 589, 39 Misc. 3d 1034, 1040-41 (Sup. Ct. 2013) (expressing a limitation of the 46 1140460 doctrine to "matters of great public interest" (internal quotation marks and citations omitted; emphasis added). Still more recently, the California Court of Appeal affirmed the vitality of the "public-interest exception": "It is true that ordinarily the writ of mandate will be issued only to persons who are beneficially interested. Yet, in [1945, the California Supreme Court] recognized an exception to the general rule where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced. The exception promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right. It has often been invoked by California courts." Hector F. v. El Centro Elementary Sch. Dist., 173 Cal. Rptr. 3d 413, 418, 227 Cal. App. 4th Supp. 331, 338 (2014) (emphasis added; internal quotation marks and citations omitted). The same rule is found in states throughout the nation. See, e.g., Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657, 660, 755 S.E.2d 683, 687 (2014) ("'Where the question is one of [a] public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown [to petition for mandamus], but it shall be sufficient that a plaintiff is interested in having the laws 47 1140460 executed and the duty in question enforced.'" (quoting Ga. Code Ann. § 9–6–24 (West 2014) (emphasis added)); Protect MI Constitution v. Secretary of State, 297 Mich. App. 553, 566- 67, 824 N.W.2d 299, 306 (2012), rev'd on other grounds, 492 Mich. 860, 819 N.W.2d 428 (2012); Progress Ohio.org, Inc. v. JobsOhio, 973 N.E.2d 307, 313 (Ohio Ct. App. 2012); State ex rel. Kansas City Power & Light Co. v. McBeth, 322 S.W.3d 525, 531 (Mo. 2010) ("[W]here the duty sought to be enforced is a simple, definite ministerial duty imposed by law, the threshold for standing is extremely low."); Anzalone v. Administrative Office of Trial Court, 457 Mass. 647, 653-54, 932 N.E.2d 774, 781 (2010); Stumes v. Bloomberg, 551 N.W.2d 590, 592 (S.D. 1996); State ex rel. Clark v. Johnson, 120 N.M. 562, 568-69, 904 P.2d 11, 17-18 (1995); Rogers v. Hechler, 176 W. Va. 713, 348 S.E.2d 299 (1986); Wells v. Purcell, 267 Ark. 456, 461, 592 S.W.2d 100, 103 (1979) ("The rule is well settled, that when ... the proceedings are for the enforcement of a duty affecting not a private right, but a public one, common to the whole community, it is not necessary that the relator should have a special interest in the matter." (emphasis added)); and Florida Indus. Comm'n v. State ex rel. Orange State Oil Co., 155 Fla. 772, 775, 21 So. 2d 599, 600-01 48 1140460 (1945) ("We also said in that case that where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, it being sufficient that he is interested as a citizen in having the law executed and the duty in question enforced." (emphasis added)). 8 Alabama's public-standing rule, as articulated in Kendrick, contemplates an action in the name of the State, See also State ex rel. Bronster v. Yoshina, 84 Haw. 179, 8 185, 932 P.2d 316, 322 (1997) ("[S]tanding barriers should not serve to bar cases of public interest under our jurisdiction. More specifically, 'federal justiciability standards are inapplicable in state court declaratory judgment actions involving matters of great public importance.'" (citation omitted)); State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. 1992) ("The threshold requirement for standing is extremely low where mandamus is brought to enforce a nondiscretionary duty allegedly required of a public official. ... Even a private citizen was held to have 'the sesame which unlocks the gates of mandatory authority whenever an officer whose functions are purely ministerial refuses to perform his office.'" (citation omitted)); and State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 363, 524 P.2d 975, 979 (1974) ("[I]t has been clearly and firmly established that even though a private party may not have standing to invoke the power of this Court to resolve constitutional questions and enforce constitutional compliance, this Court, in its discretion, may grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance." (emphasis added)). 49 1140460 which obviously has standing in its own right. Like the authorities from other states cited above, it respects the injury-in-fact requirement for general standing when a plaintiff seeks in his own name to vindicate his or her private right, while equally respecting the alternative rule (or exception) for cases brought in the name of the State to vindicate the public interest in the enforcement of duties owed to the public rather than to an individual. Several Alabama cases illustrate this fidelity. First, in Rodgers v. Meredith, 274 Ala. 179, 146 So. 2d 308 (1962), a clerk of the circuit court petitioned, in his own name, for a writ of mandamus to compel the county sheriff to perform his statutory duty to file written reports with the clerk regarding the prisoners entering and leaving the county jail. The Court held that compliance with the statute was mandatory for the sheriff. 274 Ala. at 185-86, 146 So. 2d at 314. But the Court also held that the circuit clerk did not have standing to seek mandamus to compel the sheriff’s performance because the statute conferred no private right on the clerk. 274 Ala. at 186, 146 So. 2d at 314. In so holding, the Court distinguished the private standing on which 50 1140460 the clerk relied in error from the public standing on which the clerk could have relied: "We hold that the duty here placed on the sheriff by [the reporting statute] is a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely. Under the settled rule, petition for mandamus to compel a public officer to perform such duty is properly brought in the name of the state on the relation of one or more persons interested in the performance of that duty. The instant petition was not so brought." 274 Ala. at 186, 146 So. 2d at 314-15 (emphasis added). In other words, because the duty involved was owed to the public, the clerk did not have a private interest in the 9 matter, and so the action could be brought only as an on-relation action in the name of the State. 274 Ala. at 186, 146 So. 2d at 315. Second, in Kendrick, a citizen relator, in the name of the State, sued his county commission to force it to provide voting machines for elections in compliance with a State statute. The statute required the county to provide voting machines for all elections in the county, but gave the Though it may appear that the duty involved in Rodgers 9 was one owed to the government, i.e., to the circuit clerk, the purpose of requiring the sheriff to file the reports was because the public had an interest in knowing who had been committed to and discharged from the prisons. 51 1140460 commission discretion not to provide machines in any precinct having less than 100 registered voters. 256 Ala. at 213, 54 So. 2d at 447. The respondents challenged the relator's petition on the basis that he failed to show the requested relief would redress any injury particular to him, because he failed to show he voted in a precinct entitled to be provided voting machines. Id. In rejecting the respondents' challenge to the relator's standing, the Court cited the public-standing rule: "It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public." 256 Ala. at 213, 54 So. 2d at 447 (emphasis added). Applying the public-standing rule, the Court concluded: "It is clear that the act which petitioner seeks to have performed does not concern the sovereign rights of the State and is one in which the public, all the people of Jefferson County, have an interest. Petitioner's right to have the act performed is not dependent upon the fact that he may or may not vote in a voting place where the governing body is required to install a voting machine." Id. (emphasis added). 52 1140460 Similarly, in Homan v. State ex rel. Smith, 265 Ala. 17, 18, 89 So. 2d 184, 186 (1956), a relator filed an action seeking to force the respondents, all the members of the Board of Commissioners of the Town of Muscle Shoals, "'to forthwith call an election for and in the Town of Muscle Shoals, a municipal corporation in Alabama, to decide the question whether said town shall be annexed to the City of Sheffield, a municipal corporation in Alabama, and to pass the necessary Ordinance providing for such an election to be held not less than thirty days after the passage of the Ordinance, in accordance with the provisions of Title 37, § 188.'" 265 Ala. at 18, 89 So. 2d at 185. The circuit court granted the petition, and, on appeal, the respondents contended that the relator did not have a sufficient interest in the action. The Homan Court rejected the argument: "The act sought to be performed does not concern the sovereign rights of the State and is one in which the public, all of the people of the municipalities involved, have an interest. We hold that this mandamus proceeding was properly brought in the name of the State on the relation of J.E. Smith, and that the trial court did not err in overruling motion of appellants to require Smith to show by what authority the suit was filed in the name of the State of Alabama." 265 Ala. at 19, 89 So. 2d at 186 (emphasis added). In Gray v. State ex rel. Garrison, 231 Ala. 229, 231, 164 So. 293, 295 (1935), the Court held that a county commissioner's statutory duty to sign a warrant on 53 1140460 appropriation for a public library was "a legal duty in which there was such public interest as warranted a proceeding by mandamus in the name of the state." And in Marshall County Board of Education v. State ex rel. Williams, 252 Ala. 547, 551, 42 So. 2d 24, 27 (1949), the Court held that a petition for mandamus to a county board of education to compel its performance of a statutory duty to allow school enrollment only to students of a certain age "was for the enforcement of a public duty by respondents and, therefore ... was properly brought in the name of the State on the relation of the petitioners." Whereas in Rodgers the petitioner lacked standing to bring the action in his own name because he had no particularized injury (and he failed to invoke public standing through an on-relation action in the name of the State), in each of the other cases discussed above the relator properly invoked public standing. In each, the official duty was imposed by applicable law, and the duty owed was to the public. In particular, the right at issue was not the relator's private right. In Henri–Duval Winery, L.L.C., 890 So. 2d at 74, the plaintiff, a winery, brought an action for its own benefit, 54 1140460 not that of the public, to invalidate, not enforce, a statute providing for the taxation of wine sales. A careful reading of the plurality opinion in Ex parte Alabama Educational Television Commission, 151 So. 3d 283 (Ala. 2013), reveals a similar circumstance. The plaintiffs there sought not to procure an injunction requiring the commission to hold open meetings in the future pursuant to applicable law, something that could benefit the public, but to vindicate a violation of their private rights allegedly stemming from a meeting that had already occurred: "Applying the Lujan[ v. Defenders of Wildlife, 504 U.S. 555 (1992),] test here, we conclude that Pizzato and Howland do not have standing to bring this action because they have failed to demonstrate 'a likelihood that [their alleged] injury will be "redressed by a favorable decision."' Henri–Duval, supra. Pizzato and Howland argue that they were injured by the Commission's termination of their employment and that that 'termination was the direct result and consequence of the Commissioners' violation of the Open Meetings Act.' ".... "... [T]he only specific relief Pizzato and Howland requested was the civil fines provided for in § 36–25A–9(g)[, Ala. Code 1975]. Like the injury in Steel Co. [v. Citizens for a Better Environment, 523 U.S. 83 (1998)], however, the alleged injury here was caused by an alleged one-time violation of the Open Meetings Act that was wholly past when Pizzato and Howland's action was filed. Pizzato and Howland have not alleged any 'continuing or imminent 55 1140460 violation,' nor does any 'basis for such an allegation appear to exist.'" Alabama Educ. Television Comm'n, 151 So. 3d at 288 (footnote omitted); see also id. at 291 (Murdock, J., concurring specially) ("[W]e do not have before us a claim by which a media organization or a citizen seeks to enjoin an anticipated future violation of the statute."). In sum, injury in fact has always been the primary focus of Alabama's general standing rule (as it has been for the other states discussed above). See King, 50 So. 3d at 1059 ("Traditionally, Alabama courts have focused primarily on the injury claimed by the aggrieved party to determine whether that party has standing."). For over a century, however, Alabama has recognized that actions may be brought in the name of the State in circumstances comparable to those in which other states refer to public-interest standing. See, e.g., Bryce, 172 Ala. at 229, 55 So. at 638. As in other states, as Alabama adopted the formulaic restatement of the general standing rule (adopted by this Court in Henri–Duval), we did not overrule our cases providing for such proceedings by persons interested in the enforcement of a public duty. 10 The fact that two of the relators here are public- 10 interest, nonprofit corporate entities rather than natural 56 1140460 As indicated, relators must show that they are seeking to require a "public officer to perform a legal duty in which the public has an interest." Kendrick, 256 Ala. at 213, 54 So. 2d at 447. It could not be clearer that the public -- the people of Alabama -- have an interest in the respondents' faithful compliance with Alabama's marriage laws. The duty owed by the probate judges to follow state law in the issuance of marriage licenses is a duty owed to the public. We refer the reader in this regard to our discussion of the fundamental nature of persons does not disqualify them as plaintiffs. See, e.g., Marone, 967 N.Y.S.2d at 589, 39 Misc. 3d at 1041 ("The public interest standing of a citizen has been extended to corporations as well as other organizations."); Save the Plastic Bag Coalition v. City of Manhattan Beach, 52 Cal. 4th 155, 168, 127 Cal. Rptr. 3d 710, 720, 254 P.3d 1005, 1013 (2011) ("[C]orporate entities should be as free as natural persons to litigate in the public interest."); State ex rel. Ohio Motorists Ass'n v. Masten, 8 Ohio App. 3d 123, 129, 456 N.E.2d 567, 573 n.4 (1982) ("We are persuaded that an Ohio corporation may have as great an interest as a natural person in seeking the just enforcement of state laws, and may be considered to be a citizen of the state of Ohio entitled to institute an action in mandamus."); cf. Jackson Sec. & Inv. Co. v. State, 241 Ala. 288, 292, 2 So. 2d 760, 764 (1941) ("The general rule is recognized everywhere that a corporation is a citizen, resident or inhabitant of the state under whose laws it was created."); and § 10A-1-2.11, Ala. Code 1975 ("[W]hether or not expressly stated in its governing documents, a domestic entity has the same powers as an individual to take action necessary or convenient to carry out its business and affairs."). 57 1140460 this law and the critical interest of the public in it for the reasons discussed in Part I above.11 That the duty and corresponding right at issue are owed to and held by the public is made even clearer when one considers the exact nature of the duty in question as one that is not even susceptible of vindication as a private right. The duty is not of some affirmative action on the part of the respondents, because the statute in question merely authorizes, without requiring, the issuance of licenses by a probate judge. See § 30-1-9 (a probate judge "may" issue marriage licenses). Rather, the duty sought to be enforced is in the negative, i.e., to not take certain action. It is a duty not to issue marriage licenses to same-sex couples. It is hard to conceive of a private right in any person to prevent the issuance of a marriage license to another person. In a different sense of the public's "interest," the 11 intensity of the public's interest in preserving the institution of marriage as it has always been understood, a union between one man and one woman, is evidenced by the ratification of the Amendment in 2006 by 81% of Alabama voters. Certification of Constitutional Amendment Election Results (June 6, 2006), http://www.alabamavotes.gov /downloads/election/2006/primary/ProposedAmendments-Official ResultsCertification-06-28-2006.pdf (last visited March 2, 2015; a copy of the Web page containing this information is available in the case file of the Clerk of the Alabama Supreme Court). 58 1140460 The duty and the corresponding right are intrinsically public in their nature, not even susceptible to an action by an individual asserting a private right as to their enforcement. Notwithstanding the foregoing, the respondents contend that the present case falls within a subcategory of on- relation cases that can only be brought in the name of the State by the Attorney General. They point to the below emphasized portion of the larger passage from Williams with which we began our discussion of standing: "It is now the settled rule in Alabama that a mandamus proceeding to compel a public officer to perform a legal duty in which the public has an interest, as distinguished from an official duty affecting a private interest merely, is properly brought in the name of the State on the relation of one or more persons interested in the performance of such duty to the public; but if the matter concerns the sovereign rights of the State, it must be instituted on the relation of the Attorney General, the law officer of the State." Marshall Cnty. Bd. of Educ. v. State ex rel. Williams, 252 Ala. 547, 551, 42 So. 2d 24, 27 (1949). In Morrison v. Morris, 273 Ala. 390, 391-92, 141 So. 2d 169, 169-70 (1962), the relator, a member of the Jefferson County Board of Equalization, sought a petition for writ of mandamus against the chairman of the board to void a 59 1140460 notification sent by the board to certain taxpayers that changes had been made in assessment of their property. "Identical motions to dismiss were filed by the appellee, by the State of Alabama, and by the Attorney General individually, grounded upon the position that the appellant was not a proper party to the petition since the functioning of the Board was an activity affecting the sovereign rights of the State, necessitating the filing of such petition by the law officer of the State, the Attorney General." 273 Ala. at 391, 141 So. 2d at 169. The Morrison Court agreed that the action fell within the sovereign rights of the State and as such could not be brought as an on-relation action by a private party in the name of the State. Its explanation of the applicable rule begins to shed light on its inapplicability to the present case, however: "The conduct of County Boards of Equalization is governed by legislative act. Title 51, §§ 81-113, Code, and amendments. The authority of these Boards, having emanated from the State, it necessarily follows that the functioning of the Boards is a matter affecting the State, which has a peculiar interest in the uniformity of their activities. 'The right of a private individual to enforce by mandamus duties owing to the public is necessarily confined to duties which are not owing to the state in its sovereign capacity. Where the duty is owing to the government as such, private individuals, even though taxpayers, cannot resort to mandamus to enforce it; ....' 35 Am. Jur., Mandamus, § 321, citing State ex rel. Foshee v. Butler, 225 Ala. 194, 142 So. 533 [(1932)]. See also State ex rel. Chilton County v. Butler, 225 Ala. 191, 142 So. 531 [(1932)]. Where a right 60 1140460 pertains to the sovereignty of the State, proceedings for the enforcement of such right are to be instituted by the Attorney General." 273 Ala. at 391-92, 141 So. 2d at 169-70 (emphasis added). The rule as stated in Marshall County and Morrison is that only the Attorney General may bring an action in the name of the State if its purpose is to enforce a "duty owing to the government as such." The duty in those cases concerned the payment of taxes. Lewright v. Love, 95 Tex. 157, 159, 65 S.W. 1089, 1089-90 (1902), is an early example of an action involving the sovereign rights of the state in which the court well explains the significance of this fact. In Lewright, the private relator "file[d] a petition for a writ of mandamus against the comptroller of the state to compel him to institute a suit against the International & Great Northern Railroad Company to recover taxes alleged to be due the state upon the gross passenger earnings of a certain line of its road for the series of years extending from 1879 to 1900." 95 Tex. at 159, 65 S.W. at 1089. The Texas Supreme Court concluded that the relator could not bring the action, explaining: "Suits to collect debts due the state must, as a rule, be brought in the name of the state, and by its principal law officer, the attorney general, or by some other law officer whose duty it is to represent the state in legal proceedings, and who 61 1140460 may be authorized by statute to sue for it in the particular class of cases. ".... "In the case of Kimberley v. Morris, 87 Tex. 637, 31 S.W. 808 [(1895)], the rule announced in [Union Pacific] Railroad Co. v. Hall, 91 U.S. 343, 23 L. Ed. 428 [(1875)], 'that private persons may move for a mandamus to enforce a public duty not due to the government as such, without the intervention of the government law officer,' was quoted with approval. ... [I]t should be held, as it seems to us, that a citizen of the state, though a taxpayer, cannot maintain a suit to compel an officer to perform a function due merely to the government as such, and in which he can have no private interest whatever. There are some decisions which probably hold to the contrary, but we think the great weight of authority and the better reason support the rule announced by us. We therefore conclude that, if a suit of this character were maintainable against the comptroller, the relator in the petition before us is not the proper party to bring it." 95 Tex. at 159-60, 65 S.W. at 1089-90 (emphasis added). The duty in Lewright -- the collection of taxes owed to the government -- was one owed to the government as such, and as such could only be brought by the state's attorney general. The Lewright court's conclusion followed from the fact that taxation is a sovereign right of the state, a proposition that has been repeated by courts throughout the country, including our own. See, e.g., Doremus v. Business Council of Alabama Workers' Comp. Self-Insurers Fund, 686 So. 2d 252, 253 (Ala. 1996) ("The exclusive power and authority to sue for 62 1140460 collection of State taxes lies with the State."); State ex rel. St. Louis Young Men's Christian Ass'n v. Gehner, 320 Mo. 1172, 1182, 11 S.W.2d 30, 34 (1928) ("Taxation is a sovereign right of the state ...."); and Aldridge v. Federal Land Bank of Columbia, 203 Ga. 285, 290, 46 S.E.2d 578, 581 (1948) (noting "the sovereign right of the State to tax as declared by the constitution").12 Alabama on-relation cases bear out this distinction between duties owed to the government and duties owed to the public. This Court has addressed cases concerning the sovereign rights of the State in which the Court concluded that a private party could not bring the on-relation action. In Morrison, as already noted, the Court concluded that the duty of the Board of Equalization was owed to the government Other matters that arguably fall into the category of a 12 state's sovereign rights include the power of eminent domain, see West River Bridge Co. v. Dix, 47 U.S. 507, 533 (1848) (recognizing that "the power [of eminent domain] ... remains with the States to the full extent in which it inheres in every sovereign government, to be exercised by them in that degree that shall be ... deemed commensurate with public necessity"), and the power to enforce criminal laws, see United States v. Wheeler, 435 U.S. 313, 320 (1978) (observing that both the federal and state governments had "the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each 'is exercising its own sovereignty, not that of the other'" (quoting United States v. Lanza, 260 U.S. 377, 382 (1922)). 63 1140460 as such, not to the public at large, because it implicated the power of taxation. Another such case, heavily relied upon by the respondents, is State ex rel. Foshee v. Butler, State Tax Commissioner, 225 Ala. 194, 142 So. 533 (1932), a case in which the relator, a resident citizen and taxpayer of Chilton County, sought a writ of mandamus to compel the State tax commissioner to assess the property of the Alabama Power Company in that county at 60 percent instead of 45 percent. The Court concluded that the "Relator shows no official duty to the public at large, but only to the state in its sovereign capacity. The general rule is that an individual cannot enforce a right owing to the government; certainly not in any case, unless he sustains an injury peculiar to himself. ... "He is, as is Chilton [C]ounty in its case, merely seeking to force the state, by the unauthorized use of its name, to control an administrative function of one of its officers, in respect to a matter which is the prerogative of the state." 225 Ala. at 195, 142 So. at 534. The Foshee Court's mention of the case of "Chilton County" is a reference to State ex rel. Chilton County v. Butler, State Tax Commissioner, 225 Ala. 191, 142 So. 531 (1932), what Foshee describes as the "companion case" to 64 1140460 Foshee. 225 Ala. at 194, 142 So. at 533. In Chilton County, the county likewise brought an on-relation action to force the tax commissioner to assess the property of Alabama Power Company in that county at 60 percent instead of 45 percent. In a passage that explains the outcome in both cases, the Court stated: "In respect to petitions for mandamus and other remedial writs when they seek to enforce private rights, petitioner may pursue such remedy without the use of the name of the state. ... But when relief is sought against a public officer to require the performance of a public duty to the general public as distinguished from the state in its sovereign capacity, the petition is properly brought in the name of the state on the relation of petitioner, a member of the general public who may have such right." Chilton County, 225 Ala. at 192-93, 142 So. at 532. Both Chilton County and Foshee, however, involved the tax commissioner. The duty involved was one owed to the government as such, not to the public at large: "So that when a county undertakes to use the name of the state to require state officers to fix a certain value upon property for taxation generally, it is seeking to enforce a claim which involves sovereign capacity, rather than one which relates to a function delegated to the county, and does not show a private right with the privilege of using the name of the state as a mere formal party. 38 Corpus Juris, 838. "Relator here is seeking to use the name of the state to enforce a public duty to it in its 65 1140460 sovereign right which belongs exclusively to [the state], and it has not delegated to the county nor to any one the right to enforce the duties to it of its own administrative officer. The Attorney General and perhaps the Governor are vested with the ultimate power, conferred by the sovereignty, to control this sort of litigation." Chilton County, 225 Ala. at 193-94, 142 So. at 533.13 Even Lujan itself, at least on its facts, is not 13 inconsistent with the understanding that a private right is needed when one seeks to assert a claim based on a duty owed to the government as such. Clearly, Lujan is not easily assessed, and some have questioned the consistency of application of the principles expressed therein, even in federal cases. See, e.g., Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 641-42 (2007) (Souter, J., dissenting) (stating that "'the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition,' leaving it impossible 'to make application of the constitutional standing requirement a mechanical exercise.'" (quoting Allen v. Wright, 468 U.S. 737, 751 (1984), abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., ___ U.S. ___, 134 S. Ct. 1377 (2014))); Gene R. Nichol, Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L. Rev. 301, 302-04 (2002) (observing that Lujan's "easily-stated formula hides much of the complexity of modern case or controversy analysis). (Of course, a state is free to reject or modify Lujan as it may see fit. See, e.g., ASARCO, Inc. v. Kadish, 490 U.S. 605, 617 (1989) ("[T]he state judiciary here chose a different path, as was their right, and took no account of federal standing rules in letting the case go to final judgment in the Arizona courts.").) One possible explanation for the seemingly disparate results achieved is that some cases, including Lujan and the cases upon which it relies, may be understood as involving attempts by private litigants to state a cause of action by relying upon duties actually owed to a governmental unit, commonly by another governmental unit, whereas others involve what may be understood as seeking to enforce a duty more directly owed to the public. Compare Lujan; Fairchild v. Hughes, 258 U.S. 126 (1922); Massachusetts 66 1140460 In a separate argument, the respondents contend that the above-emphasized language states that the petitioner must have some "injury peculiar to himself" in order to qualify as a relator who can invoke the standing of the State in an on-relation action. Respondents misread Foshee and Chilton County and ignore other Alabama authorities in reaching this conclusion. Again, in Foshee, the Court noted that the "[r]elator shows no official duty [by the defendant] to the public at large, but only to the state in its sovereign capacity. The general rule is [indeed] that an individual cannot enforce a right owing to the government; certainly not in any case, unless he sustains an injury peculiar to v. Mellon, 262 U.S. 447 (1923); Ex parte Levitt, 302 U.S. 633 (1937); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974); Allen v. Wright, 468 U.S. 737 (1984) (abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., ___ U.S. ___, 134 S. Ct. 1377 (2014)); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982); and Whitmore v. Arkansas, 495 U.S. 149 (1990) (duty sued upon was owed to a person other than the plaintiff), with Federal Election Comm'n v. Akins, 524 U.S. 11 (1998); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)(seeking to require compliance with anti-pollution laws); and Massachusetts v. EPA., 549 U.S. 497 (2007) (recognizing standing in several environmental groups seeking to enforce a duty imposed on the EPA to regulate certain carbon-dioxide emissions). See generally Union Pac. R.R. v. Hall, 91 U.S. 343 (1875) (holding that a member of the public may bring a mandamus petition to enforce a public duty and need not possess a particularized interest in the duty). 67 1140460 himself." 225 Ala. at 195, 142 So. at 534 (emphasis added). In other words, a private party cannot bring an action that concerns a duty owed to the government as such, unless the private party also seeks to vindicate or obtain redress for his or her own private rights or injury relating thereto.14 Mooring v. State, 207 Ala. 34, 91 So. 869 (1921), and 14 Tarver v. Commissioners' Court, 17 Ala. 527, 531 (1850), are among the examples of cases implicating the State's sovereign right of taxation in which a private party was permitted to bring a mandamus petition to force a government entity to collect a tax precisely because the party had a private interest in the tax collected. At issue in Tarver was a statute that provided: "'That it shall be lawful for the commissioners' court of roads and revenue of the county of Tallapoosa to impose such tax in addition to the tax levied for county purposes, as may be necessary to pay any amount of money that the court-house commissioners of said county may be liable to pay for building the court-house and jail.' Under the authority of these several acts, [Tarver] with the other commissioners contracted with Cameron & Mitchell for the erection of the county buildings, agreeing to pay them $18,000. The buildings were completed and were received and used by the county. The [Commissioners Court of Tallapoosa County] paid from the proceeds of the sale of the lots the amount agreed on, less the sum of thirty-five hundred dollars. This amount they declined paying on the ground that the work was not completed according to contract. A suit was instituted against [Tarver and the other commissioners] and a judgment finally rendered for twenty-five hundred dollars. The commissioners' court has levied a tax and paid a part of this judgment, but refuses to pay any more or to levy a tax for that purpose." 68 1140460 Granted, Kendrick and similar cases do refer to on- relation actions brought in the name of the State "on the relation of one or more persons interested in the performance of [a] duty" to the public. E.g., Kendrick, 256 Ala. at 213, 54 So. 2d at 447. Even if we were to now consider this language as a basis for qualifying prospective on-relation plaintiffs beyond the holding of mere citizenship, the nature of the "interest" we would impose in order to qualify a relator on behalf of the State, at least in the unique situation where, as here, the Attorney General is unavailable to fulfill his normal role of representing the public interest, certainly would not be an interest that rises to the 17 Ala. at 531. All the commissioners besides Tarver at the time the contract was executed died or left the State, and consequently execution of the judgment was made solely against Tarver. Tarver brought a mandamus petition under the authority of the statute to force the current Commissioners of the Court of Tallapoosa County to levy a tax to pay the judgment against him. The circuit court dismissed the petition. On appeal, this Court granted the petition, stating: "We think it very clear that it is the duty of the commissioners' court under these facts to levy and collect a tax sufficient to pay the amount of the judgment still unpaid, as well as such amount as may be justly due to the petitioner, and that he has the legal right to demand of them the performance of this duty." 17 Ala. at 531. 69 1140460 same level required of plaintiffs under Lujan. The State itself supplies that standing. The only question would be whether the relator has a sufficient "peculiar interest" in the matter or a sufficient relationship to the State, coupled with the ability to do so, that he or she can be expected to prosecute the matter vigorously to the end of assuring a proper adversarial proceeding for its just resolution. Ultimately, we need not resolve the question whether there is a need for such an interest that would bear on API's and ACAP's status as relators in this proceeding. We are clear to the conclusion that Judge Enslen more than satisfies such criteria. As an individual, he would have the same interest held by other members of the public, yet, in his official capacity, he obviously has a relationship with the State and an interest in discharging his ministerial duty in a manner that is consistent with both Alabama law and the United States Constitution. Moreover, in his judicial capacity, his jurisdiction includes cases involving adoptions, administration of estates, guardianships, and conservatorship in which he must assess whether a marriage exists. In other words, Judge Enslen's position will require him to confront the question of the validity of purported "marriages" licensed 70 1140460 by other probate judges and to address unavoidable derivative questions. Indeed, even if we were to consider the issue before us as a matter concerning the "sovereign right" of the State as urged by the respondents, Judge Enslen would well qualify to prosecute it in the name of the State under the circumstances presented. 15 Judge Reed also argues that there must be a limitation on public standing because "[all laws and executive actions affect the public in some sense, directly or indirectly." But he cannot point to any authority or to the articulation of some sort of rule that would explain where we are to draw the line between those "public-duty" cases that members of the public can bring and those that only the Attorney General can Nor would it be of any import for purposes of this 15 proceeding that it was initiated only by the associational relators and not also Judge Enslen. Judge Enslen is a proper party before this Court and has been properly realigned as a relator on behalf of petitioner State of Alabama. Under the circumstances presented, we are clear to the conclusion that, to the extent our precedents applicable to actions filed in trial courts require their dismissal if filed by a party without standing, those precedents have no application here. Our supervisory authority is sufficient to enable us to effect that realignment and accept jurisdiction over the resulting adversarial proceeding in furtherance of our responsibility to restore and maintain order within our judicial system, particularly where as here the State was originally named petitioner and continues as the petitioner and the realignment of Judge Enslen would, at most, effect merely a substitution of the relating person to speak on its behalf. 71 1140460 bring. The only line articulated in precedents here or elsewhere is between those cases that involve a duty owed to the public and those that involve a duty owed to the government as such. We can find no line of the nature he suggests differentiating between public-duty cases that can be brought by a citizen and those that can be brought only by the Attorney General, with one exception: Many states have limited the availability of on-relation or comparable actions on behalf of the state to "matters of great public interest" or "matters of great importance" We have no problem applying such a limitation in the present case, for we can think of no matter of greater public interest or importance than the one before us. It is beyond question that the duty to issue marriage licenses only in accordance with Alabama law is a duty owed to the public for its benefit. The failure to perform that duty damages the framework of law and institutions the people have chosen for themselves. The proceeding before us is properly before us as an on-relation action to enforce a duty to the public -- the people who must live their lives and raise their families within that framework and within the society made possible thereby. 72 1140460 C. The Federal Court Order Does Not Prevent this Court from Acting The final procedural issue we consider is whether the federal court's order prevents this Court from acting with respect to probate judges of this State who, unlike Judge Davis in his ministerial capacity, are not bound by the order of the federal district court in Strawser. The answer is no. Although decisions of state courts on federal questions are ultimately subject to review by the United States Supreme Court, 28 U.S.C. § 1257(a), as are decisions of federal courts, neither "coordinate" system reviews the decisions of the other. As a result, state courts may interpret the United States Constitution independently from, and even contrary to, federal courts. For that matter, it is even true that "'[a] 16 That is, a lower federal court, which has no appellate 16 authority over any state court judge acting in a judicial capacity, has no authority or jurisdiction over a state court's rulings as to cases before that state court judge acting in his or her judicial capacity, including as to questions of law. That would be the case, for example, as to a probate judge handling an adoption case or an estate- administration case, as opposed to acting in a ministerial capacity to record a deed or to issue a license. The proper avenue, indeed the only avenue, for appellate review of a final trial court judgment in such a case is "upward" through the coordinate state court system, of which that trial court is a part, followed thereafter by a petition for a writ of certiorari to the United States Supreme Court if necessary. By way of example, the plaintiff in Searcy I filed at least one previous petition seeking approval of the adoption of the 73 1140460 decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.'" Camreta v. Greene, __ U.S. __, __, 131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore's Federal Practice § 134.02[1][d], p. 134-26 (3d ed. 2011)). As the Seventh Circuit Court of Appeals noted in Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995), "[federal district court decisions] cannot clearly establish the law because, while they bind the parties by virtue of the doctrine of res judicata, they are not authoritative as precedent and therefore do not establish the duties of nonparties." Numerous Alabama cases confirm this reasoning. "[I]n determining federal common law, we defer only to the holdings of the United States Supreme Court and our own interpretations of federal law. Legal principles and holdings from inferior federal courts have no controlling effect here, although they can serve as persuasive authority." Glass v. Birmingham So. child at issue. As has been noted, in April 2012, Mobile Probate Judge Davis entered a final trial court order denying that petition on the ground that the requested adoption was not permitted under the Amendment and the Act. C.D.S., as was the proper course, sought relief within the appellate courts of this state. See In re K.R.S., 109 So. 3d 176 (Ala. Civ. App. 2012). 74 1140460 R.R., 905 So. 2d 789, 794 (Ala. 2004). See also Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744 n.5 (Ala. 2009) (noting that "United States district court decisions are not controlling authority in this Court"); Ex parte Hale, 6 So. 3d 452, 458 n. 5 (Ala. 2008), as modified on denial of reh'g ("[W]e are not bound by the decisions of the Eleventh Circuit."); Ex parte Johnson, 993 So. 2d 875, 886 (Ala. 2008) ("This Court is not bound by decisions of the United States Courts of Appeals or the United States District Courts ...."); Buist v. Time Domain Corp., 926 So. 2d 290, 297 (Ala. 2005) ("United States district court cases ... can serve only as persuasive authority."); Amerada Hess Corp. v. Owens-Corning Fiberglass Corp., 627 So. 2d 367, 373 n.1 (Ala. 1993) ("This Court is not bound by decisions of lower federal courts."); Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165, 167 n.2 (Ala. 1991) ("Decisions of federal courts other than the United States Supreme Court, though persuasive, are not binding authority on this Court."). Federal courts have recognized that state-court review of constitutional questions is independent of the same authority lodged in the lower federal courts. "'In passing on federal constitutional questions, the state courts and the lower 75 1140460 federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court.'" United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir. 1970) (quoting State v. Coleman, 46 N.J. 16, 36, 214 P.2d 393, 403 (1965)). "Although consistency between state and federal courts is desirable in that it promotes respect for the law and prevents litigants from forum-shopping, there is nothing inherently offensive about two sovereigns reaching different legal conclusions. Indeed, such results were contemplated by our federal system, and neither sovereign is required to, nor expected to, yield to the other." Surrick v. Killion, 449 F.3d 520, 535 (3d Cir. 2006). The United States Supreme Court has acknowledged that state courts "possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law." Asarco Inc. v. Kadish, 490 U.S. 605, 617 (1989). Two Justices of the United States Supreme Court in special writings have elaborated on this principle. "The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our 76 1140460 federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located." Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993) (Thomas, J., concurring). See also Steffel v. Thompson, 415 U.S. 452, 482 n. 3 (1974) (Rehnquist, J., concurring) (noting that a state court "would not be compelled to follow" a lower federal court decision). III. Respondents' Ministerial Duty is Not Altered by the United States Constitution The United States District Court for the Southern District of Alabama has declared that Alabama's laws that define marriage as being only between two members of the opposite sex -- what has been denominated traditional marriage -- violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law. 77 1140460 It is important to observe at the outset that some of the federal courts that have declared traditional marriage laws unconstitutional have insinuated that these marriage laws are something new by pointing to the marriage laws and amendments that states began enacting in the early 1990s. By focusing on this spate of laws, the federal courts have asserted that marriage laws were enacted to target homosexuals. This line of argument was born in United States v. Windsor, __ U.S. __, 133 S. Ct. 2675 (2013), when the United States Supreme Court concluded that Congress's passage of the Defense of Marriage Act ("DOMA") in 1996 demonstrated a clear animus toward homosexuals because Congress rarely chose to enter the realm of domestic-relations law. But as Windsor itself observed, domestic law historically is controlled by the states.17 "'[R]egulation of domestic relations' is 'an area that 17 has long been regarded as a virtually exclusive province of the States.'" United States v. Windsor, ___ U.S. at ___, 133 S. Ct. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553 (1975)). The Windsor Court also observed that "'[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.'" ___ U.S. at ___, 133 S. Ct. at 2691 (quoting Williams v. North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207 (1942)). We note that Windsor's acknowledgment of the states' sovereign authority over marriage refers to the powers of the states vis-à-vis the federal government. Our discussion in Part II.B of this opinion notes that marriage is a duty owed 78 1140460 For example, in Alabama it is true that the Act was enacted in 1998, and that the Amendment was ratified in 2006. Laws that include the concept of marriage as between a husband and wife have existed, however, since the inception of the Alabama as a state in 1819. Such laws include the full 18 to the public rather than what on-relation cases such as Kendrick have described as "sovereign rights of the state," which are duties "owed to the government as such." The fact that, as between the federal government and the states, the law of marriage falls within the sovereign powers of the states does not affect whether marriage licensing is a duty owed to the public rather than one owed to the government as such. Laws that include the concept of marriage as the union 18 of one man and one woman, however, predate the inception of Alabama as a state in 1819. In 1805, –- when Alabama was still a part of the Mississippi Territory –- the legislature of the Mississippi Territory passed an act imbuing orphans' courts with the power to grant and issue marriage licenses. H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. 1, § 4 (1823). That act remained in force after the creation of Alabama as a state in 1819 and contained language referring to persons joined together as "man and wife." See H. Toulmin, Digest of the Laws of Alabama, tit. 42, ch. 1, § 6 (1823). Furthermore, in 1805, the plain, ordinary, and commonly understood meaning of the word "marriage" was "the act of joining: man and woman." Webster, A Compendious Dictionary of the English Language, 185 (1806). Following Alabama's becoming a state in 1819, Alabama law continued to include the concept of marriage as the union of one man and one woman. See Hunter v. Whitworth, 9 Ala. 965, 968 (1846) ("Marriage is considered by all civilized nations as the source of legitimacy; the qualities of husband and wife must be possessed by the parents in order to make the offspring legitimate, where the municipal law does not otherwise provide." (emphasis added)). In 1850, the Alabama legislature conferred the power to issue marriage licenses to the newly 79 1140460 statutory scheme set out in the provisions of Chapter 1 of Title 30 (and their predecessors dating back 200 years) by which the legislature has provided for the affirmative licensing and recognition of "marriage," including the provision in § 30-1-9 (and its predecessors) for the licensing of "marriages" and the provisions in § 30-1-7 (and its predecessors) for the solemnization of "marriages." And it is clear that the term "marriage" as used in all those laws always has been, and still is (unless the courts can conjure the ability to retroactively change the meaning of a word after it has been used by the legislature), a union between one man and one woman. Further, the contemplated change in the definition (or "application" if one insists, although this clearly misapprehends the true nature of what is occurring) of the term "marriage" so as to make it mean (or apply to) something antithetical to that which was intended by the legislature and to the organic purpose of Title 30, Chapter 1, would appear to require nothing short of striking down that entire statutory created probate courts. 1850 Ala. Laws 26. This power was officially codified in 1852. See Ala. Code 1852, § 1949. 80 1140460 scheme. And beyond even that statutory scheme, what 19 Few courts that have have ordered the issuance of 19 marriage licenses to same-sex couples appear to have contemplated this issue. The alternative, however, appears to allow the judiciary to declare by judicial fiat a new statutory scheme in place of the old, rather than leaving it to the legislative branch to decide what should take the place of the scheme being stricken, all contrary to well established state and federal principles of judicial review As we observed in King v. Campbell, 988 So. 3d 969, 981-83 (Ala. 2007): "This Court addressed the standard for ascertaining severability in Newton v. City of Tuscaloosa, 251 Ala. 209, 217, 36 So. 2d 487, 493 (1948): "'... The act "ought not to be held wholly void unless the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional." A. Bertolla & Sons v. State, 247 Ala. 269, 271, 24 So. 2d 23, 25 [(1945)]; Union Bank & Trust Co. v. Blan, 229 Ala. 180, 155 So. 612 [(1934)]; 6 R.C.L. 125, § 123.' "(Emphasis added.) ".... "'... It is also to be said, in the nature of limitation of the rule stated, that the whole statute will be stricken if the valid and invalid parts are so connected and interdependent in subject-matter, meaning, and purpose that it cannot be presumed that the Legislature would have passed the one without the 81 1140460 ultimately is at issue is the entire edifice of family law discussed previously, an edifice that has existed in some form since before the United States was even a country. See 20 other, or where the striking of the invalid would cause results not contemplated or intended by the lawmakers, or where that invalid is the consideration or inducement of the whole act, or where the valid parts are ineffective and unenforceable in themselves, according to the legislative intent.' "[Springer v. State ex rel. Williams, 229 Ala. 339,] 342–43, 157 So. [219,] 222 (1934)(emphasis added). See also City of Birmingham v. Smith, 507 So. 2d 1312, 1317 (Ala. 1987), describing the test as whether the legislature would have enacted the statute without the void provision." (Emphasis added.) See also Robert L. Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76, 76 (1937), explaining that "the United States Supreme Court, the state courts, and secondary authorities all appear to agree that the test for whether the invalidity of part of a law or of some of its applications will not affect the remainder is '(1) if the valid provisions or applications are capable of being given legal effect standing alone, and (2) if the legislature would have intended them to stand with the invalid provisions stricken out.'" For that matter, it has existed in history since ancient 20 times. See, e.g., Charles P. Kindregan, Jr., Same-Sex Marriage: The Cultural Wars and the Lessons of Legal History, 38 Fam. L.Q. 427, 428 (2004) (noting that "[t]he Code of Hammurabi, 1780 B.C., provided that 'if a man take a wife and does not arrange with her the proper contracts, that woman is not his legal wife.'"). 82 1140460 1 Judith S. Crittenden and Charles P. Kindregan, Jr., Alabama Family Law § 1:1 (2008) (observing that "a whole range of state and federal legal rights and obligations depend on the existence of a valid marriage. If there is no legal marriage, then those rights and obligations do not apply. These legal rights and obligations are basic to the well-being of society, as the United States Supreme Court has noted in describing the importance of marriage as having a 'basic position' in 'society's hierarchy of values'" (quoting Boddie v. Connecticut, 401 U.S. 371, 374 (1971)). It is no small thing to wipe away this edifice with a wave of the judicial wand. It is in this context that we turn then to the specific reasoning employed by the federal district court, reasoning that can be boiled down to the following train of thought. (1) Marriage is a fundamental right. (2) Under the Due Process and Equal Protection Clauses of the United States Constitution, laws that impinge upon fundamental rights are subject to "strict scrutiny" and are sustained only if supported by a "compelling state interest" and if they are "narrowly tailored" to fulfill that interest. (3) The interests cited by the State of Alabama in support of its laws limiting marriage to opposite-sex couples are either not 83 1140460 compelling state interests or the limitation is not so narrowly tailored as to meet the stated interest. (4) Therefore, Alabama's marriage laws impermissibly violate the right to marry and consequently "violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." The Searcy I plaintiffs' first constitutional claim that led to the federal court's decision and the reasoning it adopted is one that is often repeated in the marriage debate. The Searcy I plaintiffs contended that Alabama's marriage laws violate the Equal Protection Clause because those laws unconstitutionally discriminate against same-sex couples in favor of opposite-sex couples by conferring benefits on the latter under the law not accorded to the former. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike. ... The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. 84 1140460 "The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985) (emphasis added and citations omitted). The difficulty with the Searcy I plaintiffs' equal- protection claim is that, in order to trigger a "strict- scrutiny" analysis, the offending law must discriminate against a suspect class, e.g., a class determined by race, alienage, or national origin. It is often contended that although laws upholding traditional marriage do not implicate any of these suspect classes, they do discriminate based on gender, a category the United States Supreme Court has stated is sometimes entitled to heightened scrutiny. See, e.g., United States v. Virginia, 518 U.S. 515, 532 (1996) (observing that "[w]ithout equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed[ v. Reed, 404 U.S. 71 (1971),] 85 1140460 decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men)" (footnote omitted)). The fact is, however, that traditional-marriage laws do not discriminate based on gender: All men and all women are equally entitled to enter the institution of marriage. Only by redefining the term "marriage" to mean something it is not (and in the process assuming an answer as part of the question), can this statement be challenged. Put in the negative, traditional-marriage laws do not discriminate on the basis of gender because all men and all women are equally restricted to marriage between the opposite sexes. See, e.g., Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1286 (N.D. Okla. 2014) ("Common sense dictates that the intentional discrimination occurring in this case has nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to heightened scrutiny on that basis."); Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1139-40 (D. Or. 2014) ("The state's marriage laws discriminate based on sexual orientation, not gender. In fact, the ban does not treat genders differently at all. Men and women are prohibited from doing the exact same thing: marrying an individual of the 86 1140460 same gender."). Thus, if such laws discriminate against a classification, it is one based on sexual orientation, not gender. As the federal district court itself observed in its memorandum opinion in Searcy I: "Eleventh Circuit preceden[t] holds that such classification is not suspect. Lofton v. Secretary of Dep't of Children and Family Services, 358 F.3d 804, 818 (11th Cir. 2004)." See also DeBoer v. Snyder, 772 21 F.3d 388, 413 (6th Cir. 2014) (noting that "[t]he Supreme Court has never held that legislative classifications based on sexual orientation receive heightened review and indeed has not recognized a new suspect class in more than four decades."). Because Alabama's marriage laws are not subject to strict scrutiny under the Equal Protection Clause, they need only survive a rational-basis analysis to pass constitutional muster. We have reviewed at length the more than rational The issue in Lofton was whether a Florida statute 21 prohibiting adoption by practicing homosexuals violated the equal-protection and due-process rights of homosexual persons desiring to adopt. The United States Court of Appeals for the Eleventh Circuit determined that no fundamental right to private sexual intimacy existed and, thus, that the Florida statute was subject to rational-basis analysis. It was significant to the Eleventh Circuit in Lofton that "the involved actors are not only consenting adults, but minors as well." 358 F.3d at 817. Such is the case with the underlying action before the Mobile Probate Court. 87 1140460 bases for Alabama's understanding of marriage in Part I, above. As discussed, one legitimate interest behind the laws (among others) is recognizing and encouraging the ties between children and their biological parents. Alabama's marriage laws clearly survive rational-basis review. The Searcy I plaintiffs' second contention was that Alabama's marriage laws violate the Due Process Clause of the Fourteenth Amendment because, according to their complaint, "[t]he Constitution protects the rights and liberties of married, homosexual couples just as it does heterosexual, married couples." As we previously noted, the federal district court latched onto this argument, stating that "[n]umerous cases have recognized marriage as a fundamental right." In this way, the federal district court subjected Alabama's marriage laws to strict-scrutiny analysis. To support its assertion that "marriage" is a fundamental right, the federal district court cited such cases as Loving v. Virginia, 388 U.S. 1 (1967); Meyer v. Nebraska, 262 U.S. 390 (1923); and Griswold v. Connecticut, 381 U.S. 479 (1965). The federal district court is, of course, correct that there are several United States Supreme Court cases stating such a principle. In Zablocki v. Redhail, 434 U.S. 374, 383-84 88 1140460 (1978), for example, the Court stated: "'Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.' [Loving, 388 U.S.] at 12, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)." In Griswold, the Court stated that marriage is "a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." 381 U.S. at 486. In Meyer, the Court recognized that "the right of an individual ... to marry, establish a home and bring up children" is protected by the Due Process Clause. 262 U.S. at 399. What the federal district court ignored in these cases, however, is that the Supreme Court plainly was referring to traditional marriage when it proclaimed that marriage is a fundamental right. See, e.g., DeBoer, 772 F.3d at 412 (observing that "[w]hen Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning."). This is evident from the fact that in each of those cases the discussion of the right involved children. It is also apparent from the fact that, as the 89 1140460 federal district court discussed, in Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810 (1972), the Supreme Court summarily dismissed "for want of a substantial federal question" an appeal from the Minnesota Supreme Court in which that court concluded that a state statute defining marriage in the traditional manner did not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. Despite disagreement among the federal circuit courts of appeal regarding Baker's strength as precedent in the wake of Windsor, Baker 22 indisputably demonstrates that, in the plethora of cases in which the Supreme Court has discussed a "right to marriage," it was not referring to an institution that formally recognized homosexual relationships. Compare DeBoer, 772 F.3d at 400 (observing that "[o]nly 22 the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions 'until such time as the Court informs [us] that [we] are not'" and that "[t]he Court has yet to inform us that we are not" to follow Baker), with Baskin v. Bogan, 766 F.3d 648, 660 (7th Cir. 2014) (stating that "Romer v. Evans, 517 U.S. 620, 634-36, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996); Lawrence v. Texas, 539 U.S. 558, 577-79, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative"). 90 1140460 Thus, what the federal district court has done is to declare an entirely new concept of "marriage" a fundamental right under the guise of the previously understood meaning of that institution. It is, plainly and simply, circular reasoning –- it assumes the conclusion of the matter, i.e., that marriage as newly defined is a fundamental right, in the premise of the question without acknowledging that a change of terms has occurred. As one federal appeals court judge has 23 noted: "To now define the previously recognized fundamental right to 'marriage' as a concept that includes the new notion of 'same-sex marriage' amounts to a dictionary jurisprudence, which defines terms as convenient to attain an end." Bostic 24 The Searcy I plaintiffs might respond that defining 23 marriage inherently as available only to members of the opposite sex is also circular, but that argument ignores the fact that millennia of practice stand behind the traditional definition. Such a mistake is similar to an employee's complaining that his boss cannot tell him what to do because no one informed him that being an employee meant that he would have to do what someone else told him to do. To state that being an employee means that a person works for someone else is not circular reasoning: it is just describing the nature of an "employee." Likewise, as will be explained more fully in the text below, to state that being married involves two people of the opposite sex joining in a special relationship is not circular: it merely describes the nature of being "married." This not-so-subtle redefinition of "marriage" is an 24 example of what law professor Steven D. Smith calls "smuggling," which "implies that an argument is tacitly 91 1140460 v. Schaefer, 760 F.3d 352, 391 (4th Cir. 2014) (Niemeyer, J., dissenting).25 importing something that is left hidden or unacknowledged -- some undisclosed assumption or premise." Steven D. Smith, The Disenchantment of Secular Discourse 35 (2010). Smith goes on to explain that such a tactic is "illicit" when making the undisclosed premise "explicit would be controversial: you would have to defend the premise, and you don't want to do that. Or your premise might be illicit because you yourself do not believe it: you like your conclusion, maybe, but you don't actually believe what would be necessary to support this particular argument for that conclusion. Perhaps, if you were to make your unstated premise explicit, you would be convicted of inconsistency, because you have contradicted that premise on other occasions. Or your premise might be illicit because the conventions of the discourse you are engaging in purport to exclude it." Id. at 36. In this instance, the first two reasons Smith offers for "smuggling" are the most likely to apply. Proponents of the new definition of marriage do not want to have to defend the premise behind their change of definition because doing so would necessarily require the introduction of legislation to effect the change rather than a court order. Also, as is explained in note 31 and the accompanying text, the new definition of marriage put forward by proponents of same-sex marriage carries implications that proponents themselves either do not believe or do not want explicitly revealed at this time because they know that a large majority of the populace is not ready to accept those implications. See also Goodridge v. Dep't of Pub. Health, 440 Mass. 25 309, 365-66, 798 N.E.2d 941, 984 (2003) (Cordy, J., dissenting): 92 1140460 The ostensible reason for the federal district court's judicial sleight of hand is apparent enough: conferring fundamental-right status upon a concept of marriage divorced from its traditional understanding is, to say the least, curious. "[W]e have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,' [Moore v. City of East Cleveland, Ohio, 431 U.S. 494 (1977)] (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) ('so rooted in the traditions and conscience of our people as to be ranked as fundamental'), and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed,' Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive-due-process cases a 'careful description' of the asserted fundamental liberty interest. [Reno v. Flores, 507 U.S. 292, 302 (1993)]." Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). "It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation's "This feat of reasoning succeeds only if one accepts the proposition that the definition of the institution of marriage as a union between a man and a woman is merely 'conclusory' ..., rather than the basis on which the 'right' to partake in it has been deemed to be of fundamental importance. In other words, only by assuming that 'marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the 'right' of same-sex couples to 'marry.'" 93 1140460 history and tradition. In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 [(2003)]. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000." Windsor, ___ U.S. at ___, 133 S. Ct. at 2715 (Alito, J., dissenting) (footnote omitted). See also Hernandez v. Robles, 7 N.Y.3d 338, 361, 821 N.Y.S.2d 770, 777, 855 N.E.2d 1, 8 (2006) ("Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex."). See Part I, supra. 26 The Bostic Court, among others, asserted that 26 "Glucksberg's analysis applies only when courts consider whether to recognize new fundamental rights" and that including same-sex couples in the right to marry does not create a new right, and so, conveniently, it did not matter that there is no historical tradition of same-sex marriage. 760 F.3d at 376. The Bostic Court noted that the Supreme Court did not contend that it was creating a new fundamental right to interracial marriage when it struck down Virginia's miscegenation statute as unconstitutional in Loving. Id. at 376-77. This point ignores the fact that the Loving Court did not need to create a new fundamental right in order to subject Virginia's statute to strict-scrutiny analysis because the statute discriminated on the basis of race, which is an express suspect classification in the Fourteenth Amendment. 94 1140460 Beyond the obvious historical problem with labeling marriage as defined by the Searcy I plaintiffs a fundamental right, there exists another logical problem with doing so. Proponents of same-sex marriage repeatedly contend that extending the benefits of marriage to their relationships carries no religious or moral dimension and therefore does not constitute a fundamental shift in the social fabric of America, because marriage, as far as the government is concerned, is simply a civil acknowledgment of a legal bond. See Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 321, 798 N.E.2d 941, 954 (2003) ("We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage.... [C]ivil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution."). If marriage truly is nothing more 27 In contrast to the assertion that marriage is "wholly 27 secular," plaintiffs in some actions seeking to nullify state laws limiting marriage to its traditional understanding have contended that those laws violate the Establishment Clause of the First Amendment to the United States Constitution. See, e.g., Love v. Beshear, 989 F. Supp. 2d 536, 541 (W.D. Ky. 2014); Brenner v. Scott, 999 F. Supp. 2d 1278, 1284 (N.D. Fla. 2014); Love v. Pence (No. 4:14-CV-00015-RLY-TA, Sept. 16, 2014) ___ F. Supp. 3d ___ (S.D. Ind. 2014). So which is it? Is marriage a purely civil institution or is it a hybrid of religious and civil acknowledgments of a relationship? So far no court has declared that laws 95 1140460 than a state-granted legal license, it is difficult to see how it could rise to the status of a fundamental right of such importance that the United States Constitution prohibits states from approving only the historically accepted understanding of the institution. Before we follow the proponents of same-sex marriage down the road toward finding their new definition of marriage constitutionally significant (but somehow socially innocuous), we need to know what characteristic of marriage is so fundamental that it warrants constitutional protection. As the Glucksberg Court observed: "[A] 'careful description' of recognizing that marriage exists only between a husband and wife violate the Establishment Clause. Presumably, the issue thus far has been avoided at least in part because the notion that traditional marriage laws violate the Establishment Clause borders on the absurd. Just recently, the United States Supreme Court concluded that the practice of opening legislative meetings with prayer does not violate the Establishment Clause solely because the same practice occurred during the period the First Amendment was framed and ratified. See Town of Greece v. Galloway, __ U.S. __, 134 S. Ct. 1811 (2014). It seems safe to assume that the Founders similarly perceived no Establishment Clause problem with state marriage laws. Regardless of the chance of succeeding on such a claim on its merits today, the fact that some proponents of same-sex marriage now contend that traditional marriage laws violate the Establishment Clause suggests that some of the same precepts upon which the proponents rely in the current debate may be renewed in arguments over successive issues yet to come. 96 1140460 the asserted fundamental liberty interest" is required in substantive-due process cases. 521 U.S. at 721. Although it is undeniable that the institution of marriage is fundamental, it is also undeniable that several aspects of 28 marriage are not treated as fundamental. The United 29 As has been noted, the United States Supreme Court 28 stated in Maynard v. Hill, 125 U.S. 190 (1888), that marriage is "the most important relation in life," id. at 205, and that it is "the foundation of the family and of society, without which there would be neither civilization nor progress," id. at 211. Judge Cordy in his dissenting opinion in Goodridge 29 observed: "Casting the right to civil marriage as a 'fundamental right' in the constitutional sense is somewhat peculiar. It is not referred to as such in either the State or Federal Constitution, and unlike other recognized fundamental rights (such as the right to procreate, the right to be free of government restraint, or the right to refuse medical treatment), civil marriage is wholly a creature of State statute. If by enacting a civil marriage statutory scheme [a state] has created a fundamental right, then it could never repeal its own statute without violating the fundamental rights of its inhabitants." 440 Mass. at 366, 798 N.E.2d at 985 n.3 (Cordy, J., dissenting). The DeBoer Court provided an extensive explanation as to why categorizing the right to marry as fundamental in the constitutional sense "makes little sense with respect to the trials and errors societies historically have undertaken (and 97 1140460 presumably will continue to undertake) in determining who may enter and leave a marriage. Start with the duration of a marriage. For some, marriage is a commitment for life and beyond. For others, it is a commitment for life. For still others, it is neither. In 1969, California enacted the first pure no-fault divorce statute. See Family Law Act of 1969, 1969 Cal. Stat. 3312. A dramatic expansion of similar laws followed. See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. Rev. 79, 90. The Court has never subjected these policy fits and starts about who may leave a marriage to strict scrutiny. "Consider also the number of people eligible to marry. As late as the eighteenth century, '[t]he predominance of monogamy was by no means a foregone conclusion,' and '[m]ost of the peoples and cultures around the globe' had adopted a different system. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 9 (2000). Over time, American officials wove monogamy into marriage's fabric. Beginning in the nineteenth century, the federal government 'encouraged or forced' Native Americans to adopt the policy, and in 1878 the Supreme Court upheld a federal antibigamy law. Id. at 26; see Reynolds v. United States, 98 U.S. 145 (1878). The Court has never taken this topic under its wing. And if it did, how would the constitutional, as opposed to policy, arguments in favor of same-sex marriage not apply to plural marriages? "Consider finally the nature of the individuals eligible to marry. The age of consent has not remained constant, for example. Under Roman law, men could marry at fourteen, women at twelve. The American colonies imported that rule from England and kept it until the mid-1800s, when the people began advocating for a higher minimum age. Today, all but two States set the number at eighteen. See Vivian E. Hamilton, The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent 98 1140460 Marriage, 92 B.U. L. Rev. 1817, 1824-32 (2012). The same goes for the social acceptability of marriage between cousins, a union deemed 'desirable in many parts of the world'; indeed, around '10 percent of marriages worldwide are between people who are second cousins or closer.' Sarah Kershaw, Living Together: Shaking Off the Shame, N.Y. Times (Nov. 25, 2009).... Even in the United States, cousin marriage was not prohibited until the mid-nineteenth century, when Kansas -- followed by seven other States -- enacted the first ban. See Diane B. Paul & Hamish G. Spencer, 'It's Ok, We're Not Cousins by Blood': The Cousin Marriage Controversy in Historical Perspective, 6 PLoS Biology 2627, 2627 (2008). The States, however, remain split: half of them still permit the practice. Ghassemi v. Ghassemi, 998 So. 2d 731, 749 (La. Ct. App. 2008). Strict scrutiny? Neither Loving nor any other Supreme Court decision says so." DeBoer v. Snyder, 772 F.3d 388, 412-13 (6th Cir. 2014)(emphasis omitted). These observations take issue with the United States Supreme Court's designation of marriage as a fundamental constitutional right. Perhaps the strongest recommendation for this view is the simple fact that the United States Constitution does not mention marriage. Indeed, the Supreme Court has observed that "the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." Haddock v. Haddock, 201 U.S. 562, 575 (1906), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942). Saying that marriage is not a fundamental constitutional right would not demean its importance because "something can be fundamentally important without being a fundamental right under the Constitution." DeBoer, 772 F.3d at 411. It would simply mean that the Constitution does not dictate policy on 99 1140460 States Supreme Court observed in Windsor that "[m]arriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Compare Vt. Stat. Ann., Tit. 18, § 5142 (2012), with N.H. Rev. Stat. Ann. § 457:4 (West Supp.2012). Likewise the permissible degree of consanguinity can vary (most States permit first cousins to marry, but a handful -- such as Iowa and Washington, see Iowa Code § 595.19 (2009); Wash. Rev. Code § 26.04.020 (2012) -- prohibit the practice)." Windsor, ___ U.S. at ___, 133 S. Ct. at 2691-92. No one contends (yet) that state age and consanguinity requirements violate a fundamental right to marriage even though such requirements clearly limit a person's choices as to whom the person may marry. What differs, then, about the claims of same-sex partners? What of their relationship rises to the level of a constitutional right with which the states allegedly may not interfere? One possible answer is the act of sex, albeit absent potential procreative consequences. The United States Supreme Court has stated that sexual intercourse is protected by the right to privacy allegedly embedded in the "substantive" component of the Due Process Clause. Indeed, this was the constitutional basis for the Court's striking down state the matter. 100 1140460 sodomy laws in Lawrence v. Texas, 539 U.S. 558 (2003). But the Lawrence Court did so under the rationale that government had no interest in interfering with the sexual conduct of consenting adults in the privacy of their bedrooms. That 30 rationale does not work here because same-sex partners expressly seek public state-government approval of their relationships. In other words, in Lawrence the protected constitutional interest was personal privacy, but here the Searcy I plaintiffs alleged that there is a constitutional interest in the public recognition of unions between couples of the same sex that overrides any interest Alabama has in limiting such unions to opposite-sex couples. Neither Lawrence, nor Windsor, nor any other decision of the United States Supreme Court has found such a fundamental right, and such a right cannot with any logic be embedded in the so- See Lawrence, 539 U.S. at 578 ("The case does involve 30 two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."). 101 1140460 called right to privacy that has been trumpeted by the Supreme Court since Griswold. Another possible answer to the question is love. Under this theory, a person has a right to marry the person he or she loves regardless of that person's gender. This notion has broad public appeal and is, perhaps, the mantra most repeated in public discussions of this matter. But although love may be an important factor in a lasting marriage, civil marriage has no public interest in whether the people seeking a marriage license love one another. "[N]o State in the country requires couples, whether gay or straight, to be in love." DeBoer, 772 F.3d at 407. State governments do not inquire about whether couples love each other when they seek a marriage license, nor do governments have any justifiable reason to do so. Moreover, if love was the sine qua non of marriage, then polygamy also would be constitutionally protected because "there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be 102 1140460 constitutionally irrational to stand by the monogamous definition of marriage."31 Id. Proponents of the new definition of marriage therefore leave us with an untenable contradiction. On the one hand, they insist that expanding the definition of marriage to include relationships between members of the same sex constitutes nothing more than offering marriage licenses to another class of individuals. It is akin to modifying the age of consent for marriage or changing the length of residency required in a state before one can receive a marriage license, changes that are wholly within state government's power to modify, without altering the nature of marriage. On the other hand, proponents of same-sex marriage contend that this new definition of marriage is so fundamental that the Constitution prohibits states from maintaining the traditional definition of marriage, yet they are unable to articulate a fundamental element of their definition of marriage that would justify For that matter, if love is the defining criterion for 31 marriage, then why must it be limited to marriage between two persons who are both adults, or for that matter between two persons? Where is the definitional limitation in such a criterion? What other limitations that we assume will continue to be true of marriage would logically yield to this criterion? 103 1140460 government sponsorship of it. Thus, under their own theory, either the aspect of marriage the same-sex partners insist should be included in the institution is not fundamental to its nature, in which case Alabama's laws enforcing the traditional definition of marriage are not unconstitutional, or marriage is a fundamental right but the characteristics upon which same-sex partners necessarily must hinge their definition of marriage fail to explain government's interest in marriage. Having discarded other candidates for what aspect of marriage is so fundamental that it warrants constitutional protection, we are left with the characteristic that has remained unchanged throughout history: marriage has always been between members of the opposite sex. The obvious reason for this immutable characteristic is nature. Men and women complement each other biologically and socially. Perhaps even more obvious, the sexual union between men and women (often) produces children. Marriage demonstrably channels the 32 results of sex between See DeBoer, 772 F.3d at 404 ("One starts from the 32 premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse."). 104 1140460 members of the opposite sex -- procreation -- in a socially advantageous manner. It creates the family, the institution 33 that is almost universally acknowledged to be the building block of society at large because it provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society. See, e.g., Lehr v. Robertson, 463 U.S. 248, 256-57 (1983) ("The institution of marriage has played a critical role both in defining the legal entitlements of family members and in developing the decentralized structure of our democratic society.... [A]s part of their general overarching concern for serving the best interests of children, state laws almost universally express an appropriate preference for the formal family."); Smith v. Organization of Foster Families For Equal. & Reform, 431 U.S. 816, 843-44 (1977) ("[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it One need only consider paternity to name one obvious 33 example of the ways in which marriage organizes social relations. See, e.g., Lehr v. Robertson, 463 U.S. 248, 263 (1983) (noting that "[t]he most effective protection of the putative father's opportunity to develop a relationship with his child is provided by the laws that authorize formal marriage and govern its consequences"). 105 1140460 plays in 'promot(ing) a way of life' through the instruction of children" (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972)); Williams v. North Carolina, 317 U.S. 287, 298 (1942) ("The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of [the] commanding problems ...."). In short, government has an obvious interest in offspring and the consequences that flow from the creation of each new generation, which is only naturally possible in the opposite-sex relationship, which is the primary reason marriage between men and women is sanctioned by State law. In his dissent in Goodridge, Judge Cordy summarized well many of the public purposes of traditional marriage, and therefore, why traditional marriage is a rational state policy: "Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of human society. See C.N. Degler, The Emergence of the Modern American Family, in The American Family in Social-Historical Perspective 61 (3d ed. 1983); A.J. Hawkins, Introduction, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage xiv (2002); C. Lasch, Social Pathologists and the Socialization of Reproduction, 106 1140460 in The American Family in Social-Historical Perspective, [61,] at 80 [(3d ed. 1983)]; W.J. O'Donnell & D.A. Jones, Marriage and Marital Alternatives 1 (1982); L. Saxton, The Individual, Marriage, and the Family 229-230, 260 (1968); M.A. Schwartz & B.M. Scott, Marriages and Families: Diversity and Change 4 (1994); Wardle, 'Multiply and Replenish': Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol'y 771, 777-780 (2001); J.Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families 28, 40, 66-67 (2002). Marriage has not been merely a contractual arrangement for legally defining the private relationship between two individuals (although that is certainly part of any marriage). Rather, on an institutional level, marriage is the 'very basis of the whole fabric of civilized society,' J.P. Bishop, Commentaries on the Law of Marriage and Divorce, and Evidence in Matrimonial Suits § 32 (1852), and it serves many important political, economic, social, educational, procreational, and personal functions. "Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. See Milford v. Worcester, 7 Mass. 48, 52 (1810) (civil marriage 'intended to regulate, chasten, and refine, the intercourse between the sexes; and to multiply, preserve, and improve the species'). See also P. Blumstein & P. Schwartz, American Couples: Money, Work, Sex 29 (1983); C.N. Degler, supra at 61; G. Douglas, Marriage, Cohabitation, and Parenthood -- From Contract to Status?, in Cross Currents: Family Law and Policy in the United States and England 223 (2000); S.L. Nock, The Social Costs of De-Institutionalizing Marriage, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage, supra at 7; L. Saxton, supra at 239-240, 242; M.A. Schwartz & B.M. Scott, supra at 4-6; 107 1140460 Wardle, supra at 781-796; J.Q. Wilson, supra at 23- 32. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the modern age of widespread effective contraception and supportive social welfare programs), but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism. "The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. See G.L. c. 209C, § 6 ('a man is presumed to be the father of a child ... if he is or has been married to the mother and the child was born during the marriage, or within three hundred days after the marriage was terminated by death, annulment or divorce'). Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. See J.Q. Wilson, supra at 23-32. See also P. Blumstein & P. Schwartz, supra at 29; C.N. Degler, supra at 61; G. Douglas, supra at 223; S.L. Nock, supra at 7; L. Saxton, supra at 239-240, 242; M.A. Schwartz & B.M. Scott, supra at 4-6; Wardle, supra at 781-796. The alternative, a society without the institution of marriage, in which heterosexual intercourse, 108 1140460 procreation, and child care are largely disconnected processes, would be chaotic. "The marital family is also the foremost setting for the education and socialization of children. Children learn about the world and their place in it primarily from those who raise them, and those children eventually grow up to exert some influence, great or small, positive or negative, on society. The institution of marriage encourages parents to remain committed to each other and to their children as they grow, thereby encouraging a stable venue for the education and socialization of children. See P. Blumstein & P. Schwartz, supra at 26; C.N. Degler, supra at 61; S.L. Nock, supra at 2-3; C. Lasch, supra at 81; M.A. Schwartz & B.M. Scott, supra at 6- 7. More macroscopically, construction of a family through marriage also formalizes the bonds between people in an ordered and institutional manner, thereby facilitating a foundation of interconnectedness and interdependency on which more intricate stabilizing social structures might be built. See M. Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America 10 (1985); C. Lasch, supra; L. Saxton, supra at 260; J.Q. Wilson, supra at 221." Goodridge, 440 Mass. at 381-84, 798 N.E.2d at 995-96 (Cordy, J., dissenting) (footnote omitted).34 In a footnote of its opinion, the federal district court 34 rejected several of these purposes of traditional marriage laws -- the history and tradition of marriage, encouraging responsible procreation, promoting optimal child-rearing -- as not constituting "compelling" state interests by simply citing Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). Bostic sidelined the importance of these purposes of marriage by taking the view that marriage is not just about procreation; rather it is concerned with the happiness of a relationship between two adults. See Bostic, 760 F.3d 352, 380 ("[T]he Supreme Court rejected the view that marriage is about only procreation in Griswold v. Connecticut, in which it upheld 109 1140460 married couples' right not to procreate and articulated a view of marriage that has nothing to do with children."). There are at least three problems with this tactic. First, no one is saying that "marriage is about only procreation." Bostic, 760 F.3d at 380 (emphasis added). The State is simply stating that a primary public purpose of marriage concerns procreation and that this is sufficient justification to make a distinction in law as to the types of couples who can marry. The fact that marriage encompasses more than procreation does not by itself invalidate procreation as an interest in the State's marriage policy. Second, the decision in Griswold was not based on a "right to marry"; it was based on a right to privacy. See Griswold, 381 U.S. at 486 ("We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system.") As with the discussion above about Lawrence, the problem in Griswold was government's interference with an intimate aspect of an existing relationship, in which the Griswold Court clearly was referring to the traditional marriage relationship. (Why else would contraception even be an issue?) The issue here concerns the government's public recognition of a relationship that until 2002 was unknown in history as being categorized as "marriage." Third, the Bostic Court's cavalier rejection of the purposes of traditional marriage fails to acknowledge that the Court made a moral judgment that the new definition of marriage is superior to the traditional view. As Steven Smith has noted: "[H]ow can we argue about the desirability or justice of restrictions on abortion, or marriage, or drug use, without somehow drawing upon our larger vision of the good life, and upon the religious or philosophical assumptions that give rise to and inform those visions? It is a large question. But the short answer, it seems, is that we cannot." Steven D. Smith, Disenchantment, at 105. The Bostic Court's 110 1140460 Ultimately, these are the purposes of marriage that relate to government. Government is concerned with public effects, not private wishes. The new definition of marriage centers on the private concerns of adults, while the traditional definition focuses on the benefits to society from opinion is replete with moral assertions made as statements of fact: "[S]ame-sex couples [arguably] want access to marriage so that they can take advantage of its hallmarks, including faithfulness and permanence, and that allowing loving, committed same-sex couples to marry and recognizing their out-of-state marriages will strengthen the institution of marriage." 760 F.3d at 381. "[T]he Proponents imply that, by marrying, infertile opposite-sex couples set a positive example for couples who can have unintended children, thereby encouraging them to marry. Id. "[B]y preventing same-sex couples from marrying, the Virginia Marriage Laws actually harm the children of same-sex couples by stigmatizing their families...." Id. at 383. Regardless of whether one agrees or disagrees with these assertions, the fact remains that they represent the imposition of the Bostic (and Searcy I) Court's moral views upon the State under the guise of legal reasoning. It is not reasoning of "a" plus "b" equals "c"; it is the declaration of social policy through judicial fiat under the guise of constitutional law. 111 1140460 the special relationship that exists between a man and a woman, i.e., the effects for care of children, the control of passions, the division of wealth in society, and so on. The federal district court and other courts that have struck down traditional marriage laws have stated that states cannot distinguish traditional marriage on the basis of procreation and the beneficial effects the institution provides to children because some married couples cannot or do not have children, and yet government recognizes their marriages. This argument is nothing more than an attempt to use the exception to disprove the rule. The fact that many 35 people do not vote in elections does not invalidate the value 35 "Human beings are created through the conjugation of one man and one woman. The percentage of human beings conceived through non-traditional methods is minuscule, and adoption, the form of child-rearing in which same-sex couples may typically participate together, is not an alternative means of creating children, but rather a social backstop for when traditional biological families fail. The perpetuation of the human race depends upon traditional procreation between men and women. The institution developed in our society, its predecessor societies, and by nearly all societies on Earth throughout history to solidify, standardize, and legalize the relationship between a man, a woman, and their offspring, is civil marriage between one man and one woman." Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1015 (D. Nev. 2012). 112 1140460 of using elections to allow people to chose their government leaders. "Marriage laws are not aimed at making all married sex procreative but only seek to encourage that all man-woman sex occurs in marriage, as a protection for when such sex is procreative -- a protection for the baby, the often vulnerable mother, and society generally." Stewart, 31 Harv. J.L. & Pub. Pol'y at 344-45.36 The federal district court's memorandum opinion in Searcy I states that "[t]he Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote." But "'the The DeBoer Court noted: 36 "Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), holds that a State may require law enforcement officers to retire without exception at age fifty, in order to assure the physical fitness of its police force. If a rough correlation between age and strength suffices to uphold exception-free retirement ages (even though some fifty-year-olds swim/bike/run triathlons), why doesn't a correlation between male-female intercourse and procreation suffice to uphold traditional marriage laws (even though some straight couples don't have kids and many gay couples do)?" DeBoer, 772 F.3d at 407. 113 1140460 relevant inquiry here is not whether excluding same-sex couples from marriage furthers [the state's] interest in steering man-woman couples into marriage.' Rather, the relevant inquiry is whether also recognizing same-sex marriages would further [the state's] interests." Bostic, 760 F.3d at 394 (Niemeyer, J., dissenting)(quoting state- appellant's brief). In other words, the state simply has to show that recognizing and encouraging marriage between men and women promotes responsible procreation, not that excluding same-sex couples from marriage encourages heterosexuals to marry. Even if preventing homosexuals from marrying will not increase the likelihood that children are born in wedlock, this does not address the fact that offering marriage solely to heterosexuals indisputably serves as a tool to prevent out- of-wedlock pregnancies. Moreover, the state's policy need only advance a rational goal; it does not need to demonstrate that it is the only way to advance the goal or even that it is the best way to do so. "[R]ational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges." DeBoer, 772 F.3d at 405. 114 1140460 Under United States Supreme Court precedent, another potential method of finding traditional marriage unconstitutional is the notion that Alabama's limitation of marriage to heterosexual unions is based solely on animus toward homosexuals and that, therefore, the laws violate both the Equal Protection Clause and the Due Process Clause. The federal district court did not expressly articulate this position, but doing so would require reliance upon Romer v. Evans, 517 U.S. 620 (1996), Lawrence, and Windsor. In Romer, the Supreme Court struck down an amendment to the Colorado Constitution that "prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect" the status of persons based on their "'homosexual, lesbian or bisexual orientation, conduct, practices or relationships.'" 517 U.S. at 624. The Court did so because the amendment "singl[ed] out a certain class of citizens for disfavored legal status," 517 U.S. at 633, and "raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." 517 U.S. at 634. In short, the amendment "classifie[d] homosexuals not to further a proper legislative 115 1140460 end but to make them unequal to everyone else." 517 U.S. at 635. In Lawrence, the Court struck down a Texas law criminalizing sodomy because, it said, homosexuals "are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." 539 U.S. at 578. In Windsor, the Court struck down a portion of the Federal Defense of Marriage Act ("DOMA") because Congress's intrusion into a traditional state-law area demonstrated that DOMA was "motived by an improper animus." 133 S. Ct. at 2693. The Court explained that DOMA's aim was to "interfere[] with the equal dignity of same-sex marriages" conferred by New York's laws on marriage. Id. The Court added that "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency." Id. at 2694. In short, "the principal purpose and the necessary effect of [DOMA] are to demean those persons who are in a lawful same-sex marriage." Id. at 2695.37 One commentator characterizes the Court's approach in 37 these cases as amounting to name-calling on a scholarly level: 116 1140460 The theme from Romer, Lawrence, and Windsor that government cannot single out a group for disfavored treatment solely on the basis of hatred for that particular group does not apply to Alabama's marriage laws. Although Alabama's limitation of marriage to opposite-sex couples prevents homosexual couples from receiving marriage licenses, the laws do not do so for the purpose of singling out same-sex partners for disfavored status. As we have already seen, the marriage laws undeniably have several purposes that have absolutely nothing to do with attempting to treat a particular group in an unequal fashion. The laws attempt to protect children produced in opposite-sex relationships; they fashion a system for parental legal responsibilities; and they encourage family "Typically, judicial decisions invalidating challenged laws ultimately boil down to peremptory assertions by judges that the law in question has no 'rational basis' or is the product of prejudice or 'animus.' Thus, citing 'a substantial number of Supreme Court decisions, involving a range of legal subjects, that condemn public enactments as being expressions of prejudice or irrationality or invidiousness,' Robert Nagel shows how 'to a remarkable extent, our courts have become places where the name-calling and exaggeration that mark the lower depths of our political debate are simply given more acceptable, authoritative form.'" Steven D. Smith, The Disenchantment of Secular Discourse, 9 (2010) (quoting Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Northwestern Univ. L. Rev. 193, 199 (1993)). 117 1140460 structure and enable formative education and socialization of children. The limitation of marriage to opposite-sex couples has so long existed in law that ascribing its existence solely to hatred toward homosexuals is simply absurd on its face. See Lawrence, 539 U.S. at 570 ("American laws targeting same-sex couples did not develop until the last third of the 20th century."). Even Alabama's marriage amendment, which is of a more recent vintage, "codified a long-existing, widely held social norm already reflected in state law. '[M]arriage between a man and a woman,' as the Court reminded us just last year, 'had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.' Windsor, 133 S. Ct. at 2689." DeBoer, 772 F.3d at 408. Alabama's longstanding and continued embrace of traditional marriage is not due to be struck down on an animus rationale. If Alabama's marriage laws do not violate the Equal Protection Clause or the fundamental right to marry under the Due Process Clause, and if they are not solely the product of animus toward homosexuals, then Supreme Court precedent provides only one other course to justify the conclusion reached by the federal district court: The notion that marriage confers a certain dignity on its participants that 118 1140460 the law cannot deprive individuals of simply because they desire to marry a person of the same sex. This line of reasoning comes from Windsor. In Windsor, the Court stated: "Here [New York's] decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. ".... "... DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558, 123 S.Ct. 2472, and whose relationship the State has sought to dignify." Windsor, ___ U.S. at ___, 133 S.Ct. at 2692, 2694; see also ___ U.S. at ___, 133 S.Ct. at 2693 ("The history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute."). Several courts that have declared state marriage laws unconstitutional have relied on Windsor's "equal dignity" 119 1140460 language. See, e.g., Baskin v. Bogan, 766 F.3d 648, 671 (7th Cir. 2014) (emphasizing Windsor's statement that "'no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.'" (quoting Windsor, ___ U.S. at ___, 133 S. Ct. at 2696; further citation omitted)); Kitchen v. Herbert, 755 F.3d 1193, 1213 (10th Cir. 2014) (stating that "freedoms [such as marriage] support the dignity of each person, a factor emphasized by the Windsor Court"); Garden State Equal. v. Dow, 434 N.J. Super. 163, 206, 82 A.3d 336, 361 (Ch. Div. 2013) (relying on Windsor's language that a "'[s]tate's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import'" (quoting Windsor, ___ U.S. at ___, 133 S. Ct. at 2705)). Windsor's "equal dignity" rationale contains several problems. First, there is no "equal dignity" provision in the text of the United States Constitution. Instead, what this notion appears to be is a legal proxy for invalidating laws federal judges do not like, even though no actual 120 1140460 constitutional infirmity exists. Since the notion is not 38 textual, it is at least incumbent upon federal courts employing it to strike down state-marriage laws to describe in concrete terms what "dignity" state-sanctioned marriage confers and therefore exactly what same-sex couples are deprived of by traditional marriage laws. But those courts 39 merely repeat the generalized language of Windsor. Does a paper license that publicly recognizes the relationship confer "dignity" upon those who obtain it? Is it the fact that government recognition of same-sex relationships declares them to be "the same as" opposite-sex relationships that confers This is what one law professor has deftly labeled "'The 38 Not-Nice School of Constitutional Law,'" by which he meant that "the Constitution is taken simply to prohibit any state or federal action that is not nice. Whatever the text may actually provide, this school transforms it into an engine of political wish-fulfillment. What we don't like in government, the Constitution outlaws." Craig A. Stern, Things Not Nice: An Essay on Civil Government, 8 Regent U. L. Rev. 1, 2 (1997). See also Robicheaux v. Caldwell, 2 F. Supp. 3d 910, 925 (E.D. La. 2014) ("The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos. Courts that, in the words of Justice Scalia in a different context in Bond v. United States, __ U.S. __, __, 134 S. Ct. 2077, 2094 (2014) (concurring opinion), appear to have assumed the mantle of a legislative body."). As already noted, the Supreme Court's substantive-due- 39 process cases require "a 'careful description' of the asserted fundamental liberty interest." Glucksberg, 521 U.S. at 720-21 (quoting Reno, 507 U.S. at 302). 121 1140460 dignity? The United States Supreme Court has held that damage to reputation is not a cognizable interest protected by the Fourteenth Amendment. See Paul v. Davis, 424 U.S. 693, 712 (1976) (holding that "the interest in reputation ... is neither 'liberty' nor 'property' guaranteed against state deprivation without due process of law"). So presumably this notion must be something more than reputation, but it is apparently too difficult for the judges relying on it to describe what it is. If the notion of "equal dignity" is a backdoor way of according fundamental-right status to the new definition of marriage, it utterly fails to cabin that right in any meaningful way. Furthermore, emphasizing the "dignity" of the public recognition of a marriage places the focus on the adult relationship, again assuming the conclusion as a premise for the question. It constitutes an implicit adoption, without acknowledgment, of the new definition of marriage based solely on a special relationship between two adults -- as opposed to the traditional definition of marriage, which aligns with the historically recognized purpose relating to procreation and the "rights and obligations between the couple and any children the union may produce." Maggie Gallagher, What Is 122 1140460 Marriage for? The Public Purposes of Marriage Law, 62 La. L. Rev. 773, 781 (2002). "Plaintiffs seek to bring the right to marry the person of their choosing regardless of gender within the protection of the well-recognized fundamental right to marry (see Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673 [(1978)]; Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 [(1967)]; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 [(1942)]). However, we find merit in defendants' assertion that this case is not simply about the right to marry the person of one's choice, but represents a significant expansion into new territory which is, in reality, a redefinition of marriage. The cornerstone cases acknowledging marriage as a fundamental right are laced with language referring to the ancient recognized nature of that institution, specifically tying part of its critical importance to its role in procreation and, thus, to the union of a woman and a man.... Samuels v. State Dep't Of Health, 29 A.D.3d 9, 14-15, 811 N.Y.S.2d 136, 140-41 (N.Y. App. Div. 2006) (footnote omitted), aff'd sub nom., Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1, 821 N.Y.S.2d 770 (2006). Related to the fact that Windsor implicitly adopts the new definition of marriage is the fact that Windsor's "equal dignity" rationale necessarily makes a moral judgment about adult sexual relationships, even though the Supreme Court in Lawrence and lower courts addressing the marriage issue have purported to disclaim ascribing any merit to moral or 123 1140460 religious considerations. By asserting that denying same- 40 sex couples the status of marriage deprives them of "a dignity and status of immense import," ___ U.S. at ___, 133 S. Ct. at 2692, the Windsor Court made a moral judgment that a married couple has more dignity than an unmarried couple. Many 41 people would agree with such an assessment, but it is not, strictly speaking, a legal judgment -- at least according to The Lawrence Court stated that "this Court's obligation 40 is to define the liberty of all, not to mandate its own moral code." Lawrence, 539 U.S. at 559. Interestingly, in her special writing in Lawrence, Justice O'Connor stated: "Unlike the moral disapproval of same-sex relations -- the asserted state interest in this case -- other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." Lawrence, 539 U.S. at 585 (O'Connor, J., concurring in the judgment)(emphasis added). The Windsor Court also stated that DOMA "places same-sex 41 couples in an unstable position of being in a second-tier marriage." 133 S. Ct. at 2694. Justice Scalia responded: "It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here -- when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will 'confine' the Court's holding is its sense of what it can get away with." ___ U.S. at ___, 133 S.Ct. at 2709 (Scalia, J., dissenting, joined by Thomas, J.). 124 1140460 several courts that have invalidated traditional marriage laws. It seems at least disingenuous to find a 42 Several courts have inveighed that people's moral or 42 religious views of marriage can have nothing to do with the legality of the institution. See, e.g., Baskin v. Bogan, 766 F.3d 648, 669 (7th Cir. 2014) ("To be the basis of legal or moral concern ... the harm must be tangible, secular, material -- physical or financial, or, if emotional, focused and direct -- rather than moral or spiritual.... Similarly, while many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of."); Varnum v. Brien, 763 N.W.2d 862, 905 (Iowa 2009) ("State government can have no religious views, either directly or indirectly, expressed through its legislation.... As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals."); Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 251, 957 A.2d 407, 475 (2008) ("Because, however, marriage is a state sanctioned and state regulated institution, religious objections to same sex marriage cannot play a role in our determination of whether constitutional principles of equal protection mandate same sex marriage."); Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 312, 798 N.E.2d 941, 948 (2003) ("Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us."). This divorce of moral and religious ideas from legal debate is now common: "In [the classical] view, the function of moral reasoning is to determine what actions, or what kind of life, conform to a normative order inherent in nature itself.... A good deal of thinking about 125 1140460 constitutional infirmity with traditional marriage laws by way of a moral judgment when states have been forced to defend those laws apart from any moral or religious basis, an especially difficult task given that American ideas of marriage indisputably have been shaped by the Jewish and Christian religions. See Charles P. Kindregan, Jr., Same-Sex Marriage: The Cultural Wars and the Lessons of Legal History, 38 Fam. L.Q. 427, 428 (2004) (detailing the intertwining history of religious and civil marriage in America and stating that "[t]he Western concept of marriage has been strongly influenced by Judeo-Christian theology."). Moreover, because the Windsor Court's moral judgment is (one must assume) not based on religion, then it must be asked what standard is being used to judge that marriage is better than nonmarriage, that it contains some kind of higher dignity than other suicide, and about moral questions generally, still operates on some such assumption. In much public discourse, however, and especially in academic and legal contexts, explicit appeals to normative dimensions in nature are typically deemed inadmissible. Moral reasoning is supposed to operate without reliance on religious or metaphysical premises." Smith, Disenchantment, at 60. 126 1140460 relationships? Because the notion is not contained in the 43 Constitution, one may question whether it is nothing more than "The secular philosophical tradition speaks of 43 inalienable rights, inalienable human dignity and of persons as ends in themselves. These are, I believe, ways of whistling in the dark, ways of trying to make secure to reason what reason cannot finally underwrite." Raimond Gaita, A Common Humanity: Thinking About Love and Truth and Justice 5 (Routledge 2000) (1998). 127 1140460 intuitions. At any rate, it is not a legal basis for 44 striking down a validly enacted law. In the end, however, even if one were to accept that marriage carries with it a "dignity" that compels its availability to all, would we not meet ourselves coming? 44 "[T]here is no apparent reason why anyone should be persuaded [by intuitions]. After all, what credentials can these intuitions claim? Whether intuitions are reliable is, of course, always a question, but in this case the problem goes deeper: it is not at all clear exactly what the intuitions are even about. Suppose I do have a 'moral' intuition (whatever that is) that, say, polygamous relationships are 'wrong' (whatever that means). So what? I may also harbor an obsessive fear of traveling on airplanes, or an abiding premonition that something horrible will happen if I leave the house on Friday the thirteenth, or a sense of profound disgust when I look down at my plate and see that the peas have gotten mixed with the potatoes. Unless these feelings, intimations, or intuitions are grounded in something rational and objectively real, the proper response in each case, it seems, would be therapeutic in nature; it would be a response calculated to help me and anyone else subject to such debilitating feels and intuitions 'Get over it!' "Conversely, insofar as contemporary deontological thinkers forego therapeutic response and instead treat such intuitions with utmost respect, it is hard to resist the suspicion that they are acting on lingering assumptions -- their own, possibly, or perhaps those of the people whose intuitions provide them with their material -- about an intrinsic normative order." Smith, Disenchantment, at 66 (footnotes omitted). 128 1140460 Under that construct, such dignity no doubt would be something gained from the very nature of traditional marriage, the foundation for the family unit within which children may be born and have imparted to them by a mother and father the values needed for responsible citizenship and the furtherance of society. "To remove from 'marriage' a definitional component of that institution (i.e., one woman, one man) which long predates the constitutions of this country and state (see e.g. Griswold v. Connecticut, 381 U.S. 479, 486[, 85 S. Ct. 1678, 14 L. Ed. 2d 510] [1965]) would, to a certain extent, extract some of the 'deep[] root[s]' that support its elevation to a fundamental right." Samuels v. State Dep't. of Health, supra. Finally, an open question exists as to whether Windsor's "equal dignity" notion works in the same direction toward state laws concerning marriage as it did toward DOMA. The Windsor Court stated that "[t]he history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute." Windsor, ___ U.S. at ___, 133 S. Ct. at 2693. In Windsor, New York's law allowed same-sex couples to obtain marriage licenses. Thus, the "dignity" was conferred by the state's own choice, a 129 1140460 choice that was "without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended." ___ U.S. at ___, 133 S.Ct. at 2692. The problem with DOMA was that it interfered with New York's "sovereign" choice. Alabama "used its historic and essential authority to define the marital relation" and made a different "sovereign" choice than New York. Id. If New York was free to make that choice, it would seem inconsistent to say that Alabama is not free to make its own choice, especially given that "[t]he recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens." ___ U.S. at ___, 133 S. Ct. at 2691. To all of this, proponents of same-sex marriage often retort that there is no reason both the traditional definition and the new definition of marriage cannot coexist. On one level, that argument makes the erroneous assumption that the two definitions are not making different claims as to why marriage exists. On another level, it simply assumes that the definitions are not mutually exclusive.45 45 "Acceptance of the broad description requires rejection of two salient aspects of the narrow description of marriage. First, it requires 130 1140460 Redefining marriage by definition implies that the rejecting the notion that marriage is no more than what the narrow model describes. Although genderless marriage proponents rarely, if ever, expressly state that notion of 'no more than,' the notion is always implicit in their arguments.103 Second, the broad description also requires rejecting the idea that children are not 'the sine qua non of civil marriage' and that 'marriage and children are not really connected.' The broad description portrays marriage as primarily a child-protective and child-centered institution, with most of the institution's social goods pertaining to the quality of child-rearing. Conversely, the narrow model describes an adult-centered 'partnership entered into for its own sake, which lasts only as long as both partners are satisfied with the rewards (mostly intimacy and love) that they get from it.' ______________ " ... This phenomenon merits close examination for 103 two reasons. First, the notion itself goes to the heart of the veracity of the narrow and broad descriptions; if the 'no more than' notion is factually accurate, it must follow that what the broad description depicts beyond the narrow description's scope is factually false. Conversely, if the 'no more than' notion is erroneous as a matter of fact, that error would be established by the validation of the broad description's additional depictions. Second, if -- as demonstrated elsewhere -- the 'no more than' notion is always or nearly always implicit and therefore not expressly stated and defended, that aspect is also important. Id. It is important because it constitutes probative evidence about how defensible the 'no more than' notion is." Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Pol'y 313, 337-38 (2008) (most footnotes omitted; emphasis omitted). 131 1140460 traditional definition is inaccurate. In point of fact, we are concerned here with two different, mutually exclusive definitions. One that marriage is only between a man and a woman, and one that does not include this limitation. Both definitions cannot be true at the same time. Insisting that the law must legitimize one definition necessarily delegitimizes the other. Throughout the entirety of its history, Alabama has chosen the traditional definition of marriage. Some other states, like New York, have more recently chosen the new definition. The United States Constitution does not require one definition or the other because, as the Windsor Court noted, "[b]y history and tradition," and one should add, by the text of the Constitution, "the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States." ___ U.S. at ___, 133 S.Ct. at 2689-90. That fact does not change simply because the new definition of marriage has gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary.46 According to the National Conference of State 46 Legislatures, only 11 states have accepted same-sex marriage as a result of choices made by the people or their elected 132 1140460 As it has done for approximately two centuries, Alabama law allows for "marriage" only between one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty. IV. Order The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not representatives. The 26 other states that, to any extent, now have same-sex marriage do so because it has been imposed on them by court order (21 of these by federal courts). See http://www.ncsl.org/research/human-services/same-sex-marriage- laws.aspx#1 (last visited March 2, 2015; a copy of the Web page containing this information is available in the case file of the Clerk of the Alabama Supreme Court). 133 1140460 be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser. PETITION GRANTED; WRIT ISSUED. Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur. Main, J., concurs in part and concurs in the result. Shaw, J., dissents. 134 1140460 MAIN, Justice (concurring in part and concurring in the result). I concur fully in the main opinion except for Part II.B. As to Part II.B., I concur in the result only. Consistent with my dissent from the Court's earlier decision to order answer and briefs in this matter, I continue to harbor concerns regarding some of the procedural aspects of this highly unusual case. Nevertheless, given the unique facts of this case and the intervention of Probate Judge John Enslen, I am persuaded that Judge Enslen has a sufficient interest in these proceedings to satisfy the criteria necessary for standing. 135 1140460 SHAW, Justice (dissenting). I do not believe that this case can be filed in this Court at this time; as discussed below, I do not believe that this Court yet has jurisdiction. It is unfortunate that the federal judiciary has refused to stay the order striking down Alabama's marriage-protection laws until the Supreme Court of the United States can conclusively rule on the issue within the next few months. The federal district court's order did nothing less than change the very definition of the institution of marriage in Alabama. Such a drastic change in Alabama law warranted the granting of a stay. The lack of a stay has resulted in much unnecessary confusion and costly litigation. Because I do not believe the case before this Court is properly filed, I cannot, at this time, express my opinion as to whether the federal court's decision was correct. Against this backdrop, I write to express my concern that, in an attempt to reduce confusion and to restore order, the main opinion has deviated from certain principles of law that undermine its rationale for assuming jurisdiction of, and extending relief to, the petitioners here. This deviation from the law, I fear, will have unforseen consequences in 136 1140460 future cases. For that reason, I cannot join the main opinion. My concerns are as follows: 1. This Court does not have jurisdiction in this case. Normally, this Court hears appeals from lower court decisions. Here, public-interest groups have filed a petition directly with this Court in an attempt to invoke its "original" jurisdiction, which is rare. "Original jurisdiction" is "[a] court's power to hear and decide a matter before any other court can review the matter." Black's Law Dictionary 982 (10th ed. 2014). This Court's original jurisdiction is described in the Constitution: "The supreme court shall have original jurisdiction ... to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction...." Ala. Const. 1901, Art. VI, § 140(b)(2) (emphasis added). Alabama Code 1975, § 12-2-7(2), states that this Court has authority to exercise "original jurisdiction" in determining and issuing writs of mandamus in matters where "no other court has jurisdiction." So, if another court has jurisdiction over this mandamus petition, the plain language of § 12-2-7(2) provides that this Court cannot exercise original jurisdiction. Circuit courts 137 1140460 are courts of general jurisdiction whose judgments may be appealed to this Court and that, under § 12-2-7(2), cannot be bypassed. This Court is applying a different rule in this case. This Court routinely hears petitions challenging a lower court's decision in a pending case; this does not constitute hearing a matter "before another court" gets that opportunity and is not an exercise of original jurisdiction. Alabama Code 1975, § 12-2-7(3), states that this Court has authority to issue "remedial and original writs as are necessary to give to it a general superintendence and control of courts of inferior jurisdiction." There is no indication in the plain language of this Code section that the reference to "original writs" encompasses "original jurisdiction"; rather, the language refers to writs that review interlocutory decisions of the lower courts: "Other procedures by which decisions of a supervised court are brought to a supervising court for review are provided by the writs of certiorari, mandamus, and prohibition. Known variously as 'prerogative writs,' 'peremptory writs,' 'extraordinary writs,' 'supervisory writs,' and 'original writs,' these writs are not, when appropriately employed, alternatives to appeal, but lie under circumstances in which an appeal does not lie. One or another of these writs can, under prescribed circumstances, be used to invoke supervisory review of interlocutory decisions that could not be appealed." 138 1140460 Jerome A. Hoffman, Alabama Appellate Courts: Jurisdiction in Civil Cases, 46 Ala. L. Rev. 843, 852 (Spring 1995). Advising a probate judge how to issue government marriage licenses is not "superintendence and control" of an inferior court's performance of a judicial function. Instead, it is instructing a State official acting in a nonjudicial capacity on how to perform a ministerial act. Specifically, probate courts are courts of limited jurisdiction. The jurisdiction 47 of those courts is specified in Ala. Code 1975, § 12-13-1, which lists the types of cases and controversies the courts may hear. Issuing marriage licenses is not a function of the court or of its judicial power--the court has no judicial power to issue a marriage license. Instead, it is something 48 the legislature has instructed that probate judges "may" do. 49 The jurisdiction of probate courts is limited to matters 47 provided by statute. AltaPointe Health Sys., Inc. v. Davis, 90 So. 3d 139, 154 (Ala. 2012). See Alabama Power Co. v. Citizens of State, 740 So. 2d 48 371, 381 (Ala. 1999) (defining "judicial power" vested by the Constitution as "the special competence to decide discrete cases and controversies involving particular parties and specific facts"). Probate judges are entrusted with performing numerous 49 nonjudicial tasks, such as maintaining corporate records, Ala. Code 1975, § 10A-1-4.02; issuing driver's licenses, Ala. Code 1975, § 32-6-4; and, in some counties, serving as the chairperson of the county commission, Ala. Code 1975, § 11-3- 139 1140460 Ala. Code 1975, § 30-1-9; Ashley v. State, 109 Ala. 48, 49, 19 So. 917, 918 (1896) ("The issuance of a marriage license by a judge of probate is a ministerial and not a judicial act."). There is no exercise of a probate court's jurisdiction when a probate judge issues a marriage license because the source of the probate judge's authority to issue such a license does not stem from the jurisdiction of the court. By acting in this case, this Court is not correcting a legal mistake by a judicial officer; it is not supervising or correcting a court. Section 140(b), Ala. Const. 1901, and § 12-2-7(3), Ala. Code 1975, are simply inapplicable in this case. Furthermore, the decision in Ex parte Alabama Textile Products Corp., 242 Ala. 609, 7 So. 2d 303 (1942), provides no exception. In that case, this Court purported to hear the petition under what is now § 12-2-7(3) and not § 12-2-7(2). A subsequent decision, State v. Albritton, 251 Ala. 422, 424, 37 So. 2d 640, 642 (1948), notes that § 12-2-7(3) allows the 50 Court to supervise only the exercise of judicial power: "It is 1(c). I submit that this Court would not, pursuant to its original jurisdiction, attempt to review a probate judge's performance of any of these tasks. Albritton discusses the predecessor statute to what is 50 now § 12-2-7(3). 140 1140460 clear from [§ 12-2-7(3)] that the justices of the supreme court are limited in the issuance of these extraordinary writs as necessary to give general superintendence and control of inferior jurisdictions. That is, to supervise persons and bodies clothed with judicial power in the exercise thereof." (Emphasis added.) It further notes that Alabama Textile involved a review of a "judicial action" of "an inferior tribunal vested with judicial or quasi judicial power," and is thus also so limited. Id. In other words, Alabama Textile does not provide this Court with original jurisdiction to supervise the nonjudicial functions of probate judges. See also Russo v. Alabama Dep't of Corr., 149 So. 3d 1079, 1081 (Ala. 2014) ("This Court does not have original jurisdiction to issue writs against State officers and employees other than to the lower courts."), and Ex parte Anderson, 112 So. 3d 31, 35 (Ala. 2012) (on application for rehearing) (Murdock, J., concurring specially) ("In her application for rehearing, Anderson ... [argues] that her petition to this Court did not seek a writ directed to the circuit court requiring it to enforce its original orders but, instead, was a petition asking this Court to issue a writ directly to the State comptroller. I am not persuaded that such a petition is 141 1140460 within the original jurisdiction of this Court ...."). This 51 Court is applying a different rule in this case. 2. The public-interest groups cannot sue in the State's name. The public-interest groups here are attempting to pursue this case "in the name of the State." Citizens can sometimes sue in the name of the State to compel a public officer to perform a legal duty in which the public has an interest. But they cannot do this when "the matter concerns the sovereign rights of the State...." Morrison v. Morris, 273 Ala. 390, 392, 141 So. 2d 169, 170 (1962). I must respectfully 52 disagree with the conclusion that this case does not concern the sovereign rights of this State. The relief requested and the relief granted touch directly on Alabama's sovereign authority to define the institution of marriage. This Court is applying a different rule in this case. I am not stating that a probate judge's decision to 51 issue a marriage license can never be challenged in the Alabama Supreme Court. I am stating that the case must first be filed in circuit court and then appealed to this Court, where our decision would then have statewide application. See also Ala. Code 1975, § 36-15-21 ("All litigation 52 concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General."). 142 1140460 3. The public-interest groups do not have standing. Not just anyone can file a lawsuit; the person or entity filing the action must have "standing," meaning the person or entity must have a sufficient stake in the controversy to be allowed to file the case. The legal test this Court would 53 normally use to determine whether "standing" exists is found in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), which this Court has adopted. In Lujan, certain environmental 54 groups alleged that the Secretary of the Interior was not correctly applying the law, and they wanted the courts to order the Secretary to apply the law in a different way. The Supreme Court of the United States held, among other things, This Court has held that standing must exist at the 53 commencement of the litigation and cannot be cured by subsequently adding to the case a party that has the requisite standing. Cadle Co. v. Shabani, 4 So. 3d 460, 462-63 (Ala. 2008). Therefore, this Court's recognition and alignment of additional petitioners after the case was commenced cannot cure the standing problem. I have argued in the past that Lujan does not apply in 54 Alabama in certain circumstances; this Court has not agreed with me. See McDaniel v. Ezell, [Ms. 1130372, January 30, 2015] ___ So. 3d ___ (Ala. 2015) (Shaw, J., dissenting), and Ex parte Alabama Educ. Television Comm'n, 151 So. 3d 283 (Ala. 2013) (Shaw, J., dissenting). Nevertheless, even I agree that Lujan applies in a case such as this: "I believe that in ... general challenges to government action, the Lujan analysis is helpful." Ex parte Alabama Educ. Television, 151 So. 3d at 294 n.11 (Shaw, J., dissenting). 143 1140460 that, in order for those interest groups to sue, they must have been "injured": "the plaintiff must have suffered an 'injury in fact'--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not "conjectural" or "hypothetical."'" 504 U.S. at 560 (footnote and citations omitted). The injury suffered must impact the plaintiff "in a personal and individual way." 504 U.S. at 560 n.1. Using this logic, this Court has held in the following cases that groups of interested people claiming that they have been broadly or generally harmed by allegedly unconstitutional or unauthorized governmental acts did not show the required injury: Ex parte King, 50 So. 3d 1056 (Ala. 2010); Town of Cedar Bluff v. Citizens Caring for Children, 904 So. 2d 1253 (Ala. 2004); and Kid's Care, Inc. v. Alabama Dep't of Human Res., 843 So. 2d 164 (Ala. 2002). The public- interest groups' alleged injuries in this case are not personal or individual in nature. Their injuries are no different than the injuries alleged in the above cases, where standing was rejected by this Court. Their disagreement with the probate judges, alone, does not provide sufficient standing. Government officials cannot be sued simply because a person thinks the officials are doing something wrong; the 144 1140460 thing they are doing must result in "concrete and particularized" and "actual or imminent" harm to the person seeking judicial relief. This Court is applying a different rule in this case. Here, the Court is recognizing an exception to Lujan when a party simply claims that it is acting on behalf of a public interest. If such recitation in the complaint is all that is required to avoid running afoul of Lujan, then Lujan is meaningless. The implications of such a holding are troublesome. 4. This mandamus petition is procedurally deficient. "When this Court considers a petition for a writ of mandamus, the only materials before it are the petition and the answer and any attachments to those documents." Ex parte Guaranty Pest Control, Inc., 21 So. 3d 1222, 1228 (Ala. 2009). When a party seeks mandamus review of a lower court decision, it must attach to the petition "[c]opies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition." Rule 21(a)(1)(E), Ala. R. App. P. There is no record below in this case because there is no lower court proceeding. Although the petition includes various documents issued by the federal 145 1140460 district court, we cannot take judicial notice of another court's records. Green Tree-AL LLC v. White, 55 So. 3d 1186, 1193 (Ala. 2010). We are in a position similar to that of a circuit court hearing an original petition filed in that court. Those courts, however, have the benefit of Ala. Code 1975, § 6-6-640(a), which requires mandamus petitions to be "verified by affidavit." Thus, the public-interest groups 55 have provided us with no competent evidence upon which we can determine whether they have proven their case. Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 814 n.6 (Ala. 2003) ("The petitioner has the responsibility of supplying the Court with those parts of the record that are essential to an understanding of the issues set forth in the mandamus petition."). Normally, this Court would not grant relief in such a situation. Ex parte Allianz Life Ins. Co. of North America, 25 So. 3d 411 (Ala. 2008). This Court is applying a different rule in this case. That Code section, we have held, does not apply to 55 mandamus petitions governed by the Alabama Rules of Appellate Procedure. See Ex parte Johnson, 485 So. 2d 1098 (Ala. 1986). The plain language of the Code section does not contain such a restriction. I question whether Ex parte Johnson excuses the filing of an unverified petition when this Court's original, and not appellate, jurisdiction is invoked, but I see no need to belabor that issue at this point. 146 1140460 5. This Court is addressing issues not presented. The public-interest groups have not asked this Court to rule on the constitutionality of Alabama's marriage-protection laws. Van Voorst v. Federal Express Corp., 16 So. 3d 86, 92- 93 (Ala. 2008) (noting that issues not briefed are waived). They have not presented an argument as to that issue. See Rule 21(a)(1)(C), Ala. R. App. P. (providing that a mandamus petition shall contain a statement of the issues presented and the relief sought). The briefs of the respondents appear to operate on the assumption that the constitutionality of the marriage-protection laws will not be addressed. Indeed, our order for answers and briefs may have misled them to believe that no argument as to this issue was required: "The respondents are ordered to file answers and, if they choose to do so, briefs, addressing issues raised by the petition, including, but not limited to, any issue relating to standing or otherwise relating to this Court's subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition." (Emphasis added.) The petition does not demonstrate "a clear legal right" to relief as to this issue because it does not even argue it. This Court would normally not perform a party's legal research. Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala. 1994) ("[I]t is not the function of this 147 1140460 Court to do a party's legal research ...."). This Court is applying a different rule in this case, and, for all practical purposes, is issuing an advisory opinion on this issue to two public-interest groups. Again, this is something that this Court has held it cannot do. Stamps v. Jefferson Cnty. Bd. of Educ., 642 So. 2d 941, 944 (Ala. 1994). For the foregoing reasons, I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law. Therefore, I must respectfully dissent. 148	March 3, 2015
b1a1edea-da43-4c0a-bec9-1c04173564cd	Ex parte A.P.	N/A	1140270	Alabama	Alabama Supreme Court	REL: 02/27/2015 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 _________________________ 1140270 _________________________ Ex parte A.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: A.P. v. Tuscaloosa County Department of Human Resources) (Tuscaloosa Juvenile Court, JU-12-425.02 and JU-12-426.02; Court of Civil Appeals, 2130791) WISE, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., dissents. 1140270 MOORE, Chief Justice (dissenting). I respectfully dissent. The petition before us presents the issue whether the Tuscaloosa County Department of Human Resources ("DHR") met its burden to investigate family resources and placement options before petitioning to terminate A.P.'s parental rights when the record indicates otherwise. DHR did not consider three willing paternal relatives because of their failure to provide certain documents. "Inasmuch as the termination of parental rights strikes at the very heart of the family unit, a court should terminate parental rights only in the most egregious of circumstances." Ex parte Beasley, 564 So. 2d 950, 952 (Ala. 1990). In addition, "the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered." Id. I would grant the writ of certiorari to determine 1) whether the "most egregious of circumstances" standard as outlined above was met when A.P.'s parental rights were terminated, and 2) whether DHR properly excluded the three willing paternal relatives from taking custody of the children. 2	February 27, 2015
e142e974-b98b-4216-af7b-a8b83e33c41d	Hilyer v. Fortier	N/A	1131174	Alabama	Alabama Supreme Court	REL: 02/20/2015 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 _________________________ 1131174 _________________________ Adam Dan Hilyer v. Betti Fortier, individually and as mother and next friend of M.M., a minor Appeal from Elmore Circuit Court (CV-13-900405) WISE, Justice. The defendant below, Adam Dan Hilyer, appeals from the denial of his motion to set aside a default judgment entered against him and in favor of the plaintiff, Betti Fortier. We reverse and remand. 1131174 Facts and Procedural History On the evening of July 29, 2013, Hilyer was backing a tractor-trailer rig used to transport logs into his private driveway on Kennedy Avenue. At the time, Hilyer was blocking both lanes of traffic on Kennedy Avenue. M.M., a minor, was driving Fortier's van and was traveling westbound on Kennedy Avenue. B.D., M.M.'s brother; R.W., M.M.'s fiancé; and B.H., a friend of B.D.'s, were also in the vehicle with M.M. M.M.'s vehicle collided with Hilyer's trailer, and M.M. sustained injuries. On October 30, 2013, Fortier, individually and as the mother and next friend of M.M., sued Hilyer, asserting claims of negligence and wantonness. In her complaint, Fortier alleged that, at the time of the accident, it was dark and that Hilyer's tractor-trailer was blocking both lanes of travel on Kennedy Avenue, which caused M.M.'s vehicle to collide with the trailer. Fortier alleged: 1. That Hilyer negligently and wantonly blocked both lanes of travel on Kennedy Avenue in the dark while attempting to back the tractor-trailer rig into his private driveway; 2. That Hilyer negligently and wantonly failed to give adequate warnings to motorists approaching 2 1131174 on Kennedy Avenue that the tractor-trailer rig was blocking both lanes of travel on Kennedy Avenue; 3. That Hilyer negligently and wantonly failed to have adequate and/or proper lighting on the truck and/or the trailer. 4. That Hilyer negligently and wantonly violated certain provisions of the Alabama Rules of the Road. A summons and a copy of the complaint were served on Hilyer by certified mail on November 6, 2013. On January 27, 2014, Fortier filed a motion for a default judgment against Hilyer and requested a hearing on damages. On January 28, 2014, the trial court entered an order granting Fortier's motion for a default judgment and stating: "Damages to be proven by affidavit and proposed judgment in 15 days." Subsequently, Fortier submitted a "proposed judgment," in which she requested that the trial court enter a judgment against Hilyer in the amount of $550,000 and "to find that the proposed settlement of the claim of the minor, M.M. is just, fair, reasonable, in keeping with the evidence, and is in the minor's best interest." In support of her request, Fortier attached an affidavit from her counsel regarding the injuries sustained by M.M. and the expenses that had been incurred as a result of those injuries. 3 1131174 On February 12, 2014, the trial court entered a judgment against Hilyer in the amount of $550,000 and found "that the proposed settlement of the claim of the minor, M.M. is just, fair, reasonable, in keeping with the evidence, and is in the minor's best interest." On March 7, 2014, Hilyer filed a motion to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P. In his motion, Hilyer addressed the requirements for setting aside a default judgment set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala. 1988). He also attached to his motion his affidavit; an affidavit from his neighbor, Wyman Earl Jackson, who witnessed the accident; an affidavit from Roberto Lozano, a claims manager for Alteris Insurance Services ("Alteris"), which was the third-party administrator for Hilyer's commercial-insurance policy; letters Fortier's counsel had sent to Lozano; an affidavit from Christopher Wyatt, an employee of Crawford & Company, which Alteris had hired to investigate the accident; copies of letters Wyatt had sent to Fortier's counsel; and a copy of a letter Fortier's counsel had sent to Wyatt after the default judgment had been entered. On that same date, Hilyer filed 4 1131174 his answer to the complaint and affirmative defenses. The trial court subsequently entered an order setting a hearing on Hilyer's motion to set aside the default judgment. On April 11, 2014, Fortier filed her opposition to Hilyer's motion to set aside. In support of her opposition, Fortier attached her affidavit; affidavits from M.M., B.D., and R.W.; an affidavit from Marc McHenry, an investigator with Fortier's counsel's law firm; copies of correspondence from Fortier's counsel; an affidavit from Fortier's counsel; and an affidavit from Shannon Rattan, the secretary for Fortier's counsel. On April 16, 2014, the trial court entered an order stating that the hearing on the motion to set aside had been held and that the issue remained under advisement. The record does not include a transcript of the hearing. On May 13, 2014, Hilyer filed a supplement to his motion to set aside the default judgment, in which he submitted an affidavit from Scott Kramer, a member of the Coosada Volunteer Fire Department ("the CVFD"), who was the on-scene supervisor for the accident. On May 21, 2014, Fortier filed a reply to Hilyer's supplement to his motion to set aside the default 5 1131174 judgment and a motion to strike Kramer's affidavit. Hilyer's motion to set aside the default judgment was denied by operation of law on June 5, 2014. Hilyer appealed. Standard of Review "Typically, this Court reviews a trial court's decision granting or denying a motion to set aside a default judgment to determine whether the trial court, in so deciding, exceeded its discretion. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600, 603 (Ala. 1988). However, this Court has previously determined that the judgment that results from a trial court's failure to rule on a motion subject to denial by operation of law under Rule 59.1 is not automatically entitled to the same deference that is afforded a judgment arrived at after due deliberation. Edgar v. State, 646 So. 2d 683, 686–87 (Ala. 1994); and Perdue v. Gates, 403 So. 2d 165 (Ala. 1981). ... [B]ecause the trial court took no valid action indicating that the decision to deny Jeffery's motion was the product of due deliberation, we review Jeffery's motion to set aside the default judgment de novo, applying the analysis mandated by Kirtland. "'Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider "1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment 6 1131174 was a result of the defendant's own culpable conduct." Kirtland, 524 So. 2d at 605.' "Sampson v. Cansler, 726 So. 2d 632, 633 (Ala. 1998)." Steele v. Federal Nat'l Mortg. Ass'n, 69 So. 3d 89, 91 (Ala. 2010). Discussion Hilyer argues that the trial court erred when it allowed his motion to set aside the default judgment to be denied by operation of law. "Pursuant to Rule 55(c), Ala. R. Civ. P., '[t]he court may ... set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment.' ... In Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala. 1988), our supreme court established an analysis for trial judges to follow when exercising the discretionary authority conferred under Rule 55(c). As this court recently summarized in Brantley v. Glover, 84 So. 3d 77 (Ala. Civ. App. 2011): "'"A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600 (Ala. 1988). In reviewing an appeal from a trial court's order refusing to set aside a default judgment, this Court must determine whether in refusing to 7 1131174 set aside the default judgment the trial court exceeded its discretion. 524 So. 2d at 604. That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant's right to defend an action on the merits. 524 So. 2d at 604. These interests must be balanced under the two-step process established in Kirtland. "'"We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So. 2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So. 2d 1283 (Ala. 1987), in deciding whether to deny a motion to set aside a default judgment. Kirtland, 524 So. 2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: '1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct.' 524 So. 2d at 605." 8 1131174 "'Zeller v. Bailey, 950 So. 2d 1149, 1152–53 (Ala. 2006). "'As we stated in Richardson v. Integrity Bible Church, Inc., 897 So. 2d 345 (Ala. Civ. App. 2004): "'"Because of the importance of the interest of preserving a party's right to a trial on the merits, this court has held that where a trial court does not demonstrate that it has considered the mandatory Kirtland factors in denying a motion to set aside a default judgment, such as where a Rule 55(c)[, Ala. R. Civ. P.,] motion is denied by operation of law, the denial of the motion to set aside the default judgment will be reversed and the cause remanded for the trial court to address the Kirtland factors." "'897 So. 2d at 349. However, in order to trigger the mandatory requirement that the trial court consider the Kirtland factors, the party filing a motion to set aside a default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors. See Carroll v. Williams, 6 So. 3d 463, 468 (Ala. 2008) ("Because Carroll has failed to satisfy his initial burden under the Kirtland analysis [of providing allegations and evidence relating to all three Kirtland factors], we will not hold the trial court in error for allowing Carroll's motion to set aside the default judgment to be denied by operation of law without having applied the Kirtland analysis."). See also Maiden v. Federal 9 1131174 Nat'l Mortg. Ass'n, 69 So. 3d 860, 867 n. 3 (Ala. Civ. App. 2011) (noting that we will not reverse the denial by operation of law of a motion to set aside a default judgment when the movant fails to argue the existence of the Kirtland factors in his or her motion).' "84 So. 3d at 80–81(footnote omitted). As such, the defaulting party has the initial burden of demonstrating the existence of the three Kirtland factors." D.B. v. D.G., 141 So. 3d 1066, 1070-71 (Ala. Civ. App. 2013). Accordingly, we must first determine whether Hilyer satisfied his initial burden under Kirtland. See Carroll v. Williams, 6 So. 3d 463 (Ala. 2008); D.B., supra. A. Meritorious Defense "The first Kirtland factor is whether the defaulting party presented a meritorious defense. To present a meritorious defense, for Rule 55(c) purposes, does not require that the movant satisfy the trial court that the movant would necessarily prevail at a trial on the merits, only that the movant show the court that the movant is prepared to present a plausible defense. Kirtland, 524 So. 2d at 605. "'The defense proffered by the defaulting party must be of such merit as to induce the trial court reasonably to infer that allowing the defense to be litigated could foreseeably alter the outcome of the case. To be more precise, a defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the 10 1131174 default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury. "'The allegations set forth in the answer and in the motion must be more than mere bare legal conclusions without factual support; they must counter the cause of action averred in the complaint with specificity -- namely, by setting forth relevant legal grounds substantiated by a credible factual basis. Such allegations would constitute a "plausible defense."' "Kirtland, 524 So. 2d at 606." Sampson v. Cansler, 726 So. 2d 632, 634 (Ala. 1998). "In Kirtland, we noted that a trial court should begin its analysis of whether it should exercise discretionary authority under Rule 55(c) with the presumption that a case 'should be decided on the merits whenever practicable.' 524 So. 2d at 604. The presumption is undercut, however, if the answer to the first of three inquiries a court must make -- whether the defendant has a meritorious defense -- is negative. The existence of a meritorious defense is a 'threshold prerequisite,' Kirtland, 524 So. 2d at 605, because without a meritorious defense, a finding that the plaintiff would not be prejudiced and a finding that the defendant was not culpable would matter little. A meritorious defense need not be a perfect defense, nor one that would necessarily prevail at trial. Rather, a meritorious defense is merely a 'plausible' defense. Kirtland, 524 So. 2d at 605. That is, a meritorious defense must simply 'induce the trial court reasonably to infer that allowing the defense to be litigated could 11 1131174 foreseeably alter the outcome of the case.' 524 So. 2d at 606 (emphasis added). "We have specifically stated that a defendant can successfully present a meritorious defense either by setting forth allegations that, if proven at trial, would constitute a complete defense or by submitting evidence that would at least create a jury question. Kirtland, 524 So. 2d at 606. The defendant's allegations 'must be more than mere bare legal conclusions without factual support'; they must set forth 'relevant legal grounds substantiated by a credible factual basis.' 524 So. 2d at 606." Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So. 2d 802, 808 (Ala. 2004). In the complaint, Fortier asserted negligence and wantonness claims against Hilyer. In his motion to set aside the default judgment, Hilyer argued that he had a complete defense to the claims against him. Specifically, he argued that M.M. was contributorily negligent and that there was evidence to establish that Hilyer had not acted negligently and/or wantonly. In support of his motion to set aside, Hilyer submitted his affidavit and the affidavit of Wyman Earl Jackson, a neighbor of Hilyer's who witnessed the accident. The affidavits included facts that controvert some of the allegations included in the complaint. Specifically, Hilyer and Jackson stated that, when Hilyer was backing his trailer 12 1131174 into his driveway, the headlights of the tractor-trailer were on and its hazard lights were flashing and that Hilyer flashed the headlights and honked the horn when he saw M.M.'s vehicle. Hilyer also stated that there was reflective tape running along the length of the side of the trailer and that, at the time of the accident, the tractor-trailer was positioned so that there was a street light located behind it. Additionally, as to Hilyer's argument that M.M. was contributorily negligent, both Hilyer and Jackson stated that it appeared that M.M. was driving in excess of the speed limit of 35 miles per hour at the time of the accident. Both Jackson and Hilyer stated that M.M. never slowed down before she ran into the tractor-trailer. Additionally, Hilyer asserted that M.M. should have seen the tractor-trailer. Hilyer also argued that the facts included in the affidavits supported his argument that he had not acted wantonly. Specifically, he presented evidence regarding the number of times he had backed his tractor-trailer into the driveway at his house; the manner in which he backed the tractor-trailer in; the fact that the stretch of road in front of his house was not very busy and that he seldom saw other 13 1131174 vehicles while he was backing his tractor-trailer into his driveway; and the fact that, on the few occasions other vehicles had approached the area after he had started backing up, those vehicles had stopped and waited for him to finish backing his tractor-trailer into the driveway. Hilyer supplemented his motion to set aside with an affidavit from Scott Kramer, a member of the CVFD who responded to the accident. Kramer's affidavit offered further support for Hilyer's contributory-negligence defense to the negligence claim. Additionally, it offered further support for Hilyer's assertion that his actions while backing the tractor-trailer into his driveway did not amount to wantonness. Specifically, Kramer stated that he drove the 1 fire engine from the station to the scene of the accident; that he was traveling north on Kennedy Avenue and approached Fortier filed a motion to strike Kramer's affidavit in 1 which she argued that the affidavit was not timely filed pursuant to Rule 6(d), Ala. R. Civ. P. Even if the affidavit was not timely filed, however, Rule 6(d) affords a trial court discretion to accept an untimely affidavit. However, the trial court did not rule on that motion before it allowed Hilyer's motion to set aside the default judgment to be denied by operation of law. See Weldon v. Cotney, 811 So. 2d 530, 533 (Ala. 2001). Because the trial court could have considered Kramer's affidavit, we will consider Kramer's affidavit in determining whether Hilyer satisfied his initial burden under Kirtland. 14 1131174 the accident scene from the south; that, in the area just south of the accident, Kennedy Avenue curves from west to north; that, when he entered the curve, he could see across his right to the area where the curve ended; that he could see the lights of Hilyer's tractor-trailer and the lights of a police vehicle that was at the accident scene; that he could clearly see the running lights and headlights of the tractor- trailer; that the hazard lights on the tractor-trailer were flashing; and that the tractor-trailer and the police vehicle were approximately one-quarter of a mile away when he first saw them. He further stated that, when he arrived at the scene, M.M.'s vehicle was on fire; that the tractor-trailer was parked in the road and its running lights were on; that he looked at the running lights to maneuver the fire engine between the police vehicle and the tractor-trailer; that he did not see anything that night to explain why M.M. would not have seen the tractor-trailer; and that anyone traveling the 35 mph speed limit would have had ample time to avoid an accident. Finally, Kramer stated that he lived in Coosada; that he was familiar with traffic on Kennedy Avenue; that Kennedy Avenue was not a heavily traveled road; that he had previously seen Hilyer backing his tractor-trailer into his 15 1131174 driveway; and that it never took Hilyer very long to get his tractor-trailer out of the road. In this case, Hilyer asserted defenses and presented legal arguments and evidence to support those defenses. Additionally, the defenses asserted in Hilyer's motion to set aside were not clearly frivolous or no defense at all. In her opposition to the motion to set aide, Fortier argued that Hilyer had not established a complete defense because contributory negligence is not a defense to wantonness. However, Hilyer did not merely argue that M.M. was contributorily negligent. Rather, he also argued that there was evidence indicating that Hilyer had not acted wantonly. Fortier also submitted arguments, affidavits, correspondence, and a photograph disputing the facts and evidence submitted by Hilyer. However, that evidence did not establish that Hilyer did not have a meritorious defense. At most, it raised factual disputes that would be properly submitted to a jury. In this case, the trial court conducted a hearing on Hilyer's motion to set aside, but the record on appeal does not include a transcript of that hearing. Thus, we cannot determine whether the parties presented any arguments to the 16 1131174 trial court other than those presented in the pleadings. In its order entered after the hearing, the trial court stated that the motion to set side would remain under advisement. However, it subsequently allowed the motion to be denied by operation of law. Thus, there is no indication that the trial court denied the motion to set aside after due deliberation. Also, there is no indication as to whether the trial court actually considered this first Kirtland factor and/or made a determination as to whether Hilyer had satisfied his burden of establishing that he had a meritorious defense. B. Absence of Substantial Prejudice to the Plaintiff With regard to the absence-of-substantial-prejudice factor of Kirtland, this Court has stated: "The second factor that a trial court must consider in ruling on a motion to set aside a default judgment is whether the plaintiff will be unfairly prejudiced if it grants the motion. Kirtland, 524 So. 2d at 606–07. This prejudice cannot take the form of mere delay or increased costs, because those can be remedied by imposing additional costs on the defendant if the plaintiff later prevails. 524 So. 2d at 607. Rather, the prejudice must be substantial, facilitating fraud or collusion, resulting in the loss of evidence, or hindering discovery. 524 So. 2d at 607. "Although common sense dictates that a plaintiff is usually in a far better position to know what prejudice might befall him from the delay, and more 17 1131174 importantly how substantial that prejudice would be, we have placed upon the defendant the initial burden of demonstrating that the plaintiff will not be substantially prejudiced. As we have stated: "'We hold that when a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the plaintiff will not be unfairly prejudiced if the default judgment is set aside. If the movant makes a prima facie showing that the plaintiff will not be unfairly prejudiced, the burden then shifts to the plaintiff to present facts showing that the plaintiff will be unfairly prejudiced if the default judgment is set aside.' "Phillips v. Randolph, 828 So. 2d 269, 278 (Ala. 2002). Additionally, a defendant cannot simply state that the plaintiff will not be prejudiced if the motion to set aside the default judgment is granted. Phillips, 828 So. 2d at 275." 903 So. 2d at 811. In this case, Hilyer did more than simply state that Fortier would not be prejudiced if the motion to set aside was granted. In his motion to set aside, Hilyer asserted that Fortier would not be prejudiced by setting aside the default judgment because: "This accident occurred less than eight months ago. Hilyer and Jackson are both Coosada residents and are available for deposition. All of the vehicles involved in the accident are still available for inspection, Hilyer still drives the tractor, and his father owns the trailer. M.M.'s medical care is 18 1131174 documented in her hospital records. It is believed the minivan is currently being held at Coosada Towing. But, even if this is not the case, [Fortier's] counsel had an investigator investigating this accident fairly soon after it occurred, and he likely was able to photograph and inspect the minivan. ... While [Fortier's] counsel has been inconvenienced by the delay in answering the complaint, she has not expended any significant time or expense in obtaining the default judgment. M.M. has not been required to attend any hearings or proceedings in obtaining the default judgment." In her opposition to the motion to set aside, Fortier argued that setting aside the default judgment would, in fact, result in substantial prejudice to her, and she submitted affidavits to support that assertion. Specifically, she argued: "Four days after the accident, on August 2, 2013, [Fortier's] Investigator, Marc McHenry, spoke with Mr. Hilyer's wife and asked her to have Mr. Hilyer contact him so that they could coordinate an inspection of the truck and trailer. (Ex. F, Marc McHenry Affidavit). [Fortier] also sent a preservation letter to Defendant Hilyer's address on August 6, 2013 -- just one week after the accident -- asking him to not 'make any repairs, remove any parts, make any modifications or changes, or destroy this log truck or trailer which is material and/or is supportive evidence.' (Ex. G, August 6, 2013 Letter to Hilyer). [Fortier] also sent this preservation letter to Pierce Towing, where the trailer was stored,[ ] and to Defendant Hilyer's 2 In her opposition, Fortier refers to Pierce Towing as the 2 facility where the trailer was stored following the accident. However, Exhibit H, a copy of the letter Fortier's counsel 19 1131174 insurance company on August 6, 2013. (Ex. H, August 6, 2013 Letter to Pierce Towing; Ex. I, August 6, 2013 Letter to Sparta Insurance). [Fortier] then began trying to set up a time to inspect the truck and trailer. [Fortier] contacted [Hilyer], his insurance company, and the investigator/adjuster hired by his insurance company regarding inspection of the truck and trailer multiple times between August 2 and September 30, 2013. (Ex. F, Marc McHenry Affidavit). All attempts to inspect the truck and trailer were rebuffed. (Id.) "Mr. Brian Wyatt is the investigator/adjustor for Defendant Hilyer's insurance company. Mr. Wyatt informed [Fortier] on September 18, 2013 that Defendant Hilyer did not preserve his truck and trailer as asked by preservation letter. (Ex. F, Marc McHenry Affidavit). Instead, Defendant Hilyer took it upon himself to repair his truck and trailer and resume operation days after the accident. (Id.) Defendant Hilyer made changes to his truck despite knowledge that [Fortier's] attorneys needed to inspect the truck and trailer. (Id.)" Fortier's argument in this regard and the affidavits she submitted in support of her opposition do not establish that the delay caused by setting aside the default judgment will result in the loss or destruction of evidence. At best, the evidence before this Court establishes that any loss of evidence occurred two days after the accident and well before any action had been filed in this case. Additionally, in his affidavit, McHenry stated that he had been told that Hilyer's sent to Pierce Towing, indicates that it was the vehicle M.M. was driving that was being stored at that facility. 20 1131174 tractor-trailer had been repaired two days after the accident and had been in use since that date. Thus, it appears that the repairs to the tractor-trailer were made before the first time McHenry had talked to Hilyer's wife and before Fortier's counsel had sent the preservation letter to Hilyer. Additionally, McHenry stated that Wyatt had told him that he had already inspected and photographed the tractor-trailer rig. Although Fortier's investigator had not yet received any responses to requests for copies of the photographs, Fortier has not made any assertions to show that she would not be able to obtain such photographs during discovery. As noted earlier, the trial court conducted a hearing on the motion to set aside, and the record on appeal does not include a transcript of that hearing. Thus, we cannot determine whether any evidence or arguments other than those presented in the pleadings were presented to the trial court regarding this factor. Because the trial court allowed the motion to set aside the default judgment to be denied by operation of law, there is not any indication that the trial court actually considered this Kirtland factor and/or made a 21 1131174 determination as to whether granting the motion would result in substantial prejudice to Fortier. C. Lack of Culpable Conduct on the Part of the Defaulting Party With regard to the final Kirtland factor, this Court has stated: "To warrant a refusal to set aside a default judgment, the defaulting party's actions that resulted in the entry of the default judgment must constitute willful conduct or conduct committed in bad faith. Negligence alone is not sufficient. Bad faith or willfulness is identified by 'incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness.' Kirtland, 524 So. 2d at 608 (citing Agio Indus., Inc. v. Delta Oil Co., 485 So. 2d 340, 342 (Ala. Civ. App. 1986))." Zeller v. Bailey, 950 So. 2d 1149, 1154 (Ala. 2006). In Sanders v. Weaver, 583 So. 2d 1326, 1328-29 (Ala. 1991), this Court addressed the lack-of-culpable-conduct prong as follows: "Negligence by itself is insufficient for refusing to grant a Rule 55(c) motion. A reasonable explanation for inaction and noncompliance may preclude a finding of culpability and cause this Court to reverse a trial court's refusal to set aside a default judgment, if the other two factors are satisfied. See Ex parte Illinois Central Gulf R.R., 514 So. 2d 1283, 1288 (Ala. 1987); Kirtland, 524 So. 2d at 608. "Sanders and the law firm forwarded the summons and the complaint to their insurance carrier the day they received them. In keeping with Murphy's Law, 22 1131174 the claims adjuster (who had been handling the problems for Sanders and the law firm that had resulted from acts and omissions of Sander's legal secretary that had occurred because of what Sanders and the law firm describe as the secretary's obsessive, compulsive personality) was away from the office for several weeks, and the summons and the complaint in the Weaver suit were placed on his desk. The claims adjuster was in the process of obtaining a divorce from his wife, who was being treated for depression; he was looking after his three minor children, one of whom was being treated for emotional problems, one of whom was being treated for a learning disability, and one of whom, a five-year-old, was being treated for a severe asthmatic condition; and his department was being reorganized and his job duties were being changed. He did not find the summons and the complaint until after the default judgment had been entered. The default was attributable not to willful disregard of court rules, but to negligence. Reasonable explanations for defaults, such as attorney neglect (Ex parte Illinois Central Gulf R.R., supra) and liability insurance company neglect (Lee v. Martin, 533 So. 2d 185 (Ala. 1988)), attributable to innocent inadvertence, militate in favor of a finding of an absence of culpability and provide a basis for setting aside a default judgment. Kirtland, 524 So. 2d at 607–08." In his affidavit submitted in support of his motion to set aside, Hilyer stated that, on the day after the accident, he notified his insurance agent of the accident. He also stated that it was his understanding that his insurance company was investigating the accident and that his insurance company would defend him if a lawsuit was filed. In his 23 1131174 motion, Hilyer also alleged that his insurance agent notified his insurance carrier, Sparta Insurance ("Sparta"), about the accident; that Alteris was the third-party adjuster for Sparta; and that the claim was initially assigned to Roberto Lozano, a claims manager for Alteris. In his affidavit attached to the motion to set aside, Lozano asserted that, on August 2, 2013, he hired Crawford & Company to investigate the accident; that, on August 8, 2013, he received a letter of representation from Fortier's counsel; that he intended to assign the claim to another adjuster; and that, because he thought that he had assigned the claim to another adjuster, he did not continue to follow Hilyer's claim. Lozano stated that, on October 21, 2013, Fortier's counsel forwarded a copy of the complaint that had been filed; that, on January 2, 2014, Fortier's counsel forwarded a letter inquiring as to whether Sparta would file an answer on Hilyer's behalf; and that, on February 12, 2014, Fortier's counsel notified Alteris that a default judgment had been entered against Hilyer. Lozano stated that, because he thought he had assigned the claim to another adjuster, he did not read or respond to the correspondence from Fortier's counsel. However, Lozano stated 24 1131174 that, as soon as the default judgment was brought to his attention, he investigated the claim and realized that, in fact, it had not been assigned to another adjuster and that he then retained counsel to defend Hilyer in the lawsuit. Finally, he stated that, "had [he] realized sooner a complaint had been filed, [he] would have immediately retained counsel to defend Hilyer." Further, in his affidavit attached to the motion to set aside, Wyatt stated that he had talked to Fortier's counsel in September 2013 and had requested a letter of representation and all medical records relating to M.M.'s treatment after the accident; that, in October 2013, he talked to Fortier's counsel again and asked if she would allow him to take a statement from M.M. about the accident; that Fortier's counsel told him that she would talk to her client and call him back; and that he did not hear back from Fortier's counsel. Wyatt stated that, throughout the end of 2013 and in January 2014, he left voice mails for Fortier's counsel. He also talked to Fortier's counsel's paralegal on December 30, 2013, and was told that Fortier's counsel was off for the holidays. Wyatt stated that in January and February 2014 he also sent letters 25 1131174 to Fortier's counsel. However, Fortier's counsel did not respond to Wyatt until after the trial court had entered a default judgment against Hilyer. Fortier again presented arguments and evidence to controvert the arguments and evidence submitted by Hilyer. As we noted previously, the trial court conducted a hearing on the motion to set aside, but the record on appeal does not include a transcript of that hearing. Thus, we cannot determine whether any evidence or arguments in addition to those presented in the pleadings were presented to the trial court regarding this factor. In Phillips v. Randolph, 828 So. 2d 269, 279 (Ala. 2002), this Court stated: "In Jones v. Hydro–Wave of Alabama, Inc., 524 So. 2d 610, 616 (Ala. 1988), the Court, discussing the culpability of the defaulting party, stated, '[W]e acknowledge that, due to a trial judge's superior vantage point, the trial court is the more suitable arbiter for determining with accuracy the culpability of the defaulting party's conduct, and, for this reason, we will show great deference toward the trial court's decisions with respect to such culpability.'" However, in this case, the trial court allowed the motion to set aside to be denied by operation of law. Therefore, there is no indication as to whether the trial court actually considered this Kirtland factor and/or made a determination as 26 1131174 to whether Hilyer's conduct was culpable. In light of the conflicting arguments and evidence presented by the parties, the trial court is in a better position than is this Court to determine the culpability of Hilyer's conduct. Conclusion In this case, Hilyer, in his motion to set aside the default judgment, met the threshold showing of each of the three Kirtland factors. Additionally, Hilyer supported his motion with affidavits and copies of correspondence. Fortier submitted evidence in support of her opposition to the motion to set aside that controverted the facts and evidence submitted by Hilyer. However, after conducting a hearing and taking the matter under advisement, the trial court allowed the motion to set aside to be denied by operation of law without any indication that the denial of the motion was the product of due deliberation and without any indication that the denial was based upon a consideration of the Kirtland factors. Therefore, we reverse the denial by operation of law of Hilyer's motion to set aside the default judgment and remand this case for the trial court to consider the Kirtland 27 1131174 factors in determining whether to set aside the default judgment. As the Court of Civil Appeals noted in D.B.: "'[O]ur mandate in this case "is not to be construed to mean that the trial court must set aside the default judgment, [but] only that the trial court must apply the Kirtland factors in deciding whether to set aside the default judgment."' Richardson v. Integrity Bible Church, Inc., 897 So. 2d 345, 349 (Ala. Civ. App. 2004), quoting White v. Westmoreland, 680 So. 2d 348, 349 (Ala. Civ. App. 1996)." 141 So. 3d at 1072-73.3 REVERSED AND REMANDED WITH INSTRUCTIONS. Moore, C.J., and Stuart, Parker, and Shaw, JJ., concur. Based on our disposition of this case, we pretermit 3 discussion of Hilyer's remaining claims. 28	February 20, 2015
881114ca-bb98-4439-9aee-c2fd087d0c1d	St. Paul Fire & Marine Insurance Company v. Willis Britt, as Conservator of the Estate of Michael D. Britt	N/A	1140423	Alabama	Alabama Supreme Court	Rel: 01/29/2016 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, 2015-2016 ____________________ 1140423 ____________________ St. Paul Fire & Marine Insurance Company v. Willis Britt, as conservator of the Estate of Michael D. Britt Appeal from Chilton Circuit Court (CV-14-900001) BRYAN, Justice. St. Paul Fire & Marine Insurance Company ("St. Paul") appeals from a summary judgment entered by the Chilton Circuit Court ("the trial court"). That judgment, among other things, 1140423 granted the motion for a partial summary judgment filed by Willis Britt ("Britt"), as conservator of the estate of Michael D. Britt ("Michael"), and denied St. Paul's motion for a summary judgment. Facts and Procedural History The facts of this case are undisputed. In 2004, Michael purchased a Beneteau brand sailboat ("the sailboat"). Although it is unclear when Michael first obtained insurance for the sailboat, the record indicates that, during the events giving rise to this case, Michael had insured the sailboat with St. Paul pursuant to a Seahorse Underwriters Boat Insurance Policy ("the policy") that provided coverage limits of $85,000 for "accidental direct physical loss of or damage to [the sailboat] ... except as specifically stated or excluded in this policy." From 2004 onward, the sailboat served as Michael's residence in Florida; Michael had no other established residence. In early September 2011, Michael telephoned Britt, Michael's father, and told Britt that he had accepted a job driving a commercial truck and that he had to attend orientation for the new job in Oklahoma City, Oklahoma. 2 1140423 Michael informed Britt that he planned to sail the sailboat from West Palm Beach, Florida, to Jacksonville, Florida, store the boat in Jacksonville, and rent a car in Jacksonville to drive to Oklahoma City for the orientation. On or around September 11, 2011, Michael set sail for Jacksonville. On September 15, 2011, the United States Coast Guard boarded the sailboat approximately one mile off the coast of Cape Canaveral, Florida, for a "cold hit" inspection. That inspection revealed that the sailboat was seaworthy as of September 15, 2011. There is no evidence of any severe weather in the Cape Canaveral area on September 15, 2011, or in the days immediately thereafter. Also on September 15, 2011, Michael telephoned Britt and informed Britt that, given a lack of wind, he would arrive in Jacksonville later than anticipated but that he would telephone Britt when he arrived. That telephone call never came, and, to the parties' knowledge, no one has seen Michael or the sailboat since September 15, 2011, despite search efforts by Britt and his family, the United States Coast Guard, and Florida authorities. The Coast Guard's reports from its investigation into 3 1140423 Michael's disappearance indicate that Michael last used his cellular telephone on September 17, 2011, at 11:58 p.m. to call a debt-collection agency that had a lien on the sailboat. The Coast Guard's efforts to speak to someone at the debt- collection agency about the nature of that call were fruitless. The Coast Guard's reports indicate that the last "hit" on Michael's cellular telephone, which was on September 17, 2011, when he placed that last call, indicated that Michael was traveling in a southerly direction, away from Jacksonville, his stated destination. There is no record of Michael ever making an S.O.S. call or sending another distress signal. Coast Guard reports also indicate that Michael had "a history of not checking in with family for weeks at a time" and that he had been involved "in an unreported ... case previously, during which he was found far outside his expected area of operation." That happened in July 2011, and, although Britt corroborated the Coast Guard's report, he stated that the reason Michael had not contacted his family during that time was that his cellular telephone had gotten wet. Although Michael had been missing over two years when Britt commenced 4 1140423 the action underlying this appeal, Britt stated in his answers to interrogatories that, as of September 2, 2014, no federal, state, or local governmental agency had declared Michael dead. In October 2011, Britt contacted St. Paul to report the sailboat as lost. On February 14, 2012, Britt was appointed conservator of Michael's estate by the Chilton Probate Court. Shortly thereafter, Britt filed a claim with St. Paul for the lost sailboat. On June 7, 2012, after conducting its own 1 investigation into Michael's disappearance, St. Paul sent Britt a letter in which it declined coverage for the sailboat. That letter states, in pertinent part: "Based upon the facts we have learned to date, we must respectfully decline coverage at this time. We refer you to [Michael's] insuring agreement, the ... Policy, which provides in relevant part: "'BOAT AND BOATING EQUIPMENT COVERAGE "'Coverage Provided: We will pay for accidental direct physical loss of or damage to your boat or boating equipment except as specifically stated or excluded in this policy. "' .... It is unclear exactly when Britt filed the claim, but St. 1 Paul's letter acknowledging receipt of the claim is dated March 5, 2012. Thus, Britt presumably filed the claim sometime between February 14, 2012, and March 5, 2012. 5 1140423 "'Exclusions: We will not provide Boat and Boating Equipment Coverage for any loss or damage caused by or resulting from ... mysterious disappearance ....' "Based on our investigation, we cannot at this time find any evidence of 'accidental direct physical loss or damage' to the vessel that would trigger coverage. Further, the circumstances surrounding the disappearance of the vessel appear to fall under the 'mysterious disappearance' exclusion in [Michael's] insuring agreement. For these reasons, we have concluded that there is no coverage under the Policy for the disappearance of the vessel." (Capitalization in original.) On January 2, 2014, Britt filed in the trial court a complaint against St. Paul asserting claims of breach of contract, bad faith, and fraud. St. Paul filed a motion to 2 dismiss the fraud claim. Britt did not respond to St. Paul's motion, and the trial court dismissed the fraud claim on The last sentence of each claim in Britt's complaint 2 demands damages "in an amount which does not exceed the total sum of $74,950." St. Paul, interpreting the complaint as seeking a total of $224,850 in damages, filed to remove the case to the United States District Court for the Middle District of Alabama, Northern Division. On February 10, 2014, the trial court entered an order removing the case to the federal court. However, after Britt filed in the federal court a declaration that he had not intended to seek damages in excess of $74,950 and that he would agree to be bound by a damages cap of $74,950, St. Paul conceded that the case should be transferred back to the trial court. On April 10, 2014, the federal court entered an order transferring the case back to the trial court. 6 1140423 August 7, 2014. On September 5, 2014, St. Paul filed its answer to Britt's complaint. On September 15, 2014, St. Paul filed a motion for a summary judgment on Britt's breach-of-contract and bad-faith claims; Britt filed a motion for a partial summary judgment on the breach-of-contract claim only. On October 6, 2014, each party filed a response in opposition to the other party's summary-judgment motion. After a hearing on the motions, the trial court entered a judgment on October 14, 2014, that stated, in pertinent part: "The 'Boat and Boating Equipment Coverage' section of the policy states St. Paul 'will pay for accidental direct physical loss of or damage to your boat.' The policy also provides that '[i]f your boat is totally destroyed or lost for more than thirty (30) days, we will pay the amount of Boat and Boating Equipment Coverage shown on the Declarations Page.' The limits of coverage on the declarations page was $85,000. [Britt] also asserts a claim against St. Paul for its bad faith failure to pay the claim. "The Court concludes [Britt's] motion for partial summary judgment is GRANTED, and summary judgment is entered in favor of [Britt] on his breach-of-contract claim against St. Paul. [St. Paul's] motion for summary judgment is DENIED. [Britt's] bad faith claim is MOOT." (Capitalization in original.) In addition to entering a judgment for Britt on the breach-of-contract claim and ruling 7 1140423 that the bad-faith claim was thus rendered moot, the trial court's October 14, 2014, judgment also awarded Britt $74,950 in damages, with interest. On November 12, 2014, St. Paul filed a motion to alter, amend, or vacate the trial court's October 14, 2014, judgment; on December 12, 2014, Britt filed a response in opposition to St. Paul's motion. After hearing arguments on St. Paul's motion, the trial court denied the motion on December 16, 2014. St. Paul timely appealed. On appeal, St. Paul raises four issues: (1) Whether Britt carried his burden of showing that his insurance claim fell within the coverage provided by the policy; (2) whether an exclusion in the policy exempted Britt's claim from coverage; (3) whether the trial court erred in relying on allegedly inapplicable provisions of the policy in determining that the policy provided coverage for Britt's claim; and (4) whether the trial court erred in calculating the interest due on any damages to which Britt was entitled. Standard of Review "We review a summary judgment pursuant to the following standard: "'This Court's review of a summary 8 1140423 judgment 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 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.' "Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038–39 (Ala. 2004)." Tender Care Veterinary Hosp., Inc. v. First Tuskegee Bank, 168 So. 3d 33, 37 (Ala. 2014). "When a trial court interprets an insurance policy as a matter of law, that interpretation is subject to a de novo review." Hartford Cas. Ins. Co. v. Merchants & Farmers Bank, 928 So. 2d 1006, 1009 (Ala. 2005). Discussion I. The Policy 9 1140423 Before addressing the parties' arguments, it is necessary to set forth some pertinent details of the policy. It is undisputed that the policy is an all-risk policy. "An all risk policy is one which provides coverage against all risks, the words typically being inserted in writing, covering every loss that may happen except by the fraudulent acts of the insured. Morrison Grain Co. v. Utica Mutual Ins. Co., 446 F. Supp. 415, 420 (M.D. Fla. 1977), aff'd in part, remanded in part, 632 F.2d 424 (5th Cir. 1980). Accordingly, 'an all-risk policy will be allowed for all fortuitous losses not resulting from misconduct or fraud, unless the policy contains a specific provision expressly excluding the loss from coverage.' Dow Chemical Co. v. Royal Indem. Co., 635 F. 2d 379, 386 (5th Cir. 1981) (citing, among others, Morrison Grain, 632 F. 2d at 424)." International Ship Repair & Marine Servs., Inc. v. St. Paul Fire & Marine Ins. Co., 944 F. Supp. 886, 891-92 (M.D. Fla. 1996) (emphasis added). See also 10A Lee R. Russ et al., 3 Couch on Insurance § 148:50 (3d ed.) (noting that, under an all-risk policy, "recovery is allowed for fortuitous losses For other jurisdictions holding that insurers may exclude 3 certain losses from coverage in all-risk policies, see also JAW The Pointe, L.L.C. v. Lexington Ins. Co., 460 S.W.3d 597, 604 (Tex. 2015); Marisco v. Allstate Ins. Co., 160 So. 3d 1169, 1173 (Miss. Ct. App. 2014); Widder v. Louisiana Citizens Prop. Ins. Corp., 82 So. 3d 294, 296 (La. Ct. App. 2011); HCA, Inc. v. American Prot. Ins. Co., 174 S.W.3d 184, 187 (Tenn. Ct. App. 2005); and Hartford Cas. Ins. Co. v. Evansville Vanderburgh Pub. Library, 860 N.E.2d 636, 645 (Ind. Ct. App. 2007). 10 1140423 unless the loss is excluded by a specific policy provision"). Thus, although an all-risk policy may, in name, give the impression that it provides coverage for any conceivable loss or damage to the insured property, it is clear that an insurer may limit the scope of its liability, even in an all-risk policy, by including exclusionary provisions in the contract. In this case, two provisions of the policy are pertinent to our review. First, the policy includes an exclusion from coverage for any loss resulting from "mysterious disappearances" ("the mysterious-disappearance exclusion"). The policy does not define the phrase "mysterious disappearances." Secondly, another provision ("the 30-day provision") found in the "Payment for a Loss" paragraphs of the "Boat and Boating Equipment Coverage" section of the policy reads: "If your boat is totally destroyed or lost for more than thirty (30) days, we will pay the amount ... shown on the Declaration Page." The policy also does not define "lost." It is clear from the October 14, 2014, judgment that the trial court relied on the 30-day provision to afford Britt relief. Initially, the parties argue whether Britt carried his 11 1140423 burden of establishing that his claim on the policy falls within the parameters of coverage provided by the policy. See 17A Lee R. Russ et al., Couch on Insurance § 254:11 (3d ed.) ("Generally speaking, the insured bears the burden of proving all elements of a prima facie case including ... the loss as within policy coverage ...."); Motors Ins. Corp. v. Williams, 576 So. 2d 218, 219 (Ala. 1991) (noting that the plaintiff, insured under a policy including uninsured-motorist coverage, carried the burden of proving that the tortfeasor was uninsured); and Colonial Life & Accident Ins. Co. v. Collins, 280 Ala. 373, 376, 194 So. 2d 532, 535 (1967) (noting that the plaintiff, as beneficiary of the insured's life-insurance policy, carried the burden of proving "that the insured's death resulted from injuries sustained in such manner as to bring him within the coverage of the policy"). However, because all-risk policies generally include coverage for any losses not excluded or resulting from the insured's fraudulent conduct and because we find another issue dispositive of this appeal, we need not address those arguments. For purposes of this decision, we assume, without deciding, that Britt carried his burden of showing that the loss of the sailboat was, 12 1140423 absent an exclusion in the policy, covered by the policy. II. The Mysterious-Disappearance Exclusion Our first inquiry, assuming, as we have, that Britt carried his burden of establishing coverage, is whether the mysterious-disappearance exclusion applies. St. Paul argues that, because there is no evidence indicating what happened to the sailboat, Britt's claim falls squarely within the mysterious-disappearance exclusion. Britt argues, on the other hand, that because the policy does not define "mysterious disappearance" and because the mysterious- disappearance exclusion is, he says, "amenable to multiple definitions and interpretations," the mysterious-disappearance exclusion is ambiguous and should therefore be construed strictly against St. Paul. The rules of contract interpretation are well settled. "The issue whether a contract is ambiguous or unambiguous is a question of law for a court to decide." State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 308 (Ala. 1999). "'If a word or phrase is not defined in [an insurance] policy, then the court should construe the word or phrase according to the meaning a person of ordinary intelligence would reasonably give it. The court should not define words it is 13 1140423 construing based on technical or legal terms.' "Safeway Ins. Co. of Alabama, Inc. v. Herrera, 912 So. 2d 1140, 1143 (Ala. 2005) (citations omitted)." Travelers Cas. & Sur. Co. v. Alabama Gas Corp., 117 So. 3d 695, 700 (Ala. 2012). "'"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. 1992); St. Paul Fire & Marine Ins. Co. v. Edge Mem'l Hosp., 584 So. 2d 1316 (Ala. 1991). If, under this standard, they are reasonably certain in their meaning, they are not ambiguous as a matter of law and the rule of construction in favor of the insured does not apply. Bituminous Cas. Corp. v. Harris, 372 So. 2d 342 (Ala. Civ. App. 1979). 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. 14 1140423 2d 337 (Ala. 1994). A court must not rewrite a policy so as to include or exclude coverage that was not intended. Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548 (Ala. 1985)." "'B.D.B. v. State Farm Mut. Auto. Ins. Co., 814 So. 2d 877, 879-80 (Ala. Civ. App. 2001). However, if a provision in an insurance policy is found to be genuinely ambiguous, "policies of insurance should be construed liberally in respect to persons insured and strictly with respect to the insurer." Crossett v. St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 603, 269 So. 2d 869, 873 (1972).' "State Farm Mut. Auto Ins. Co. v. Brown, 26 So. 3d 1167, 1169-70 (Ala. 2009) ...." Travelers, 117 So. 3d at 699-700 (emphasis omitted). Because the policy does not define "mysterious disappearance," this Court must give the phrase the common, everyday meaning a reasonable person of ordinary intelligence would give it. If that meaning is "reasonably certain," 117 So. 3d at 699, then the phrase is not ambiguous as a matter of law and no rule of construction favoring Britt is applicable. Although this Court has not previously defined "mysterious disappearance" within the context of an insurance- policy exclusion, other jurisdictions have. The Supreme Court of North Carolina first defined "mysterious disappearance" 15 1140423 within an insurance policy as "any disappearance or loss under unknown, puzzling or baffling circumstances which arouse wonder, curiosity, or speculation, or circumstances which are difficult to understand or explain." Davis v. St. Paul Mercury & Indem. Co., 227 N.C. 80, 83, 40 S.E.2d 609, 611 (1946). Since North Carolina decided Davis, other jurisdictions have tracked the language from Davis in defining "mysterious disappearance." We also note that, although this 4 Court has not yet defined "mysterious disappearance," the Alabama Court of Civil Appeals adopted the language from Davis See Caldwell v. St. Paul Mercury & Indem. Co., 210 Miss. 4 320, 329, 49 So. 2d 570, 572 (1950); Sigel v. American Guarantee & Liab. Ins. Co., 173 Pa. Super. 434, 437, 98 A.2d 376, 378 (1953); Deckler v. Travelers Indem. Co., 94 So. 2d 55, 58 (La. Ct. App. 1957); Seward v. Assurance Co. of Am., 32 Cal. Rptr. 821, 823, 218 Cal. App. 2d Supp. 895, 899 (1963); Hammontree v. Central Mut. Ins. Co., 385 S.W.2d 661, 666 (Mo. Ct. App. 1965); Claiborne v. United States Fire Ins. Co., 193 So. 2d 315, 317 (La. Ct. App. 1966); Gifford v. M.F.A. Mut. Ins. Co., 437 S.W.2d 714, 716 (Mo. Ct. App. 1969); Mancha v. St. Paul Fire & Marine Ins. Co., 474 S.W.2d 563, 566 (Tex. App. 1971); Aetna Ins. Co. v. Zoblotsky, 481 P.2d 761, 763 (Okla. 1971); Corcoran v. Hartford Fire Ins. Co., 132 N.J. Super. 234, 241, 333 A.2d 293, 297 (1975); Lovas v. St. Paul Ins. Cos., 240 N.W.2d 53, 57 (N.D. 1976); Coastal Plains Feeders, Inc. v. Hartford Fire Ins. Co., 545 F.2d 448, 451 (5th Cir. 1977); Ward Cattle Co. v. Farm Bureau Ins. Co. of Nebraska, 223 Neb. 69, 73, 388 N.W.2d 89, 92 (1986); Libralter Plastics, Inc. v. Chubb Grp. of Ins. Cos., 199 Mich. App. 482, 488, 502 N.W.2d 742, 745 (1993); and Farmland Indus., Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pennsylvania, 333 F. Supp. 2d 1133, 1142 (D. Kan. 2004). 16 1140423 in St. Paul Fire & Marine Insurance Co. v. Thompson, 346 So. 2d 439, 441 (Ala. Civ. App. 1977), and certain treatises have also tracked the language from Davis in defining a "mysterious disappearance." See 43 Am. Jur. 2d Insurance § 500 (2015); 10A Lee R. Russ et al., Couch on Insurance § 151:40 (3d ed.). Britt argues, correctly, that most of the mysterious- disappearance cases St. Paul cites –- which are included, among others, in note 4 of this opinion –- for their definitions of the phrase "mysterious disappearance" involve theft policies, not all-risk policies, and many of those cases presumed the mysterious disappearance to have been the result of theft and, thus, provided, rather than excluded, coverage for the mysterious disappearance. Britt argues, therefore, that the definition of "mysterious disappearance" adopted by those jurisdictions is inapplicable here. Britt's reliance on those distinctions, however, is irrelevant for the purpose of defining "mysterious disappearance." We see no reason why the common, everyday meaning of the phrase "mysterious disappearance" should vary depending on whether the insurance policy in which it appears is a theft policy or an all-risk policy, or on whether the 17 1140423 policy provides or excludes coverage for mysterious disappearances. Our purpose here is to define a "mysterious disappearance." "The quoted judicial definition [set forth in Davis] has been approved in most of the reported 'mysterious disappearances' cases .... Doubting our ability to improve upon this definition, we likewise will use it." Hammontree v. Central Mut. Ins. Co., 385 S.W.2d 661, 666 (Mo. Ct. App. 1965). We also will use it. We think it "reasonably certain," Travelers, 117 So. 3d at 699, that there is only one manner in which a person of ordinary intelligence would interpret the phrase "mysterious disappearance." That is, if insured property cannot be found and the circumstances surrounding its disappearance are so "unknown, puzzling[,] or baffling," Davis, 227 N.C. at 83, 40 S.E.2d at 611, as to make the disappearance inexplicable, a person of ordinary intelligence would determine that disappearance to be "mysterious." If, on the other hand, there is evidence to support a logical inference as to what happened to the insured property, even though that evidence is inconclusive, a person of ordinary intelligence would not find the circumstances so "unknown, puzzling[,] or baffling," id., 18 1140423 as to determine that the disappearance of the insured property was inexplicable. Strengthening our reasoning is the fact that our research has revealed no cases in which courts from other jurisdictions have held the phrase "mysterious disappearance" to be ambiguous. Furthermore, although Britt 5 argues that the mysterious-disappearance exclusion is open to multiple interpretations, he provides no alternative definitions for the phrase. Thus, we hold that the mysterious-disappearance exclusion is not ambiguous as a matter of law. Accordingly, we will not liberally construe the mysterious-disappearance exclusion in favor of Britt. That, however, does not end our inquiry. As the insurer, St. Paul carried the burden of showing that the circumstances surrounding the loss of the sailboat brought the loss within the parameters of the mysterious-disappearance exclusion. Acceptance Ins. Co. v. Brown, 832 So. 2d 1, 12 (Ala. 2001). There is no shortage of speculation as to what happened A few cases have determined that exclusions that 5 incorporated the phrase "mysterious disappearance" were ambiguous. However, the courts in those cases found the exclusions to be ambiguous not because of the mysterious- disappearance language but because of some other aspect. See, e.g., McCormick & Co. v. Empire Ins. Grp., 878 F.2d 27 (2d Cir. 1989). 19 1140423 to the sailboat. Michael's mother, Alice Britt, stated in her deposition that the disappearance of the sailboat could be attributed to a rogue Coast Guard employee who alerted drug traffickers to the presence of a single-passenger sailboat in the Atlantic; to modern pirates; or to the jet stream carrying the sailboat to Iceland or Ireland. However, she admitted that there was no evidence to support any of those theories and that they were merely speculations on her part. Britt stated that he believed the sailboat was on the bottom of the Atlantic Ocean, but he, likewise, stated that there was no evidence to support that conclusion. Ruth Zevnik, a close friend of Michael's, told St. Paul representatives that she believed Michael "just wanted to disappear and is likely living somewhere aboard [the sailboat] and purposely 'got lost.'" However, she, too, had no evidence upon which to base her speculation. Any of the speculations put forth by Michael's family and friends are just that –- speculations. There is no evidence in the record to support any theory as to what happened to the sailboat. If the record contained any evidence that could support a theory as to what happened to the sailboat, we would 20 1140423 be inclined to hold that there was a genuine issue of material fact that would preclude a summary judgment. However, that evidence does not exist, and, as we noted above, the facts are undisputed. If the undisputed facts in this case do not constitute a mysterious disappearance, then this Court is at a loss as to what facts would. Thus, we conclude that St. Paul has carried its burden of showing that Britt's claim on the policy falls within the mysterious-disappearance exclusion. We are well aware of the rule of law requiring us to interpret an exclusion in an insurance policy "as narrowly as possible, so as to provide maximum coverage for the insured." Cincinnati Ins. Co. v. Lee Anesthesia, P.C., 641 So. 2d 247, 249 (Ala. 1994). However, that rule means neither that exclusions in insurance policies are invalid nor that they are never applicable. Furthermore, we are equally aware of the rule of law providing that courts "'must not rewrite [an insurance] policy so as to include or exclude coverage that was not intended.'" State Farm Mut. Auto Ins. Co. v. Brown, 26 So. 3d 1167, 1169 (Ala. 2009) (quoting B.D.B. v. State Farm Mut. Auto Ins. Co., 21 1140423 814 So. 2d 877, 879-80 (Ala. Civ. App. 2001) (emphasis added)). Even when the mysterious-disappearance exclusion is construed as narrowly as possible, the facts surrounding the disappearance of the sailboat in this case fall within that exclusion. To hold otherwise would be to construe the policy so as to provide coverage that St. Paul never intended to provide. "Where there is no ambiguity in the terms of an insurance contract, the language must be enforced as written, and courts cannot defeat express provisions in a policy, including exclusions from coverage, by making a new contract for the parties ...." Porterfield v. Audubon Indem. Co., 856 So. 2d 789, 806 (Ala. 2002) (emphasis added). III. The 30-Day Provision Our holding that the mysterious-disappearance exclusion applies in this case does not end the discussion. Britt argues that the mysterious-disappearance exclusion conflicts with the 30-day provision that, he says, provides coverage for the sailboat when it has been lost for more than 30 days. That alleged conflict, Britt argues, creates an ambiguity in the contract that results in coverage that is illusory. "'When limitations or exclusions completely contradict the insuring provisions, insurance 22 1140423 coverage becomes illusory.' Purrelli v. State Farm Fire & Cas. Co., 698 So. 2d 618, 620 (Fla. Dist. Ct. App. 1997). Alabama law does not '"countenance such illusory 'coverage.'"' Industrial Chem. & Fiberglass Corp. v. Hartford Accident & Indem. Co., 475 So. 2d 472, 479 (Ala. 1985) (quoting Sears, Roebuck & Co. v. Reliance Ins. Co., 654 F.2d 494, 499 (7th Cir. 1981))." Shrader v. Employers Mut. Cas. Co., 907 So. 2d 1026, 1033 (Ala. 2005). Thus, we must determine whether the mysterious- disappearance exclusion completely contradicts the 30-day provision so as to make coverage under the policy illusory. Britt argues that, because the sailboat had not been seen in over three years when the trial court entered the October 14, 2014, judgment, it was "lost" within the meaning of the 30-day provision. St. Paul argues, on the other hand, that the 30-day provision does not provide coverage but, rather, sets forth the time in which payment for a loss will be made once the insured has established that the loss is covered under the policy. First, we address St. Paul's contention that the 30-day provision does not create coverage. St. Paul's argument is essentially that, because the 30-day provision is found in the paragraphs under the heading "Payment for a Loss" of the "Boat and Boating Equipment Coverage" section of the policy, it sets 23 1140423 forth only the time in which a claim will be paid once coverage is established. St. Paul contends that it is clear that the only paragraph of the "Boat and Boating Equipment Coverage" section of the policy that establishes coverage is the paragraph entitled "Coverage Provided." However, that contention is without merit. Other paragraphs of the "Boat and Boating Equipment Coverage" section of the policy also establish coverage, e.g., expenses incurred to minimize or prevent additional damage to the sailboat, expenses incurred while safeguarding the sailboat from storms, expenses incurred for commercial towing and assistance, and expenses incurred while assisting another vessel in imminent danger. Furthermore, in keeping with the requirement that we interpret contract provisions as a reasonable person of ordinary intelligence would, a reasonable person of ordinary intelligence would interpret the 30-day provision as providing coverage when the sailboat has been lost for 30 days. Thus, we disagree with St. Paul that the 30-day provision establishes only a time frame in which St. Paul will provide coverage. Instead, we conclude that the 30-day provision requires St. Paul to provide coverage when the boat has been 24 1140423 lost for more than 30 days. The question then becomes, does the 30-day provision, when read in conjunction with the mysterious-disappearance exclusion, render the coverage provided by the policy illusory. As Britt notes in his brief to this Court: "If a boat has been lost for more than [30] days, it must have disappeared. But not all disappearances are mysterious disappearances." Britt's brief at 41 (emphasis added). That sentence, in our opinion, sums up the manner in which the 30- day provision and the mysterious-disappearance exclusion can be read together as complementary, not contradictory, clauses. In other words, it is the application of the word "mysterious," i.e., those disappearances that are inexplicable, that determines whether the missing sailboat will be covered or excluded. The case of Aqua Craft I, Inc. v. Boston Old Colony Insurance Co., 136 Misc. 2d 455, 518 N.Y.S.2d 863 (N.Y. Sup. Ct. 1987), is instructive. In Aqua Craft, the plaintiff had insured his yacht with the defendant under a marine policy providing coverage for, among other things, theft of the vessel. One evening the plaintiff tied his yacht to a dock 25 1140423 and locked and chained it, only to return the next day to find the lock forced open, the lines cut, and the yacht gone. The plaintiff, attributing the disappearance of the yacht to thieves, flied a claim with the defendant for the loss of the yacht. The defendant insurer moved for a summary judgment on the ground that the missing yacht constituted a mysterious disappearance not covered by the insurance policy. In 6 rejecting the insurer's argument, the court noted that "[t]here would be a 'mysterious disappearance' if the ship had sailed off into the sunset and had never been heard from again. Here, the ship did not drift off, or quietly settle to the bottom. Incontrovertibly, there was a theft." 136 Misc. 2d at 459, 518 N.Y.S.2d at 866. In Aqua Craft, there was no dispute that the yacht had disappeared. However, the broken lock, the cut lines, and the insured's testimony that he had secured the yacht the prior evening supported the logical conclusion that the yacht had been stolen. Thus, even though Although the insurance policy in Aqua Craft did not 6 contain an explicit mysterious-disappearance exclusion, the policy required physical evidence supporting a conclusion of theft before the defendant would provide coverage. In the absence of that evidence, the disappearance would, the defendant argued, be mysterious and, thus, excluded from coverage. 26 1140423 the yacht could not be located, circumstantial evidence supported the conclusion that the disappearance of the yacht was not "mysterious" so as to exclude its loss from coverage. Similarly, in the present case, there are circumstances where the disappearance or loss of the sailboat for more than 30 days would be covered under the policy. For example, suppose the sailboat had disappeared under the same circumstances as did the yacht in Aqua Craft. Assuming no other applicable exclusion, we would say that circumstantial evidence supported the logical conclusion that the disappearance of the sailboat could be attributed to theft and that, as a result, the disappearance of the sailboat was not mysterious. Consider another scenario -- one where Michael was sailing and encountered some calamity –- perhaps damage to the hull of the sailboat or a storm -- that caused it to sink, and, although Michael was rescued, the sailboat was never recovered. Is there any doubt that, under those circumstances, the sailboat would be lost? However, we would hardly consider that disappearance to be mysterious. To the contrary, there would be direct evidence, in the form of Michael's testimony, as to what had happened to the sailboat. 27 1140423 Those two examples, though not exclusive, provide circumstances where, through either direct evidence or circumstantial evidence, a trier of fact would be able to conclude that the loss of the sailboat was not mysterious and, thus, that the policy provided coverage for the loss. It is only when policy provisions "completely contradict," Shrader, 907 So. 2d at 1033, each other that coverage becomes illusory. Thus, because the coverage provided by the 30-day provision and the limitations on coverage provided by the mysterious- disappearance exclusion do not contradict each other, the coverage of the policy is not illusory. IV. Conclusion The mysterious-disappearance exclusion is not ambiguous, nor does it conflict with the 30-day provision; rather, the policy, when read as a whole, can accommodate both provisions -- one providing coverage and one excluding coverage. Because we hold that the mysterious-disappearance exclusion is unambiguous and does not conflict with the 30-day provision, and because there is no genuine issue of material fact concerning the disappearance of the sailboat, the trial court should have entered a summary judgment in St. Paul's favor on 28 1140423 both Britt's breach-of-contract and bad-faith claims. Thus, we reverse the trial court's judgment and remand the case for the trial court to enter a summary judgment in favor of St. Paul on Britt's breach-of-contract and bad-faith claims.7 REVERSED AND REMANDED WITH INSTRUCTIONS. Stuart, Bolin, Murdock, Shaw, Main, and Wise, JJ., concur. Moore, C.J., and Parker, J., concur in the result. Because we are directing the trial court to enter a 7 summary judgment in favor of St. Paul, any discussion of the calculation of interest is pretermitted. 29	January 29, 2015
1d34d42d-5f44-4c02-9a1b-890d56c43ecc	Ex Parte Caterpillar, Inc.	708 So. 2d 142	1961905	Alabama	Alabama Supreme Court	708 So. 2d 142 (1997) Ex parte CATERPILLAR, INC. (Re T.A. HALL v. THOMPSON TRACTOR COMPANY, INC., and Caterpillar, Inc.). 1961905. Supreme Court of Alabama. December 19, 1997. Lawrence B. Clark and David B. Hall of Lange, Simpson, Robinson & Somerville, Birmingham, for petitioner. Samuel N. Crosby and Russell J. Watson of Stone, Granade & Crosby, Bay Minette, for respondent. MADDOX, Justice. Caterpillar, Inc., a defendant in a circuit court action, petitions for a writ of mandamus directing the trial judge to vacate his order granting the plaintiff's post-judgment *143 motion. Caterpillar argues that the trial court was without jurisdiction to grant the motion. We grant the writ. T.A. Hall sued Caterpillar and Thompson Tractor Company, Inc. ("Thompson"), alleging breach of express and implied warranties in connection with the lease and sale of a tractor. On January 14, 1997, the trial court granted Caterpillar and Thompson's motion to dismiss the action, based on the statute of limitations. On February 10, 1997, Hall filed a Rule 59, Ala. R. Civ. P., post-judgment motion. On May 12, 1997, Hall's post-judgment motion was denied by operation of law, under Rule 59.1, Ala. R. Civ. P.[1] On June 10, 1997, the trial court entered an order stating that "all parties expressly consent of record to extend the 90-day time period for the court's disposition of [Hall]'s Rule 59 motion until such time as counsel for all parties can be present at the hearing on said motion." On July 15, 1997, the trial court entered an order purporting to grant Hall's post-judgment motion and to reinstate the case. Caterpillar contends that the trial court had no jurisdiction to rule on Hall's post judgment motion after May 12that it lost jurisdiction of the case by not ruling on the motion within 90 days. Rule 59.1 states: If a trial court does not rule on a post-judgment motion within 90 days, it loses jurisdiction to rule on the motion. Ex parte Hornsby, 663 So. 2d 966 (Ala.1995). Any extension of this 90-day period must be of record before the 90-day period expires, because any purported extension after the 90 days is a nullity. Scheilz v. Scheilz, 579 So. 2d 674 (Ala.Civ.App.1991); Simmons v. Simmons, 390 So. 2d 622 (Ala.Civ.App.1980). Hall argues that the parties agreed to the trial court's June 10, 1997, entry on the case action summary stating that the parties had consented to extend the 90-day period; therefore, he argues, the parties expressly gave the trial court jurisdiction. In Scheilz, the parties agreed to an extension of the 90 day period; however, that agreement was not made part of the record until after the 90-day period had expired. 579 So. 2d at 675. The Court of Civil Appeals held that "the parties' consent to an extension of time under Rule 59.1 must be filed prior to the expiration of the 90-day period." Id. at 675. The opinion in Scheilz indicates that the consent was given within the 90 days, but that the document stating that consent was not filed till after the 90 days had run. It is clear that any consent given in the present case came after the period allowed by Rule 59.1 had expired. The trial court's entry stating the parties' consent to extend the 90-day period is a nullity. The trial court lost jurisdiction to rule on the motion at the end of the 90th day after the post-judgment motion was filed; therefore, after the 90th day the court did not have the power to extend the 90-day period and its attempt to extend the period by consent was unavailing. Hall also argues that Caterpillar should be barred from raising this issue because, he says, it did not object to the trial court's entry stating the agreement to extend. We disagree. In his brief, Hall admits that Caterpillar informed him that it thought the trial court had no jurisdiction to grant the extension. Thompson's counsel raised the issue of lack of jurisdiction at the July 15, 1997, hearing on Hall's post-judgment motion. Based on the record before us, we hold that this issue was raised in a timely manner. WRIT GRANTED. HOOPER, C.J., and ALMON, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur. BUTTS, J., dissents. [1] The 90th day from the filing of the motion would have been May 11, 1997; that day was a Sunday. See Rule 6(a), Ala. R. Civ. P.	December 19, 1997
28e61be7-21e8-45c1-b586-39da70cf829e	Keith McDaniel v. William T. Ezell	N/A	1130372	Alabama	Alabama Supreme Court	REL: 01/30/2015 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 _________________________ 1130372 ________________________ Keith McDaniel v. William T. Ezell _________________________ 1130373 _________________________ City of Florence, Alabama, a municipal corporation, and the Civil Service Board of the City of Florence v. William T. Ezell Appeals from Lauderdale Circuit Court (CV-11-900214) 1130372; 1130373 WISE, Justice. The City of Florence, Alabama, a municipal corporation ("the City"), and the Civil Service Board of the City of Florence ("the CSB") and Keith McDaniel appeal separately from a judgment entered by the Lauderdale Circuit Court following a jury verdict in favor of William T. Ezell. We dismiss the appeals with instructions. Facts and Procedural History In mid 2011, two positions for promotion to the job of battalion chief became available within the Florence Fire and Rescue Department. Benjamin Cochran, Melvin Brown, Tim Clanton, John T. Muse, McDaniel, and Ezell applied for the positions. The CSB conducted interviews with the candidates on September 1, 2011. Afterward, it promoted Cochran and McDaniel to the two battalion-chief positions. On September 12, 2011, Ezell filed a two-count complaint against the City and the CSB in the Lauderdale Circuit Court. The first count was an appeal from the decision of the CSB pursuant to Act No. 1619, Ala. Acts 1971 ("the Act"). The second count sought a judgment declaring that the CSB had acted arbitrarily and capriciously with respect to the 2 1130372; 1130373 promotion decision and overturning the CSB's decision to deny Ezell's application for promotion to battalion chief. The 1 complaint included a demand for a jury trial. On October 18, 2011, the City and the CSB filed an answer in which they denied Ezell's allegations. They also asserted that Ezell had failed to join certain indispensable parties. The City and CSB simultaneously filed a motion to dismiss count 1 of the complaint pursuant to Rule 12(b)(7), Ala. R. Civ. P., arguing that all six applicants were indispensable parties. They then asked that count 1 of the complaint be dismissed or that Ezell be required to add Cochran, Brown, Clanton, Muse, and McDaniel as defendants. On April 16, 2012, the trial court ordered Ezell to amend his complaint to make Cochran, Brown, Clanton, Muse, and McDaniel parties to the suit. On April 17, 2012, Ezell amended count 1 of his complaint and also added Cochran, Brown, Clanton, Muse, and McDaniel as defendants. The City and the CSB filed an answer to the amended complaint in which they denied Ezell's allegations and argued that the complaint failed to state a claim upon which relief could be granted. It appears that Ezell abandoned count 2 at trial. 1 3 1130372; 1130373 The trial court conducted a jury trial following the procedure outlined in Smith v. Civil Service Board of Florence, 52 Ala. App. 44, 289 So. 2d 614 (Ala. Civ. App. 1974). After the jury heard the evidence, the trial court instructed the jury, in part, "to decide this case and who should be promoted to the two vacant positions of Battalion Chief based on the evidence presented to you during the trial." The jury returned the following verdict: "We are not reasonably satisfied that the decision of the [CSB] was correct and we find that the following 2 individuals should be promoted to Battalion Chief (pick two) ... Benjamin Cochran ... William Ezell." The trial court entered a judgment on the verdict and ordered that the status quo be maintained during the pendency of any appellate proceedings. The City, the CSB, and McDaniel filed posttrial motions, which the trial court denied. McDaniel filed an appeal to this Court; that appeal was docketed as case no. 1130372. The City and the CSB also filed an appeal to this Court; that appeal was docketed as case no. 1130373. Discussion 4 1130372; 1130373 In their briefs to this Court, the appellants raise several challenges to the procedure the trial court followed during the trial. However, before we can examine those challenges, we must first determine whether Ezell had a right to appeal the CSB's decision pursuant to the Act. The Act provides: "An appeal may be taken from any decision of the [CSB] in the following manner: Within ten (10) days after any final decision of such [CSB], any party, including the governing body of the city, feeling aggrieved at the decision of the [CSB], may appeal from any such decision to the Circuit Court of the County. Upon the filing of such appeal, notice thereof shall be served upon any member of the [CSB] and a copy of said notice shall be served upon the appellee or his attorney by the appellant. Such appeal shall be heard at the earliest possible date by the court sitting without a jury, unless a jury is demanded by the appellant at the time of filing his notice of appeal or by the appellee within ten (10) days after notice of appeal has been served upon him. In the event either party demands a jury as provided above, the appeal shall be heard at the next regular jury term of court and shall have priority over all other cases. No bond shall be required for such an appeal and such an appeal shall be effected by filing a notice and request therefor by the appellant upon any member of the [CSB] and upon the appellee as herein provided for above and also by filing a notice and request for an appeal with the Clerk of the Circuit Court. It shall not be necessary to enter exceptions to the rulings of the [CSB], and the appeal shall be a trial de novo; provided, however, that upon hearing such appeal the introduction of the decision of the [CSB] shall be prima facie evidence of the correctness of such 5 1130372; 1130373 decision. An appeal may be taken from any judgment of the Circuit Court to the Court of Appeals or the Supreme Court as now provided by law." Act No. 1619, Ala. Acts 1971, § 2. The Act provides that any party "feeling aggrieved at the decision" may appeal; however, it does not define the term "aggrieved." The term "aggrieved" is defined in Black's Law Dictionary 80 (10th ed. 2014) as "having legal rights that are adversely affected; having been harmed by an infringement of legal rights." Therefore, only a party whose legal rights have been adversely affected by a decision of the CSB may appeal pursuant to the Act. Pursuant to Act No. 437, Ala. Acts 1947, the CSB promulgated rules and regulations setting forth the procedure to be followed when promoting employees of the Florence police and fire departments. If the CSB fails to follow its own procedural and substantive rules with regard to employment decisions for those departments, a party's legal rights may be adversely affected, and the party may be aggrieved, for purposes of the Act. In his original complaint, Ezell included the generic allegation that the CSB "denied his promotion and in his place 6 1130372; 1130373 promoted Lieutenant Keith McDaniel in disregard of the rules of the CSB and the employment rules of the Florence Fire and Rescue Department." During his opening statement, counsel for Ezell argued that Ezell and Cochran performed better than the other candidates in the promotional reviews by the chief and the supervisors at the fire department. He also argued that Ezell had the experience and the training and the best record of the candidates for the promotion. During the trial, the City and the CSB presented evidence indicating that, in September 2011, the fire chief notified the CSB that there were two open battalion-chief positions. Both lieutenants, who were one rank below battalion chief, and captains, who were two ranks below battalion chief, were eligible to apply for the positions. The job openings were posted, and applications were filled out and submitted. Afterward, human-resources personnel identified those applicants who were qualified to be promoted to the battalion- chief positions; compiled all the information about each qualified applicant, including evaluations performed by command-staff members at the department; submitted a notebook 7 1130372; 1130373 with all the information for each CSB member to review; and scheduled interviews. The CSB members who testified indicated that they reviewed and considered the information about each candidate included in the notebooks prepared by the human-resources personnel. However, they indicated that they did not base their decision solely on the information provided by the human-resources personnel. Instead, the CSB members who testified indicated that they attempted to choose people who would best represent the fire department and added that the decision was influenced by such subjective factors as the appearance, attitude, and responses of the candidates during their interviews. Lindsey Musselman Davis, one of the CSB members, testified that the CSB could not make the decision based solely on the candidates' experience and training. She also testified that the information that had been provided by the human-resources personnel was a tool the CSB members used in making an employment decision but that it was not the final test. Finally, she stated that the decision to promote 8 1130372; 1130373 McDaniel instead of Ezell was not unanimous, but she added that there was no requirement that the decision be unanimous. During the trial, Ezell did not present any evidence to support his allegation that the CSB had "denied his promotion and in his place promoted Lieutenant Keith McDaniel in disregard of the rules of the CSB and the employment rules of the Florence Fire and Rescue Department." In fact, he did not present any evidence regarding the rules of the CSB or the department. Instead, Ezell focused on his training and experience and the fact that he had outscored McDaniel on several of the evaluations that had been performed by the department's command staff to argue that he was more qualified than was McDaniel for the position of battalion chief. During his closing argument, counsel for Ezell emphasized the evaluations by the department's command-staff members in which Ezell had outscored McDaniel and noted that the CSB members knew nothing about firefighting. He also took issue with the fact that the CSB members took into account the fact that the battalion chiefs would be the "face" of the City and considered the impression the battalion chiefs would make with 9 1130372; 1130373 the media. Counsel further argued that Ezell deserved the promotion based on his experience and qualifications. Finally, in his brief in opposition to a stay of the judgment, counsel for Ezell argued that the CSB's decision to promote McDaniel instead of Ezell was "a wrong decision" and "was not supported by any extraordinary circumstances which would warrant such a promotion." However, even then, counsel did not present any argument or evidence to establish that extraordinary circumstances were required before the CSB could make such a promotion. Thus, Ezell did not present any arguments or evidence to establish that his legal rights had been adversely affected by the CSB's promotion decision. At most, his arguments and evidence simply focused on his personal dissatisfaction with the way in which the CSB exercised its discretion pursuant to its internal rules and regulations in making the decision to promote McDaniel over him. He did not present any evidence that would establish that the CSB members were not allowed to consider factors other than those evidenced by the notebooks provided by the human-resources personnel in making their decision. Therefore, Ezell failed to establish that he was an 10 1130372; 1130373 aggrieved party for purposes of the Act and, accordingly, failed to demonstrate that he had a right to appeal the CSB's decision. Because Ezell failed to demonstrate that he had a right to appeal the CSB's decision, the trial court lacked subject- matter jurisdiction to entertain his appeal. "'Where "the trial court ha[s] no subject-matter jurisdiction, [it has] no alternative but to dismiss the action."' Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So. 2d 1177, 1182 (Ala. 2006) (quoting State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1029 (Ala. 1999))." Ex parte Stewart, 985 So. 2d 404, 409 (Ala. 2007). Therefore, the trial court should have dismissed Ezell's appeal. Conclusion "'A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.' Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008)." MPQ, Inc. v. Birmingham Realty Co., 78 So. 3d 391, 394 (Ala. 2011). Accordingly, we dismiss these 11 1130372; 1130373 appeals with instructions to the trial court to vacate its judgment. 2 1130372 -- APPEAL DISMISSED WITH INSTRUCTIONS. 1130373 -- APPEAL DISMISSED WITH INSTRUCTIONS. Stuart, Bolin, and Parker, JJ., concur. Murdock, J., concurs specially. Moore, C.J., and Main, J., concur in the result. Shaw and Bryan, JJ., dissent. Because of our disposition of these appeals, we pretermit 2 discussion of the issues the parties raise in their briefs to this Court. 12 1130372; 1130373 MURDOCK, Justice (concurring specially). I concur in the dismissal of the appeals on subject- matter-jurisdiction grounds because the decision by the judicial branch in this particular case, if allowed to stand, would represent not a vindication of some substantive or procedural legal right held by those who were not promoted, but a usurpation by the judicial branch of the discretionary executive authority delegated to the Civil Service Board of the City of Florence. 13 1130372; 1130373 MOORE, Chief Justice (concurring in the result). I concur in the result because I believe the defect in William T. Ezell's appeal to the circuit court was not that the court lacked subject-matter jurisdiction to entertain Ezell's appeal on the basis that he did not have a right to appeal but that Ezell failed to state a claim upon which relief could be granted. 14 1130372; 1130373 SHAW, Justice (dissenting). I respectfully dissent. I disagree with the holding of the main opinion that William T. Ezell did not have what must be standing under Act No. 1619, Ala. Acts 1971 ("the Act"), to pursue the appeal in the circuit court. In my dissenting opinion in Ex parte Alabama Educational Television Commission, [Ms. 1111494, Sept. 27, 2013] ___ So. 3d ___, ___ (Ala. 2003), I explained my view that "standing" under Alabama law exists where the legislature has specifically provided a person with a cause of action (or here, an appeal) and where the interests of the parties are sufficiently "adverse": "'[S]tanding[] goes to whether a party has a sufficient "personal stake" in the outcome and whether there is sufficient "adverseness" that we can say there is a "case or controversy." "'"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." "'13A Federal Practice & Procedure § 3531.6. 15 1130372; 1130373 "'Although the Alabama Constitution does not have the same Article III language as is found in the Federal Constitution, this Court has held that Section 139(a) of the Alabama Constitution limits the judicial power of our courts to "cases and controversies" and to "concrete controversies between adverse parties." As Justice Lyons has stated: "'"Standing is properly limited to circumstances stemming from lack of justiciability. A plaintiff must be so situated that he or she will bring the requisite adverseness to the proceeding. A plaintiff must also have a direct stake in the outcome so as to prevent litigation, initiated by an interested bystander with an agenda, having an adverse impact on those whose rights are directly implicated. See Diamond v. Charles, 476 U.S. 54, 61–62, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986). "'"Much of the precedent in the area of standing comes from federal courts subject to the case-or-controversy requirement of Article III of the United States Constitution. Of course, w e d o n o t h a v e a case-or-controversy requirement in the Alabama Constitution of 1901, but our concepts of justiciability are not substantially dissimilar. See Pharmacia Corp. v. Suggs, 932 So. 2d 95 (Ala. 2005), where this 16 1130372; 1130373 Court, after noting the absence of a case-or-controversy requirement in our Constitution, observed: " ' " ' W e h a v e construed Art. VI, § 139, Ala. Const. of 1901 (as amended by amend. no. 328, § 6.01, vesting the judicial power in the Unified Judicial System), to vest this Court "with a limited judicial power that entails the special competence to decide discrete cases and controversies involving particular parties and specific facts." Alabama Power Co. v. Citizens of Alabama, 740 So. 2d 371, 381 (Ala. 1999). See also Copeland v. Jefferson County, 284 Ala. 558, 226 So. 2d 385 (1969) (courts decide only concrete controversies between adverse parties).'" "'Hamm[ v. Norfolk So. Ry.], 52 So. 3d [484] at 500 [(Ala. 2010)] (Lyons, J., concurring specially).' "Ex parte McKinney, 87 So. 3d 502, 513 (Ala. 2011) (Murdock, J., dissenting). The focus of Alabama law regarding standing, generally, is on whether the parties have a 'sufficient personal stake in the outcome' in the case, whether their interests are 17 1130372; 1130373 sufficiently 'adverse,' and whether the plaintiff is 'so situated' that he or she will bring 'the requisite adverseness' to the proceeding. "It is well settled that the legislature may provide for a cause of action and may supply subject-matter jurisdiction to the courts of this State. Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006) ('The jurisdiction of Alabama courts is derived from the Alabama Constitution and the Alabama Code.')." (Footnote omitted.) The Act provides that, from "any final decision of [the Civil Service Board of the City of Florence ('the CSB')], any party, including the governing body of the city, feeling aggrieved at the decision of the [CSB], may appeal from any such decision to the Circuit Court of the County." Certainly Ezell was "feeling aggrieved" by the CSB's decision: the CSB declined to award him the promotion and, according to his complaint, the CSB failed to follow its own rules and the rules of the City of Florence Fire and Rescue Department in making its promotion decision. The legislature has provided Ezell the means to appeal this decision; I believe that he and the CSB have sufficient stakes in the outcome and have the requisite adverseness to provide Ezell "standing" in this case. To the extent that the main opinion holds that Ezell 18 1130372; 1130373 had no standing because he was unable to prove that the CSB failed to follow its rules or that his legal rights were otherwise impacted by the CSB's decision to promote someone other than him to the position of battalion chief, the main opinion appears to signal a retreat from this Court's recent caselaw distinguishing a lack of standing from the inability to prove the merits of one's case. See Poiroux v. Rich, 150 So. 3d 1027 (Ala. 2014); Ex parte MERSCORP, Inc., 141 So. 3d 984 (Ala. 2013); and Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, September 13, 2013] ___ So. 3d ___ (Ala. 2013). I do not believe that the circuit court's judgment is void on the ground that Ezell lacked standing; therefore, I dissent. 19 1130372; 1130373 BRYAN, Justice (dissenting). I respectfully dissent. Act No. 1619, Ala. Acts 1971 ("the Act"), provides that any party "feeling aggrieved" by a decision of the Civil Service Board of the City of Florence ("the CSB") may appeal the decision to the circuit court. Citing the most recent edition of Black's Law Dictionary, the main opinion concludes that only a party whose legal rights have been adversely affected by such a decision may appeal under the Act; that is, the main opinion uses a "legal-right" test to determine whether William T. Ezell is "aggrieved" by the CSB's decision and, thus, whether he has standing to appeal. "Under this approach ... standing to challenge official action requires injury to a 'legal right' of the plaintiff." 13A Charles Alan Wright et al., Federal Practice and Procedure § 3531.1 (3d ed. 2008). The legal-right test was prevalent in federal courts in the 1930s, but was eventually replaced by other tests. See 3 Richard J. Pierce, Jr., Administrative Law Treatise § 16.1-.3 (5th ed. 2010). Under the newer prevailing standards, Ezell clearly would have the right to appeal the CSB's decision. 20 1130372; 1130373 Professor Pierce explains why the legal-right test fell out of favor: "The legal right test was criticized on many grounds. See, e.g., Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev. 450 (1970). Perhaps the most telling criticism was based on its confusion of the issue of access to the courts with the issue of whether a party should prevail on the merits of a dispute. Under the legal right test, a court was required to determine whether the petitioner's claim had merit in order to decide whether the petitioner was entitled to have the merits of its case considered by the court. This circular reasoning process is unnecessary to the determination of the threshold question of access to judicial review, and it can force a court to determine the merits of a claim at such an early stage that the court does not focus enough attention on the merits. Thus, considering the merits of a party's claim as part of the process of determining whether the party has standing to assert that claim invites poorly reasoned summary judicial disposition of the merits of the claim." Pierce, supra, § 16.2, at 1410. See also Wright, supra, § 3531.1 ("There were thus two ways in which the legal-right formula could be found defective. One was its capacity to limit standing; the other was its capacity to confuse substantive and remedial issues with standing."). By conflating the merits of Ezell's appeal with the standing to appeal, the main opinion illustrates one of the shortcomings of the legal-right test. 21 1130372; 1130373 In 1940, the United States Supreme Court signaled a shift away from the legal-right test with FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940), a decision that views the term "aggrieved" much more broadly than does the main opinion here. Sanders Brothers owned a radio station, and its competitor applied to the FCC for a license to operate a radio station nearby. The FCC granted the license despite the contention of Sanders Brothers that a new station would harm Sanders Brothers economically. The relevant statute granted the right to judicial review of the FCC's licensing decision to any person "aggrieved or whose interests were adversely affected" by the decision. 309 U.S. at 476-77. The Supreme Court concluded that Sanders Brothers did not have a "right" to be free from economic harm caused by competition. However, despite the fact that the FCC's decision had not violated a legal right of Sanders Brothers, the Supreme Court held that Sanders Brothers had standing to challenge the decision under the express terms of the statute. In sum, "while Sanders Brothers could not argue on the merits that grant of the license impermissibly caused it economic harm, it could use that economic harm as the basis for standing." Pierce, supra, 22 1130372; 1130373 § 16.2, at 1411. For the next 30 years, the Supreme Court applied this permissive-standing test when the relevant statute granted judicial review for anyone "adversely affected or aggrieved" (while applying the narrow legal-right test in the absence of such statutory language). Id. § 16.2, at 1412. Here, the Act grants the right to judicial review to any party "aggrieved" by the decision of the CSB. When the Act was passed in 1971, the word "aggrieved," at least in this context, had an established meaning broader than the meaning given to it by the main opinion. In 1970, one year before the Act was passed, the United States Supreme Court continued the trend toward inclusiveness in standing with Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970). That case concerned the scope of judicial review under the federal Administrative Procedure Act, which grants judicial review to "[a] person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. In Data Processing, the Court stated a two-part test that built on the inclusive approach in Sanders Brothers. A plaintiff 23 1130372; 1130373 challenging an administrative decision must establish (1) an "injury in fact, economic or otherwise," caused by the decision and (2) that the interest sought to be protected is "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." 397 U.S. at 152-53. The Court specifically rejected the legal-right, or "legal-interest" test, stating that that test goes to the merits, not to standing. Id. at 153. The Court concluded that the two-part test was satisfied in that case, noting that the first part was satisfied because the administrative decision would likely cause economic loss to the plaintiff's member firms. In short, the Court in Data Processing "unequivocally abandoned the legal right test," Pierce, supra, § 16.3, at 1412, but the test continues to find occasional use in some jurisdictions, Wright, supra, § 3531.1. See also 3 Charles H. Koch, Jr., Administrative Law and Practice § 14.16 (2d ed. 1997) (stating that "[e]ven the most conservative view of standing in the federal system does not advocate the readoption of the 'legal interest' test" but noting that "some version" of the test may exist in some states). 24 1130372; 1130373 Although we are not bound by the above cases, I find them persuasive in construing a statutory provision that allows, without further explanation, judicial review to one "aggrieved" by a decision of the CSB. The legal-right test 3 used by the main opinion merges concepts of standing with the merits and, for the most part, is a legal relic. Under the test stated in Data Processing, Ezell, as an "aggrieved" party, easily would have standing to challenge the CSB's decision. By not receiving the promotion, Ezell suffered an economic injury, which is an injury in fact. Certainly the interest sought to be protected by Ezell, which relates directly to a personnel decision made by the CSB, is arguably within the zone of interests to be protected or regulated by the Act. Further, I note that we could have easily found that Ezell was "aggrieved" by simply referencing an earlier edition I note that "[m]uch of the precedent in the area of 3 standing comes from federal courts subject to the case-or-controversy requirement of Article III of the United States Constitution." Hamm v. Norfolk S. Ry., 52 So. 3d 484, 500 (Ala. 2010) (Lyons, J., concurring specially). Insofar as the analysis in the federal cases cited above is grounded in the case-or-controversy requirement, I note that, although Alabama's Constitution does not have a case-or-controversy requirement, "our concepts of justiciability are not substantially dissimilar." Id. 25 1130372; 1130373 of Black's Law Dictionary instead of the most recent edition. When the Act was passed in 1971, the then current edition of Black's defined an "aggrieved party" in part as "[o]ne whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment." Black's Law Dictionary 87 (4th ed. 1968) (emphasis added). Reference to a "pecuniary" interest (which was a factor in both Sanders Brothers and Data Processing) continued to be part of the definition of "aggrieved party" through the 9th edition of Black's published in 2009. In Birmingham Racing Commission v. Alabama Thoroughbred Ass'n, 775 So. 2d 207 (Ala. Civ. App. 1999), the Court of Civil used an earlier version of the definition in a situation similar to the present one. That court construed the undefined term "person aggrieved" in a statute providing for judicial review of decisions by a racing commission. That court quoted the 6th edition of Black's, published in 1990, which provided, in part, that an aggrieved party is one "whose pecuniary interest is directly and adversely affected." 26 1130372; 1130373 I conclude that Ezell has standing to challenge the CSB's decision. Thus, I would not dismiss the appeal; instead, I would address the merits. 27	January 30, 2015
20c0274f-bd94-42b3-a7fe-cf7a900509a5	Ex Parte RBZ	725 So. 2d 257	1961136	Alabama	Alabama Supreme Court	725 So. 2d 257 (1997) Ex parte R.B.Z. and C.Z. (Re R.B.Z. and C.Z. v. Warwick Development Company, et al. and R.B.Z. v. Warwick Development Company). 1961136. Supreme Court of Alabama. December 19, 1997. 258 J. Gusty Yearout and John G. Watts of Yearout, Myers & Traylor, P.C., Birmingham, for petitioners. Connie Ray Stockham and K. David Sawyer of Stockham & Stockham, P.C., Birmingham, for respondent Warwick Development Company. James S. Lloyd and Laura C. Nettles of Lloyd, Schreiber & Gray, P.C., Birmingham, for respondents Bentwood Apartments, James Marshall Grayson, Jr., and Mary Louise Carr. Michael B. Maddox and M. Brian Slaughter of Maddox, Austill & Parmer, P.C., Birmingham, for respondent Carol R. "Lynn" Black. ALMON, Justice. This petition for the writ of mandamus presents a unique question regarding the appellate jurisdiction of the Court of Civil Appeals and the appellate jurisdiction of this Court. The facts of the underlying case were set out in an opinion by the Court of Civil Appeals reversing a summary judgment for the defendants. R.B.Z. v. Warwick Dev. Co., 681 So. 2d 566 (Ala.Civ.App.1996). This Court denied a petition for a writ of certiorari, Ex parte Warwick Dev. Co., 681 So. 2d 569 (Ala.1996), and the cause was returned to the circuit court. On that remand, all the defendants except for Thomas Black filed motions for partial summary judgment, requesting that the circuit court enter an order limiting the plaintiffs' damages to no more than $50,000 each. The circuit court granted the defendants' motions and denied the plaintiffs' motion to amend their complaint. The plaintiffs petition for a writ of mandamus directing the circuit court to set aside its order limiting damages and its denial of the motion to amend the complaint. They argue that they should not be precluded from claiming more than $50,000 in damages simply because they appealed to the Court of Civil Appeals from a summary judgment and marked the box on the notice of appeal indicating that the claim was within the jurisdictional limits of that court. See Ala.Code 1975, § 12-3-10. The complaint and its amendments that are before us as exhibits to the petition for the writ of mandamusand that presumably were part of the record on appeal to the Court of Civil Appealsdemand judgment against the defendants in an amount greater than $50,000. The defendants respond by arguing that, by invoking the jurisdiction of the Court of Civil Appeals, the plaintiffs have limited their claim to an amount within the jurisdictional limits of that court. The appellate jurisdiction of the Supreme Court and the Court of Civil Appeals derives from §§ 6.02 and 6.03 of the Judicial Article, Amendment 328 to the Alabama Constitution of 1901. Section 6.02(b) of that amendment states that the Supreme Court of Alabama "shall have original jurisdiction ... (2) to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction." Section 6.02(c) states that this Court "shall have such appellate jurisdiction as may be provided by law." Section 6.03(b) of Amendment 328 states that the Court of Civil Appeals "shall consist of such number of judges as may be provided by law and shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court." Section 12-3-10, Ala.Code 1975, governs the appellate jurisdiction of the Court of Civil Appeals. It states: (Emphasis added.) The jurisdiction of the Supreme Court is provided for in § 12-2-7, Ala.Code 1975: If on a notice of appeal an appellant erroneously designates the court to which the appeal is taken, the appellate court to which the appeal is taken "shall" transfer the case to the proper court: § 12-1-4, Ala.Code 1975 (emphasis added). This statute was applied in Great Central Ins. Co. v. Edge, 292 Ala. 613, 298 So. 2d 607 (1974); Tarver v. Household Fin. Corp., 291 Ala. 25, 277 So. 2d 330 (1973), overruled on other grounds by Drill Parts & Service Co. v. Joy Mfg. Co., 619 So. 2d 1280, 1288 (1993); American Pamcor, Inc. v. Evans, 288 Ala. 416, 261 So. 2d 739 (1972); Kelley v. Housing Auth. of the City of Bay Minette, 288 Ala. 575, 263 So. 2d 674 (1972). Today, such transfers are made so routinely, when necessary, that the reported decision would ordinarily not mention the transfer. Rule 3(c), Ala. R.App. P., provides: (Emphasis added.) Just as the designation of the judgment does not limit the scope of appellate review, the designation in the notice of appeal of the amount in controversy does not supersede the record as the determinant of the amount in controversy. The question whether this Court or the Court of Civil Appeals has jurisdiction over an appeal is governed by the record, not the notice of appeal. "In the absence of a judgment fixing the amount of recovery, the amount claimed in the pleadings is the only guide by which jurisdiction as between this Court and the Court of Civil Appeals may be determined." Harper v. Regency Dev. Co., 399 So. 2d 248, 261 (Ala.1981) (opinion on rehearing); Prescott v. Furouzabadi, 485 So. 2d 707, 709 (Ala. 260 1986); Kirk v. Griffin, 667 So. 2d 1378 (Ala. Civ.App.1995). The only way the Court of Civil Appeals may take jurisdiction over a matter not expressly assigned to that court by § 12-3-10 is by a transfer pursuant to § 12-2-7(6), a transfer commonly called "deflection." The plaintiffs incorrectly argue that the statute permitting deflection gives this Court and the Court of Civil Appeals concurrent jurisdiction over all matters not covered by § 12-3-10. Deflection is provided by § 12-2-7(6), which allows this Court to grant the Court of Civil Appeals jurisdiction over a case that this Court deflects to that court, provided the case does not fall into one of the exceptions listed. The Court of Civil Appeals does not have jurisdiction over an appeal outside the scope of § 12-3-10 unless and until this Court transfersdeflectsthat appeal to it. A court is without authority to render a judgment in a case in which it does not have subject matter jurisdiction. In Ex parte Tubbs, 585 So. 2d 1301 (Ala.1991), the Court stated: 585 So. 2d at 1302. The complaint that is before us as an exhibit to the petition makes it appear that the Court of Civil Appeals did not have jurisdiction to entertain the appeal from the summary judgment, because the amount claimed in the complaint was more than $50,000. The plaintiffs argue that this concern over the jurisdiction of the Court of Civil Appeals is unimportant, because, they say, this Court will have the opportunity to correct "errors" in an opinion of the Court of Civil Appeals when the losing party in that court petitions for a writ of certiorari. However, the availability of certiorari review does not somehow provide for the Court of Civil Appeals jurisdiction that does not otherwise exist. This Court did not have the record when it reviewed the certiorari petition filed by Warwick Development Company; indeed, by denying the writ, this Court declined to order the Court of Civil Appeals to transfer the record to this Court. Thus, the question regarding the jurisdiction of the Court of Civil Appeals to entertain that appeal is now before us for the first time. Moreover, our denial of certiorari review should not be considered a ruling on the merits of the controversy. Ex parte Cason, 515 So. 2d 725 (Ala. 1987); Ex parte Glasco, 513 So. 2d 61 (Ala. 1987); Ex parte McDaniel, 418 So. 2d 934 (Ala.1982). Section 12-3-15, Ala.Code 1975, provides for the transfer to this Court of appeals pending in the Court of Civil Appeals. Section 12-2-7(3) gives this Court authority to issue "such ... remedial and original writs as are necessary to give to it a general superintendence and control of courts of inferior jurisdiction." Pursuant to the authority granted by § 6.02(b)(2) of Amendment 328 of the Alabama Constitution of 1901, as well as the authority granted by §§ 12-1-4, 12-2-7(3), and 12-3-15, Ala.Code 1975, and by Rule 3(c), Ala, R.App. P., we hereby order the Court of Civil Appeals to transfer to this Court the record, the briefs, and any other materials concerning the appeal that was the subject of the opinion reported in R.B.Z. v. Warwick Dev. Co., 681 So. 2d 566 (Ala.Civ. App.1996). The judgment of reversal entered by the Court of Civil Appeals in that appeal is hereby held in abeyance pending our review of the record to ascertain whether the amount in controversy exceeded the jurisdictional *261 limits of that court, as the materials before us indicate. If the appeal was improperly filed in the Court of Civil Appeals, then this Court will proceed to address it as though it had been transferred here at the proper time. ORDER ISSUED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, COOK, BUTTS, and SEE, JJ., concur.	December 19, 1997
94f672d2-e161-498d-9af0-345b1204ac4c	James v. Alabama Coalition for Equity, Inc.	713 So. 2d 937	1960327, 1960328, 1960470, 1960473, 1960489, 1960490	Alabama	Alabama Supreme Court	713 So. 2d 937 (1997) Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. ALABAMA COALITION FOR EQUITY, INC., an Alabama nonprofit corporation, et al. Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. Mary HARPER, suing as next friend of Deion Harper and Perry Phillips, minors, et al. ALABAMA COALITION FOR EQUITY, INC. v. Fob JAMES, Jr., et al. ALABAMA COALITION FOR EQUITY, INC. v. Fob JAMES, Jr., et al. Deion HARPER, et al. v. Fob JAMES, Jr., et al. Deion HARPER, et al. v. Fob JAMES, Jr., et al. STATE SUPERINTENDENT OF EDUCATION and State Board of Education v. ALABAMA COALITION FOR EQUITY, INC., et al. STATE SUPERINTENDENT OF EDUCATION and State Board of Education v. ALABAMA COALITION FOR EQUITY, INC., et al. 1960327, 1960328, 1960470 to 1960473, 1960489 and 1960490. Supreme Court of Alabama. December 12, 1997. 940 Bill Pryor, atty. gen., and Brock B. Gordon, Mobile, for appellant Attorney General Bill Pryor. M. Roland Nachman, Jr., Montgomery; and William P. Gray, Jr., legal advisor to the Governor for appellants Governor James and Finance Director Sage Lyons. Michael R. White, general counsel, Department of Education; and Denise B. Azar and Ashley H. Hamlett, Office of General Counsel, Department of Education, for appellants State Superintendent of Education and State Board of Education. Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery; and Christopher A. Hansen, American Civil Liberties Union Foundation, New York City, for Harper cross-appellants/appellees. Reuben W. Cook, Alabama Disabilities Advocacy Program, Tuscaloosa, for Alabama Disabilities Advocacy Program and John Doe. C.C. Torbert, Jr., of Maynard, Cooper & Gale, Montgomery; James Allen Main and L. Landis Sexton of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery; Michael D. Waters of Miller, Hamilton, Snider & Odom, Montgomery; and James G. Speake of Speake & Speake, Moulton, for appellees/cross appellants Alabama Coalition for Equity, Inc., et al. COOK, Justice. These cases arise out of the ongoing litigation known as the "Public School Equity Funding Case." See Ex parte James, 713 So. 2d 869 (Ala.1997); Pinto v. Alabama Coalition for Equity, 662 So. 2d 894 (Ala.1995); Opinion of the Justices No. 338, 624 So. 2d 107 (Ala.1993). They are appeals and cross appeals from a judgment of the Montgomery County Circuit Court awarding to the Alabama Coalition for Equity, Inc. ("ACE"), the Alabama Disabilities Advocacy Program ("ADAP"), and Mary Harper, the original plaintiffs in this action (collectively the "plaintiffs-cross appellants"), interim attorney fees, that is, fees for their efforts that culminated in the order entered in the Liability Phase. We affirm. The judgment in the Liability Phase was entered on March 31, 1993. On June 9, 1993, the Honorable Eugene Reese, judge of the Montgomery County Circuit Court, acting pursuant to Ala. R. Civ. P. 54(b), certified that judgment as final. The same day, he entered a separate order stating in part: (Emphasis added.) No appeals were taken, either from the Liability Phase judgment, or, from the June 9, 1993, order involving attorney fees (the "Reese Fee Order"). In 1996, the plaintiffs-cross appellants petitioned the trial court for awards of attorney fees and expenses for their efforts through March 31, 1993, that is, for the litigation of the Liability Phase. On November 19, 1996, the Honorable Sarah M. (Sally) Greenhaw, judge of the Montgomery County Circuit Court, entered an order awarding fees in the amounts of $1,800,000; $1,564,375; and $235,360 to ACE, Harper, and ADAP, respectively (the "Greenhaw Fee Order"). Appeals and cross appeals followed. Appeals were filed in cases 1960327 and 1960328 by Governor Fob James, Jr.; State Finance Director Sage Lyons; and Attorney General Jeff Sessions (the "James Appellants"). Appeals were also filed in cases 1960489 and 1960490 by State Superintendent of Education Ed Richardson and the State Board of Education. Cross appeals were filed in cases 1960470 and 1960471 by ACE, and in cases 1960472 and 1960473 by Harper and ADAP. On March 20, 1997, this Court issued an order to Judge Greenhaw, stating in pertinent part: On March 26, 1997, Judge Greenhaw certified the Greenhaw Fee Order as a final judgment pursuant to Rule 54(b). We first address issues regarding the finality and appealability of these fee orders. At the outset, we note that none of the appellants challenges the specific amounts awarded the plaintiffs-cross appellants. They challenge only the entitlement vel non to an award of attorney fees in this action. The appellants first contend that the Reese Fee Order was interlocutory and insist that, because it addressed only the liability for fees, but postponed until a future date the actual assessment of the fees, it was not such an order as could be made final pursuant to Rule 54(b). In other words, they contend, Rule 54(b) did not authorize the certification of the Reese Fee Order as a final judgment. We agree with this contention. Not every order has the element of finality necessary to trigger the application of Rule 54(b). Tanner v. Alabama Power Co., 617 So. 2d 656, 656 (Ala.1993) (Rule 54(b) "confers appellate jurisdiction over an order of judgment only where the trial court `has completely disposed of one of a number of claims, or one of multiple parties'" (emphasis in Tanner)). For the application of this rule in the specific context of an award of attorney fees, see Sidag Aktiengesellschaft v. Smoked Foods Products Co., 813 F.2d 81 (5th Cir.1987). The Sidag case arose out of an action commenced in 1979 by Sidag Aktiengesellschaft and Sicilia di R. Biebow & Co. ("Sidag") against, among others, Smoked Foods Products Company and Sales U.S.A., Inc. 942 ("Sales"). Id. at 82. On September 19, 1984, following a number of judgments adverse to Sidag, a magistrate ordered Sidag to "`pay the expenses and attorneys' fees incurred by' Sales `in obtaining [an] Order of Dismissal [in that stage of the litigation] and in continuing to defend against Plaintiffs' claims since July 28, 1982.'" Id. at 83. At that time, however, the magistrate merely "directed Sales to submit by affidavit an itemized list of its said costs, expenses, and attorneys' fees [within] thirty days." Id. Nevertheless, by an order dated September 26, 1984, the magistrate attempted to certify the September 19 order as a final judgment, stating in part: "Pursuant to Fed. R. Civ. P. 54, the court now expressly determines that there is no just reason for delay and hereby directs entry of separate final judgment ... awarding said dismissed parties costs and attorneys' fees against plaintiffs in accordance with the Order... dated September 19, 1984...." Id. On the appeal of the judgment of dismissal, the Court of Appeals for the Fifth Circuit "affirmed ... the dismissal of all claims against Sales." Id. "Thereafter, Sales filed in the district court its itemized costs, expenses, and attorneys' fees." Id. "Subsequently, the magistrate, by order dated August 28, 1986 and entered August 29, 1986, approved a portion of the attorneys' fees and expenses claimed by Sales, in various amounts totaling $27,365.32." Id. Although the August 28, 1986, order awarding a definite sum in attorney fees was never certified as final, Sidag appealed. The Court of Appeals for the Fifth Circuit dismissed the appeal as being from an interlocutory order. Id. at 84. In doing so, it explained: 813 F.2d at 84 (emphasis in original; footnote omitted). See also Fort v. Roadway Express, Inc., 746 F.2d 744, 747 (11th Cir.1984) (an order "finding [a party] liable for fees without determining the amount thereof is not a final appealable judgment with regard to the issue of attorney's fees"). Sidag is substantively indistinguishable from this case. Both cases involve two separate attorney fee orders. There, as here, the trial court, in the first order, purported to certify a holding of fee liability without fixing the amount. In both cases, the trial court subsequently entered an order fixing the amount, but failed to certify the latter order as final pursuant to Rule 54(b). Here, as there, the order actually awarding fees was, without the requisite certification, not final and appealable. That, of course, is the reason this Court issued its March 20, 1997, order to Judge Greenhaw allowing further action. In a related argument, the James Appellants contend that "even the liability order of March 31, 1993, was not a `final order'; could not be certified under Rule 54(b); and was not appealable to this Court, regardless of 943 such certification." Brief of [James] Appellants, at 9. In this way, theyonce again urge us to revisit and review the order entered in the Liability Phase, an order that became final pursuant to Rule 54(b) on June 9, 1993, and therefore appealable, and from which no appeal was taken. This Court has been presented with arguments as to the reviewability of the Liability Phase judgment on no less than three prior occasions. First, Joyce Pinto and others (the "Pinto intervenors") strenuously urged us to review the Liability Phase on various grounds. Brief of Pinto Appellants (Case Nos. 1931030 & 1931031), at 41-49. We considered those arguments and rejected them without substantive discussion in Pinto v. Alabama Coalition for Equity, 662 So. 2d 894, 900 (Ala.1995). Second, soon after his election, "Governor James sought a writ of prohibition in this Court directing Judge Reese `to vacate his [order] ... of March 31, 1993.'" Id. at 898. "On April 10, 1995, we unconditionally denied the petition as it related to the [Liability Phase]." Id. In the order denying that relief, we explained clearly that the judgment in the Liability Phase became final and appealable on June 9, 1993, and that no appeal had been taken therefrom. Id. n.2. Third, in Ex parte James, 713 So. 2d 869 (Ala.1997), both in briefs and in oral arguments, the James Appellants again urged us to review the Liability Phase. Most significantly, during the oral argument of that case, the James Appellants presented the identical argument now presented here, namely, that the Liability Phase judgment was a noncertifiable order and was, therefore, still reviewable. In our opinion released on January 10, 1997, we clearly rejected that argument. Specifically, we stated: "[U]nlike the Liability Phase, which `ascertained and declared the rights of the parties,' Taylor v. Taylor, 398 So. 2d 267, 269 (Ala.1981), by declaring the challenged system unconstitutional, and which became final on June 9, 1993, the Remedy Plan does not `ascertain[] and declare[] the rights of the parties and settle[] the equities' as to any party in this action." 713 So. 2d at 873 (emphasis original). Justice Almon, in a special concurrence, explained even more succinctly: 713 So. 2d at 886-87 (footnote omitted). The James Appellants rely on Tanner v. Alabama Power Co., 617 So. 2d 656 (Ala. 1993). Tanner, however, is inapposite to this issue. That case involved premature "appeal[s] from an order of the Jefferson County Circuit Court granting an application of Alabama Power Company (`APCo') for condemnation of a right-of-way over the Tanners' property." 617 So. 2d at 656. In that case, "[t]he trial judge, before determining the amount of damages, entered an order purporting to certify the order as a `final judgment' pursuant to Ala. R. Civ. P. 54(b)." Id. This Court "dismiss[ed] the appeals as premature," holding that the failure of the trial court to assess the damages to which the Tanners were entitled rendered ineffective its Rule 54(b) certification. 617 So. 2d at 657. For its rationale, the Court relied extensively on Ala. Code 1975, § 18-1A-289 (conditioning the condemnor's right to enter the property pending an appeal "upon the payment of the sum ascertained and assessed by the verdict of the circuit court, or the bond thereof in the circuit court for the defendant"); and § 18-1A-290 (requiring payment of "damages and compensation assessed at any time within 90 days after the assessment thereof, or, in case an appeal is taken, within 60 days after the appeal is determined"). 617 So. 2d at 657. These statutes, the Court concluded, "`seemed clearly to indicate that the legislature intended that judgments in condemnation cases become final only after 944 assessment of damages.'" Id. (Emphasis added in Tanner.) Indeed, the rule on which the James Appellants rely is properly stated as follows: "A judgment for damages to be final must ... be for a sum certain determinable without resort to extraneous facts." Jewell v. Jackson & Whitsitt Cotton Co., 331 So. 2d 623, 625 (Ala.1976) (emphasis in original). Otherwise stated: "Where the amount of damages is an issue, ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages." Moody v. State ex rel. Payne, 351 So. 2d 547, 551 (Ala.1977) (emphasis added). The following cases clearly illustrate the application of this rule. "Automatic" Sprinkler Corp. of America v. B. F. Goodrich Co., 351 So. 2d 555 (Ala.1977), involved an action commenced by the B. F. Goodrich Company ("Goodrich") against H. K. Ferguson Company ("Ferguson") and "Automatic" Sprinkler Corporation of America ("A.T.O."), arising out of "a spill of a highly toxic environmental contaminant on [Goodrich's] premises." 351 So. 2d at 556. Goodrich sought "damages" based on claims of "breach of contract, negligence, and breach of express and implied warranties." Id. (Emphasis added.) The trial court entered "partial summary judgments on the issue of liability against [Ferguson] and A.T.O." Id. (Emphasis added.) More specifically, the judgments stated: "The monetary amount of plaintiff's recovery shall be determined hereafter in these proceedings." Id. at 557. Although the judgments also contained the language required for Rule 54(b) certification, this Court held that they were nonfinal and nonappealable. Id. at 557. It explained "[t]hat a judgment is not final when the amount of damages has not been fixed by it." Id. (Emphasis added.) Similarly, Alldridge v. Metro Bank, 398 So. 2d 314 (Ala.Civ.App.1981), involved an action by Metro Bank, the holder of a security interest in a "boat, motor, and trailer," against Billy Joe Alldridge, who had purchased the chattels from Thurston Glaze, from whom Metro Bank had acquired its security interest. 398 So. 2d at 315. Metro Bank claimed that Alldridge had "wrongfully detained" and converted its secured collateral. Pursuant to these claims, it sought compensatory and punitive damages. Id. The trial court entered a summary judgment in favor of Metro Bank. In its judgment, however, it expressly reserved for a "jury trial" the determination of the amount of the damages to be awarded. Id. at 316. The court entered a Rule 54(b) certification of finality. The Court of Civil Appeals, however, held that the judgment was "not such a final judgment under [Rule] 54(b) as [would] support an appeal." 398 So. 2d at 316. Citing "Automatic Sprinkler," the court explained that the purported Rule 54(b) certification was ineffective to "transform" the order determining liability into a final judgment, where the issue of damages had yet to be submitted to a jury. 398 So. 2d at 317. This Public School Equity Funding Case is qualitatively different from these "damages" cases and is subject to the well-established rule stated in Ex parte Elyton Land Co., 104 Ala. 88, 91, 15 So. 939, 940 (1894): (Emphasis added.) The question in Elyton Land Co. was whether a decree entered in favor of Rebecca Denny, who had sought an assignment of her dower rights in real estate held by her late husband, was final and appealable. 104 Ala. at 91, 15 So. at 939-40. The Court noted that a number of issues remained to be determined, stating: 104 Ala. at 91-92, 15 So. at 940 (emphasis added). However, the Court declared that the essential facts, the finding of which was necessary to the entry of a final decree, were: "the marriage, the seisin of the husband during coverture, his death and the possession of the lands, claiming to be tenants of the freehold, by the defendants charged to be in possession and so claiming." 104 Ala. at 90, 15 So. at 940. It explained: "These facts constitute the equity of the case; they embrace the substantial merits of the controversy; from them arise the material issues of fact and of law, upon which the legal and equitable rights of the parties depend." Id. Concluding that the "decree ascertaine[d] and declare[d] the concurrence and coexistence of [the essential] facts; and from them deduce[d] the legal conclusion," the Court held that the decree was final and appealable. 104 Ala. at 90, 91, 15 So. at 940. This rule has been expressed and applied in recent cases. See, e.g., Taylor v. Taylor, 398 So. 2d 267 (Ala.1981); McCulloch v. Roberts, 290 Ala. 303, 276 So. 2d 425 (1973); Sexton v. Sexton, 280 Ala. 479, 482, 195 So. 2d 531, 533 (1967); Newton v. Ware, 271 Ala. 444, 450, 124 So. 2d 664, 669-70 (1960); Ellison v. Ellison, 628 So. 2d 855 (Ala.Civ.App. 1993); Moore v. Casey, 439 So. 2d 164 (Ala. Civ.App.1983); Wesley v. Brandon, 419 So. 2d 257 (Ala.Civ.App.1982). In Newton, we said: 271 Ala. at 450, 124 So. 2d at 670, quoted in Taylor and Sexton. Even more significantly from the point of view of this case, "[i]n equity cases there can be more than one final judgment from which an appeal may be taken." Norris v. Norris, 406 So. 2d 946, 948 (Ala.Civ. App.1981) (emphasis added); see also Chadwick v. Town of Hammondville, 270 Ala. 618, 621, 120 So. 2d 899, 902 (1960). This is so because "there may remain ... other matters in which the equities have not been settled or proceedings necessary to enforce the judgment previously entered. A court has inherent power to issue such orders or process as necessary to render its judgment effective." 406 So. 2d at 948; Monroe v. Monroe, 356 So. 2d 196 (Ala.Civ.App.1978). Indeed, the Liability Phase order of this "bifurcated" action falls within this latter rule. This is because the Liability Phase order did nothing more than declare the challenged statutory scheme unconstitutional, and, in doing so, put to rest these constitutional issues. In that respect, it differed not at all from the approach adopted in Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky.1989), which the James Appellants, in Ex parte James, offered as exemplary of the proper judicial role. If the trial court, like the Rose court, had merely invalidated the statutory scheme and then abdicated any further role in favor of the legislature, no colorable argument could have been made that the declaratory judgment it entered was nonappealable. That these "damages" cases, and the rule derived therefrom, are inapplicable to this case should be readily apparent. Unlike those cases, this case did not at any time anticipate the assessment of damages. It involved the plaintiffs' equitable and constitutional claims that Alabama's public school system "does not offer equitable and adequate educational opportunities to the schoolchildren of the state," as is constitutionally required, and the enforcement of the declaratory 946 and injunctive relief the plaintiffs requested. Opinion of the Justices No. 338, 624 So. 2d 107, 110 (Ala.1993). The Liability Phase order, which formed the basis for the Reese Fee Order, was, therefore, a judgment that would support an appeal. Although we agree with the appellants that Rule 54(b) did not authorize the certification of the Reese Fee Order as a final judgment, we cannot conclude, as they urge us to do, that the noncertifiability of the Reese Fee Order provides a basis for a reversal of the Greenhaw Fee Order, which has now been properly certified in accordance with our March 20, 1997, order. Specifically, they contend that Judge Greenhaw erroneously concluded that she could not revisit the issue of the entitlement vel non to an award of attorney fees, believing, incorrectly, that the Reese Fee Order had become final and unchallenged by a timely appeal. Thus, they argue, because the Greenhaw Fee Order is based on a false premise, the judgment on which it is based must be reversed and the cause remanded for consideration as to whether the plaintiffs-cross appellants are, in fact, entitled to any award of fees. In support of this proposition, they cite the following portion of the Greenhaw Fee Order: (Emphasis added.) We disagree with the appellants' arguments for reversal on this ground, for two reasons. First, this Court has written: "`Judgments are to be construed like other written instruments.' Hanson v. Hearn, 521 So. 2d 953, 954 (Ala.1988). `Rules applicable to the construction and interpretation of contracts are applicable to the construction and interpretation of judgments.' Id." Inter-Connect, Inc. v. Gross, 644 So. 2d 867, 868 (Ala.1994). Simply stated, we construe the Greenhaw Fee Order as constituting an independent review of the Reese Fee Order. Particularly significant is Judge Greenhaw's statement: "The threshold issue is whether this court has authority to award attorneys' fees pursuant to [the Reese Fee] [O]rder." (Emphasis added.) She followed up this statement with thorough analyses of various theories under which attorney fees might be awarded. Eventually, she concluded that she had authority to award fees to Harper and ADAP pursuant to the Civil 947 Rights Attorney Fee Act of 1976, 42 U.S.C. § 1988, and to ACE pursuant to the "common fund" theory.[1] Moreover, the amounts she awarded were substantialtotalling $3,599,735. Had she not concluded, based on an independent assessment of the right to attorney fees, that her "court [had] authority to award attorneys' fees," regardless of the Reese Fee Order, she would, it seems likely, have awarded only nominal sums. Suffice it to say that these factorsher detailed analyses and the substantial amount of fees she ultimately awardedare entirely inconsistent with the appellants' construction of her order, namely, that it did not constitute an independent assessment of the entitlement. The language in the Greenhaw Fee Order on which the appellants rely may be regarded as harmless surplusage. This conclusion is fully consistent with the well-established rule that "[a] correct decision will not be disturbed even if the court gives the wrong reasons." Davison v. Lowery, 526 So. 2d 2, 4 (Ala.), cert. denied, 488 U.S. 854, 109 S. Ct. 140, 102 L. Ed. 2d 113 (1988). See also Hood v. Wilson, 496 So. 2d 76 (Ala.Civ.App.1986). Thus, to the extent the Greenhaw Fee Order is otherwise correct, we will not reverse it based on any misconception Judge Greenhaw may have had regarding the finality of the Reese Fee Order. Judge Greenhaw's analysis of the theories under which the fees were sought and awarded began as follows: Section 1988(b) provides in pertinent part: "In any action or proceeding to enforce a provision of [42 U.S.C. §§] 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." (Emphasis added.) Section 1983 provides in pertinent part: Section 1983 is a procedural deviceone of those specifically set forth in § 1988by which the substantive rights guaranteed by the Constitution and statutes of the United States may be enforced. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979); Sykes v. James, 13 F.3d 515 (2d Cir.1993), cert. denied, 512 U.S. 1240, 114 S. Ct. 2749, 129 L. Ed. 2d 867 (1994). Section 1988 authorizes an award of attorney fees, "payable by the States when their officials are sued in their official capacities," Hutto v. Finney, 437 U.S. 678, 693-94, 98 S. Ct. 2565, 2575, 57 L. Ed. 2d 522 (1978), and the action seeks prospective relief, id. at 695, 98 S. Ct. at 2576, from deprivations of rights guaranteed by the Constitution and statutes of the United States. A "prevailing party," within the meaning of § 1988, is one who "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S. Ct. 1486, 1492, 103 L. Ed. 2d 866 (1989). The 948 threshold is met if the plaintiff can "point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Id. at 792, 109 S. Ct. at 1493. In this connection, Judge Greenhaw found that "[t]he ... plaintiffs in their complaints asserted federal constitutional claims under 42 U.S.C. [§] 1983." The pleadings and arguments of the parties bear out this finding. This action was initiated May 3, 1990, by ACE in a complaint seeking, among other things, a declaration that Ala. Const. 1901, amend. 111, violated "the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States in that it has a racially discriminatory purpose and effect." It also sought a judgment declaring that "[t]he statutes, procedures and administrative determinations constituting the State funding structure for public education in the state ... deprive[d] the individual plaintiffs... of their rights to equal protection and due process of law as guaranteed by the Fourteenth Amendment...." On May 23, 1991, ACE moved to amend its complaint, alleging that the "[d]efendants, acting under color of state statute, ordinance, regulation, custom or usage, [had] subjected plaintiffs to the deprivation of rights, privileges or immunities secured by the United States Constitution and laws." ACE further moved to "amend paragraph 1 of [its] complaint to add 42 U.S.C. § 1983 as a jurisdictional ground for this action." ADAP moved to intervene in the action on August 2, 1990, with a "Proposed Complaint of Intervenor-Plaintiffs." In an accompanying affidavit, an ADAP representative stated: "Plaintiffs' complaint seeks, among other remedies, a declaration that the funding structure for public education in the State of Alabama violates the State and Federal constitutional and statutory rights of the plaintiffs to equal protection and due process of law." (Emphasis added.) The ADAP complaint alleged in part: "The education of exceptional students in Alabama has been traditionally underfunded in violation of the Constitution and laws of the State of Alabama. These concerns are inextricably intertwined with the issues raised by the pursuit of equal educational opportunities by the existing Plaintiffs in this lawsuit." The Harper plaintiffs sued on January 18, 1991, in a complaint alleging violations of the United States Constitution. More specifically, it stated: (Emphasis added.) Indeed, the appellants do not challenge the sufficiency of the pleadings to invoke §§ 1983 and 1988. They merely contend that the Liability Phase order was based entirely on the Constitution of Alabama. We disagree with this contention. To be sure, in the Liability Phase order the trial court held that the system by which Alabama administered its public schools violated "`Ala. Const. art. I, §§ 1, 6, 13, and 22 [guaranteeing Alabama citizens equal protection of the laws] and art. XIV, § 256 [guaranteeing Alabama citizens access to a "liberal system of public schools"].'" Pinto, 662 So. 2d at 896. In order to reach this result, however, the trial court first had to resolve the issue whether, as the plaintiffs-cross appellants contended, Amendment 111 violated the Fourteenth Amendment of the United States Constitution. In order to illustrate the importance of this resolution, we must briefly discuss the texts and histories of § 256 and Amendment 111. Article 14, § 256, of the Alabama Constitution provides: (Emphasis added.) Amendment 111, which was ratified in 1956, provides in pertinent part (as an amendment to § 256): (Emphasis added.) Amendment 111, on its face, purported to abrogate the provision of § 256 requiring the legislature to "establish, organize, and maintain a liberal system of public schools throughout the state." In its place, it proposed to vest in the legislature absolute discretion as to the relative amounts of funding, if any, it would make available to the public schools in this state. On January 22, 1991, and March 21, 1991, ACE and Harper, respectively, moved for summary judgments on their claims that Amendment 111 violated the Fourteenth Amendment. They supported their motions with briefs and extensive materials, including affidavits, which asserted, among other things, that Amendment 111 was submitted by the legislature in opposition to Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (racial segregation in public schools violates the Fourteenth Amendment). On August 13, 1991, Judge Reese entered an order holding: (Emphasis added; footnotes omitted.) On October 18, 1991, the trial court certified the August 13, 1991, judgment as final pursuant to Rule 54(b). That judgment, like the March 31, 1993, Liability Phase judgment, was never appealed. In support of their contentions that the Liability Phase judgment was based entirely on the Constitution of Alabama, the appellants quote a portion of the Liability Phase judgment, stating: "Each of the state law 950 holdings in this decision `rest[s] on an adequate and independent state ground.'" (Quoted in Opinion of the Justices No. 338, 624 So. 2d 107, 165 (Ala.1993)). Whatever may be the import of that statement in the context in which it appeared, it does not support the proposition for which it is quoted by the appellants. On the contrary, the only basis for its holding that the system by which Alabama administered its public schools violated §§ 1, 6, 13, 22, and 256 of the Alabama Constitution was its holding that Amendment 111 was unconstitutional, and, therefore, inapplicable. Had it held otherwise, the trial court would then have been unable to locate any principle of logic or constitutional construction of which we are aware that would have enabled it to circumvent the specific provisions of Amendment 111nullifying the mandate of § 256and, thereby, to reach the result obtained in the Liability Phase. In a real sense, the court's holding that Amendment 111 violated the Fourteenth Amendment is the linchpin of this entire action. We hold, therefore, that the plaintiffs-cross appellants, who prevailed on this pivotal question of federal constitutional law as the basis for the entire action, are entitled to an award of attorney fees, pursuant to § 1988. See Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989). The James Appellants cite Ala. Const. 1901, § 14, which provides "[t]hat the State of Alabama shall never be made a defendant in any court of law or equity." They insist that § 14 "bars any award of attorneys' fees against the State of Alabama in favor of any of the plaintiffs-appellees in this action." However, as we have stated previously in this opinion, the doctrine of State sovereign immunity does not bar an award of attorney fees pursuant to §§ 1983 and 1988. Hutto v. Finney, 437 U.S. 678, 693-94, 98 S. Ct. 2565, 2575, 57 L. Ed. 2d 522 (1978). For these reasons, the trial court did not err in awarding fees pursuant to § 1988. In the trial court, Harper and ADAP sought fee awards under two theories: (1) § 1988, and (2) the common-fund/benefit theory. "The `common fund' doctrine is an equitable principle designed to compensate an attorney whose services on behalf of his client created a fund to which others may also have a claim." City of Ozark v. Trawick, 604 So. 2d 360, 364 (Ala.1992). The trial court awarded these parties fees only pursuant to § 1988. Harper and ADAP do not challenge the amount of fees awarded; rather, they cross appeal only on the issue whether the trial court erred in refusing to base its award on the common-fund/benefit theory. We conclude that the trial court did not err in this respect. "The recovery of attorney fees in Alabama is allowed `only where authorized by statute, when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be paid.'" Wiberg v. Sadoughian, 514 So. 2d 940, 941 (Ala.1987) (emphasis added) (quoting Eagerton v. Williams, 433 So. 2d 436, 450 (Ala.1983)). However, when a statute is applicable, fees should be awarded pursuant to the statutenot pursuant to a judicially created exception to the general rule. Northcross v. Board of Educ. of the Memphis City Schools, 611 F.2d 624 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S. Ct. 2999, 3000, 64 L. Ed. 2d 862 (1980). Congress's enactment of § 1988 "did more than simply enable the lower courts once again to award fees." Id., 611 F.2d at 632. "[R]ather than being an equitable remedy, flexibly applied in those circumstances which the court considers appropriate, it is now a statutory remedy, and the courts are obligated to apply the standards and guidelines provided by the legislature in making an award of fees." Id. (emphasis in original). Thus, because § 1988 is applicable to the claims of Harper and ADAP for attorney fees, the trial court did not err in refusing to consider alternative grounds for awards to those parties. ACE's cross appeal presents two issues not presented in the cross appeals of Harper 951 and ADAP. First, the award to ACEunlike the awards to Harper and ADAPwas based, not on § 1988, but on the common-fund theory. The trial court concluded that a "common fund ha[d] been created," which fund was "comprised," it held, "of $18,300,000.00 [in] reallocation of funds to the ACE Plaintiffs' school systems from the 1994-1995 education appropriations." The court then held that ACE was entitled to $1,800,000, that is, approximately 10% of the $18,300,000. Second, unlike Harper and ADAP, ACE does contend that its award was inadequate. In other words, it contends that it was due a larger percentage of a larger "common fund." Specifically, it contends that a common fund was created in an amount no less than $105,000,000 and that it was entitled to no less than 15% of that amount. However, § 1988 is as applicable to the claims of ACE as it is to the claims of Harper and ADAP. The reasons why the award to ACE was not based on § 1988as were those of Harper and ADAPdo not appear to us in the Greenhaw Fee Order, or anywhere else. Indeed, the § 1983 and Fourteenth Amendment bases of the claims underlying the Liability Phase order were stated even more cogently in the pleadings of ACE than in those of the other plaintiffs-cross appellants. Because § 1988 was applicable, the fees should have been awarded under the statutory theory. Northcross v. Board of Educ. of Memphis City Schools, 611 F.2d 624 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S. Ct. 2999, 3000, 64 L. Ed. 2d 862 (1980). Nevertheless, the record would fully support an award to ACE of $1,800,000 under § 1988.[2] We have considered all arguments of the parties and find no reason to reverse the judgment. Therefore, the judgment is affirmed. 1960327AFFIRMED. 1960328AFFIRMED. 1960470AFFIRMED. 1960471AFFIRMED. 1960472AFFIRMED. 1960473AFFIRMED. 1960489AFFIRMED. 1960490AFFIRMED. ALMON, SHORES, and KENNEDY, JJ., concur. SEE, J., concurs in the result. HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur in the result but dissent from the rationale. BUTTS, J., recuses himself. MADDOX, Justice (concurring in the result but dissenting from the rationale). No attorney for the plaintiffs or intervenors is entitled to attorney fees under 42 U.S.C. § 1988. To the extent the main opinion would authorize the payment of attorney fees under § 1988, I disagree with that opinion, and I specifically dissent from the reasoning of that portion of the opinion. For the following reasons, I would affirm the trial court's determination that the attorneys for the plaintiffs-cross appellants are entitled to the attorney fees awarded, even though I disagree with the grounds used by the trial court and by today's main opinion to support the awards.[3] Alabama generally follows the "American rule," which authorizes an award of attorney fees if they are provided for by statute or by contract, or when they are called for by a special equity, such as when litigation results in a benefit to the general public. See, Battle v. City of Birmingham, 656 So. 2d 344 (Ala.1995), where the plaintiff contended that the public nature of the services rendered by her attorneys justified an award of attorney 952 fees, relying on Bell v. Birmingham News Co., 576 So. 2d 669 (Ala.Civ.App.1991), and Brown v. State, 565 So. 2d 585 (Ala.1990), in which an award of attorney fees was allowed, even though there was no common fund from which to pay them, because the litigation had resulted in a benefit to the general public. See, also, City of Ozark v. Trawick, 604 So. 2d 360 (Ala.1992); Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala.1985); Shelby County Commission v. Smith, 372 So. 2d 1092 (Ala.1979); and State ex rel. Payne v. Empire Life Ins. Co. of America, 351 So. 2d 538 (Ala.1977). In Battle, the plaintiff sued to enjoin what she claimed was an improper practice by the City in allowing a waste disposal company to construct and potentially operate a garbage transfer facility in violation of the City's zoning laws; the zoning laws required the approval of the Birmingham Planning Commission and the Birmingham City Council in order for the company to construct and operate the facility. She claimed that her lawsuit had resulted in a benefit to the general public. This Court stated the law as follows: 656 So. 2d at 347. This Court, in Reynolds, and Brown, supra, extended the "special equity" rule to apply to situations where litigation resulted in a benefit to the general public; in Brown it quoted Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-93, 90 S. Ct. 616, 625-26, 24 L. Ed. 2d 593 (1970), and held as follows: Brown, 565 So. 2d at 592. In view of the principles of law this Court has set forth in the cases cited above, it appears to me that this State has adopted a rule that has been described as "one of equitable sharing according to the benefit, and not the presence of a fund vel non." James W. Moore, Moore's Federal Practice, 6 *953 § 54.78[3] (2d ed.1996). I believe that rule is particularly applicable in this case, which involves an issue of the right of a child to a public education, a right included in every state constitution since Alabama became a state, but, unfortunately, a right that has become embroiled in a debate about the doctrine of separation of powers among coordinate, independent branches of state government and about whether certain orders were "final" or not. Rule 1(c), Ala. R. Civ. P., states that the Rules of Civil Procedure "shall be construed and administered to secure the just, speedy and inexpensive determination of every action." Rule 1(c) would seem to be particularly applicable here, given that this case has been pending for years; that the original state defendants did not appeal; that the Alabama Senate asked the Justices of this Court, as it was then constituted, for an advisory opinion, which the Justices gave; and that a majority of this Court has refused to overturn the liability order. Therefore, I would affirm the trial court's award of $1,800,000 to the attorneys for ACE; $1,564,375 to the attorneys for Harper; and $235,360 to the attorneys for ADAP. Thus, I concur in the result. HOOPER, C.J., and HOUSTON, J., concur. [1] These theories we discuss in more detail in another section of this opinion. [2] It is well settled that "[a] correct judgment ... will not be reversed even if the trial court has based it on the wrong reasons." Smith v. Scott Paper Co., 620 So. 2d 976, 977 (Ala.), cert. denied, 510 U.S. 867, 114 S. Ct. 189, 126 L. Ed. 2d 148 (1993). [3] "A correct decision will not be disturbed even if the court gives the wrong reasons." Davison v. Lowery, 526 So. 2d 2, 4 (Ala.1988).	December 12, 1997
965b750a-532a-46d7-9d65-9651c4c49c2a	Roger Alvarado, M.D., et al. v. The Estate of Madeline Kidd, deceased, by and through its personal representative James O. Kidd, Sr.	N/A	1140706	Alabama	Alabama Supreme Court	Rel: 01/29/2016 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, 2015-2016 ____________________ 1140706 ____________________ Roger Alvarado, M.D., et al. v. The Estate of Madeline Kidd, deceased, by and through its personal representative James O. Kidd, Sr. ____________________ 1140752 ____________________ Mobile Infirmary Association, d/b/a Mobile Infirmary Medical Center, et al. v. The Estate of Madeline Kidd, deceased, by and through its personal representative James O. Kidd, Sr. Appeals from Mobile Circuit Court (CV-14-903164) PER CURIAM. This case concerns the application of the relation-back doctrine to wrongful-death claims. The trial court allowed James O. Kidd, Sr., the personal representative of the estate of Madeline Kidd, deceased, to use relation back to sustain his claims against various health-care providers. Some of those providers –– Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center, Dr. Roger Alvarado, Dr. Barbara Mitchell, and IMC-Diagnostic and Medical Clinic, P.C. (hereinafter referred to collectively as "the defendants") –– sought review of the trial court's order by filing separate petitions for permissive appeals, which we are granting today by separate order. We reverse and remand. While she was a patient at Mobile Infirmary Medical Center, Madeline underwent a discectomy and fusion of her cervical spine. On November 16, 2012, Madeline died while still a patient at the medical center; she died intestate. Almost two years later, on November 10, 2014, James, Madeline's husband, petitioned the probate court for letters of administration. On November 11, 2014, one day after James 2 1140706, 1140752 had petitioned for letters of administration, he sued the defendants, alleging wrongful death and medical malpractice. The personal representative of Madeline's estate is the proper person to bring a wrongful-death action in this case. See § 6-5-410(a), Ala. Code 1975. Despite alleging in the complaint that he was the personal representative of Madeline's estate, James had not been appointed to that position when he filed the wrongful-death action. On November 26, 2014, 10 days after the expiration of the 2-year limitations period for filing a wrongful-death action, the probate court granted James's petition and issued letters of administration, making him the personal representative of the estate. See § 6-5- 410(d), Ala. Code 1975 ("The action must be commenced within two years from and after the death of the testator or intestate."). 1 Because the wrongful-death act is a "statute of 1 creation," Ogle v. Gordon, 706 So. 2d 707, 708 (Ala. 1997), the limitations period in the act is not a statute of limitations. "'The statute requires suit brought within two years after death. This is not a statute of limitations, but of the essence of the cause of action, to be disclosed by averment and proof.'" Wood v. Wayman, 47 So. 3d 1212, 1218 (Ala. 2010) (quoting Parker v. Fies & Sons, 243 Ala. 348, 350, 10 So. 2d 13, 15 (1942) (overruled on other grounds by King v. National Spa & Pool Inst., Inc., 607 So. 2d 1241 (Ala. 1992))). In a statute of creation, the "'limitation [period] is so inextricably bound up in the statute creating the right 3 1140706, 1140752 In December 2014, the defendants filed motions to dismiss or, alternatively, for a summary judgment; because matters outside the pleadings were presented to and considered by the trial court, those motions were summary-judgment motions. See Rule 12(b), Ala. R. Civ. P. In pertinent part, the defendants argued in their motions that the two-year limitations period for a wrongful-death action barred James's action. The defendants noted that only the personal representative could bring the wrongful-death action and that James was not appointed personal representative until after the expiration of the two-year limitations period. In response, James argued that the relation-back doctrine could be used to prevent his claim from being time-barred. The trial court agreed with James and denied the summary-judgment motions. The defendants sought certifications for permissive appeals under Rule 5, Ala. R. App. P. The trial court certified the following question for permissive appeal: "Whether a Plaintiff in a medical malpractice wrongful death action has the capacity to file suit, when that Plaintiff applies for Letters of that it is deemed a portion of the substantive right itself.'" Etheredge v. Genie Indus., Inc., 632 So. 2d 1324, 1326 (Ala. 1994) (quoting Cofer v. Ensor, 473 So. 2d 984, 987 (Ala. 1985)). 4 1140706, 1140752 Administration and files an action for wrongful death before the expiration of the applicable time for suit limitation, but is not appointed personal representative of the estate until 10 days after the time limitation expires." The defendants subsequently filed in this Court petitions for permission to appeal, which we are granting today by separate order. We must determine whether the trial court properly allowed James to relate his appointment as personal representative, which occurred after the two-year limitations period had expired, back to his filing of the petition for letters of administration, which occurred before the limitations period expired. There are two key cases to consider in making that determination: Ogle v. Gordon, 706 So. 2d 707 (Ala. 1997), and Wood v. Wayman, 47 So. 3d 1212 (Ala. 2010). In Ogle, Ogle petitioned the probate court for letters of administration about four months after his wife's death. Ogle filed a wrongful-death action on the same day he filed the petition for letters of administration. For unexplained reasons, there was a long delay in issuing the letters of administration. The probate court did not appoint Ogle as 5 1140706, 1140752 personal representative until about 27 and one-half months after the petition was filed and about 8 months after the 2- year limitations period had expired. The trial court entered a summary judgment in favor of the defendants, concluding that Ogle's action was time-barred. This Court reversed the trial court's judgment, concluding that Ogle's appointment as personal representative related back to the date he filed his petition, which was within the two-year limitations period. 706 So. 2d at 711. The Court stated that "we must determine whether the doctrine of relation back applies to our wrongful death limitations provision." 706 So. 2d at 708-09. We then observed that the "doctrine of relation back with respect to the powers of a personal representative has been in existence for approximately 500 years" and quoted extensively from a 1927 Alabama case discussing relation back in that context, McAleer v. Cawthon, 215 Ala. 674, 112 So. 251 (1927). 706 So. 2d at 709 (emphasis added). The Court then noted that, "in 1993, the Alabama Legislature codified this doctrine by adopting ... § 43-2-831, Ala. Code 1975." 706 So. 2d at 710. Section 43- 2-831, Ala. Code 1975, provides, in part, that "[t]he powers 6 1140706, 1140752 of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter." (Emphasis added.) The Court in Ogle overruled the holding in Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So. 2d 98 (1974), "regarding the application of the doctrine of relation back, insofar as it [was] inconsistent with" what the Court held in Ogle. 706 So. 2d at 710. Strickland was a wrongful-death case in which relation back had not been allowed. In overruling Strickland, the Court in Ogle noted that the opinion in Strickland was released long before the enactment of § 43-2-831. Id. Following the above analysis, the Court in Ogle also noted that the relation-back doctrine was "especially applicable" in that case because "the probate court has no discretion in issuing letters of administration when there is no question relating to the qualification of the person requesting the letters. The probate court had no right to delay the issuance of the letters for 27 1/2 months." 706 So. 2d at 710. The Court stated that the "probate court, through inadvertence, did not issue the letters of administration 7 1140706, 1140752 until [after the two-year limitations period had expired].... That dereliction should not bar [Ogle's] action." 706 So. 2d at 711. The second key case is Wood, decided in 2010, 13 years after Ogle was decided. In Wood, Wayman filed a wrongful- death action shortly before the expiration of the limitations period. Although the opinion does not specifically state when Wayman petitioned for letters testamentary, the appellate record in that case indicates that she filed her petition after the two-year limitations period had expired. The probate court appointed Wayman personal representative of her deceased husband's estate several months after the limitations period had expired. The defendants argued that the wrongful- death claim was time-barred, but the trial court concluded that Wayman's appointment as personal representative related back either to the date of her husband's death or the date the wrongful-death action was filed. We granted the defendants' petition for a permissive appeal. The certified question asked whether the appointment of Wayman as personal representative in that case "can relate back to the filing of 8 1140706, 1140752 the lawsuit." 47 So. 3d at 1213. We answered that question in the negative, concluding that the action was time-barred. In concluding that relation back did not apply in Wood, the Court distanced itself from some of the analysis in Ogle. The Court in Ogle stated that § 43-2-831 codified the relation-back doctrine with respect to actions maintained by a personal representative. Wood, however, noted caselaw stating that a wrongful-death action, although brought by the personal representative, is not derivative of the decedent's rights and that damages awarded in a wrongful-death action are not part of the decedent's estate (damages are distributed to the heirs according to the laws of intestate succession). Thus, the Court in Wood determined that a wrongful-death action would not be "beneficial to the estate," a condition to allowing a personal representative to use relation back under § 43-2-831. Therefore, the Court in Wood concluded that "the relation-back provision in § 43-2-831 does not apply to a wrongful-death action brought under § 6-5-410." 47 So. 3d at 1217. Thus, the Court in Wood, distancing itself from certain language in Ogle, removed § 43-2-831 as a foundation for 9 1140706, 1140752 applying relation back to personal representatives in wrongful-death cases. With § 43-2-831 no longer a permissible basis to support relation back in a wrongful-death case, Wood characterized Ogle as having "allowed relation back in that wrongful death case solely because of the 'inadvertence' of the probate court, which caused the long delay after Ogle timely filed both his petition and his complaint within four months of the decedent's death." 47 So. 3d at 1218. The Court in Wood further stated: "Because there must be something to which the appointment as a personal representative may relate back, the [Ogle] Court related the appointment back to the filing of the petition for such appointment. Although Ogle's appointment was permitted to relate back to the date he filed his petition for that appointment, nothing in Ogle supports Wayman's argument that her appointment as personal representative of Charles's estate relates back to the date of the filing of the wrongful-death action." 47 So. 3d at 1218-19. Thus, in Wood the Court concluded that Wayman's claim was barred by the two-year limitations period for wrongful-death actions. In this case, James relies heavily on Ogle in arguing that his action is not time-barred, and the defendants rely 10 1140706, 1140752 heavily on Wood in arguing that it is. Wood did not purport to overrule Ogle. However, Wood, by reading Ogle as having allowed relation back solely because of the "inadvertence" of the probate court, construed Ogle in a way that narrows the application of relation back in wrongful-death cases. Wood indicates that relation back generally cannot be used to prevent a wrongful-death claim from being time-barred where the personal representative is appointed after the two-year limitations period has expired. However, Wood also indicates that an exception to that general rule exists: A personal representative appointed after the limitations period has expired may relate the appointment back to the filing of the petition within the limitations period if the delay in appointment is due to inadvertence by the probate court, as in Ogle. We must determine whether the general rule in Wood or the limited Ogle exception applies in this case. We conclude that the general rule in Wood applies here. Unlike Ogle, the probate court's failure to issue the letters of administration within the two-year limitations period cannot be attributed to the probate court's inattentiveness. In Ogle, the probate court waited about 27 and one-half months 11 1140706, 1140752 before issuing the letters of administration. In this case, James filed his petition for letters of administration six days before the two-year limitations period ended. Nothing before us shows what efforts, if any, James made to bring the impending expiration of the two-year limitations period to the attention of the Mobile County Probate Judge. The probate court issued the letters of administration only 16 days after the petition was filed, 10 days after the two-year limitations period had ended. The probate court's delay in this case was significantly shorter than the delay in Ogle. Unlike Ogle, we cannot rightly blame the probate court for "inadvertence" or "dereliction." Ogle, 706 So. 2d at 711. Thus, James cannot use relation back in this case. Accordingly, we reverse the trial court's order denying the defendants' summary-judgment motions, and we remand the case for proceedings consistent with this opinion. 1140706 –– REVERSED AND REMANDED. 1140752 –– REVERSED AND REMANDED. Stuart, Parker, Shaw, and Main, JJ., concur. Bolin, J., concurs specially. Moore, C.J., and Murdock, Wise, and Bryan, JJ., dissent. 12 1140706, 1140752 BOLIN, Justice (concurring specially). I concur with the main opinion and the result reached in it. I write specially to reemphasize that a wrongful-death action in Alabama brought pursuant to § 6-5-410, Ala. Code 1975, a cause of action unknown at common law, is purely statutory and that this Court's role is to strictly enforce the wrongful-death statute as written, and intended, by the legislature. Golden Gate Nat'l Sr. Care, LLC v. Roser, 94 So. 3d 365, 369 (Ala. 2012). In other words, "[w]here a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its effect all things not expressly mentioned." Geohagan v. General Motors Corp., 291 Ala. 167, 171, 279 So. 2d 436, 439 (1973). In the present case, there are two specific conditional elements of the wrongful-death statute that I deem worthy of discussion. First, § 6-5-410 grants to only a legally appointed personal representative, i.e., an administrator or an executor, the right to bring a wrongful-death action for the benefit of, and on behalf of, the decedent's heirs at law based on the death of the decedent by a wrongful act. See Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993)("The 13 1140706, 1140752 Wrongful Death Act, § 6-5-410, creates the right in the personal representative of the decedent to act 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." (emphasis added)). To effectuate the purpose of the wrongful-death statute, the legislature had to empower some individual or entity to act as the plaintiff to initiate the proceeding to punish the wrongdoer and thereby to collect punitive damages to distribute to the decedent's heirs at law. The legislature chose a personal representative to fill that role. Acting in this capacity, the personal representative, whether in a testate or intestate probate proceeding, prosecutes the wrongful-death action as a fiduciary for the heirs at law. This is true even in a testate estate, when the terms of the decedent's will may well provide for an entirely different dispositive testamentary scheme than that embodied in the statute of distributions, and, again, this is true because the wrongful-death statute so provides. Accordingly, one who files a wrongful-death action pursuant to § 6-5-410 without being properly appointed, i.e., without becoming a personal 14 1140706, 1140752 representative, has not complied with the provisions of the wrongful-death statute and therefore does not qualify to bring the wrongful-death action. Secondly, § 6-5-410(d) requires that the wrongful-death action be filed "within two years from and after the death of the testator or intestate." This Court has consistently held that "the wrongful death statute, which provides a two-year limitations period, is a statute of creation, otherwise known as a nonclaim bar to recovery, and that it is not subject to tolling provisions." Ogle v. Gordon, 706 So. 2d 707, 708 (Ala. 1997)(emphasis added); Ex parte FMC Corp., 599 So. 2d 592, 594 (Ala. 1992)("It is well settled that the time limitation set out in § 6-5-410(d) is part of the substantive cause of action and that it is not subject to any provision intended to temporarily suspend the running of the limitations period. The two-year period is not a limitation against the remedy only, because after two years the cause of action expires."); see also Cofer v. Ensor, 473 So. 2d 984, 991 (Ala. 1985)(discussing the differences between a statute of creation and a statute of limitations for tolling purposes). The distinction between these types of limitations was explained 15 1140706, 1140752 at length in 34 Am. Jur. Limitation of Actions § 7 (1941), as follows: "A statute of limitations should be differentiated from conditions which are annexed to a right of action created by statute. A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such a provision will control, no matter in what form the action is brought. The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability. Whether an enactment is of this nature, or whether it is a statute of limitations, should be determined from a proper construction of its terms. Generally, the limitation clause is found in the same statute, if not in the same section, as the one creating the new liability, but the fact that this is the case is material only as bearing on questions of construction; it is merely a ground for saying that the limitation goes to the right created, and accompanies the obligation everywhere. The same conclusion may be reached if the limitation is in a different statute, provided it is directed to the newly created liability so specifically as to warrant saying that it qualifies the right. On the other hand, as the result of differences in the statutory provisions under consideration, enactments requiring notice of claim prior to the commencement 16 1140706, 1140752 of suit variously have been held to impose conditions upon the existence of a right of action, to impose upon the jurisdiction of the court, or to constitute statutes of limitation merely affecting the remedy." See also, e.g., In re Paternity of M.G.S., 756 N.E.2d 990, 997 (Ind. Ct. App. 2001)("While equitable principles may extend the time for commencing an action under statutes of limitations, nonclaim statutes impose a condition precedent to the enforcement of a right of action and are not subject to equitable exceptions."); Negron v. Llarena, 156 N.J. 296, 300, 716 A.2d 1158, 1160 (1998)("The running of a procedural statute of limitations bars only the remedy, not the right. ... In contrast, substantive statutes of limitations restrict statutory causes of action that did not exist at common law. ... A substantive statute of limitations, as a condition precedent to bringing suit, bars not only the remedy, but also the right itself. 22A Am. Jur. 2d Death at §§ 57, 76 (1988)."); General Motors Corp. v. Arnett, 418 N.E.2d 546, 548 (Ind. Ct. App. 1981)("It was a condition precedent that the action against G.M. be brought by someone in the capacity of the personal representative. Mrs. Arnett failed to meet that condition, because she did not have that capacity within two 17 1140706, 1140752 years of her husband's death. She lost her statutorily conferred right to bring a wrongful death action under I.C. 34-1-1-2 and thus cannot maintain her action against G.M."); Fowler v. Matheny, 184 So. 2d 676, 677 (Fla. Dist. Ct. App. 1966)("F.S.A. § 517.21 created an entirely new right of action that did not exist at common law and expressly attached thereto, without any exception, the proviso that the action must be brought within two years from the date of sale. Such a limitation of time is not like an ordinary statute of limitation affecting merely the remedy, but it enters into and becomes a part of the right of action itself, and if allowed to elapse without the institution of the action, such right of action becomes extinguished and is gone forever."); Simon v. United States, 244 F.2d 703, 705 (5th Cir. 1957)("The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability."); and Bowery v. Babbit, 99 Fla. 1151, 128 So. 801 (1930)("[W]here a statute confers a right and expressly fixes 18 1140706, 1140752 the period within which suit to enforce the right must be brought, such period is treated as the essence of the right to maintain the action, and ... the plaintiff or complainant has the burden of affirmatively showing that his suit was commenced within the period provided."). Accordingly, the two-year limitations period in § 6-5-410(d) was created by the legislature as part of the statutory right to bring the wrongful-death action, and, in strictly construing the statute, I conclude that nothing therein allows a plaintiff in a wrongful-death action to toll the limitations period so that his or her appointment subsequent to the expiration of the limitations period can relate back. I note that neither Rule 9(h) nor Rule 15(c), Ala. R. Civ. P., is applicable to this case insofar as this case does not implicate fictitious-party pleading. See, e.g., Ex parte FMC Corp., supra, concerning relation back in the context of Rules 9(h) and 15(c): "Rules 9(h) and 15(c) do not combine to provide a mechanism whereby the running of any limitations period –- whether the limitations provision is characterized as a statute of limitations or as part of a statute of creation –- is temporarily suspended. Instead, these rules combine to provide a mechanism whereby a statute of limitations, or a time limitation provision such as the one found in § 6-5-410, can be satisfied in a case where the plaintiff has been unable through due diligence to 19 1140706, 1140752 identify by name the person or entity responsible for his injury." 599 So. 2d at 594. I reiterate, as correctly concluded in Wood v. Wayman, 47 So. 3d 1212 (Ala. 2010), that the relation-back provision in § 43-2-831, Ala. Code 1975, by its own specific language, does not apply to a wrongful-death action filed pursuant to § 6-5- 410 insofar as § 43-2-831 specifically provides that "[t]he powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter." (Emphasis added.) As fully and adequately explained in Wood, a wrongful-death action filed pursuant to § 6-5-410 is not, and can never be, "beneficial to the estate" because "[a]ny damages awarded as the result of a wrongful-death action are not a part of the decedent's estate, and the action, therefore, cannot benefit the estate. '[D]amages awarded pursuant to [§ 6-5-410, Ala. Code 1975,] are distributed according to the statute of distribution and are not part of the decedent's estate. The damages from a wrongful death award pass as though the decedent had died without a will.' Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993)." 20 1140706, 1140752 47 So. 3d at 1216. Put another way, a wrongful-death action must be brought by the personal representative, not any individual who may become a personal representative in the future, on behalf of the decedent's next of kin, and any damages recovered pass outside the estate and are not subject to the payment of the debts and/or liabilities of the decedent; thus, the portion of § 43-2-831 allowing a personal representative to use relation back in certain instances, by its own terms, is not applicable to actions brought pursuant to § 6-5-410, such actions not accomplishing anything for the benefit of the estate. The case of Ogle v. Gordon, supra, relying on the fact that § 43-2-831 became effective 20 years after Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So. 2d 98 (1974), was decided, embraced § 43-2-831 as a relation-back savior and expressly overruled Strickland regarding its holding concerning the inapplicability of the doctrine of relation back in wrongful-death/personal-representative issues. Stating a correct principle of law that "[t]he doctrine of relation back with respect to the powers of a personal representative has been in existence for 21 1140706, 1140752 approximately 500 years," 706 So. 2d at 709, Ogle then made an awkward leap from that principle to a discussion of the relation-back doctrine by the Florida Supreme Court in Griffin v. Workman, 73 So. 2d 844, 846 (Fla. 1954)(quoting 21 Am. Jur. Exec. & Admin. § 211, and 2 Schouler on Wills, Executors and Administrators p. 1176 (5th ed.), stating that, "'[u]nder this [relation-back] doctrine "all previous acts of the [personal] representative which were beneficial in their nature to the estate ..., are validated."'" 706 So. 2d at 709 (emphasis added). From here, Ogle made its final unexplainable leap to the Alabama probate-procedures provision bearing a similarity to the above but having no relevance to the issue actually before the Court. That section, § 43-2-831, effective January 1, 1994, had absolutely nothing to do with relation back for any purpose other than acts performed prior to appointment by the personal representative, or others, that are beneficial to the estate. In my judgment, Ogle is a decision that arrived at an equitable result but that otherwise stands alone and was decided, as stated therein, "[b]ased on these facts," i.e., that a probate court improperly failed to act on a petition for letters of administration and appointment of a personal 22 1140706, 1140752 representative for an unexplained 27 ½ months. Rather than calling it what it was, Ogle simply made a double leap to nowhere, pulling in an inapposite statute to justify relation back to remedy a clear judicial wrong that had occurred. Accordingly, as the main opinion notes, § 43-2-831 should never have been and now is "no longer a permissible basis to support relation back." ___ So. 3d at ___. I further note that §§ 43-2-45 and 43-2-80, Ala. Code 1975, set out the only substantive and procedural limitations upon the granting of a petition for letters of administration immediately upon filing. Therefore, if James O. Kidd, Sr., had a good and sufficient fiduciary bond pursuant to § 43-2- 80, there were no limitations in § 43-2-45 that would have prevented him from having his petition granted and letters of administration issued immediately upon filing, which occurred six days before the two-year limitations period expired. As the main opinion notes, "[n]othing before us shows what efforts, if any, James made to bring the impending expiration of the two-year limitations period to the attention of the Mobile County Probate Judge." ___ So. 3d at ___. Rather than bringing to the attention of the Mobile County Probate Judge, 23 1140706, 1140752 or to the attention of his office, the fact that the 2-year limitation on his filing a wrongful-death action would expire in 6 days unless a personal representative was appointed (as a former probate judge, I submit that if this had been done in any of the 67 counties in Alabama, the great likelihood is that there would have been no need for any relation-back argument, because the petition would have been addressed by the probate court and granted), for all the record shows the petition was simply left to be considered in the due course of the probate court's operations, which occurred 16 days later. In summary, in wrongful-death actions, unless and until the Alabama Legislature amends § 6-5-410, it is a duly appointed and lettered personal representative that may "commence an action [for wrongful death]" and the action "must be commenced within two years from and after the death of the testator or intestate." § 6-5-410. In the present case, in order to have the legal capacity to file a wrongful-death action, James had a condition precedent to obtain from the probate court his appointment as personal representative and the attendant letters of administration and, thereafter, to file the civil wrongful-death action before the expiration of 24 1140706, 1140752 the two-year limitations period expressed in § 6-5-410(d). Because James waited almost two years to become appointed and to file a wrongful-death action and was not appointed personal representative of Madeline Kidd's estate until after the two- year limitations period had expired, James lacked the legal capacity to institute the wrongful-death action on behalf of Madeline's heirs, and his subsequent appointment after the two-year period was too late and to no avail. Although I recognize that the result here may be unfair and/or inequitable, I emphasize that any revision of the wrongful- death statute, § 6-5-410, to provide for the possibility of the invocation of the relation-back doctrine, or any other savings provision, is within the wisdom and responsibility of the legislature and not a task for this Court. See, e.g., Thomas v. Grayson, 318 S.C. 82, 86, 456 S.E.2d 377, 379 (1995)("The rule prohibiting an amendment to relate back was established when the period of limitation was a part of the wrongful death act. The limitation period has been moved from the wrongful death act to the general statute for limitation of civil actions. § 15-3-530(6). This change indicates a legislative intent to no longer consider it a condition 25 1140706, 1140752 precedent to a wrongful death action, but rather a statute of limitations that would allow the relation back of an amendment."). 26 1140706, 1140752 MOORE, Chief Justice (dissenting). I respectfully dissent for the reasons expressed in my dissent in Richards v. Baptist Health, Inc., 176 So. 3d 179, 179-83 (Ala. 2014)(Moore, C.J., dissenting). I believe that, in the case before us, the application for letters of administration naming James O. Kidd, Sr., the personal representative of the Estate of Madeline Kidd, deceased ("the estate"), relates back to the timely filing of a wrongful- death action against Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center, Dr. Roger Alvarado, Dr. Barbara Mitchell, and IMC-Diagnostic and Medical Clinic, P.C. (hereinafter referred to collectively as "the defendants"). Section 43-2-831, Ala. Code 1975, states, in part: "The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to the appointment the same effect as those occurring thereafter." In Wood v. Wayman, 47 So. 3d 1212, 1216 (Ala. 2010), this Court addressed the issue whether, under § 43-2-831, the appointment of a personal representative occurring after the expiration of the limitations period for a wrongful-death claim relates back to 27 1140706, 1140752 the filing of that claim. This Court held that proceeds awarded in a wrongful-death action are not part of the estate and, hence, cannot benefit the estate. Wood, 47 So. 3d at 1216. Therefore, this Court determined, in Wood, that the issuance of letters of administration did not relate back to the filing of a wrongful-death action by the personal representative, even though, under § 6-5-410, Ala. Code 1975, only the personal representative of an estate is authorized to bring a wrongful-death action. Wood, 47 So. 3d at 1216. I question whether the conclusion that wrongful-death proceeds do not benefit the estate necessitates a prohibition on the relation-back doctrine in wrongful-death actions. It is true that proceeds collected as a result of a wrongful-death action are not part of the estate because they are distributed according to the statute of distributions. See Ex parte Rogers, 141 So. 3d 1038, 1042 (Ala. 2013); Golden Gate Nat'l Sr. Care, LLC v. Roser, 94 So. 3d 365, 365 (Ala. 2012); Ex parte Taylor, 93 So. 3d 118, 118 (Ala. 2012)(Murdock, J., concurring specially); and Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993). That does not mean, however, that the estate does not benefit from the acts of the personal representative 28 1140706, 1140752 who brings a wrongful-death action. Strictly speaking, wrongful-death proceeds are not "for the benefit of the estate, but of the widow, children, or next of kin of the deceased." Hicks v. Barrett, 40 Ala. 291, 293 (1866)(discussing Ala. Code of 1852, § 1938). However, the appointment of a personal representative and all the fiduciary duties, actions, and responsibilities that attach to that position do benefit the estate; accordingly, I do not believe we must extrapolate from Rogers, Roser, Taylor, Steele, and other like cases a bright-line rule abrogating the application of the ancient relation-back doctrine under which it is 2 immaterial whether wrongful-death proceeds are poured into the estate or are distributed to statutory beneficiaries. 3 "The doctrine that whenever letters of administration or 2 testamentary are granted they relate back to the intestate's or testator's death is an ancient one. It is fully 500 years old." J.B.G., Annotation, Relation Back of Letters Testamentary or of Administration, 26 A.L.R. 1359, 1360 (1923)(cited in Ogle v. Gordon, 706 So. 2d 707, 709 n. 1 (Ala. 1977)). This principle is recognized in Blackwell v. Blackwell, 33 Ala. 57 (1858); McAleer v. Crawthon, 215 Ala. 674, 112 So. 251 (1927); and Nance v. Gray, 143 Ala. 234, 38 So. 916 (1905). In this case, Madeline Kidd died intestate, so there is 3 no "estate" –- all is distributed to the statutory beneficiaries. In my view, this fact makes the case for the relation-back doctrine even stronger because it reveals that there are instances when the estate may "benefit" from acts of 29 1140706, 1140752 A case quoted in Ogle v. Gordon, 706 So. 2d 707 (Ala. 1977), which held that the issuance of letters of administration did relate back to the time the petition for letters of administration was filed, opines: "We think it idle to urge that the rule [of relation back] cannot apply in this case because the proceeds of any judgment obtained would go to next of kin only, and not in the usual course of administration. There is no valid reason for sustaining the rule in one case and disregarding it in the other." Archdeacon v. Cincinnati Gas & Elec. Co., 76 Ohio St. 97, 107, 81 N.E. 152, 154 (1907). The court then reasoned that the appointment of the personal representative was "an act done ... which was for the benefit of the estate." Archdeacon, 76 Ohio St. at 107, 81 N.E. at 154. According to this 4 rationale, if the appointment of James as the personal representative of the estate in this case benefited the estate, as I believe it did, then James's appointment relates back to the timely filing of the wrongful-death action. Generally the good-faith act of the personal representative of a personal representative even if it does not stand to gain monetary proceeds. This holding harmonizes with the statutory mandate that 4 the "duties and powers of a personal representative commence upon appointment." § 43-2-831, Ala. Code 1975. 30 1140706, 1140752 an estate in bringing a wrongful-death action for the decedent's next of kin does benefit the estate, in part because the personal representative has no existence or interest apart from the estate. This does not mean, of course, that creditors may assert claims against the wrongful-death proceeds. 5 The Court in Wood adopted the narrow view that an estate does not "benefit" from a wrongful-death action simply because any proceeds awarded as a result of that action are One purpose of wrongful-death statutes is to allow 5 certain beneficiaries to obtain wrongful-death proceeds without having to undergo the lengthy administration of the estate, which is subject to the claims of creditors. The following cases, from a period of our nation's history when the terms of wrongful-death statutes varied from state to state and courts were tasked with deciphering the application of those diverse statutes, distinguish actions for the benefit of individual beneficiaries from those that benefit the estate: Hatas v. Partin, 278 Ala. 65, 68, 175 So. 2d 759, 761- 62 (1965); Elliot v. Day, 218 F. Supp. 90, 92 (D. Or. 1962); Bradshaw v. Moyers, 152 F. Supp. 249, 251 (S.D. Ind. 1957); Smith v. Bevins, 57 F. Supp. 760, 763-64 (D. Md. 1944); Rose v. Phillips Packing Co., 21 F. Supp. 485, 488 (D. Md. 1937); Gross v. Hocker, 243 Iowa 291, 295, 51 N.W.2d 466, 468 (1952); Howard v. Pulver, 329 Mich. 415, 420, 45 N.W.2d 530, 533-34 (1951); Ghilain v. Couture, 84 N.H. 48, 53, 146 A. 395, 398 (1929); and Wiener v. Specific Pharm., Inc., 298 N.Y. 346, 349, 83 N.E. 2d 673, 674 (1949). These cases collectively reveal the manner in which the phrase "benefit the estate" became associated with the narrow view that estates benefit only if they receive assets, rather than with the more general view that an estate may benefit for reasons besides the direct receipt of assets. 31 1140706, 1140752 distributed directly to the next of kin and do not pass through the estate. Wood, 47 So. 3d at 1216. But because wrongful-death statutes allow an estate, on behalf of other beneficiaries, to litigate claims that accrued before the death of the decedent, wrongful-death proceeds may be considered assets of the estate even if they do not pass to the beneficiaries through the estate. "[I]t has been held generally under [wrongful-death] statutes that a right of action had accrued in favor of the decedent before his death, and that it became an asset of the estate upon his death, with the result that the personal representative, and not the beneficiary, should bring the action." 105 A.L.R. 834 (originally published in 1936). The narrow view adopted in 6 Wood focuses on the method of distribution and the identity of the distributees rather than on the role and function of the See Gross v. Hocker, 243 Iowa 291, 295, 51 N.W.2d 466, 6 468 (1952), for the competing view that a wrongful-death action "is not an asset of the estate in the ordinary sense" (emphasis added); the distinction here is made not because the estate does or does not receive assets but because "resident creditors of [the] decedent are in no way prejudiced." Gross, 243 Iowa at 295, 51 N.W.2d at 468. See also Ghilain v. Couture, 84 N.H. 48, 53, 146 A. 395, 398 (1929) (holding that damages recovered by wrongful-death actions "are not assets of the estate within the ordinary meaning of the word" (emphasis added)). 32 1140706, 1140752 personal representative of the estate, the only individual authorized to bring a wrongful-death action under § 6-5-410. In fact, however, the estate, through its personal representative, seeks the wrongful-death benefits on behalf of the next of kin. Accordingly, the interests of the next of kin and the estate, through its personal representative, are the same in wrongful-death actions, particularly here, where the next of kin and the "estate" are, for all practical purposes, the same. Although the personal representative who brings a wrongful-death action "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," Hatas v. Partin, 278 Ala. 65, 68, 175 So. 2d 759, 761 (1965)(emphasis added)(interpreting a predecessor statute to § 6-5-410), he does act "'as a quasi trustee for those [distributees] who are entitled [to the wrongful-death proceeds] under the statute of distribution.'" Ex parte Rodgers, 141 So. 3d 1038, 1042 (Ala. 2013)(quoting United States Fid. & Guar. Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149, 155, 274 So. 2d 615, 621 (1973)). 33 1140706, 1140752 As a practical matter, the statutory distributees who receive wrongful-death proceeds are often also the beneficiaries of the estate. That fact led this Court to conclude that the recently enacted wrongful-death statute was designed "for the benefit of the next of kin entitled to take as distributees of his estate." Bruce v. Collier, 221 Ala. 22, 23, 127 So. 553, 554 (1930)(emphasis added)(overruled on other grounds by King v. National Spa & Pool Inst., Inc., 607 So. 2d 1241, 1246 (Ala. 1992)). A more accurate statement is that the personal representative acts as "a quasi trustee for those who stand in the relation of distributees to the estate strictly so called." Holt v. Stollenwerck, 174 Ala. 213, 216, 56 So. 912, 912-13 (1911)(emphasis added). Regardless, the estate benefits from the good-faith acts of its personal representative in bringing a wrongful-death action. To suggest otherwise is to imply that the estate, through its personal representative, has no business or interest in bringing a wrongful-death action at all, even though no other entity besides the estate, through its personal representative, may bring such an action under § 6-5-410. The estate is the only 34 1140706, 1140752 plaintiff in a wrongful-death action that may receive a favorable judgment. Finally, I do not believe that a party must ask this Court to overrule prior cases in order for us to overrule them. Therefore, I would overrule Wood, which makes 7 satisfaction of the limitations period found in § 6-5-410(d), Ala. Code 1975, contingent on the punctuality or promptness of the probate judge who issues the letters testamentary. Under Wood, the limitations period may lapse though the plaintiff has been nothing but diligent and timely in asserting his or her rights. In my view, the trial court properly determined that James's appointment as the personal representative, which occurred after the expiration of the two-year limitations period under § 6-5-410(d), related back to James's filing of the wrongful-death complaint, which occurred within the two- year limitations period. See Travelers Indem. Co. of Connecticut v. Miller, 86 So. 7 3d 338, 347 (Ala. 2011)(overruling a prior decision while noting that the parties had not asked the Court to overrule a prior decision); Ex parte J.E. Estes Wood Co., 42 So. 3d 104, 112 (Ala. 2010)(Lyons, J., concurring specially and noting that this Court may overrule a prior case without being asked to do so); and Ex parte Carter, 889 So. 2d 528, 533 (Ala. 2004)(overruling cases the parties did not ask the Court to overrule). 35 1140706, 1140752 MURDOCK, Justice (dissenting). Consistent with the view I have expressed in previous cases, see Wood v. Wayman, 47 So. 3d 1212, 1220 (Ala. 2010) (Murdock, J., dissenting), and Richards v. Baptist Health System, Inc., 176 So. 3d 179, 179 (Ala. 2014) (Murdock, J., dissenting), I believe this Court should return to the holding in Ogle v. Gordon, 706 So. 2d 707 (Ala. 1997), and to a straightforward, simple rule that the subsequent appointment of a person as the personal representative relates back so as to validate a timely filing of a wrongful-death action by that person. This Court held otherwise in Wood, embracing a rule that can lead to disparate results in similar cases. Furthermore, today's decision construes this Court's opinion in Wood in a way that, I believe, injects an additional layer of uncertainty into this area of the law. Simultaneously with the release today of the decision in the present case, this Court releases a no-opinion affirmance in Marvin v. Healthcare Authority for Baptist Health, [Ms. 1140581, January 29, 2016] ___ So. 3d ___ (Ala. 2015), a case involving the same relation-back issue presented here. The trial court's order in Marvin reflects some of the 36 1140706, 1140752 above-stated concerns. In an order in which the trial court ultimately concluded that it was bound by this Court's opinion in Wood v. Wayman, it nevertheless took the opportunity to state: "The Court is left to decipher the Ogle [v. Gordon, 706 So. 2d 707 (Ala. 1997)], and [Wood] decisions which are seemingly contradictory. In Ogle, the Court explicitly held that the issuance of the letters related back to the time of the filing of the petition in probate court. [Wood] concluded that Ogle had nothing to do with relation back despite all evidence to the contrary including: the express statement of the issue, the holding, and fourteen references to 'relation back' or a derivative thereof. Ultimately, [Wood] decided that there was no relation back .... ".... "Accordingly, this court has no choice but to follow the most recent pronouncement and to dismiss this action .... The bar should be forewarned that the two year statute of limitations in a wrongful death case is no more -- the time limit is actually two years less whatever time it will take for a probate judge to issue letters. Better hope the judge is not on vacation, that the heirs are easily located, etc." As I have previously noted, the purpose of a statute of limitations is to provide a "bright-line" time limit that provides uniformity and certainty. Moreover, it is a time limit for one thing and one thing only: the filing of a complaint to commence a legal action. (I am unfamiliar with 37 1140706, 1140752 any line of thought that satisfaction of a statute of limitations depends upon both the filing of a complaint and the filing of other documents, or put differently, that a statute of limitations is intended as a deadline for filing a petition for letters testamentary.) Further, and of even more fundamental import to the manner in which statutes of limitations are intended to function, whether a plaintiff meets the statute-of-limitations deadline should be within that plaintiff's control and not the control of a third party, e.g., a probate court acting on a petition for letters testamentary or of administration. When meeting a statute of limitations depends upon the acts of a third party, two plaintiffs who take exactly the same actions at the same time to pursue their claims face the distinct possibility of different outcomes. The bottom line for me -- and, I think, a rule that is the most logical, simple, and just -- is the common-law rule. It is a rule that is not dependent upon the precise wording of § 43-2-831, Ala. Code 1975 (that affirmatively provides for relation back for acts by the personal representative that benefit an estate). It is a well established rule that this 38 1140706, 1140752 Court acknowledged with approval in Ogle (authored by Justice Maddox and joined by Chief Justice Hooper, and Justices Kennedy, Butts, and See, with a "concurring in the result" vote from Justice Cook and no dissents) as one that treats the eventual appointment of a personal representative as relating back as far as the date of death so as to give validity to interim acts by the person so appointed that align with the powers granted personal representatives. It is a rule that operates on the court's issuance of letters testamentary or of administration whenever that occurs, and it amounts to nothing more than an ab initio formal ratification of the role played by the recipient of those letters in the weeks or months before they are ultimately issued: "The doctrine of relation back with respect to the powers of a personal representative has been in existence for approximately 500 years, and this Court first recognized it in Blackwell v. Blackwell, 33 Ala. 57 (1858). See also, McAleer v. Cawthon, 215 Ala. 674, 112 So. 251 (1927), and Nance v. Gray, 143 Ala. 234, 38 So. 916 (1905). In McAleer v. Cawthon, this Court stated: "'[I]t is a rule of practically universal recognition that: "'"When letters testamentary or of administration are issued, they relate back so as to vest t h e pr operty in t h e 39 1140706, 1140752 representative as of the time of death and validate the acts of the representative done in the interim; but such validation or ratification applies only to acts which might properly have been d o n e b y a p e r s o n a l representative, and the estate ought not to be prejudiced by wrongful or injurious acts performed before one's appointment." 23 Corp. Jur. 1180, § 400.' "215 Ala. at 675–76, 112 So. at 251. In Griffin v. Workman, 73 So. 2d 844 (Fla. 1954), the Florida Supreme Court, citing this Court's opinion in McAleer, supra, discussed the doctrine and stated: "'We think, therefore, that the issue is ruled by the ancient doctrine "that whenever letters of administration or testamentary are granted they relate back to the intestate's or testator's death.... The doctrine has been accepted with virtual unanimity, since it was promulgated, in a long line of cases." Annotation, 26 A.L.R. 1360. Under this doctrine "all previous acts of the representative which were beneficial in their nature to the estate and ... which are in their nature such that he could have performed, had he been duly qualified, as personal representative at the time, are validated." 21 Am. Jur., Exec. & Admin., section 211; Schouler on Wills, Executors and Administrators, 5th ed., Vol. 2, p. 1176. "'A wide variety of acts and conduct by a party acting in behalf of an estate when he was not properly qualified have been held to be validated or ratified by 40 1140706, 1140752 his subsequent qualification as administrator. A few of the many examples that might be cited are: an advancement to a distributee, McAleer v. Cawthon, 215 Ala. 674, 112 So. 251; the sale of estate property, Shawnee Nat. Bank v. Van Zant, 84 Okl. 107, 202 P. 285, 26 A.L.R. 1349 [(1921)]; the execution of a deed, Wilson v. Wilson, 54 Mo. 213 [(1873)]. "'More specifically in point, it has been held that where a wrongful death action was instituted by a party "as administrator," his subsequent appointment as such validated the proceeding on the theory of relation back. Archdeacon v. Cincinnati Gas & Electric Co., 76 Ohio St. 97, 81 N.E. 152 [(1907)]. In the opinion the court pointed out that the institution of suit "was not a void performance, being an act done during the interim which was for the benefit of the estate. It could not be otherwise, for it was an attempt to enforce a claim which was the only asset of the estate. This rule is sustained by a large number of authorities, and ... appears, also, to be just and equitable.... [T]he proceeding was not a nullity. It was, on the other hand, a cause pending in which, by the liberal principles of our Code, the party plaintiff, though lame in one particular, might be allowed to cure that defect and proceed to a determination of the merits." Archdeacon v. Cincinnati Gas & Electric Co., supra....[ ] Followed 8 In addition to noting that the rule in question was 8 supported by "a large number of authorities" and was "just and equitable," the court in Archdeacon noted that the delay in the formal issuance of notice had no prejudicial effect and that the rule in question was applicable even if the proceeds from the wrongful-death action inured to heirs at law who were 41 1140706, 1140752 in Anderson v. Union Pac. R. Co., 76 Utah 324, 289 P. 146 [(1930)]. "'Upon the same theory, it was held in Clinchfield Coal Corp. v. Osborne's Adm'r, 114 Va. 13, 75 S.E. 750 [(1912)], that a wrongful death action instituted by a party prior to the time he was appointed administrator may be deemed validated and ratified upon subsequent qualification of the personal representative; and in Bellheimer v. Rerucha, 124 Neb. 399, 246 N.W. 867 [(1933)], that an amended petition was properly filed to show appointment of a plaintiff widow as administratrix after commencement of suit but before answer.' not beneficiaries of the estate: "The plaintiff having fully qualified as administrator before the case was reached for trial, every right of the defendants upon the merits of the case was fully preserved, and in no possible aspect could the delay in perfecting the bond and receiving the letters of administration prejudice the defense of the fendants upon the real meritorious question involved in the controversy, which was whether or not the defendants' negligence was the cause of the death. ".... "... We think it idle to urge that the rule [of relation back] cannot apply in this case because the proceeds of any judgment obtained would go to next of kin only, and not in the usual course of administration. There is no valid reason for sustaining the rule in one case and disregarding it in the other." Archdeacon v. Cincinnati Gas & Elec. Co., 76 Ohio St. 97, 103-07, 81 N.E. 152, 152-54 (1907). 42 1140706, 1140752 "73 So. 2d at 846–47."9 Ogle, 706 So. 2d at 709-10 (footnote omitted; emphasis added). I recognize that the common-law cases sometimes speak of acts of the eventually appointed personal representative that are beneficial "to the estate"; that, however, appears to be true simply because the estate is historically the entity on whose behalf the personal representative acted, and was acting, in those cases. When a special statute, like Alabama's wrongful-death statute, imparts to the personal representative authority and responsibility to act on behalf of the heirs directly, the same relation-back principle applies with equal reason. After all, under Alabama's statutory scheme, such acts are in fact "acts which might properly have been done by a personal representative." And, indeed, that was the holding of this Court in Ogle when it applied this relation-back principle to an Alabama wrongful- death action brought, not on behalf of an estate, but on In dicta in Griffin v. Workman, 73 So. 2d 844 (Fla. 9 1954), the Florida Supreme Court noted that a different result had been reached in some cases where a statute of limitations had expired in the interim, but cited Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 198 (1939), in support of its position that this should make no difference. 73 at So. 2d at 847-48. 43 1140706, 1140752 behalf of the heirs, by one who, at the time he filed the action, had not been appointed personal representative and who was not appointed as such until two years after the statute of limitations had run.10 Both the main opinion and the special concurrence make 10 the point that the limitations period for the commencement of a wrongful-death action is a "statute of creation," or a "substantive statute of limitations." This difference did not alter the force of reasoning and result reached in Ogle or the application of the common-law principle employed therein. And, indeed, Alabama cases commonly refer simply to the "statute of limitations" in reference to the timeliness of the filing of wrongful-death claims under Alabama law. See, e.g., Ex parte Tyson Foods, Inc., 146 So. 3d 1041, 1045 (Ala. 2013); Ex parte Noland Hosp. Montgomery, LLC, 127 So. 3d 1160, 1169 (Ala. 2012); Precise v. Edwards, 60 So. 3d 228, 229 (Ala. 2010); Henderson v. MeadWestvaco Corp., 23 So. 3d 625, 628 (Ala. 2009); Okeke v. Craig, 782 So. 2d 281, 283 (Ala. 2000); Hall v. Chi, 782 So. 2d 218, 220 (Ala. 2000); Hogland v. Celotex Corp., 620 So. 2d 621, 622 (Ala. 1993); Dukes v. Jowers, 584 So. 2d 524, 526 (Ala. 1991); Liberty Mut. Ins. Co. v. Lockwood Greene Eng'rs, Inc., 273 Ala. 403, 406, 140 So. 2d 821, 823 (1962). Whether considered substantive or remedial, there is less difference in the operative effect of the two concepts than at first might be supposed. In Dorsey v. United States Pipe & Foundry Co., 353 So. 2d 800, 802 (Ala. 1977), this Court observed: "Where a statute creates a cause of action which did not theretofore exist, and where it provides that such cause of action must be brought within the time specified in the statute, the general rule is that fraud does not toll the statute of limitations unless the statute in question expressly so provides. See, e.g., Central of Georgia Railway Company v. Ramsey, 275 Ala. 7, 151 So. 2d 725 44 1140706, 1140752 (1962). This rule has met with widespread dissatisfaction, however, and is replete with exceptions. See, e.g., [H.D. Warren, Annotation,] Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action. 15 A.L.R.2d 500, at 519-526 [(1951)]. See also, 3 Larson, Workmen's Compensation Law, § 78.45." Among the authorities noted by the Court was Central of Georgia Ry. v. Ramsey, 275 Ala. 7, 151 So. 2d 725 (1962), which in turn quoted from a case decided by the United States Court of Appeals for the Fourth Circuit: "'[T]he distinction between a remedial statute of limitations and a substantive statute of limitations is by no means so rockribbed or so hard and fast as many writers and judges would have us believe. Each type of statute, after all, still falls into the category of a statute of limitations. And this is none the less true even though we call a remedial statute a pure statute of limitations and then designate the substantive type as a condition of the very right of recovery. There is no inherent magic in these words.'" 275 Ala. at 14-15, 151 So. 2d at 731 (quoting Scarborough v. Atlantic Coast Line Ry., 178 F.2d 253, 259 (4th Cir. 1949)). In this same vein, I note that Rule 9(h), Ala. R. Civ. P., which deals with an amendment changing the name of an "opposing party," would not appear by its terms to be apposite to this discussion. Nonetheless, it is instructive to note that, even if the issue here were the naming of an "opposing party," this Court stated in Ex parte FMC Corp., 599 So. 2d 592, 594-95 (Ala. 1992): "When this Court stated in [Columbia Engineering International, Ltd. v.] Espey[, 429 So. 2d 955, 959 (Ala. 1983),] that the purpose of Rule 9(h) is to 'toll' the statute of limitations in emergency 45 1140706, 1140752 I disagree with the Wood Court's reading of Ogle as recounted in the main opinion and, in turn, with the construction of Wood in the main opinion. In my view, neither Ogle nor Wood held that the reason a plaintiff is not appointed as personal representative before the filing of a cases, it did not mean that the running of the statutory period would be temporarily suspended, only to recommence upon the happening of some future event. Therefore, it makes no difference that § 6–5–410 is a statute of creation. If the plaintiffs complied with the requirements of Rule 9(h), their action was timely filed within two years of Garry Spence's death and the subsequent amendment correctly designating FMC as one of the fictitiously named defendants related back to the date on which the complaint was filed." Compare Ex parte Tyson Foods, Inc., 146 So. 3d 1041, 1045 n.5 (Ala. 2013): "The Tyson petitioners also argue that the wrongful-death statute contains its own limitations period and thus is a 'statute of creation' not subject to tolling. See § 6-5-410(d), Ala. Code 1975; Cofer v. Ensor, 473 So. 2d 984, 991 (Ala. 1985). This fact, however, does not affect the capacity analysis. Rule 17(a) does not toll the statute of limitations. '[A]pplication of relation back does not extend the limitation period' but merely allows substitution of a party in a suit otherwise timely filed." (Emphasis added.) In other words, the relation-back doctrine does not "toll" a statute of limitations; it simply recognizes and clarifies what has already occurred. 46 1140706, 1140752 wrongful-death complaint or the expiration of the statute of limitations matters. In Wood, the Court held simply that, "[b]ecause Wayman was not a personal representative appointed by the probate court when she filed the action or at the expiration of the statutory two-year period for filing a wrongful death action, ... Wayman's appointment as a personal representative ... could not relate back to the date of [the decedent's] death or to the date of the filing of the wrongful-death action." 47 So. 3d at 1219. As for Ogle, it is true that the Court stated in that case that "[t]he probate court, through inadvertence did not issue the letters of administration" in a timely manner and that "[t]hat dereliction should not bar [Ogle's] action." 706 So. 2d at 711. That fact of "inadvertence" or "dereliction" on the part of the probate court, however, was not the ratio decidendi for the Court's holding. Instead, the Ogle Court embraced a clear, bright-line rule of relation back and, in the quoted passages, was simply making the point that the rule it adopted would avoid the undesirable outcome described. I must add that I am not sure what circumstance would qualify as "inadvertence" or "dereliction" such that it would 47 1140706, 1140752 affect the inquiry at issue (or what would constitute sufficient "efforts [by a plaintiff] to bring the impending expiration of the ... limitations period to the attention of the [probate court]"). ___ So. 3d at ___. Nor am I sure by what judicial mechanism we are to take the measure of the probate court's acts or omissions, or even its state of mind, in this regard. To my way of thinking, the stated condition is not one that bespeaks of the type of bright-line rule necessary for uniform and certain results. Based on the foregoing and on my previously expressed position, I respectfully dissent. I would return to the holding in Ogle, which I see as producing just results within the context of a straightforward, bright-line rule that allows for certainty and uniformity of results. 48 1140706, 1140752 WISE, Justice (dissenting). I respectfully dissent based on my writing in Marvin v. Healthcare Authority for Baptist Health, [Ms. 1140581, January 29, 2016] ___ So. 3d ___, ___ (Ala. 2016). 49 1140706, 1140752 BRYAN, Justice (dissenting). I respectfully dissent. I find Wood v. Wayman, 47 So. 3d 1212 (Ala. 2010), to be problematic, and I would consider overruling it. However, that request is not before us. Regardless, I do not believe Wood precludes the application of the relation-back doctrine in this case. It appears that Wood, as the main opinion notes, indicates that the appointment of a personal representative after the limitations period has expired may relate back to the filing of the petition within the limitations period if the delay in the appointment is the result of the probate court's "inadvertence" or "dereliction." That was the situation in Ogle v. Gordon, 706 So. 2d 707 (Ala. 1997), and that is why the Court in Wood said that relation back had been allowed in Ogle. At its heart, it appears that this standard is based on a concept of fairness –– whether it would be fair to allow relation back in a particular case. I think the fairer solution here would be to allow the claim to proceed by applying the doctrine of relation back. James O. Kidd, Sr., filed both his petition for letters of administration and his complaint six days before the end of 50 1140706, 1140752 the two-year limitations period. The probate court appointed James administrator 16 days later –– 10 days after the limitations period had expired. Like Ogle, this case involves a straightforward petition for letters of administration. It is quite plausible that the probate court could have appointed James administrator within the limitations period, and he should not be penalized because the probate court did not. I conducted an electronic-database search of relatively recent Alabama cases in which I could determine the length of the delay between the filing of a petition for letters of administration and the granting of the petition. Of the first 12 such cases found, an administrator was appointed on the same day as the petition in 5 cases. In the other 7 cases, the delays ranged from 3 to 31 days, and the average delay for all 12 cases was approximately 7.3 days. 11 I say "approximately" because in one case the exact 11 number of days is unclear but is no more than five; I used five days for purposes of averaging the days. The 12 cases are: Diversicare Leasing Corp. v. Hubbard, [Ms. 1131027, Sept. 30, 2015] ___ So. 3d ___ (Ala. 2015) (6 days); Richards v. Baptist Health Sys., 176 So. 3d 179 (Ala. 2014) (22 days); Ex parte Grant, 170 So. 3d 652, 654 (Ala. 2014) (no more than 5 days); Ingram v. Van Dall, 70 So. 3d 1191, 1193 (Ala. 2011) (same day); Allen v. Estate of Juddine, 60 So. 3d 852, 853 (Ala. 2010) (same day); Affinity Hosp., L.L.C. v. Williford, 21 So. 3d 712, 713 (Ala. 2009) (same day); Bolte v. Robertson, 941 So. 2d 920, 921 (Ala. 2006) (same day); Boyd v. Franklin, 51 1140706, 1140752 Had the probate court appointed James as administrator within six days of his filing the petition, his claim would have been safe. See Ellis v. Hilburn, 688 So. 2d 236 (Ala. 1997) (stating that, in a wrongful-death action, when a complaint is timely filed and letters of administration are later granted to the plaintiff within the limitations period, the plaintiff may use relation back under Rule 17(a), Ala. R. Civ. P., to amend the complaint). It would not have been unusual for a probate court to have acted that promptly. Of course, the relation-back exception in Ogle for the "inadvertence" or "dereliction" of the probate court involved a long delay by the probate court, which is absent in our case. However, because, under Wood's characterization of Ogle, we will allow relation back based on a probate court's mere delay, I think even a short delay should fairly permit the application of the doctrine to avoid a plaintiff's claim hinging on the luck of the draw. An overworked probate court may take longer to resolve cases than a neighboring probate 919 So. 2d 1166, 1167 (Ala. 2005) (12 days); Douglas v. King, 889 So. 2d 534, 535 (Ala. 2004) (same day); Flannigan v. Jordan, 871 So. 2d 767, 768 (Ala. 2003) (9 days); Smith v. N.C., 98 So. 3d 546, 547 (Ala. Civ. App. 2012) (31 days); and Eustace v. Browning, 30 So. 3d 445, 447 (Ala. Civ. App. 2009) (3 days). 52 1140706, 1140752 court with a smaller workload. A claim should not depend on whether the probate court processes a petition quickly enough; the law should be more certain and equitable than that. Thus, I believe the trial court properly allowed the appointment to relate back to the filing of the petition for the letters of administration, which was filed within the two- year period. 53	January 29, 2015
ee9c549e-df17-42bc-b879-cc4d65598d41	Ex Parte Mercury Finance Corp. of Ala.	715 So. 2d 196	1950868	Alabama	Alabama Supreme Court	715 So. 2d 196 (1997) Ex parte MERCURY FINANCE CORPORATION OF ALABAMA. (Re Waymon PRYOR, et al. v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, et al.). 1950868. Supreme Court of Alabama. December 16, 1997. 197 Robert A. Huffaker and F. Chadwick Morriss of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Mercury Finance Corporation of Alabama. C.C. Torbert, Jr., Jarred O. Taylor II, and William B. Wahlheim, Jr., of Maynard, Cooper & Gale, P.C., Montgomery and Birmingham, for Mercury Finance Company. Michael L. Bell and Wynn M. Shuford of Lightfoot, Franklin & White, L.L.C., Birmingham; and Jorden, Burt, Berenson & Johnson, L.L.P., Miami, Florida, for American Bankers Insurance Company of Florida. George L. Beck, Jr., W. Terry Travis, and David B. Bryne III of Beck & Travis, P.C., Montgomery; Warren Rowe, Enterprise; Gareth A. Lindsey, Elba; Joe C. Cassady, Jr., Enterprise; L. Merrill Shirley, Elba; J. Michael Druhan and James C. Johnston, Mobile; John W. Sharbrough and E. Mark Ezell, Mobile; and Richard D. Yelverton, Mobile, for respondents. MADDOX, Justice. Mercury Finance Corporation of Alabama ("Mercury") seeks a writ of mandamus directing Judge Thomas E. Head, of the Coffee Circuit Court, (1) to vacate his October 2, 1995, order determining that venue of a certain action was proper in the Elba Division of Coffee County and to transfer the action to the Enterprise Division of Coffee County; and (2) to vacate his November 14, 1995, order conditionally certifying three classes of plaintiffs. Waymon Pryor, Teresa Betts, Diana Butts Bouiye, Willie Bouiye, Carol Sanders, and Ronald Walden filed this action against Mercury and American Bankers Insurance Company of Florida ("American Bankers") in the Elba Division of the Circuit Court of Coffee County. The plaintiffs later amended their complaint to substitute Mercury Finance Company ("Mercury Finance"), the parent corporation of Mercury, for a fictitiously named defendant. The alleged underlying facts are that the plaintiffs purchased automobiles financed through Mercury and Mercury Finance or purchased motor vehicles 198 from various automobile dealerships that assigned to Mercury commercial paper from the plaintiffs. Based on these financial arrangements, the plaintiffs allege various acts of fraud and wrongful conduct against the defendant corporations. The plaintiffs seek damages based on 1) civil conspiracy to defraud and to violate state insurance laws, 2) fraudulent misrepresentation, and 3) violations of various portions of the Alabama Mini-Code. The plaintiffs subsequently filed a motion, and then an amended motion, for class certification. The motions sought certification of three classes: A large number of the persons who would have been members of the proposed classes were already included in a class certified in an action pending in Fayette County. See Ex parte American Bankers Life Assurance Co. of Florida, 715 So. 2d 186 (Ala.1997). The representative plaintiffs in the Fayette County action intervened in this proceeding and sought a stay of the class certification in this action. Subsequently, the trial court granted the plaintiffs' motion and conditionally certified the three classes, excepting from those classes only the members of the class previously certified in the Fayette County action. Mandamus is an extraordinary and drastic writ, and certain criteria must be met for the writ to be issued. A writ will be issued only when there is (1) a clear legal right in the petitioner to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) lack of another adequate remedy; and (4) properly invoked jurisdiction of this court. Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala.1990). Mercury contends that the trial court abused its discretion in determining that venue was proper in the Elba Division of Coffee County and in denying its motion to transfer the action to the Enterprise Division of Coffee County. Because Mercury failed to show a clear legal right to the relief sought, we decline to address the venue issue; however, we do address Mercury's main contention that the trial court abused its discretion in conditionally certifying the three classes. Mercury argues that in order to properly certify these classes, the trial court must comply with the requirements of Rule 23, Ala. R. Civ. P. It contends that the trial court not only failed to conduct a rigorous analysis of the prerequisites, as required by Rule 23, but simply improperly presumed that the plaintiffs had met their burden and shifted to the defendants the obligation to demonstrate that the classes should not be certified. We agree. Because due process rights of the parties are implicated in the certification process, a full evidentiary demonstration and legal analysis are "indispensable for each of the prerequisites for certification under Rule 23." General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 157, 102 S. Ct. 2364, 2370, 72 L. Ed. 2d 740 (1982); Ex parte Gold Kist, Inc., 646 So. 2d 1339, 1341 (Ala.1994). In Falcon, the United States Supreme Court stated that before certifying a class the trial court must be "satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." 457 U.S. at 155, 102 S. Ct. at 2369. Under Rule 23(a), the prerequisites to a class action are: The plaintiff must prove each of these prerequisites through competent probative evidence. See, e.g., Ex parte Blue Cross & Blue Shield of Alabama, 582 So. 2d 469, 475 (Ala.1991). The trial court's order conditionally certifying the three classes makes no mention of any of the four prerequisites for class certification. As this Court stated in Ex parte American Bankers Life Assurance Co. of Florida, 715 So. 2d 186 (Ala.1997): 715 So. 2d at 188. Because the trial court failed to address in its order any of the prerequisites for class certification, and failed to address how the plaintiffs met those prerequisites, we hold that it abused its discretion in conditionally certifying the classes. Therefore, we grant the mandamus petition in part and direct the trial court to withdraw its order conditionally certifying the classes. If the trial court conditionally certifies another class, it must address each prerequisite of Rule 23(a) and explain in detail how the proponents of the class certification have met each prerequisite. PETITION GRANTED IN PART AND DENIED IN PART. HOOPER, C.J., and HOUSTON[1] and SEE, JJ., concur. ALMON, SHORES, KENNEDY, and COOK, JJ., concur in the result. KENNEDY, Justice (concurring in the result). I concur in the result. See my opinion concurring specially in Ex parte First National Bank of Jasper, 717 So. 2d 342 (Ala. 1997). COOK, Justice (concurring in the result). See Ex parte First National Bank of Jasper, 717 So. 2d 342 (Ala.1997), which thoroughly addresses the concerns raised by the class-action litigants in this case regarding the necessity of conditional certification to ensure that the court will not be ousted of its jurisdiction by the subsequent filing in another court of a complaint containing identical class allegations. ALMON and SHORES, JJ., concur. [1] Justice Houston was not present at the oral arguments, but, on August 22, 1997, he listened to the tape of the oral arguments.	December 16, 1997
c67c13b0-1fef-4617-9e5a-9c00a558bc5c	Ex Parte Baker	709 So. 2d 7	1960569	Alabama	Alabama Supreme Court	709 So. 2d 7 (1997) Ex parte John C. BAKER, Jr. (Re Sue FINCHER v. John C. BAKER, Jr.). 1960569. Supreme Court of Alabama. November 21, 1997. 8 Joseph L. Dean, Jr., of Dean & Barrett, Opelika, for petitioner. James S. Hubbard, Anniston; and William Henry Agee, Anniston, for respondent. SEE, Justice. This case arises out of the contest of Mary Fincher's will on the grounds of undue influence and lack of testamentary capacity. By a general verdict, the jury found Mary's will invalid. The proponent appealed the trial court's denial of her motions for a directed verdict and for a judgment notwithstanding the verdict ("JNOV"). The Court of Civil Appeals reversed, holding that the contestant failed to present substantial evidence as to either challenge to the will's validity. Fincher v. Baker, 709 So. 2d 1 (Ala.Civ.App.1996). Because we hold that the contestant presented substantial evidence of undue influence, but not of a lack of testamentary capacity, we affirm in part, reverse in part, and remand. Mary had two children, Jack and Rebecca, both of whom predeceased her. Mary had three grandchildren by her son Jack and two grandchildren by her daughter Rebecca. Viewed in the light most favorable to the nonmovant, the evidence further showed: In 1978, Mary's long-time and trusted attorney prepared a will leaving approximately one-half of her estate to Jack's children and one-half of her estate to Rebecca's children. The will also provided for specific devises of Mary's personal residence and a greenhouse to Rebecca's children. After she executed this will, Mary executed a power of attorney to Sue Fincher, who is Jack's widow (Mary's daughter-in-law). Sue Fincher's influence over Mary in regard to Mary's financial and medical affairs steadily increased. In January 1981, Sue Fincher's lawyer, who had never prepared any testamentary documents for Mary, prepared a codicil for Mary's 1978 will; that codicil shifted the devise of the greenhouse from Rebecca's children to Jack and Sue Fincher's children. In early November 1981, after the death of Rebecca's daughter, Mary became almost totally dependent on Sue Fincher in regard to financial decisions. In late November 1981, Sue Fincher's lawyer prepared, and Mary executed, a new will that shifted one-quarter of Mary's residuary estate from the children of Rebecca's deceased daughter (Mary's great-grandchildren) to Sue's children.[1] In December 1981, Sue Fincher's lawyer prepared, and Mary executed, a codicil that shifted an interest in Mary's personal residence from Rebecca's remaining child, John Baker, to Sue Fincher's children. In January 1982, Sue Fincher's lawyer prepared, and Mary executed, a new will that consolidated the shifts of interests from Rebecca's children to Sue Fincher's children. Great care was taken to assure that Mary's capacity to execute this will was supported by significant evidence of testamentary capacity. Sue Fincher's lawyer arranged to have four witnesses, a psychiatrist, and a court reporter present, and to videotape the signing formalities. Finally, in June 1982, Sue Fincher's lawyer prepared, and Mary executed, a codicil to the 1982 will; that codicil shifted the remaining interest of Rebecca's children in Mary's residuary estate to Sue Fincher's children. After this flurry of testamentary activity, Mary executed no further wills or codicils before her death in 1994. 9 When Sue Fincher attempted to probate the 1982 will and codicil, John Baker (Rebecca's son and Mary's grandson), contested the will on grounds of undue influence and lack of testamentary capacity, and he contested the codicil on the basis of fraud. The jury returned a general verdict invalidating the 1982 will, and thus did not reach the fraud issue regarding the codicil to that will. After the Court of Civil Appeals reversed, John Baker petitioned for certiorari review, contending that he did present substantial evidence of undue influence and lack of testamentary capacity. We granted that review. Our review is limited to determining whether John Baker presented substantial evidence to support his allegations of undue influence and lack of testamentary capacity. Ex parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996); K.S. v. Carr, 618 So. 2d 707, 713 (Ala. 1993). A presumption of undue influence arises when: (1) there is a confidential relationship between a favored beneficiary and the testator; (2) there is a dominant and controlling influence by the beneficiary over the testator; and (3) there is undue activity in procuring the execution of the will. Allen v. Sconyers, 669 So. 2d 113 (Ala.1995). First, the parties to this action acknowledge that Sue Fincher and her sons, who were favored beneficiaries, had a confidential relationship with Mary. Second, the evidence indicates that Sue Fincher had a dominant and controlling influence over Mary. Sue Fincher testified that Mary was almost totally dependent on her after the death of Rebecca's daughter in October 1981. Further, John Baker introduced evidence indicating that although Mary was a strong-willed lady, Sue Fincher controlled Mary's household, medical, and financial affairs and that when Sue Fincher was not available to make decisions for Mary, one of Sue Fincher's sons would make those decisions. Sue Fincher had also obtained Mary's power of attorney. See Cleveland v. Central Bank of the South, 574 So. 2d 741, 744 (Ala.1990) (stating that a genuine issue of material fact existed as to undue influence where the beneficiary, among other things, had the testator's power of attorney and took charge of household affairs). As to the third factor in creating a presumption of undue influence, however, Sue Fincher contends there is no evidence to show that she played an active role in procuring the execution of Mary's 1982 will. In fact, the record is replete with evidence that would tend to indicate that she was active in procuring the execution of Mary's 1982 will. Sue Fincher's lawyer prepared all the codicils and wills that Mary executed in 1981 and thereafter. Sue Fincher denied having knowledge of Mary's wills or having had discussions with her attorney concerning Mary's wills and codicils. John Baker, however, introduced documentary evidence indicating that Sue Fincher knew of Mary's prior wills, and Sue Fincher's lawyer testified that Sue Fincher and her son had contacted him several times concerning the wills and codicils that Mary executed in 1981 and 1982. Further, Sue Fincher stated that she had purposely avoided the meeting at which Mary executed the 1982 will, for which Sue's attorney had procured a court reporter and video camera to record the signing. The jury could infer from this evidence that Sue Fincher had indeed engaged in undue activity with respect to Mary's 1982 will. See Cleveland, 574 So. 2d at 744-45. Accordingly, we hold that John Baker presented substantial evidence indicating that Sue Fincher and her sons exercised undue influence over Mary in procuring the execution of her 1982 will. See Sconyers, 669 So. 2d at 117.[2] Testamentary capacity requires that the testator possess Bolan v. Bolan, 611 So. 2d 1051, 1057 (Ala. 1993) (citing Knox v. Knox, 95 Ala. 495, 11 So. 125 (1892), and Fletcher v. DeLoach, 360 So. 2d 316, 318 (Ala.1978)). It is presumed that every person has the capacity to make a will. Smith v. Vice, 641 So. 2d 785, 786 (Ala. 1994). John Baker presented evidence indicating that Mary had experienced mental problems approximately two years before she executed her 1982 will. He also showed that on the day Mary executed the will, she could not remember the exact number of her great-grandchildren and had trouble counting backward by 7s from 100. Mary's physician, however, stated that Mary had made excellent progress in overcoming her previous problems and that she was in good mental condition shortly before and shortly after she executed the 1982 will. Before Mary executed the will, it was read to her. Two witnesses present when Mary executed the will testified that they believed Mary was fully aware of what she was doing. This case is different from Bolan, supra, in which this Court found a lack of testamentary capacity. In this case there was no testimony from witnesses who believed Mary's mental state was unsound, no testimony that Mary's condition had been deteriorating for several months, and no testimony that Mary's physical or mental condition had worsened. To the contrary, the evidence indicates that Mary's condition was continually improving from the time of her hospital discharge in 1980 until she executed the will in 1982. The lapses in memory cited by Baker were mere isolated events that are far too common in the general population to support a finding of a lack of testamentary capacity. Cleveland, 574 So. 2d at 743. We hold that Baker failed to present substantial evidence that Mary lacked testamentary capacity when she executed her 1982 will. Because Sue Fincher challenged both the undue influence count and the testamentary capacity count in her motions for directed verdict and JNOV, the jury's general verdict cannot stand. See Aspinwall v. Gowens, 405 So. 2d 134, 139 (Ala.1981). We therefore affirm that portion of the judgment of the Court of Civil Appeals regarding the testamentary capacity count, reverse that portion of the judgment regarding the undue influence count, and remand the cause for the Court of Civil Appeals to order further proceedings not inconsistent with this opinion.[3] AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. MADDOX and COOK, JJ., concur. HOOPER, C.J., concurs specially. KENNEDY, J., concurs in the result. SHORES, J., concurs in part and dissents in part. *11 BUTTS, J., dissents. HOUSTON, J., recuses himself. HOOPER, Chief Justice (concurring specially). I have wrestled with this case because I believe that in invalidating this will the jury probably relied upon a thought that the testatrix had been subjected to "undue influence," perhaps combined with a recognition that she had a weakened mental state. However, I cannot say with certainty that these thoughts entered the juror's minds and dictated their verdict. In light of this Court's previous decisions considering such questions as this case presents, I must rely upon the wisdom of our learned Justices who in the past concluded that cases like this should be remanded to determine the exact basis of the jury's decision. Where the defendant has challenged one or more counts of a multiple-count complaint by a motion for directed verdict and "yet good counts and bad counts go to the jury and the jury returns a general verdict, this Court cannot presume that the verdict was returned on a good count." South Central Bell Tel. Co. v. Branum, 568 So. 2d 795, 798-99 (Ala.1990); National Sec. Fire & Cas. Co. v. Vintson, 454 So. 2d 942 (Ala.1984); Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981). This line of cases leads me to only one conclusion. Because this Court does not have the ability to read the minds of the jurors, we should send cases like this back, with instructions to learn what the jurors were really thinking when they reached their verdict. SHORES, Justice (concurring in part and dissenting in part). I concur in the holding that the contestant presented substantial evidence of undue influence, and I agree that the judgment of the Court of Civil Appeals must be reversed and this case remanded for a new trial. The main opinion also holds, however, that the contestant failed to present substantial evidence indicating that Mary Fincher lacked testamentary capacity when she executed the 1982 will. I disagree. There was evidence that before September 24, 1979, Mary Fincher had suffered from "advanced arterial sclerotic brain disease." After hospitalization in 1980, she was found to be suffering from "chronic cerebrovascular insufficiency with repeated transient ischemic attack and brain damage with total confusion and incompetence." There was evidence that when Mary Fincher executed her will, she did not know who several of her family members were, even though those family members were frequent visitors. There was evidence that she said that only one of her grandsons, Buster, was married, and that she specifically said that the others were not married, although her grandson John Baker, Jr., was married and had two children. This evidence was properly submitted to the jury on the issue of testamentary capacity. Smith v. Vice, 641 So. 2d 785, 786 (Ala.1994). [1] There was evidence indicating that Mary had stated she did not want to leave money to her deceased granddaughter's children because she did not want to undertake financial responsibility for a third generation of her family. [2] We note that Sue Fincher contends that Mary had a valid business reason for executing the June 1982 codicil, which shifted the remaining portion of Mary's estate from Rebecca's child, John Baker, to Sue Fincher's children. Sue states that Mary had previously sold a substantial amount of stock to Rebecca in exchange for long-term installment notes with low fixed interest rates. Rebecca placed a substantial amount of cash in escrow. The interest earned on this cash was used to make the payments on the installment notes to Mary. When interest rates rose, Mary demanded that the executors of Rebecca's estate increase the interest rate on the installment notes and thus increase the payments to her. The executors abided by the interest rate provided in the installment notes and did not increase the payments to Mary. John Baker, a beneficiary of Rebecca's estate, received the benefit of the difference between the low interest rates that the escrowed funds were paying and the high interest rates that the escrowed funds were earning. This, however, fails to explain the numerous shifts of interests in Mary's estate away from Rebecca's children before June 1982. It also fails to explain the evidence indicating that Sue Fincher instigated Mary's execution of the June 1982 codicil by telling her that it was unfair for Rebecca's children to earn the interest rate differential by maintaining the low interest rate to which Mary had originally agreed. [3] We need not address whether the June 1982 codicil was the subject of fraud. The trial court instructed the jury that if it found the January 1982 will invalid because of a lack of testamentary capacity or because of undue influence, then it did not need to reach the issue of fraud as to the June 1982 codicil. The jury returned a general verdict declaring the January 1982 will invalid, and thus did not address the fraud issue concerning the June 1982 codicil. On remand, the fraud issue may be raised again.	November 21, 1997
7ec6107e-198b-4d58-825f-e715b1388ea7	City of Florence v. Ezell	N/A	1130373	Alabama	Alabama Supreme Court	REL: 01/30/2015 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 _________________________ 1130372 ________________________ Keith McDaniel v. William T. Ezell _________________________ 1130373 _________________________ City of Florence, Alabama, a municipal corporation, and the Civil Service Board of the City of Florence v. William T. Ezell Appeals from Lauderdale Circuit Court (CV-11-900214) 1130372; 1130373 WISE, Justice. The City of Florence, Alabama, a municipal corporation ("the City"), and the Civil Service Board of the City of Florence ("the CSB") and Keith McDaniel appeal separately from a judgment entered by the Lauderdale Circuit Court following a jury verdict in favor of William T. Ezell. We dismiss the appeals with instructions. Facts and Procedural History In mid 2011, two positions for promotion to the job of battalion chief became available within the Florence Fire and Rescue Department. Benjamin Cochran, Melvin Brown, Tim Clanton, John T. Muse, McDaniel, and Ezell applied for the positions. The CSB conducted interviews with the candidates on September 1, 2011. Afterward, it promoted Cochran and McDaniel to the two battalion-chief positions. On September 12, 2011, Ezell filed a two-count complaint against the City and the CSB in the Lauderdale Circuit Court. The first count was an appeal from the decision of the CSB pursuant to Act No. 1619, Ala. Acts 1971 ("the Act"). The second count sought a judgment declaring that the CSB had acted arbitrarily and capriciously with respect to the 2 1130372; 1130373 promotion decision and overturning the CSB's decision to deny Ezell's application for promotion to battalion chief. The 1 complaint included a demand for a jury trial. On October 18, 2011, the City and the CSB filed an answer in which they denied Ezell's allegations. They also asserted that Ezell had failed to join certain indispensable parties. The City and CSB simultaneously filed a motion to dismiss count 1 of the complaint pursuant to Rule 12(b)(7), Ala. R. Civ. P., arguing that all six applicants were indispensable parties. They then asked that count 1 of the complaint be dismissed or that Ezell be required to add Cochran, Brown, Clanton, Muse, and McDaniel as defendants. On April 16, 2012, the trial court ordered Ezell to amend his complaint to make Cochran, Brown, Clanton, Muse, and McDaniel parties to the suit. On April 17, 2012, Ezell amended count 1 of his complaint and also added Cochran, Brown, Clanton, Muse, and McDaniel as defendants. The City and the CSB filed an answer to the amended complaint in which they denied Ezell's allegations and argued that the complaint failed to state a claim upon which relief could be granted. It appears that Ezell abandoned count 2 at trial. 1 3 1130372; 1130373 The trial court conducted a jury trial following the procedure outlined in Smith v. Civil Service Board of Florence, 52 Ala. App. 44, 289 So. 2d 614 (Ala. Civ. App. 1974). After the jury heard the evidence, the trial court instructed the jury, in part, "to decide this case and who should be promoted to the two vacant positions of Battalion Chief based on the evidence presented to you during the trial." The jury returned the following verdict: "We are not reasonably satisfied that the decision of the [CSB] was correct and we find that the following 2 individuals should be promoted to Battalion Chief (pick two) ... Benjamin Cochran ... William Ezell." The trial court entered a judgment on the verdict and ordered that the status quo be maintained during the pendency of any appellate proceedings. The City, the CSB, and McDaniel filed posttrial motions, which the trial court denied. McDaniel filed an appeal to this Court; that appeal was docketed as case no. 1130372. The City and the CSB also filed an appeal to this Court; that appeal was docketed as case no. 1130373. Discussion 4 1130372; 1130373 In their briefs to this Court, the appellants raise several challenges to the procedure the trial court followed during the trial. However, before we can examine those challenges, we must first determine whether Ezell had a right to appeal the CSB's decision pursuant to the Act. The Act provides: "An appeal may be taken from any decision of the [CSB] in the following manner: Within ten (10) days after any final decision of such [CSB], any party, including the governing body of the city, feeling aggrieved at the decision of the [CSB], may appeal from any such decision to the Circuit Court of the County. Upon the filing of such appeal, notice thereof shall be served upon any member of the [CSB] and a copy of said notice shall be served upon the appellee or his attorney by the appellant. Such appeal shall be heard at the earliest possible date by the court sitting without a jury, unless a jury is demanded by the appellant at the time of filing his notice of appeal or by the appellee within ten (10) days after notice of appeal has been served upon him. In the event either party demands a jury as provided above, the appeal shall be heard at the next regular jury term of court and shall have priority over all other cases. No bond shall be required for such an appeal and such an appeal shall be effected by filing a notice and request therefor by the appellant upon any member of the [CSB] and upon the appellee as herein provided for above and also by filing a notice and request for an appeal with the Clerk of the Circuit Court. It shall not be necessary to enter exceptions to the rulings of the [CSB], and the appeal shall be a trial de novo; provided, however, that upon hearing such appeal the introduction of the decision of the [CSB] shall be prima facie evidence of the correctness of such 5 1130372; 1130373 decision. An appeal may be taken from any judgment of the Circuit Court to the Court of Appeals or the Supreme Court as now provided by law." Act No. 1619, Ala. Acts 1971, § 2. The Act provides that any party "feeling aggrieved at the decision" may appeal; however, it does not define the term "aggrieved." The term "aggrieved" is defined in Black's Law Dictionary 80 (10th ed. 2014) as "having legal rights that are adversely affected; having been harmed by an infringement of legal rights." Therefore, only a party whose legal rights have been adversely affected by a decision of the CSB may appeal pursuant to the Act. Pursuant to Act No. 437, Ala. Acts 1947, the CSB promulgated rules and regulations setting forth the procedure to be followed when promoting employees of the Florence police and fire departments. If the CSB fails to follow its own procedural and substantive rules with regard to employment decisions for those departments, a party's legal rights may be adversely affected, and the party may be aggrieved, for purposes of the Act. In his original complaint, Ezell included the generic allegation that the CSB "denied his promotion and in his place 6 1130372; 1130373 promoted Lieutenant Keith McDaniel in disregard of the rules of the CSB and the employment rules of the Florence Fire and Rescue Department." During his opening statement, counsel for Ezell argued that Ezell and Cochran performed better than the other candidates in the promotional reviews by the chief and the supervisors at the fire department. He also argued that Ezell had the experience and the training and the best record of the candidates for the promotion. During the trial, the City and the CSB presented evidence indicating that, in September 2011, the fire chief notified the CSB that there were two open battalion-chief positions. Both lieutenants, who were one rank below battalion chief, and captains, who were two ranks below battalion chief, were eligible to apply for the positions. The job openings were posted, and applications were filled out and submitted. Afterward, human-resources personnel identified those applicants who were qualified to be promoted to the battalion- chief positions; compiled all the information about each qualified applicant, including evaluations performed by command-staff members at the department; submitted a notebook 7 1130372; 1130373 with all the information for each CSB member to review; and scheduled interviews. The CSB members who testified indicated that they reviewed and considered the information about each candidate included in the notebooks prepared by the human-resources personnel. However, they indicated that they did not base their decision solely on the information provided by the human-resources personnel. Instead, the CSB members who testified indicated that they attempted to choose people who would best represent the fire department and added that the decision was influenced by such subjective factors as the appearance, attitude, and responses of the candidates during their interviews. Lindsey Musselman Davis, one of the CSB members, testified that the CSB could not make the decision based solely on the candidates' experience and training. She also testified that the information that had been provided by the human-resources personnel was a tool the CSB members used in making an employment decision but that it was not the final test. Finally, she stated that the decision to promote 8 1130372; 1130373 McDaniel instead of Ezell was not unanimous, but she added that there was no requirement that the decision be unanimous. During the trial, Ezell did not present any evidence to support his allegation that the CSB had "denied his promotion and in his place promoted Lieutenant Keith McDaniel in disregard of the rules of the CSB and the employment rules of the Florence Fire and Rescue Department." In fact, he did not present any evidence regarding the rules of the CSB or the department. Instead, Ezell focused on his training and experience and the fact that he had outscored McDaniel on several of the evaluations that had been performed by the department's command staff to argue that he was more qualified than was McDaniel for the position of battalion chief. During his closing argument, counsel for Ezell emphasized the evaluations by the department's command-staff members in which Ezell had outscored McDaniel and noted that the CSB members knew nothing about firefighting. He also took issue with the fact that the CSB members took into account the fact that the battalion chiefs would be the "face" of the City and considered the impression the battalion chiefs would make with 9 1130372; 1130373 the media. Counsel further argued that Ezell deserved the promotion based on his experience and qualifications. Finally, in his brief in opposition to a stay of the judgment, counsel for Ezell argued that the CSB's decision to promote McDaniel instead of Ezell was "a wrong decision" and "was not supported by any extraordinary circumstances which would warrant such a promotion." However, even then, counsel did not present any argument or evidence to establish that extraordinary circumstances were required before the CSB could make such a promotion. Thus, Ezell did not present any arguments or evidence to establish that his legal rights had been adversely affected by the CSB's promotion decision. At most, his arguments and evidence simply focused on his personal dissatisfaction with the way in which the CSB exercised its discretion pursuant to its internal rules and regulations in making the decision to promote McDaniel over him. He did not present any evidence that would establish that the CSB members were not allowed to consider factors other than those evidenced by the notebooks provided by the human-resources personnel in making their decision. Therefore, Ezell failed to establish that he was an 10 1130372; 1130373 aggrieved party for purposes of the Act and, accordingly, failed to demonstrate that he had a right to appeal the CSB's decision. Because Ezell failed to demonstrate that he had a right to appeal the CSB's decision, the trial court lacked subject- matter jurisdiction to entertain his appeal. "'Where "the trial court ha[s] no subject-matter jurisdiction, [it has] no alternative but to dismiss the action."' Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So. 2d 1177, 1182 (Ala. 2006) (quoting State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1029 (Ala. 1999))." Ex parte Stewart, 985 So. 2d 404, 409 (Ala. 2007). Therefore, the trial court should have dismissed Ezell's appeal. Conclusion "'A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.' Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008)." MPQ, Inc. v. Birmingham Realty Co., 78 So. 3d 391, 394 (Ala. 2011). Accordingly, we dismiss these 11 1130372; 1130373 appeals with instructions to the trial court to vacate its judgment. 2 1130372 -- APPEAL DISMISSED WITH INSTRUCTIONS. 1130373 -- APPEAL DISMISSED WITH INSTRUCTIONS. Stuart, Bolin, and Parker, JJ., concur. Murdock, J., concurs specially. Moore, C.J., and Main, J., concur in the result. Shaw and Bryan, JJ., dissent. Because of our disposition of these appeals, we pretermit 2 discussion of the issues the parties raise in their briefs to this Court. 12 1130372; 1130373 MURDOCK, Justice (concurring specially). I concur in the dismissal of the appeals on subject- matter-jurisdiction grounds because the decision by the judicial branch in this particular case, if allowed to stand, would represent not a vindication of some substantive or procedural legal right held by those who were not promoted, but a usurpation by the judicial branch of the discretionary executive authority delegated to the Civil Service Board of the City of Florence. 13 1130372; 1130373 MOORE, Chief Justice (concurring in the result). I concur in the result because I believe the defect in William T. Ezell's appeal to the circuit court was not that the court lacked subject-matter jurisdiction to entertain Ezell's appeal on the basis that he did not have a right to appeal but that Ezell failed to state a claim upon which relief could be granted. 14 1130372; 1130373 SHAW, Justice (dissenting). I respectfully dissent. I disagree with the holding of the main opinion that William T. Ezell did not have what must be standing under Act No. 1619, Ala. Acts 1971 ("the Act"), to pursue the appeal in the circuit court. In my dissenting opinion in Ex parte Alabama Educational Television Commission, [Ms. 1111494, Sept. 27, 2013] ___ So. 3d ___, ___ (Ala. 2003), I explained my view that "standing" under Alabama law exists where the legislature has specifically provided a person with a cause of action (or here, an appeal) and where the interests of the parties are sufficiently "adverse": "'[S]tanding[] goes to whether a party has a sufficient "personal stake" in the outcome and whether there is sufficient "adverseness" that we can say there is a "case or controversy." "'"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." "'13A Federal Practice & Procedure § 3531.6. 15 1130372; 1130373 "'Although the Alabama Constitution does not have the same Article III language as is found in the Federal Constitution, this Court has held that Section 139(a) of the Alabama Constitution limits the judicial power of our courts to "cases and controversies" and to "concrete controversies between adverse parties." As Justice Lyons has stated: "'"Standing is properly limited to circumstances stemming from lack of justiciability. A plaintiff must be so situated that he or she will bring the requisite adverseness to the proceeding. A plaintiff must also have a direct stake in the outcome so as to prevent litigation, initiated by an interested bystander with an agenda, having an adverse impact on those whose rights are directly implicated. See Diamond v. Charles, 476 U.S. 54, 61–62, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986). "'"Much of the precedent in the area of standing comes from federal courts subject to the case-or-controversy requirement of Article III of the United States Constitution. Of course, w e d o n o t h a v e a case-or-controversy requirement in the Alabama Constitution of 1901, but our concepts of justiciability are not substantially dissimilar. See Pharmacia Corp. v. Suggs, 932 So. 2d 95 (Ala. 2005), where this 16 1130372; 1130373 Court, after noting the absence of a case-or-controversy requirement in our Constitution, observed: " ' " ' W e h a v e construed Art. VI, § 139, Ala. Const. of 1901 (as amended by amend. no. 328, § 6.01, vesting the judicial power in the Unified Judicial System), to vest this Court "with a limited judicial power that entails the special competence to decide discrete cases and controversies involving particular parties and specific facts." Alabama Power Co. v. Citizens of Alabama, 740 So. 2d 371, 381 (Ala. 1999). See also Copeland v. Jefferson County, 284 Ala. 558, 226 So. 2d 385 (1969) (courts decide only concrete controversies between adverse parties).'" "'Hamm[ v. Norfolk So. Ry.], 52 So. 3d [484] at 500 [(Ala. 2010)] (Lyons, J., concurring specially).' "Ex parte McKinney, 87 So. 3d 502, 513 (Ala. 2011) (Murdock, J., dissenting). The focus of Alabama law regarding standing, generally, is on whether the parties have a 'sufficient personal stake in the outcome' in the case, whether their interests are 17 1130372; 1130373 sufficiently 'adverse,' and whether the plaintiff is 'so situated' that he or she will bring 'the requisite adverseness' to the proceeding. "It is well settled that the legislature may provide for a cause of action and may supply subject-matter jurisdiction to the courts of this State. Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006) ('The jurisdiction of Alabama courts is derived from the Alabama Constitution and the Alabama Code.')." (Footnote omitted.) The Act provides that, from "any final decision of [the Civil Service Board of the City of Florence ('the CSB')], any party, including the governing body of the city, feeling aggrieved at the decision of the [CSB], may appeal from any such decision to the Circuit Court of the County." Certainly Ezell was "feeling aggrieved" by the CSB's decision: the CSB declined to award him the promotion and, according to his complaint, the CSB failed to follow its own rules and the rules of the City of Florence Fire and Rescue Department in making its promotion decision. The legislature has provided Ezell the means to appeal this decision; I believe that he and the CSB have sufficient stakes in the outcome and have the requisite adverseness to provide Ezell "standing" in this case. To the extent that the main opinion holds that Ezell 18 1130372; 1130373 had no standing because he was unable to prove that the CSB failed to follow its rules or that his legal rights were otherwise impacted by the CSB's decision to promote someone other than him to the position of battalion chief, the main opinion appears to signal a retreat from this Court's recent caselaw distinguishing a lack of standing from the inability to prove the merits of one's case. See Poiroux v. Rich, 150 So. 3d 1027 (Ala. 2014); Ex parte MERSCORP, Inc., 141 So. 3d 984 (Ala. 2013); and Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, September 13, 2013] ___ So. 3d ___ (Ala. 2013). I do not believe that the circuit court's judgment is void on the ground that Ezell lacked standing; therefore, I dissent. 19 1130372; 1130373 BRYAN, Justice (dissenting). I respectfully dissent. Act No. 1619, Ala. Acts 1971 ("the Act"), provides that any party "feeling aggrieved" by a decision of the Civil Service Board of the City of Florence ("the CSB") may appeal the decision to the circuit court. Citing the most recent edition of Black's Law Dictionary, the main opinion concludes that only a party whose legal rights have been adversely affected by such a decision may appeal under the Act; that is, the main opinion uses a "legal-right" test to determine whether William T. Ezell is "aggrieved" by the CSB's decision and, thus, whether he has standing to appeal. "Under this approach ... standing to challenge official action requires injury to a 'legal right' of the plaintiff." 13A Charles Alan Wright et al., Federal Practice and Procedure § 3531.1 (3d ed. 2008). The legal-right test was prevalent in federal courts in the 1930s, but was eventually replaced by other tests. See 3 Richard J. Pierce, Jr., Administrative Law Treatise § 16.1-.3 (5th ed. 2010). Under the newer prevailing standards, Ezell clearly would have the right to appeal the CSB's decision. 20 1130372; 1130373 Professor Pierce explains why the legal-right test fell out of favor: "The legal right test was criticized on many grounds. See, e.g., Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev. 450 (1970). Perhaps the most telling criticism was based on its confusion of the issue of access to the courts with the issue of whether a party should prevail on the merits of a dispute. Under the legal right test, a court was required to determine whether the petitioner's claim had merit in order to decide whether the petitioner was entitled to have the merits of its case considered by the court. This circular reasoning process is unnecessary to the determination of the threshold question of access to judicial review, and it can force a court to determine the merits of a claim at such an early stage that the court does not focus enough attention on the merits. Thus, considering the merits of a party's claim as part of the process of determining whether the party has standing to assert that claim invites poorly reasoned summary judicial disposition of the merits of the claim." Pierce, supra, § 16.2, at 1410. See also Wright, supra, § 3531.1 ("There were thus two ways in which the legal-right formula could be found defective. One was its capacity to limit standing; the other was its capacity to confuse substantive and remedial issues with standing."). By conflating the merits of Ezell's appeal with the standing to appeal, the main opinion illustrates one of the shortcomings of the legal-right test. 21 1130372; 1130373 In 1940, the United States Supreme Court signaled a shift away from the legal-right test with FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940), a decision that views the term "aggrieved" much more broadly than does the main opinion here. Sanders Brothers owned a radio station, and its competitor applied to the FCC for a license to operate a radio station nearby. The FCC granted the license despite the contention of Sanders Brothers that a new station would harm Sanders Brothers economically. The relevant statute granted the right to judicial review of the FCC's licensing decision to any person "aggrieved or whose interests were adversely affected" by the decision. 309 U.S. at 476-77. The Supreme Court concluded that Sanders Brothers did not have a "right" to be free from economic harm caused by competition. However, despite the fact that the FCC's decision had not violated a legal right of Sanders Brothers, the Supreme Court held that Sanders Brothers had standing to challenge the decision under the express terms of the statute. In sum, "while Sanders Brothers could not argue on the merits that grant of the license impermissibly caused it economic harm, it could use that economic harm as the basis for standing." Pierce, supra, 22 1130372; 1130373 § 16.2, at 1411. For the next 30 years, the Supreme Court applied this permissive-standing test when the relevant statute granted judicial review for anyone "adversely affected or aggrieved" (while applying the narrow legal-right test in the absence of such statutory language). Id. § 16.2, at 1412. Here, the Act grants the right to judicial review to any party "aggrieved" by the decision of the CSB. When the Act was passed in 1971, the word "aggrieved," at least in this context, had an established meaning broader than the meaning given to it by the main opinion. In 1970, one year before the Act was passed, the United States Supreme Court continued the trend toward inclusiveness in standing with Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970). That case concerned the scope of judicial review under the federal Administrative Procedure Act, which grants judicial review to "[a] person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. In Data Processing, the Court stated a two-part test that built on the inclusive approach in Sanders Brothers. A plaintiff 23 1130372; 1130373 challenging an administrative decision must establish (1) an "injury in fact, economic or otherwise," caused by the decision and (2) that the interest sought to be protected is "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." 397 U.S. at 152-53. The Court specifically rejected the legal-right, or "legal-interest" test, stating that that test goes to the merits, not to standing. Id. at 153. The Court concluded that the two-part test was satisfied in that case, noting that the first part was satisfied because the administrative decision would likely cause economic loss to the plaintiff's member firms. In short, the Court in Data Processing "unequivocally abandoned the legal right test," Pierce, supra, § 16.3, at 1412, but the test continues to find occasional use in some jurisdictions, Wright, supra, § 3531.1. See also 3 Charles H. Koch, Jr., Administrative Law and Practice § 14.16 (2d ed. 1997) (stating that "[e]ven the most conservative view of standing in the federal system does not advocate the readoption of the 'legal interest' test" but noting that "some version" of the test may exist in some states). 24 1130372; 1130373 Although we are not bound by the above cases, I find them persuasive in construing a statutory provision that allows, without further explanation, judicial review to one "aggrieved" by a decision of the CSB. The legal-right test 3 used by the main opinion merges concepts of standing with the merits and, for the most part, is a legal relic. Under the test stated in Data Processing, Ezell, as an "aggrieved" party, easily would have standing to challenge the CSB's decision. By not receiving the promotion, Ezell suffered an economic injury, which is an injury in fact. Certainly the interest sought to be protected by Ezell, which relates directly to a personnel decision made by the CSB, is arguably within the zone of interests to be protected or regulated by the Act. Further, I note that we could have easily found that Ezell was "aggrieved" by simply referencing an earlier edition I note that "[m]uch of the precedent in the area of 3 standing comes from federal courts subject to the case-or-controversy requirement of Article III of the United States Constitution." Hamm v. Norfolk S. Ry., 52 So. 3d 484, 500 (Ala. 2010) (Lyons, J., concurring specially). Insofar as the analysis in the federal cases cited above is grounded in the case-or-controversy requirement, I note that, although Alabama's Constitution does not have a case-or-controversy requirement, "our concepts of justiciability are not substantially dissimilar." Id. 25 1130372; 1130373 of Black's Law Dictionary instead of the most recent edition. When the Act was passed in 1971, the then current edition of Black's defined an "aggrieved party" in part as "[o]ne whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment." Black's Law Dictionary 87 (4th ed. 1968) (emphasis added). Reference to a "pecuniary" interest (which was a factor in both Sanders Brothers and Data Processing) continued to be part of the definition of "aggrieved party" through the 9th edition of Black's published in 2009. In Birmingham Racing Commission v. Alabama Thoroughbred Ass'n, 775 So. 2d 207 (Ala. Civ. App. 1999), the Court of Civil used an earlier version of the definition in a situation similar to the present one. That court construed the undefined term "person aggrieved" in a statute providing for judicial review of decisions by a racing commission. That court quoted the 6th edition of Black's, published in 1990, which provided, in part, that an aggrieved party is one "whose pecuniary interest is directly and adversely affected." 26 1130372; 1130373 I conclude that Ezell has standing to challenge the CSB's decision. Thus, I would not dismiss the appeal; instead, I would address the merits. 27	January 30, 2015
ceafde2f-f43f-42d2-bd14-80b48ad542c2	Ex parte A.B.C.	N/A	1150189	Alabama	Alabama Supreme Court	REL: 01/29/2016 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, 2015-2016 _________________________ 1150189 _________________________ Ex parte A.B.C. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: A.B.C. v. L.G.) (Colbert Juvenile Court, JU-14-240.01; Court of Civil Appeals, 2140497) WISE, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., and Parker and Murdock, JJ., dissent. 1150189 MOORE, Chief Justice (dissenting). I respectfully dissent from the denial of the petition for a writ of certiorari filed by A.B.C. ("the mother"). The Colbert Juvenile Court ("the juvenile court") determined that the mother's minor child was dependent. The mother appealed that judgment to the Court of Civil Appeals. The Court of Civil Appeals unanimously affirmed the juvenile court's judgment, without an opinion. A.B.C. v. L.G. (No. 2140497, November 6, 2015), ___ So. 3d ___ (Ala. Civ. App. 2015) (table). The mother now petitions this Court for certiorari review of the Court of Civil Appeals' decision. I would grant the mother's petition to review the merits of her argument that the child was not dependent. As presented in her petition, the only fact that reflects negatively on the mother involves an incident during which, the mother says, "shots were fired" and her husband, the child's father, lost his life. The mother does not state whether she fired the shots or whether her husband was murdered by someone else. The remaining facts, as presented in her petition, favor the mother. Those facts are as follows. 2 1150189 One of the child's foster parents testified at the dependency hearing that the mother was exercising unsupervised visits with the child, that the foster parents had no problem with the child after he returned from the mother's home after those unsupervised visits, and that, in that parent's opinion, the mother was "making strides." During the pendency of this case the mother maintained stable housing, transportation, and sobriety. The mother claims that she testified that she was employed at a Marriot hotel and at Logan's Steakhouse and that she made "at least $30 a day but [that] if she worked nights, she made substantially more"; she also testified that she "made approximately $400 per week, or nearly $1,600 per month." The mother completed outpatient treatment, presumably for addiction, at Alethia House and at an after-care program at Freedom House. The mother also submitted to numerous drug screens at the Colbert County Community Corrections Center, all of which came back negative. Amy Brown from the Colbert County Community Corrections Center testified that the mother had undergone at least six drug screens at the Colbert County Corrections Center. 3 1150189 Mary Beth Barnowsky, a counselor with Alethia House, testified that she has spent nearly 175 hours counseling the mother about addiction and sobriety; that she gave the mother "an assessment" in December 2014, placed the mother in an outpatient-treatment program, and has worked with the mother ever since; that the mother had done a good job of coping with her grief, presumably over the death of her husband, and of maintaining her sobriety for over four months; that, because the mother was maintaining stable housing with access to transportation, participating in a narcotics-anonymous program, and holding a job, the mother was considered stable; that the mother's treatment involved parenting-skills counseling; and that the mother was 100% committed to parenting her child. Brenda Tucker, the director at Freedom House, testified that she believed the mother was 100% dedicated to recovery; that the mother was enrolled in an after-care program that included relapse prevention; and that the mother was not showing signs of relapse while being treated at Freedom House. Kay Parker testified that she was a licensed professional counselor with a master's degree in counseling from the 4 1150189 University of North Alabama. She stated that the child and the mother had been coming to her for grief counseling, that the mother is proactive in helping the child cope with his grief, presumably over the death of his father, and that she was the only adult actively assisting the mother with helping the child cope with grief. Given the gravity of cases involving dependency and parental rights, I would grant the discretionary writ to review the record to determine the merits of the mother's argument that the child was not dependent. 5	January 29, 2015
1a3acdba-2dd9-449b-b408-f55d54bfcb71	Ex parte Desi Renard King.	N/A	1140133	Alabama	Alabama Supreme Court	REL: 01/16/2015 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 _________________________ 1140133 _________________________ Ex parte Desi Renard King PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Desi Renard King v. State of Alabama) (Pickens Circuit Court, CC-97-250.61; Court of Criminal Appeals, CR-13-0742) WISE, Justice. WRIT DENIED. NO OPINION. Stuart, Parker, and Shaw, JJ., concur. Moore, C.J., concurs specially. 1140133 MOORE, Chief Justice (concurring specially). In 1997, Desi Renard King pleaded guilty to possession of cocaine, § 13A-12-212, Ala. Code 1975, and was sentenced as a habitual offender to 20 years' imprisonment. His conviction was affirmed, without an opinion. King v. State, 744 So. 2d 955 (Ala. Crim. App. 1998) (table), cert. denied, 745 So. 2d 318 (Ala. 1998) (table). In this, his second, Rule 32, Ala. R. Crim. P., petition for postconviction relief, he argues that the trial court in his underlying case lacked jurisdiction to convict him because the record does not disclose the existence of an "arrest or incident report." The Pickens Circuit Court denied King's Rule 32 petition, and he appealed to the Court of Criminal Appeals, which affirmed the denial without an opinion. King v. State (No. CR-13-0742, July 11, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014) (table). He then filed this petition for certiorari review. "[I]n all criminal prosecutions, the accused has a right ... to demand the nature and cause of the accusation; and to have a copy thereof ...." Art. I, § 6, Ala. Const. 1901. King does not allege that he was tried without an indictment; instead, he argues that his arrest report cannot be found. His 2 1140133 guilty plea indicates that he knew "the nature and cause of the accusation" against him, and he does not contend otherwise. King's reliance on Ex parte Dietz, 474 So. 2d 127 (Ala. 1985), is misplaced. Dietz had been charged with escape. An element of the crime of escape is that the defendant had been in "lawful custody." 474 So. 2d at 128. In order for a probationer to be arrested without a warrant, a probation officer must supply a written statement to the arresting officer to the effect that in the judgment of the probation officer the conditions of probation have been violated. § 15- 22-54(d), Ala. Code 1975. Because that statement was lacking in Dietz's case, the Court held that he was not lawfully taken into custody. King seeks to transform Dietz into a general requirement that a showing of "lawful custody" is a constitutional prerequisite in all prosecutions. Although evidence of lawful custody is a statutory element of a conviction for escape, the crime of possession of cocaine to which King pleaded guilty has no such element. I therefore concur in denying King's petition for a writ of certiorari. 3	January 16, 2015
7e096d5f-daf7-4d62-b4fa-4b7fe10673b4	Ex parte State Farm Mutual Automobile Insurance Company.	N/A	1141039	Alabama	Alabama Supreme Court	REL: 01/29/2016 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, 2015-2016 ____________________ 1141039 ____________________ Ex parte State Farm Mutual Automobile Insurance Company PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: State Farm Mutual Automobile Insurance Company v. James Ross Pritchard, Jr.) (Mobile Circuit Court, CV-12-902722; Court of Civil Appeals, 2130989) STUART, Justice. 1141039 State Farm Mutual Automobile Insurance Company ("State Farm") petitioned this Court for certiorari review of the Court of Civil Appeals' decision affirming the trial court's judgment ordering State Farm to pay an attorney fee based on a common-fund theory for the recovery of the moneys advanced by State Farm to James Ross Pritchard, Jr., pursuant to Lambert v. State Farm Mutual Automobile Insurance Co., 576 So. 2d 160 (Ala. 1991). We reverse and remand. Facts and Procedural History Pritchard sued Broderick McCants, State Farm (Pritchard's uninsured/underinsured-motorist ("UIM") insurer), and others seeking damages for injuries Pritchard suffered in an automobile accident with a vehicle being operated by McCants. GEICO, McCants's insurer, offered to pay Pritchard $50,000, the limits of McCants's policy, to settle Pritchard's claim against McCants. State Farm, pursuant to Lambert, "bought out" GEICO by advancing to Pritchard the $50,000 limits of McCants's GEICO policy and then opted out of the litigation. The jury awarded Pritchard $400,000. Pritchard, arguing that his recovery for State Farm of the amount of the Lambert advance created a common fund, moved the trial court to order 2 1141039 State Farm to contribute $20,000 toward his attorney fee 1 under the common-fund doctrine. The trial court granted Pritchard's motion; State Farm appealed, and the Court of Civil Appeals affirmed the trial court's judgment. State Farm Mut. Auto. Ins. Co. v. Pritchard, [Ms. 2130989, June 12, 2015] ___ So. 3d ___ (Ala. Civ. App. 2015). We granted certiorari review. Standard of Review "On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court." Ex parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996). The law is well established that questions of law are reviewed de novo. Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997); Ex parte State Farm Mut. Auto. Ins. Co., 118 So. 3d 699, 704 (Ala. 2012)("[W]hether the common-fund doctrine applies in a case where the facts are undisputed presents a question of law which we review de novo."). Discussion Pritchard and his counsel had agreed to a 40% contingency 1 fee; $20,000 is 40% of the $50,000 Pritchard recovered from GEICO in the litigation. 3 1141039 "The common-fund doctrine in insurance-subrogation cases is based on the equitable notion that, because an insurer is entitled to share, to the extent of its subrogation interest, in any recovery its insured achieves against a tortfeasor, the insurer should bear a proportionate share of the burden of achieving that recovery –– including a pro rata share of the insured's attorney fee. See generally Johnny Parker, The Common Fund Doctrine: Coming of Age in the Law of Insurance Subrogation, 31 Ind. L. Rev. 313, 320-25 (1998); Annot., Right of Attorney for Holder of Property Insurance to Fee out of Insurer's Share of Recovery from Tortfeasor, 2 A.L.R.3d 1441 (1965)." Government Emps. Ins. Co. v. Capulli, 859 So. 2d 1115, 1119 (Ala. Civ. App. 2002). This Court in Lambert created a procedure whereby an insured could settle with a tortfeasor while preserving the insured's UIM insurer's right to subrogation. We provided: "If the [UIM] insurance carrier wants to protect its subrogation rights, it must, within a reasonable time, and, in any event before the tort-feasor is released by the carrier's insured, advance to its insured an amount equal to the tort-feasor's settlement offer." Lambert, 576 So. 3d at 167. In essence, the Lambert advance acts as a substitute for the tortfeasor's liability-insurance limits. When the insured receives the UIM insurance carrier's Lambert advance, the insured is guaranteed that, regardless of the outcome of the action, he will receive the liability 4 1141039 limits of the tortfeasor's policy. Thus, the purpose of an insured's prosecution of an action against a tortfeasor following a Lambert advance is to determine the tortfeasor's liability and the amount of the insured's damages, which in turn sets the insured's right to UIM benefits. As we explained in Lambert, the objective of the Lambert advance is to "protect the [UIM] insurance carrier's subrogation rights against the tort-feasor who was responsible for the injury or death and also protect the carrier against the possibility of collusion between the tort-feasor and his liability insurer at the insurer's expense." 576 So. 2d at 166. State Farm has asked this Court to determine whether a UIM insurer's right to recover its Lambert advance is a form of a "subrogation right." State Farm maintains that a UIM insurer does not have a subrogation interest in the Lambert advance, that a common fund is not created with the recovery from the tortfeasor of a Lambert advance, and that a UIM insurer should not be required to pay an attorney fee for the recovery of the Lambert advance under the common-fund doctrine. 5 1141039 Although this Court has not directly addressed this issue, the Court of Civil Appeals in Eiland v. Meherin, 854 So. 2d 1134 (Ala. Civ. App. 2002), and Alston v. State Farm Mutual Automobile Insurance Co., 660 So. 2d 1314 (Ala. Civ. App. 1995), addressed cases regarding a UIM insurer's subrogation rights in a Lambert advance. In Alston, after the insured was injured in an automobile accident and the tortfeasor offered to settle, the insured's UIM insurer made a Lambert advance of $20,000, the tortfeasor's liability limits, to protect its subrogation rights. After a trial, the jury returned a verdict of $26,574 in favor of the insured. The UIM insurer paid $6,574 to the insured in satisfaction of its liability for UIM benefits. The insured moved for an attorney fee from the UIM insurer under the common-fund doctrine, arguing that the $20,000 Lambert advance preserved the UIM insurer's subrogation rights, that the efforts of the insured's attorney led to the UIM insurer's recovery of this fund, and that, because the UIM insurer directly benefited from the insured's attorney's representation, the UIM insurer should be required to pay the attorney fee. The trial court denied that motion. The 6 1141039 insured appealed to the Court of Civil Appeals. On appeal, the UIM insurer agreed that it had a subrogation right to the Lambert advance and that the insured's recovery of the Lambert advance created a common fund from which it received a direct benefit. Because of the UIM insurer's concessions, the Court of Civil Appeals did not address whether a UIM insurer had a subrogation right in the Lambert advance; rather, the Court of Civil Appeals held that because the UIM insurer did not expend any substantial cost on the litigation, the recovery of the Lambert advance created a common fund from which the UIM insurer was obligated to pay its pro rata share of an attorney fee. In Eiland, the Court of Civil Appeals addressed a situation where the insured's recovery was equal to the amount of the UIM insurer's Lambert advance. After being injured in a automobile accident, the insured sued the tortfeasor, seeking damages in excess of the tortfeasor's policy limits. The tortfeasor's insurer offered the insured the tortfeasor's policy limits of $100,000 to settle the claims against it. The insured's UIM insurer made a Lambert advance in that amount to protect its subrogation rights and opted out of the 7 1141039 litigation. The jury entered a verdict in the amount of $50,000. The tortfeasor's insurer paid the $50,000. The insured requested a common-fund payment from the UIM insurer for the insured's attorney's efforts in recovering the $50,000. The trial court denied the request. On appeal, the Court of Civil Appeals applied its holding in Alston and concluded that a common fund was created by the insured's recovery of a portion of the Lambert advance. The court noted that at the outset of the litigation the insured had an interest in the potential recovery of the Lambert advance and that the UIM insurer received a benefit from the insured's attorney's efforts to recover the Lambert advance. The court held that, because the UIM insurer received a benefit and yet expended little to no cost in the litigation, the UIM insurer had to pay its share of the insured's attorney fee. Judge Moore, in his dissent in State Farm v. Pritchard, disagreed with the holdings in Eiland, explaining: "In Eiland, this court started off with the proposition that insurance-subrogation principles apply to the recovery of a Lambert payment. This court stated: "'The common-fund doctrine in insurance-subrogation cases is based on the equitable notion that, because an insurer 8 1141039 is entitled to share, to the extent of its subrogation interest, in any recovery its insured achieves against a tortfeasor, the insurer should bear a proportionate share of the burden of achieving that recovery –- including a pro rata share of the insured's attorney fee.' "854 So. 2d at 1136-37 (emphasis added). This court then went on to state that an insured's attorney, who pursues a civil action against a tortfeasor under Lambert, acts, in part, 'to protect [the UIM carrier's] subrogation interest.' 854 So. 2d at 1137 (emphasis added). However, ... in a Lambert situation the UIM insurer does not, by advancing funds to the insured, obtain any subrogation rights against the proceeds of the tortfeasor's automobile- liability-insurance policy. Lambert, itself, provides otherwise: "'"Underinsured motorist coverage provides compensation to the extent of the insured's injury, subject to the insured's policy limits. It is an umbrella coverage that does not require the insurer to pay to its insured the amount of the tort-feasor's bodily injury policy limits, as those limits pertain to the insured. Therefore, the insurer has no right to subrogation insofar as the tort-feasor's limits of liability are concerned. Its right of subrogation would be for sums paid by the insurer in excess of the tort-feasor's limits of liability."' "Lambert, 576 So. 2d at 165 (quoting Hardy v. Progressive Ins. Co., 531 So. 2d 885, 887 (Ala. 1988)) (emphasis added); see also Star Freight, Inc. v. Sheffield, 587 So. 2d 946, 955 (Ala. 1991) (explaining that, under Hardy, 'an underinsured motorist insurance carrier had no right of subrogation as to payments that were within a tort- 9 1141039 feasor's limits of liability, but did have a right of subrogation for sums paid by the insurer in excess of the tort-feasor's limits of liability'). "This court then holds in Eiland that the common-fund doctrine applies when one party, through active litigation, creates, reserves, or increases a fund 'in which more than one party has, at the outset of the controversy, a potential interest.' 854 So. 2d at 1137 (emphasis added). However, in a Lambert situation, the insured has no interest, potential or otherwise, in the recovery of the tortfeasor's automobile-liability-insurance-policy limits. As explained in River Gas Corp. v. Sutton, 701 So. 2d 35, 39 (Ala. Civ. App. 1997), a Lambert payment acts as a substitute for the tortfeasor's automobile-liability-insurance-policy limits. The insured has already been 'guaranteed' that payment through the Lambert procedure. Lambert, 576 So. 2d at 166. In a Lambert situation, the insured prosecutes a civil action against the tortfeasor solely to obtain UIM benefits from its own UIM insurer and additional damages against the tortfeasor. An insured must recover a judgment exceeding the Lambert payment in order to create a fund to which he or she has any interest at all. "Furthermore, in Eiland, this court erred in considering that an insured's attorney acts for the benefit of the UIM carrier when recovering a judgment against the tortfeasor. In prosecuting a civil action against a tortfeasor, the insured is, in actuality, attempting to fix the liability of the tortfeasor and the measure of the insured's damages primarily to establish the insured's right to UIM benefits, which is, obviously, directly against the interests of the UIM carrier. As our supreme court noted in Driver v. National Security Fire & Casualty Co., 658 So. 2d 390, 395 (Ala. 1995), when a UIM insurer opts out of the litigation under Lowe v. Nationwide Insurance Co., 521 So. 2d 1309 (Ala. 1988), as State Farm did in this case, it is the 10 1141039 attorney for the tortfeasor, not the attorney for the insured, who defends the interests of the UIM carrier by acting to limit the damages awarded. See also Ex parte Littrell, 73 So. 3d 1213 (Ala. 2011) (relying on Driver to hold that a UIM carrier has no right to retain additional counsel to represent a tortfeasor because its interests are protected by counsel for the tortfeasor furnished by tortfeasor's automobile-liability insurer); and Miller v. Thompson, 844 So. 2d 1229, 1235 (Ala. Civ. App. 2002) (construing Driver as holding that a UIM carrier's interests 'will be protected by the attorney for the underinsured motorist's carrier'). Throughout the litigation, the attorney for the insured remains in an adversarial relationship to the UIM carrier. "'[I]f the attorney is simply acting on behalf of his or her client, and a benefit only incidentally comes to others, the attorney is not entitled to a fee from those receiving the incidental benefit. ... In this regard, a benefit can be an incidental, rather than an intended, result of an attorney's efforts, if the relationship between the attorney and the "nonclient" person receiving the benefit is an adversarial one.' "CNA Ins. Cos. v. Johnson Galleries of Opelika, Inc., 639 So. 2d 1355, 1359 (Ala. 1994)." Pritchard, ___ So. 3d at ___ (footnote omitted). We agree with Judge Moore that the subrogation right that a UIM insurer protects by making a Lambert advance is its "'right of subrogation for sums paid by the insurer in excess of the tort-feasor's limits of liability.'" Lambert, 576 So. 11 1141039 2d at 165 (quoting Hardy v. Progressive Ins. Co., 531 So. 2d 885 (Ala. 1988)). See also Star Freight, Inc. v. Sheffield, 587 So. 2d 946, 955 (1991). The making of a Lambert advance does not create for a UIM insurer a right of subrogation to proceeds within a tortfeasor's liability limits. Therefore, a UIM insurer's right to recover its Lambert advance, which is an amount within the tortfeasor's liability limits, is not a subrogation right. Moreover, because the UIM insurer has no subrogation interest in the recovery of the Lambert advance, the insured's recovery of the Lambert advance is an incidental benefit of the litigation and does not create a common fund from which the insured's attorney may be awarded fees. See CNA Ins. Cos. v. Johnson Galleries of Opelika, Inc., 639 So. 2d 1355, 1359 (Ala. 1994) ("'[I]f the attorney is simply acting on behalf of his or her client, and a benefit only incidentally comes to others, the attorney is not entitled to a fee from those receiving the incidental benefit.'" (quoting Mitchell v. Huntsville Hosp., 598 So. 2d 1358, 1361 (Ala. 1992))). We are mindful of the decisions of the Court of Civil Appeals in Eiland and Alston; those decisions, however, are 12 1141039 not binding upon this Court. See § 12–3–16, Ala. Code 1975 ("The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the Supreme Court as provided by Constitutional Amendment No. 328[now § 140, Ala. Const. 1901 (Official Recomp.)]."). See also American Lumber & Export Co. v. Love, 20 Ala. App. 45, 48, 100 So. 623, 625 (1924)(recognizing that "[t]he decisions of the appellate courts of this state are binding upon all the lower courts, and must govern in the proceedings of such courts"). Our reaching the correct result in the law –- that a UIM insurer's right to recover its Lambert advance is not a form of a "subrogation right" and, consequently, that no common fund is created when a Lambert advance is recovered –- necessitates that this Court not follow Eiland and Alston. Applying our determination that a UIM insurer does not have a subrogation interest in a Lambert advance to the facts of this case, we hold that State Farm did not have a subrogation interest in the $50,000 it advanced to Pritchard pursuant to Lambert and, consequently, that Pritchard's 13 1141039 recovery from the tortfeasor of the Lambert advance did not create a common fund from which State Farm was required to pay its share of Pritchard's attorney fee. Conclusion Based on the foregoing, the judgment of the Court of Civil Appeals affirming the trial court's order that State Farm contribute $20,000 toward Pritchard's attorney fee for the recovery of the Lambert advance is reversed, and this case is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. Bolin, Main, and Bryan, JJ., concur. Moore, C.J., and Parker, Murdock, and Shaw, JJ., concur in the result. 14 1141039 MURDOCK, Justice (concurring in the result). I am not persuaded that, having paid to its insured an amount equal to the policy limits of the tortfeasor's liability-insurance policy, the plaintiff's uninsured/underinsured-motorist ("UIM") insurance carrier's right to reimbursement of that amount is not properly viewed as a right of or in the nature of subrogation. Nonetheless, I concur in the result reached by the main opinion for the reason that, regardless of the extent to which the matter is properly understood as one of subrogation, the fact is that no portion of any recovery against the tortfeasor can properly be considered a "common fund." No dollar that might be recovered in an action against the tortfeasor would be subject to a claim by more than one party. Specifically, when the UIM carrier has made a payment as provided by Lambert v. State Farm Mutual Automobile Insurance Co., 576 So. 2d 160 (Ala. 1991), the only party with a right to the proceeds of an action against the tortfeasor up to the amount of that Lambert payment is the UIM carrier. Any amounts recovered in that action in excess of the amount of the Lambert payment (i.e., an amount in excess of the 15 1141039 tortfeasor's liability-policy limits) but not exceeding the UIM carrier's policy limits, will belong solely to the UIM carrier as well under subrogation principles, in light of its obligation to pay to the plaintiff that amount under its UIM policy. (As is true of the earlier Lambert payment to the plaintiff by the UIM carrier, the plaintiff's attorney can recover any fee earned in relation to the recovery of moneys in excess of the Lambert payment, up to the liability limits of the UIM carrier, from the UIM payment itself.) Finally, the portion of any recovery that is in excess of both the tortfeasor's liability-policy limits and the UIM carrier's policy limits belong solely to the plaintiff. Thus, there is no portion of the recovery in which more than one party (as between the plaintiff or plaintiffs on the one hand and the UIM carrier on the other hand) has an interest at the time of that recovery. Accordingly, I see no basis for the award of an attorney fee based on a "common-fund" theory. 16	January 29, 2015
ddfba688-8685-49c3-8aaf-c67756cfab7b	CENTRAL PARKING SYSTEM v. Steen	707 So. 2d 226	1961085	Alabama	Alabama Supreme Court	707 So. 2d 226 (1997) CENTRAL PARKING SYSTEM OF ALABAMA, INC. v. Laura Y. STEEN. 1961085. Supreme Court of Alabama. November 26, 1997. 227 Forrest S. Latta, H. William Wasden, C. William Daniels, Jr., and J. Robert Turnipseed of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for appellant. James W. Bodiford, Jr., Mobile; and Stephen C. Moore and Mark C. Wolfe of Sigler, Moore, Clements, Wolfe & Zoghby, Mobile, for appellee. BUTTS, Justice. Central Parking System of Alabama, Inc. ("Central Parking"), the defendant in a personal injury/premises liability action, appeals from a judgment for the plaintiff. We affirm. Laura Y. Steen, a groundskeeper employed by the Adam's Mark Hotel, sued Central Parking and Kenneth Moody, an employee of Central Parking, alleging that Central Parking and Moody had negligently or wantonly allowed a large, wooden, ladder-like object to fall from the third floor of a parking garage and strike her as she walked on the ground between the hotel building and the Central Parking garage. The defendant Moody was voluntarily dismissed before trial. At the close of Steen's evidence, Central Parking moved for a directed verdict as to both the negligence count and the wantonness count. The trial court directed a verdict for Central Parking as to the wantonness count, but denied a directed verdict as to the negligence count. The jury returned a verdict in Steen's favor, awarding her $260,000 in damages. The court entered a judgment on the verdict. Central Parking moved for a judgment notwithstanding the verdict, which the trial court denied. Central Parking appealed, challenging the denial of its motions for a directed verdict and a judgment notwithstanding the verdict. This Court recognizes: Ricketts v. Norfolk Southern Ry., 686 So. 2d 1100, 1103 (Ala.1996) (quoting K.S. v. Carr, 618 So. 2d 707, 713 (Ala.1993)) (citations omitted). In determining whether Steen presented substantial evidence to establish that she was a licensee on Central Parking's property, "this Court must view all the evidence in a light most favorable to [Steen] and must entertain such reasonable evidentiary inferences as the jury would be free to draw." Carter v. Henderson, 598 So. 2d 1350, 1353 (Ala.1992). Steen began working for the Adam's Mark Hotel in May 1995 as a grounds-maintenance employee. Her duties included picking up trash, turning on the sprinkler systems in various places on the grounds, planting flowers, changing the flower beds, etc. The Adam's Mark Hotel building is located directly along the hotel owner's property line; the parcel of land beside the hotel property is owned by the City of Mobile. Located on that land is a parking garage managed by Central Parking. The area between the hotel building and the neighboring parking garage is an alleyway; the alleyway is on the land owned by the City of Mobile and controlled by Central Parking. The Adam's 228 Mark Hotel building services division had built a gate in front of the alleyway three or four months before this accident occurred. Steen had the only key to the gate, and she went back and forth through the gate four or five times a day, as part of her job. Steen used this area to store her plants, soil bags, and tools, including her wheelbarrow. Many of the flowers were brightly colored, and the materials were otherwise clearly visible. The accident occurred on November 28, 1995, in the alleyway. Moody's supervisor at Central Parking asked him to remove and disassemble the wooden object, which was located on the third floor of the parking garage. Moody lifted the object and placed one end of it on the rail of the parking garage. Moody then took a step forward; his stepping shifted the weight of the object and caused him to lose control of it. The object fell off the rail. Moody yelled, then looked down and saw Steen lying on the ground; she had been hit by the falling object. As a result of this accident, Steen suffered multiple injuries, including dental problems, recurring headaches, a 50% vocational loss, a 10% impairment in the right shoulder, and a 5% neck impairment. Moody had never previously seen anyone in the area where the object landed and had no knowledge that it was open to the public. The only issue before the jury was whether Steen had Central Parking's implied permission to be in the alleyway when she was injured; if so, then she was a licensee rather than a trespasser. Central Parking contends that the trial court committed reversible error in failing to rule that Steen was a trespasser, as a matter of law, and in denying its motions for a directed verdict and a judgment notwithstanding the verdict based on that argument. Central Parking argues that Steen was a trespasser, as a matter of law, and, therefore, that the trial court should have granted its motion for a directed verdict or, later, its motion for a judgment notwithstanding the verdict. "Trespass" has been defined as "[a]ny entry on the land of another without express or implied authority." Foust v. Kinney, 202 Ala. 392, 393, 80 So. 474, 475 (1918). Thus, if Steen had Central Parking's implied authority to be in the alleyway, then she was not a trespasser but was a licensee. The term "licensee" has been defined by this Court as "a person who visits a landowner's property with the landowner's consent or as the landowner's guest but with no business purpose." Hambright v. First Baptist Church-Eastwood, 638 So. 2d 865, 868 (Ala.1994). A landowner owes a licensee the duty "to abstain from willfully or wantonly injuring the licensee and to avoid negligently injuring the licensee after the landowner discovers a danger to the licensee." Hambright, 638 So. 2d at 868. After reviewing the evidence, we find it clear that Steen presented substantial evidence creating a question of fact for the jury as to whether Central Parking had acquiesced to Steen's presence, thereby granting her implied authority to be on the premises and making her a licensee. In particular, the record includes color photographs of the area showing the quantity of plants and materials Steen had stored in the alleyway; the trial judge aptly remarked that "everybody but a blind man would have had to know that somebody was using that area back there.... [It is] my impression that there is substantial evidence in the record that the defendant knew or should have known that somebody was stirring around back there...." The trial court correctly denied Central Parking's motions for a directed verdict and a judgment notwithstanding the verdict. The judgment of the trial court is affirmed. AFFIRMED. MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur. HOOPER, C.J., concurs in the result.	November 26, 1997
37d1fc86-7185-426c-b1b0-fe2ea2dab27e	Ex parte Fred Lee Bryant.	N/A	1150036	Alabama	Alabama Supreme Court	REL: 01/29/2016 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, 2015-2016 ____________________ 1150036 ____________________ Ex parte Fred Lee Bryant PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Fred Lee Bryant v. State of Alabama) (Mobile Circuit Court, CC-13-446; Court of Criminal Appeals, CR-14-0601) STUART, Justice. 1150036 WRIT DENIED. NO OPINION. Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 2 1150036 MOORE, Chief Justice (dissenting). I respectfully dissent. Fred Lee Bryant, the petitioner, was convicted of murder, see § 13A-6-2, Ala. Code 1975, and he was sentenced to life in prison as a habitual felony offender. The Court of Criminal Appeals affirmed Bryant's conviction in an unpublished memorandum. Bryant v. State (No. CR-14-0601, September 11, 2015), ___ So. 3d ___ (Ala. Crim. App. 2015)(table). Bryant now petitions this Court for certiorari review. I would grant Bryant's petition to review the record and to hear from the State of Alabama regarding the sufficiency of the evidence to sustain Bryant's murder conviction. The State presented evidence during Bryant's trial demonstrating that Vincent Tillman was shot and killed on October 29, 2011, during an attempted armed robbery. Jermaine Mosley testified that, at approximately 8:00 or 8:30 a.m. on October 29, 2011, he went to Tillman's house to help Tillman repair a vehicle. A man unidentified by Mosley telephoned Tillman to arrange a meeting with Tillman in the parking lot of a grocery store on Dauphin Island Parkway. Mosley accompanied Tillman to the parking lot of the grocery store. 3 1150036 Tillman used Mosley's cellular phone to call the man he was supposed to meet. While Tillman was calling him, the man and a second man approached Tillman's car, got into the backseat of Tillman's car, and instructed Tillman to drive into the parking lot of an apartment complex "so the police wouldn't pull [Tillman] over." Tillman drove into the parking lot of the apartment complex. Mosley testified that he then turned around and noticed that one of the men in the backseat was pointing a gun at Tillman and demanding that Tillman "give him everything he had." Tillman refused. According to Mosley, Tillman grabbed the man's gun and began struggling with him. The second man, who was unarmed, fled from the car. Mosley ran after the second man but was unable to catch him. He testified that when he returned to the car Tillman was still in the car struggling with the man with the gun and that Mosley secured the man in a headlock. Shots were fired, so Mosley released the man from the headlock. The knit cap the man was wearing fell to the ground. Mosley heard "a couple more shots" and climbed into the backseat of the car. The man fired another shot. Mosley claims that the man then ran to the side of the apartment 4 1150036 complex in the direction the second man had fled. Mosley testified that Tillman was "laid out." "So," Mosley said, "I got him. I seen he had his mouth open, eyes open. He was trying to talk. When he said, some blood came out of his mouth, I got my phone. I dialed 911." At trial, Mosley testified that Tillman died in the car. Mosley identified the knit cap that belonged to the shooter; however, Mosley did not identify the shooter. Floyd Edwards, a truck driver for Hoffman Furniture, testified that he was delivering furniture on the morning of the shooting near where the shooting occurred. He stated that, between 10:00 and 10:30 a.m., he saw two black males, one short and one tall, run past his parked truck and the tall man was carrying a revolver. Edwards claimed that the two men got into a car that was parked next to Edwards's truck. The driver of the car was a young woman. The car, said Edwards, "just took off" after the two black males got inside. Edwards could not identify the man who was carrying the revolver. On October 29, 2011, Cpl. Russell Benefield, a crime- scene investigator with the Mobile Police Department, recovered a bullet and a knit cap from the scene of the 5 1150036 shooting. Cpl. Benefield delivered the bullet and knit cap to Officer Charles Miller, a crime-scene investigator with the Mobile Police Department, who, in turn, delivered the bullet and knit cap to the Alabama Department of Forensic Sciences. Officer Miller also collected a cheek swab from Bryant to obtain a DNA sample. Detective Kent Quinnie of the Mobile Police Department accompanied Officer Miller to perform the cheek swab on Bryant. He testified that Bryant is 6'1" tall. Officer Anthony Sanchez of the Mobile Police Department testified that he worked as a probation officer at the Mobile County Community Corrections Center. He said that, on November 9, 2011, he transported Bryant from police headquarters to the Mobile Metro Jail so detectives there could collect a DNA sample from Bryant. Officer Sanchez testified that, during the trip, Bryant asked Officer Sanchez why detectives wanted to collect a DNA sample. Sanchez allegedly responded by tapping his head as if to say "think about it." Sanchez testified that Bryant reacted to the gesture by stating: "Oh, my hat." On July 30, 2012, Ashley Lee, a nurse at University of South Alabama Medical Center, collected a blood sample from Bryant. Lee testified that Bryant resisted having his blood 6 1150036 drawn and that police obtained the sample by court order. Donna Weaver Gibbons, who examines biological fluids and compares DNA profiles for the Alabama Department of Forensic Sciences, testified that she received a bloodstain card with blood taken from Tillman during his autopsy and that she received Bryant's cheek swab, which contained Bryant's DNA sample. She also received tubes containing Bryant's blood samples, as well as the knit cap recovered from the crime scene. According to the Court of Criminal Appeals, "Gibbons testified that the DNA found on the knit cap did not match the DNA from Tillman's bloodstain card." Moreover, the Court of Criminal Appeals stated that the cheek swab collected from Bryant "contained DNA from at least two individuals"; therefore, according to the Court of Criminal Appeals, Gibbons stated that she could not compare the DNA from the cheek swab with the DNA found on the knit cap. Gibbons nevertheless testified that when the DNA collected from Bryant's blood sample was compared to the DNA found on the knit cap, Bryant "was included as a potential contributor." She also indicated that, although there were at least two people's DNA on the knit cap, "[t]he probability of including a random individual 7 1150036 as a potential contributor to the mixture on the blue knit hat [was] approximately one of 10.2 million Caucasian individuals and one of 4.8 million African American individuals." Dr. Eugene Hart, a medical examiner for the Alabama Department of Forensic Sciences, testified that he performed the autopsy on Tillman. He observed gunshot wounds to Tillman's chest, back, right hip, and hand and concluded that those wounds caused Tillman's death. Hart also recovered a bullet from Tillman's upper right back. Stephanie Dees, a firearm and toolmark examiner for the Alabama Department of Forensic Sciences, testified that she received two "fired metal jacket bullet[s]" from the Mobile Police Department, in addition to a "fired metal jacket from the autopsy of Vincent Tillman." Dees stated that those items were "consistent with being fired from a .44 Magnum or .44 special caliber cartridge" and that a .44 Magnum was a revolver and possibly the type of gun from which the bullets had been fired. Two crucial details bother me about these facts. First, Floyd Edwards, the truck driver who saw two black men running near the scene of the crime, the taller of whom allegedly was carrying a gun, did not identify Bryant as the man he saw 8 1150036 running. The fact that Edwards identified the gun as a revolver is immaterial because there are no facts linking Bryant to a revolver, or, for that matter, to any gun. For instance, there is no evidence indicating that Bryant owned or borrowed a revolver or that a revolver was ever recovered in connection with Tillman's murder. Moreover, the fact that Bryant is a tall black man may not be sufficient to connect him to the unidentified tall black man seen near the crime scene. Second, Jermaine Mosley identified the knit cap as the cap dropped by the man who murdered Tillman but did not identify Bryant as the murderer. The fact that a knit cap was recovered at the crime scene does not by itself link Bryant to the crime if there is no evidence indicating that Bryant owned a knit cap or that he routinely wore a knit cap. The knit cap is, however, significant because the DNA taken from Bryant's blood sample showed that Bryant was, in the words of Donna Weaver Gibbons, an employee of the Alabama Department of Forensic Sciences, "a potential contributor" to the DNA found on the knit cap. Yet Gibbons also testified that the DNA of at least two individuals was present on the knit cap. 9 1150036 Moreover, Gibbons presented "underlying statistical evidence" regarding DNA found on the knit cap that may have created "'"a real danger that the jury [used] the evidence as a measure of the probability of [Bryant's] guilt or innocence."'" Ex parte Perry, 586 So. 2d 242, 254 (Ala. 1991)(quoting other cases and subsequently distinguished on other grounds). In particular, Gibbons testified that "[t]he probability of including a random individual as a potential contributor to the mixture on the blue knit hat is approximately one of 10.2 million Caucasian individuals and one of 4.8 million African American individuals." This Court explained in Perry: "The legal reasons for distinguishing between the admissibility of DNA 'matching' evidence and the admissibility of DNA population frequency statistics involve the potential impact of the population frequence testimony on the jury: DNA 'matching' testimony may say that everyone's DNA is unique, but the impact of that testimony is not as strong as quantitatively stating that 1 in 209,100,000 people might have DNA similar to the DNA in the blood found at the scene of the killing." 586 So. 2d at 254. I do not question the accuracy or value of Gibbons's testimony about DNA probability; instead, I point out that in Perry and other similar cases this Court has expressed 10 1150036 concerns about DNA-population-frequency evidence such as that presented by Gibbons. See also Ex parte Hutcherson, 677 So. 2d 1205, 1209 (Ala. 1996); Turner v. State, 746 So. 2d 355, 362 (Ala. 1998). The population-frequency evidence linked to the knit cap, combined with Bryant's exclamation –- "Oh, my hat" –- to Officer Anthony Sanchez of the Mobile Police Department after Sanchez pointed to his own head when Bryant asked why his DNA was needed, appears to be convincing. However, Bryant's exclamation can be easily misinterpreted. I am concerned that a rational finder of fact could not have, by fair inference, found Bryant guilty beyond a reasonable doubt. Ex parte Pilley, 789 So. 2d 888, 894 (Ala. 2000)(citing other cases). Based solely on the materials before us and on Bryant's allegations in his petition for a writ of certiorari, without having a record or the State's briefing to consider, I cannot conclude that the evidence was legally sufficient for the trial court to submit the issue of Bryant's guilt or innocence to the jury, even when I accord the State all legitimate inferences based on the evidence. Therefore, I would grant Bryant's petition for a writ of certiorari to consider all 11 1150036 available evidence to ensure that Bryant has received full and adequate appellate review of his claims. 12	January 29, 2015
060c82b6-37cb-47e8-8389-0c5ecbcaf629	Schulte v. Smith	708 So. 2d 138	1960476	Alabama	Alabama Supreme Court	708 So. 2d 138 (1997) William J. SCHULTE, M.D., and Pulmonary Associates of Mobile, P.A. v. Woodrow SMITH, as administrator of the estate of Annie Jo Smith, deceased. 1960476. Supreme Court of Alabama. December 19, 1997. W. Boyd Reeves, Robert J. Mullican, and Timothy D. Ryan of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., 139 Mobile; and D. Leon Ashford of Hare, Wynn, Newell & Newton, Birmingham, for appellants. Andrew T. Citrin, David G. Wirtes, Jr., and Kelli D. Taylor of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for appellee. SHORES, Justice. The opinion of September 12, 1997, is withdrawn and the following is substituted therefor. The only issue involved in this appeal is how post-judgment interest should be calculated. Both sides argue that the trial court's calculations are incorrect. We reverse and remand. On April 6, 1993, a jury returned a verdict of $4.5 million in favor of the plaintiff in this wrongful death/medical malpractice action. On April 23, 1993, the defendants moved to have the verdict reduced, pursuant to § 6-5-547, Ala.Code 1975, which limited the recovery permitted for wrongful death actions based on medical malpractice. On April 30, 1993, the trial court entered a $4.5 million judgment based on the jury's verdict. The defendants moved for a judgment notwithstanding the verdict. The plaintiff Smith, renewing an argument he had made during the trial, argued that § 6-5-547, Ala.Code 1975, limiting recovery in cases like this, was unconstitutional. Following post-verdict review of the damages award conducted pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), the trial court, on December 13, 1993, entered an order denying both the plaintiff's motion to declare § 6-5-547 unconstitutional and the defendants' motion for a judgment notwithstanding the verdict. The order reduced the jury's verdict to $1,276,873 (the maximum permitted by § 6-5-547). It stated that the "[j]udgment dated April 30, 1993, is altered, amended and corrected nunc pro tunc" to provide for damages of $1,276,873. On December 22, 1993, the defendants deposited $1,280,651.11 with the court clerk; that sum represented principal of $1,276,873 plus interest at 12% per annum for nine days (since December 13, 1993). The plaintiff appealed, challenging the constitutionality of § 6-5-547. The defendants cross-appealed, contending that the award was excessive. The money paid into court was placed into an interest-bearing account. On January 14, 1994, the plaintiff filed a motion with this Court seeking permission to withdraw the $1,280,651.11 that the defendants had deposited with the circuit court clerk on December 22, 1993. The plaintiff contended that he should be allowed to withdraw these funds and requested this Court to rule on whether he might do so while still preserving his pending appeal challenging the constitutionality of § 6-5-547. On February 15, 1994, this Court issued an order denying the plaintiff's request to withdraw the deposited funds. On August 18, 1995, this Court, in Smith v. Schulte, 671 So. 2d 1334 (Ala.1995), cert. denied, 517 U.S. 1220, 116 S. Ct. 1849, 134 L. Ed. 2d 950 (1996), held § 6-5-547, Ala.Code 1975, unconstitutional; it reinstated the April 30, 1993, judgment based upon the jury verdict, but ordered a remittitur to $2.5 million. The plaintiff accepted the $2 million remittitur, resulting in this Court's affirming a $2.5 million judgment. On October 25, 1995, the defendants deposited an additional $723,127 with the circuit court clerk. The defendants' petition to the United States Supreme Court for certiorari review was subsequently denied. Smith v. Schulte, supra. On July 26, 1996, the defendants paid $500,000 directly to the plaintiff, with the understanding that by accepting the payment the plaintiff was not waiving his claims to post-judgment interest. A dispute then arose between the parties concerning the amount of post-judgment interest due on the judgment. The defendants filed with the trial court a "Motion to Determine Interest." On December 2, 1996, the trial court ordered the defendants to "pay 12% per annum interest on the judgment of $2,500,000.00 from April 30, 1993 (the date of the original judgment on the jury's verdict) through the date defendants pay the whole recovery into Court or directly to Plaintiff." The trial court concluded that interest continued to accrue on the entire judgment principal until the judgment plus all accrued 140 post-judgment interest was paid because the trial court believed that under Elmore County Comm'n v. Ragona, 561 So. 2d 1092 (Ala. 1990), the plaintiff could not accept partial payment without creating an accord and satisfaction and thereby losing the right to collect the balance of the whole recovery. However, the trial court did allow the defendants a credit against the whole recovery for the deposits paid into court, interest earned on those deposits, and the $500,000 payment made to the plaintiff. The defendants appeal from this order. First, the defendants disagree with the date from which the trial court held that post-judgment interest began to accrue, April 30, 1993; that was the date the trial court entered a judgment on the jury's verdict. They contend that post-judgment interest should accrue from December 13, 1993, when the trial court entered the order reducing the April 30, 1993, judgment from $4.5 million to the limit specified in § 6-5-547, Ala.Code 1975. "Section 8-8-10, Ala.Code 1975, states that all `[j]udgments for the payment of money, other than costs,' bear interest from the date of judgment." Smith v. MBL Life Assurance Corp., 604 So. 2d 406, 407 (Ala.1992). Rule 37, Ala. R.App. P., provides: Based on established law, we conclude that the final judgment in this case, for the purposes of calculating post-judgment interest, was entered on April 30, 1993. Lunceford v. Monumental Life Ins. Co., 641 So. 2d 244 (Ala.1994); Ford Motor Co. v. Tunnell, 641 So. 2d 1238 (Ala.1994); Bean v. Craig, 557 So. 2d 1249 (Ala.1990).[1] See also United States v. Michael Schiavone & Sons, Inc., 450 F.2d 875 (1st Cir.1971); Smith v. MBL Life Assurance Corp., supra; Elmore County Comm'n v. Ragona, supra; Brooks v. United States, 757 F.2d 734 (5th Cir.1985); and Northern Natural Gas Co. v. Hegler, 818 F.2d 730 (10th Cir.1987). In Berry v. Druid City Hospital Board, 333 So. 2d 796 (Ala.1976), this Court dealt with a situation in which the trial court set aside a judgment it had entered for the plaintiff based on a jury verdict. This Court reinstated the judgment based on the verdict. It held that the date from which post judgment interest began to accrue on the plaintiff's judgment that was reinstated on appeal was the date the original judgment was entered in the trial court. The Court quoted approvingly the Supreme Court of Utah, which had said: Hewitt v. General Tire & Rubber Co., 5 Utah 2d 379, 302 P.2d 712, 713 (1956), as quoted in Berry, 333 So. 2d at 805. We conclude that interest on the remitted judgment (i.e., the $2.5 million judgment) accrues from the date the trial court entered the original judgment, to the same extent and with the same force as though the trial court had never entered its order reducing the amount of that judgment. See Berry, supra. The trial court correctly decided that the judgment was entered on April 30, 1993, for purposes of determining post-judgment interest. The defendants next argue that the trial court erred in concluding that interest continues to accrue on the entire judgment principal until the whole recovery is paid, despite the fact that the defendants have deposited into court and paid directly to the 141 plaintiff a total amount slightly greater than the $2.5 million judgment principal. Indeed, the plaintiff agrees with the defendants that the trial court erred in its calculations because, he concedes, interest did not continue to accrue on the entire judgment principal even after the defendants had made the two deposits into court and the payment to the plaintiff. Rather, it is uncontested on appeal that the deposits made on December 22, 1993, and October 25, 1995, and the payment made on July 26, 1996, should have been treated as "partial payments" of the judgment and that the amount of each deposit and payment should have been credited on the date of payment, first to pay all accrued interest on the judgment, and the balance applied to reduce the principal. See § 8-8-11, Ala.Code 1975.[2] Because the parties agree that the three payments made in this case should be treated as partial payments on the judgment from the time paid, pursuant to § 8-8-11, Ala. Code 1975, the amount of each payment should be applied first to pay all accrued interest on the unpaid balance of principal as of the time of the payment, with the balance applied to reduce the principal. The date of the judgment, for purposes of calculating post-judgment interest, is April 30, 1993, and, thereafter, each time a partial payment was made, interest is calculated on the reduced principal from the date of the partial payment. The judgment of the trial court is reversed, and the case is remanded for recalculation of the amount due on the judgment. OPINION OF SEPTEMBER 12, 1997, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED. HOOPER, C.J., and KENNEDY, COOK, and BUTTS, JJ., concur. SEE, J., concurs in the result.[] MADDOX and HOUSTON, JJ., dissent. SEE, Justice (concurring in result). Although I appreciate the concerns expressed in the dissenting opinion written by Justice Maddox and joined by Justice Houston, I concur in the result reached in the main opinion because I believe the validity of § 6-5-547, Ala.Code 1975, is not properly before this Court in this appeal. MADDOX, Justice (dissenting). The Legislature of Alabama, in 1987, adopted legislation limiting the amount of damages a party could recover against a health care provider. Act No. 87-189, § 8, Ala. Acts 1987. Section 8 was codified at Ala.Code 1975, § 6-5-547.[3] The main opinion 142 concluded that § 6-5-547 violated the equal protection guarantees of the Alabama Constitution and the right of trial by jury as guaranteed by § 11 of that Constitution. Smith v. Schulte, 671 So. 2d 1334 (Ala.1995). I dissented in that case, as I did in Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala. 1991), where this Court struck down another section of Act No. 87-189 as violating the Alabama Constitution. I believe that my dissents in those two cases correctly state the lawthat the Legislature had the power to limit the amount of penalty a plaintiff can recover against a medical care provider. Because this case involves an award of punitive damages, I believe that what I said in those two dissents is even more correct now, in view of what the Supreme Court of the United States has recently said about the requirements of the Federal Constitution relating to the notice a State must provide before it can hold one liable for punitive damages in a civil action. See, BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). HOUSTON, J., concurs. [1] The time for filing a notice of appeal from a judgment begins to run on the date the judgment is entered. Ala.R.App.P. 4(a)(1). Filing a post judgment motion pursuant to Ala.R.Civ.P. 50, 52, 55, or 59 suspends the running of the time for filing a notice of appeal, but during the suspension post-judgment interest accrues. Ala.R.App.P 4(a)(1); see Elmore County Comm'n v. Ragona, supra, 561 So. 2d at 1097 n. 2 (stating that interest on the judgment continues to accrue while post-judgment motions are pending). [2] On application for rehearing, the plaintiff contends that the deposit of $1,280,651.11 made by the defendants to the court on December 22, 1993, should not have been credited as a "partial payment" of the judgment until August 18, 1995, the date of our opinion in Smith v. Schulte that concluded his original appeal. He argues that this Court's order of February 15, 1994, denied that he might withdraw these deposited funds without forfeiting his then pending appeal regarding the constitutionality of § 6-5-547, Ala. Code 1975. He argues that he was faced with a Hobson's choice of either forfeiting post-judgment interest from December 22, 1993, until the conclusion of his appeal, or forfeiting his claim on appeal that he was entitled to damages in excess of the cap imposed by § 6-5-547. Thus, he maintains that the December 22, 1993, deposit was "out of his reach" until his appeal was concluded, so he is entitled, he claims, to post judgment interest until he could unconditionally exercise control over the funds. See Elmore County Comm'n v. Ragona, supra. However, this argument was raised for the first time on application for rehearing, and therefore will not be considered. Stover v. Alabama Farm Bureau Ins. Co., 467 So. 2d 251 (Ala.1985); Kirkland v. Kirkland, 281 Ala. 42, 198 So. 2d 771 (1967). [] Note from the reporter of decisions: When the opinion in this case was released on September 12, 1997, Justice See concurred in the result and issued a special opinion. When the Court, on December 19, 1997, withdrew its September 12, 1997, opinion and issued another opinion, Justice See was incorrectly shown as concurring in the December 19, 1997, action and not writing. The December 19, 1997, action, with the error, was reported in the Southern 2d advance sheet. By order of the Supreme Court dated July 8, 1998, the December 19, 1997, action was corrected to accurately reflect Justice See's vote and to include his special writing. [3] Section 6-5-547 reads: "In any action commenced pursuant to Section 6-5-391 or Section 6-5-410, against a health care provider whether in contract or in tort based on a breach of the standard of care the amount of any judgment entered in favor of the plaintiff shall not exceed the sum of $1,000,000. Any verdict returned in any such action which exceeds $1,000,000 shall be reduced to $1,000,000 by the trial court or such lesser sum as the trial court deems appropriate in accordance with prevailing standards for reducing excessive verdicts. During the trial of any action brought pursuant to Section 6-5-391 or 6-5-410 neither the court nor any party shall advise or infer to the jury that it may not return a verdict in excess of $1,000,000; in the event the jury is so advised or such inference is made the court, upon motion of an opposing party, shall immediately declare a mistrial. The maximum amount payable under this section, $1,000,000, shall be adjusted on April fifteenth of each year to reflect any increase or decrease during the preceding calendar year in the consumer price index of the United States Department of Commerce. Said adjustment shall equal the percentage change in the consumer price index during the preceding calendar year."	December 19, 1997
d2fcdd13-398a-4bb1-9313-c21ab0955951	Ex Parte Indus. Technologies, Inc.	707 So. 2d 234	1961571	Alabama	Alabama Supreme Court	707 So. 2d 234 (1997) Ex parte INDUSTRIAL TECHNOLOGIES, INC., and Richard Hill. (In re Jacobs BANK v. AMERICAN DETENTION PRODUCTS, INC., et al.). 1961571. Supreme Court of Alabama. December 5, 1997. John A. Taber of Taber, Rountree, Singleton & Lyons, P.C., Montgomery; Donald G. Madison, Montgomery; and Jon M. Folmar of Folmar & Folmar, P.C., Troy (The petitioners' reply brief listed Mr. Taber's firm as Taber & Associates, Fairhope.), for petitioner. John F. Porter III of Livingston & Porter, Scottsboro, for respondents. HOUSTON, Justice. Industrial Technologies, Inc., and its owner, Richard Hill, defendants in an action pending in the Jackson Circuit Court, petition for a writ of mandamus directing Judge Randall L. Cole to set aside the following order and to enter a judgment in their favor: A writ of mandamus is a drastic and extraordinary remedy, to be issued only where the movant has a clear and indisputable right to the order sought. Ex parte Preston Hood Chevrolet, Inc., 638 So. 2d 842 (Ala.1994). The issue presented is whether the petitioners have a clear and indisputable right to require the trial court to enter a judgment on the September 24, 1996, "Amended Mediation/Arbitration Order." Resolution of this issue ultimately depends upon whether the October 20, 1995, stipulation of agreement between the parties was an enforceable settlement agreement, under the rule stated in Brocato v. Brocato, 332 So. 2d 722, 724 (Ala.1976) ("agreements [made in settlement of litigation] are as binding on the parties as any other contract into which they may enter, and will not be set aside except for fraud, collusion, accident, surprise or some ground of this nature"), or whether the parties, in fact, failed to agree on material aspects of how the case was to be resolved by Judge Snodgrass, thereby rendering the stipulation of agreement unenforceable, under the rationale of Ingram v. Pollock, 557 So. 2d 1199 (Ala.1989) (holding that there was no "`meeting of the minds' with regard to the final terms and execution of a valid and binding settlement agreement"). After carefully reviewing the record, we cannot hold that Judge Cole's order is clearly erroneous. Without detailing here all of the evidence (which includes numerous items of correspondence between the attorneys and between the attorneys and Judge Snodgrass), suffice it to say that we agree with the trial court that the October 20, 1995, stipulation of agreement contemplated a process or framework by which this litigation would be resolved by Judge Snodgrass, but only after certain "ground rules" had been agreed upon by the parties. As the trial court noted: The record indicates that the parties engaged in extensive negotiations following the October 20, 1995, stipulation of agreement in an attempt to further define the agreement and to resolve the various differences that arose concerning the list of the property to be evaluated, the appraisal process, etc., and at one point it appeared that the whole process would collapse. (In fact, in a letter to the defendants' attorneys dated June 2, 1996, Judge Snodgrass stated: "I plan to terminate the mediation on June 30, 1996, if all matters are not resolved by then.") Although it is apparent from the record and the briefs that the participants never fully agreed as to the exact nature of this process, i.e., whether it was mediation, arbitration, or a combination of the two, the bottom line is that the parties appear to have agreed that Judge Snodgrass's resolution of the controversy (his calculation of damages) was to be based, in part, upon a formula agreeable to the parties. The record supports the trial court's finding that the parties never reached an understanding as to the correct formula for Judge Snodgrass to use in calculating the damages. Indicative of the difficulty that the parties had in resolving their differences is the following portion of a communication from the respondent bank's attorney to Judge Snodgrass on September 12, 1996, only six days before Judge Snodgrass entered his September 18, 1996, order: This communication was in response to another item of correspondence from the attorney for one of the petitioners to Judge Snodgrass in which the attorney objected to the formula set out by Judge Snodgrass in a proposed order that he had presented to the attorneys on or about September 11, 1996. That correspondence read as follows: We also note that on September 17, 1996, the day before Judge Snodgrass entered his September 18, 1996, order, the attorney for Jacobs Bank was still objecting to the manner in which the appraisal of the property was being conducted. The material disagreement as to how Judge Snodgrass was to resolve this dispute indicates that, although there was considerable effort put forth by the parties, the attorneys, and Judge Snodgrass in an attempt to settle the issues, the parties never had a meeting of the minds with regard to the final methodology by which Judge Snodgrass was to make his decision and, therefore, that Judge Snodgrass's order was unenforceable as a matter of law. Ingram v. Pollack, supra. WRIT DENIED. HOOPER, C.J., and MADDOX, KENNEDY, COOK, and SEE, JJ., concur. [1] Judge Snodgrass entered an order on September 18, 1996; he amended the order on September 24, 1996, to correct an error in the designation of the parties.	December 5, 1997
8637cc97-865a-4bd5-bb40-93eb099706dc	Ex parte Don Davis	N/A	1140456	Alabama	Alabama Supreme Court		February 11, 2015
8e3ad398-c857-4335-bbb8-5247419f3282	Ex parte Jami L. McLendon.	N/A	1141134	Alabama	Alabama Supreme Court	Rel:01/29/2016 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, 2015-2016 ____________________ 1141134 ____________________ Ex parte Jami L. McLendon PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Jami L. McLendon v. John David Mills, Jr.) (Crenshaw Circuit Court, DR-12-7.03; Court of Civil Appeals, 2140389) BOLIN, Justice. WRIT QUASHED. NO OPINION. 1141134 Moore, C.J., and Main and Bryan, JJ., concur. Murdock, J., concurs specially. 2 1141134 MURDOCK, Justice (concurring specially). I concur in quashing the writ in this case. I write separately to note that I would be open, in an appropriate case, to reexamining the issue whether the standard set out in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), rather than the standard set out in Ex parte Couch, 521 So. 2d 987 (Ala. 1988), should be applied to a petition to modify custody where joint physical custody has been maintained for a meaningful period pursuant to a prior court order. 3	January 29, 2015
3599fdd3-3add-436b-92be-e1c9552303de	Finley v. Patterson	705 So. 2d 834	1951647	Alabama	Alabama Supreme Court	705 So. 2d 834 (1997) Roosevelt FINLEY v. W. T. PATTERSON, et al. 1951647. Supreme Court of Alabama. December 15, 1997. C. Michael Benson, Auburn; Timothy Davis, Alexander City; and J. Tom Radney, Alexander City, for appellant. Micheal S. Jackson of Beers, Anderson, Jackson & Smith, P.C., Montgomery, for W. T. Patterson, as administrator. Prior report: 705 So. 2d 826. The motions for disclosure and to stay issuance of certificate of judgment, and the response thereto. having been filed and duly submitted to the Court, IT IS ORDERED that the motions for disclosure and to stay issuance of certificate of judgment are denied. HOOPER, C.J., concurs. MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur specially. MADDOX, Justice (concurring specially). Act No. 95-648, Ala. Acts 1995, is not effective as to me. See Justice Houston's special concurrence. 835 HOUSTON, Justice (concurring specially). Act No. 95-648, Ala. Acts 1995 ("the Act"), provides in pertinent part: "All acts required under [this Act] shall begin with the first election after the effective date of this Act [January 1, 1996]." I was last elected to a term that began in January 1993; therefore, the Act is not now effective as to me. If the Act is still in effect after any next election, I will comply with it. COOK, Justice (concurring specially). Through counsel, the appellant has filed a "Motion for Disclosure," pursuant to Ala. Code 1975, § 12-24-2, and a "Motion to Stay Issuance of Certificate of Judgment." Section 12-24-2 was signed into law as Act No. 95-648, Ala. Acts 1995, on July 31, 1995; it applies to elections occurring after the effective date of the statute, January 1, 1996. The statute addresses disclosure statements for campaign contributions and recusal, if the amount of a contribution to a Judge or Justice of an appellate court exceeds $4,000. I concur to deny these motions. Notwithstanding that enforceability of the act is in legal limbo, I write specially because, assuming enforceability, the appellant has made no showing that the contribution level that would trigger the operation of the act has been reached. Although I will not address the merits of the enforceability of § 12-24-2,[1] I will address 836 the language of Act No. 95-648. The Act, by its terms, applies to elections occurring on or after January 1, 1996. The movant has not presented to this Court any evidence that any Justice voting in the majority has, in an election occurring on or after the effective date of the Act, received a contribution exceeding $4,000 from any party involved in this case so as to trigger the recusal provisions of the statute. The Fair Campaign Practices Act requires that a judge file with the secretary of state an annual report of contributions in excess of $100. Upon filing, the disclosure is a public record. Thus, records of contributions, if any, to the Justices who voted in the majority in this case are readily accessible. Furthermore, five of the six Justices voting in the majority have not run for election or commenced a new term of office on or after the effective date of the Act. Hypothetically, if the Justice that commenced a term of office after the effective date of the act recused himself the result in this case would not be affected. For the reasons expressed, I agree that this motion is properly due to be denied. ALMON, SHORES, KENNEDY, and BUTTS, JJ., concur. SEE, Justice (concurring specially). After the release of the opinion in his case, Finley v. Patterson, 705 So. 2d 826 (Ala.1997), Roosevelt Finley has raised for the first time the application of Act No. 95-648, Ala. Acts 1995 (codified at Ala.Code 1975, §§ 12-24-1 and -2), to his appeal. He has filed two motions: (1) a "Motion for Disclosure"; and (2) a "Motion to Stay Issuance of Certificate of Judgment." Finley's motions must be denied. He waived the right to assert the application of the act's recusal provisions to his case, because, with knowledge of the recusal provisions he did not raise the matter before the release of this Court's opinion. See Dominex, Inc. v. Key, 456 So. 2d 1047, 1058 (Ala.1984) ("Waiver ... is the voluntary and intentional surrender of a known right."); see generally Austin v. Pepperman, 278 Ala. 551, 572, 179 So. 2d 299, 319 (1965) (stating that this Court will not ordinarily address issues raised for the first time on rehearing, i.e., after the release of the opinion). [1] I say the enforcement of this statute is in legal limbo for the following reasons: The attorney general of the State of Alabama submitted Act No. 95-648 to the Department of Justice of the United States for preclearance under Section 5 of the Voting Rights Act. Thereafter, the Department of Justice responded by letter dated July 23, 1996 to the attorney general stating that on May 20, 1996, the attorney general of Alabama withdrew Act No. 95-648 from submission, on the basis that no portions of the act were subject to the preclearance requirement. Disagreeing with the attorney general of Alabama in the July 23, 1996 letter, the Department of Justice took the position that Act No. 95-648 required preclearance. Specifically, the United States Department of Justice's letter states: "We remind you that unless the State of Alabama receives a declaratory judgment from the United States District Court for the District of Columbia or the Attorney General imposes no objection to the voting changes in Act No. 95-648, they are not legally enforceable. See Clark v. Romer [Roemer], 500 U.S. 646 [111 S. Ct. 2096, 114 L. Ed. 2d 691] [(1991)]; 28 C.F.R. 51.10." The attorney general of Alabama responded to the Department of Justice by letter dated July 30, 1996, stating, inter alia, the following: "The State of Alabama will enforce Act No. 95-648, and the attorney general of Alabama will not submit this law for preclearance. Section 5 does not apply. If you disagree, we respectfully suggest that you proceed to enforce your interpretation of Section 5 in this context." Thereafter, the attorney general of Alabama by letter dated May 16, 1997, submitted to the Department of Justice Canon 7 of the Canons of Judicial Ethics for preclearance under Section 5 of the Voting Rights Act of 1965. The Department of Justice, by letter dated July 18, 1997, to the attorney general of Alabama, indicated that no objections were being interposed to Canon 7. Additionally, the Department of Justice's letter stated the following in regard to Act. No. 95-648: "This also refers to Act No. 648 (1995), which provides for disclosure statements regarding campaign contributions to justices and judges of the state appellate and circuit courts in the State of Alabama. Your office originally submitted this act to the Attorney General pursuant to Section 5 on March 14, 1996. We requested additional information regarding your submission on May 13, 1996, and on May 24, 1996, then Alabama Attorney General Jeff Sessions withdrew the submission from Section 5 review, asserting that Act No. 648 (1995) contained no changes affecting voting subject to Section 5. We responded on July 23, 1996, acknowledging the withdrawal of the submission, disagreeing with the Attorney General's reasoning, and requesting that Act No. 648 be resubmitted for Section 5 review. Copies of our correspondence are enclosed. "Our records fail to show that we have received a response from your office to our July 23, 1996, letter. We note that unless the State of Alabama receives a declaratory judgment from the United States District Court for the District of Columbia or the Attorney General interposes no objection to the specified changes, they are not legally enforceable. Clark v. Romer [Roemer], 500 U.S. 646, 111 S. Ct. 2096, 114 L. Ed. 2d 691 (1991); 28 C.F.R. 51.10. "While we continue to adhere to the views expressed in our most recent letter, we now find further support for our position in Alabama Attorney General Opinion No. 97-00156 (Apr. 3, 1997), which determined that Canon 7 required Section 5 preclearance. We request that your office reconsider its previously expressed position in light of the 1997 [Alabama] Attorney General opinion. "To enable us to meet our responsibility to enforce the Voting Rights Act, please inform us of the action the State of Alabama plans to take concerning this matter." I am unaware of any information indicating that these differences in opinion and position between the attorney general of Alabama and the United States Department of Justice have been resolved.	December 15, 1997
c5e2ce7a-9cc2-4e97-92aa-fae77225dc9b	Ex Parte Price	707 So. 2d 1105	1961872	Alabama	Alabama Supreme Court	707 So. 2d 1105 (1997) Ex parte Walter J. PRICE, Jr. (In re Lyndell L. ROBINSON v. Walter J. PRICE, Jr.). 1961872. Supreme Court of Alabama. November 14, 1997. Samuel H. Franklin and James R. Sturdivant of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioner. Julian D. Butler and J. Jeffery Rich of Sirote & Permutt, P.C., Huntsville, for respondent Judge Joseph L. Battle. MADDOX, Justice. This petition for a writ of mandamus arises out of a pending civil action. The issue presented is whether, considering the protections against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution, the trial court abused its discretion in denying the petitioner's request for a protective order while there is a possibility of a criminal action being brought against him arising out of the same circumstances that gave rise to this civil action. The underlying action arises out of an administration of a number of probate estates in Madison County by Walter J. Price, Jr., the county administrator. Among those estates was that of Joe Thomas Robinson, whose sole heir was Lyndell L. Robinson. In July 1996, Lyndell L. Robinson sued Price, alleging that Price had converted estate assets to his own use. At some point before December 16, 1996, Price apparently became aware that he was the target of a criminal investigation being conducted by the Federal Bureau of Investigation in conjunction with the office of the United States attorney for the Northern District of Alabama. On that date, he moved for a stay of the civil proceedings against him, claiming that allowing the Robinson action to 1106 proceed would force him to choose between exercising his Fifth Amendment right against self-incrimination and fully defending himself in the civil action. The trial judge denied that motion. Price subsequently petitioned this Court for a writ of mandamus directing the trial court to stay the civil proceedings, but this Court, on June 13, 1997, denied that petition, holding that the action could proceed in some limited ways without abridging Price's Fifth Amendment right. Ex parte Price, 698 So. 2d 111 (Ala.1997). It appears that in July 1997 Price was charged by the United States attorney for the Northern District of Alabama with defrauding one of the estates he had administered. On May 9, 1997, Price was indicted by a Madison County grand jury on four counts of first-degree theft. The indictment charged that Price had stolen money from four of the estates he had administered. The Robinson estate was not one of those four. In a hearing in the criminal case, case no. CC-97-1072, before Judge Joseph L. Battle, on August 4, 1997, Assistant District Attorney James R. Accardi stated that it was possible that further state grand jury indictments could result from the continuing investigation of Price's administration of estates. In our denial of Price's first petition for a writ of mandamus, we held that "discovery not requiring Price either to testify or to produce documents could continue without putting Price in a position that might call for him to incriminate himself in order to comply." Ex parte Price, supra, 698 So. 2d at 112. After this Court denied the writ of mandamus, the trial court set the civil action for trial. Robinson subsequently sought to take Price's deposition. On August 5, 1997, Price filed a motion asking the trial court to quash the deposition notice and to issue a protective order that would prevent his deposition from being taken until the ongoing state and federal criminal investigations were resolved. Judge Battle denied that motion, stating that Price could assert his Fifth Amendment privilege as to individual questions as they were put to him during a deposition. Price then filed this petition for a writ of mandamus, asking this Court to compel Judge Battle to issue such a protective order. It is well established that the writ of mandamus is an extraordinary measure. Granting a writ of 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 Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991). We have previously noted that the Fifth Amendment right against self-incrimination applies in civil proceedings. Ex parte Coastal Training Institute, 583 So. 2d 979, 980 (Ala.1991). Similarly, we have held: "[t]he pendency of criminal charges is not necessary to the assertion of the privilege. It is a general rule that [one] need not be indicted to properly claim the Fifth Amendment privilege." Id. at 981. A party may claim a Fifth Amendment privilege if he or she "reasonably apprehends a risk of self-incrimination." Id., quoting Ex parte Baugh, 530 So. 2d 238, 240 n. 2 (Ala.1988). To determine whether a stay or protective order should issue in such circumstances, the trial court must weigh the movant's interest in postponing the civil action against the prejudice that may result to the other party because of delay. Ex parte White, 551 So. 2d 923 (Ala.1989). We believe that Price has shown a risk of substantial injury. The criminal investigations into his administration of estates are ongoing. The assistant district attorney stated to the trial court that it was possible that Price may face additional indictments growing out of the state investigation. Price faces trial in both state and federal courts for crimes arising out of his administration of certain estates in Madison County. To require Price, under those conditions, to be deposed or to turn over documents would force upon him the choice of asserting his Fifth Amendment right or participating fully in his defense in the civil case. The countervailing harm to Robinson of delay in the civil proceedings has not been addressed by either 1107 Price or the trial judge in their briefs, but Price's Fifth Amendment right and the substantial harm he is likely to suffer if he is required to undergo a deposition, we believe, requires us to apply the principle of law that "we must favor the constitutional privilege against self-incrimination over the interest in avoiding the delay of a civil proceeding." Coastal Training, 583 So. 2d at 981. To argue that Price can simply assert his Fifth Amendment right to remain silent when asked specific questions during a deposition, and that the deposition should therefore be allowed, is to construe the Fifth Amendment too narrowly. This Court has previously pointed out the potential dangers of that narrow interpretation. They include the potential "surreptitious planting of criminal investigators in civil depositions" and the possibility that information revealed in the deposition may in a later criminal action provide a "link in the chain of evidence" against the deponent. Coastal Training at 981. Weighing the interests of the parties upon our review of the facts of this case, we conclude that Price has shown sufficient justification for a protective order and that the necessary elements for the issuance of a writ of mandamus are met. Accordingly, we hold that the trial court abused its discretion in denying such an order. We therefore grant the petition for the writ of mandamus and direct the trial court (1) to vacate its order denying Price's motion for an order quashing the deposition notice and for a protective order, and (2) to enter an appropriate protective order consistent with this opinion. WRIT GRANTED. HOOPER, C.J., and SHORES, KENNEDY, and SEE, JJ., concur.	November 14, 1997
44dcc526-f57f-4ee3-9bc9-18dfc6370501	Regions Bank v. BP P.L.C. et al.	N/A	1141170	Alabama	Alabama Supreme Court	01/29/2016 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, 2015-2016 _________________________ 1141170 _________________________ Regions Bank v. BP P.L.C. et al. Appeal from Baldwin Circuit Court (CV-10-901491) MAIN, Justice. Regions Bank ("Regions") appeals from a final judgment dismissing its action against BP P.L.C., BP Corporation North America, Inc., and BP America Inc. (hereinafter referred to collectively as "BP"). We reverse and remand. 1141170 I. Facts and procedural history On April 20, 2010, an explosion and fire occurred aboard the Deepwater Horizon, an offshore-drilling rig, located off the coast of Louisiana. The incident led to a massive discharge of oil into the Gulf of Mexico, which, in turn, spawned an expansive clean-up and response operation by BP and various governmental agencies. Regions owns coastal real property located in Baldwin County, Alabama. On August 13, 2010, Regions filed this trespass action against BP in the Baldwin Circuit Court. Regions alleged that BP occupied Regions' property, without authorization, for its spill-response operation; that BP moved equipment and structures onto the property without permission; and that BP erected fences and barriers on the property, again, without permission. Regions further alleged that BP stored hazardous materials and waste on the property and that those hazardous materials and waste damaged the property. Contemporaneous with Regions' action, on August 10, 2010, the United States Judicial Panel on Multidistrict Litigation entered an order centralizing all federal actions relating to the Deepwater Horizon incident in the United States District 2 1141170 Court for the Eastern District of Louisiana. Eventually, hundreds of cases with thousands of individual claimants were consolidated into the multidistrict litigation ("the MDL"). In 2011, BP and the plaintiffs' steering committee in the MDL began discussions regarding a class-wide settlement. In early 2012, BP and the plaintiffs' steering committee reached a settlement agreement relating to economic and property damage. On May 2, 2012, the federal district court in the MDL preliminarily approved the economic-and-property-damage settlement and preliminarily conditionally certified a class for the purposes of settlement. On November 8, 2012, following notice to the putative class members, an opt-out period, and a fairness hearing, the federal district court entered its final judgment approving the economic-and- property-damage class settlement. On April 23, 2015, BP filed a Rule 12(c), Ala. R. Civ. P., "motion to dismiss" Regions' trespass action on the ground that it was subject to the class-action settlement approved in the MDL and, therefore, that dismissal was warranted on the basis of the doctrine of res judicata. Specifically, BP 1 Initially, on February 12, 2013, BP moved to stay the 1 proceedings in Regions' trespass action on the ground that 3 1141170 argued that, because the property damage suffered by Regions was within the geographic area designated by the class settlement and arising from the Deepwater Horizon oil spill, Regions was a class member in the economic-and-property- damage-settlement class. BP contended that, because Regions had not opted out of the class, its trespass claim had been released under the terms of the settlement. On May 12, 2015, the circuit court entered a one-sentence order granting BP's motion to dismiss. Regions timely appealed. II. Standard of Review BP's motion was styled as a Rule 12(c) "motion to dismiss" for failure to state a claim upon which relief can be granted. In support of its motion, BP attached several exhibits that evidenced the class-wide settlement approved in the MDL. Ordinarily, consolidation by the court of materials outside the pleadings converts a motion to dismiss -- or a Regions' claims were included within the claims settled by the economic-and-property-damage class-action settlement approved in the MDL. BP contended that the case was due to be stayed while the order approving the class settlement was on appeal. The Baldwin Circuit Court stayed the trespass action. The class settlement became effective on December 8, 2014, following the exhaustion of all further grounds for appellate review. The Baldwin Circuit Court lifted the stay on January 12, 2015. 4 1141170 Rule 12(c) motion for judgment on the pleadings -- into a motion for a summary judgment. Barry v. The D.M. Drennen & Emma Houston Drennen & Drennen Mem'l Trust of Saint Mary's Church, 982 So.2d 478, 482-83 (Ala. 2007); Rule 12(c), Ala. R. Civ. P. ("If ... matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment ...."). Moreover, the doctrine of res judicata was the basis of the motion to dismiss. We have noted that a res judicata defense will typically require evidence outside the pleadings and therefore must ordinarily be raised in a motion for a summary judgment. See Ex parte Scannelly, 74 So. 3d 432, 438-89 (Ala. 2011). Here, the circuit court accepted evidentiary material outside the pleadings from BP in support of its motion to dismiss. Regions was provided the opportunity to respond, and it submitted its own evidence in opposition to the motion. In granting BP's motion on the ground of res judicata, the circuit court necessarily considered materials outside the pleadings concerning the class-action settlement. Thus, BP's motion was converted to a motion for a summary judgment. Boles v. Blackstock, 484 So. 2d 1077, 1079 (Ala. 1986) 5 1141170 ("[W]here matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment as provided in Rule 12(c), [Ala.] R. Civ. P., regardless of its denomination and treatment by the trial court."); see also Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So. 2d 784, 792 (Ala. 2007). Accordingly, our standard of review 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).'" Lloyd Noland, 979 So. 2d at 793 (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346 (Ala. 2006)). III. Analysis In this case the circuit court concluded that Regions' claim was due to be dismissed based on the doctrine of res 6 1141170 judicata. That doctrine bars a party from asserting a claim 2 when there is: "(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." Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998). A class-action settlement may serve as a judgment on the merits for res judicata purposes. See Alabama Dep't of Transp. v. Price, 854 So. 2d 59, 63 (Ala. 2003). In this case, Regions concedes that if it is bound by the class settlement, the settlement agreement would encompass its trespass claim asserted against BP. Regions, however, contends that it is not bound by the settlement agreement because, Regions argues, it was expressly excluded from the class definition. Thus, only the third element –- identity of the parties -– is in dispute. Accordingly, the only question before this Court is whether Regions was a member of the economic-and-property- damage-settlement class. The circuit court did not provide its rationale for 2 granting BP's motion, but res judicata was the only ground asserted in the motion. 7 1141170 The federal district court's judgment approving the class-action settlement defined membership in the economic- and-property-damage-settlement class. That definition provides that a person or entity is a member of the class if it incurred certain types of damage within a specified geographical area and did not otherwise fall within certain excluded categories. The definition provides, in pertinent part: "(a) Class Definition "Economic and Property Damages Settlement Class shall mean the NATURAL PERSONS and ENTITIES defined in this Section 1, subject to the EXCLUSIONS in Section 2 below. If a person or entity is included within the geographical descriptions in Section 1.1 or Section 1.2, and their claims meet the descriptions of one or more of the Damage Categories described in Section 1.3, that person or entity is a member of the Economic and Property Damages Settlement Class, unless the person or entity is excluded under Section 2: ".... "1.2. Entities. All Entities doing business or operating in the Gulf Coast Areas or Specified Gulf Waters that: ".... "1.2.4. owned or leased REAL PROPERTY in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012. 8 1141170 "1.3 Individuals and Entities who meet the geographical descriptions of Section 1.1 or 1.2 above are included in the Economic Class only if their Claims meet the descriptions of one or more of the Damage Categories described below. "1.3.1. The following are summaries of the Damage Categories, which are fully described in the attached Exhibits 1A-15: ".... "1.3.1.6. Coastal Real Property Damage Category. Damages alleged by a Costal Real Property Claimant that meet the requirements set forth in the Coastal Real Property Claim Framework. ".... "1.3.1.11. Businesses/Employers in Otherwise Excluded Gaming, Banking, Insurance, Funds, Defense Contractors and Developers Industries: As more fully described in Exhibit 16 and Section 5.10 below, businesses and employers in these otherwise excluded industries described in Section 2 may submit Claims only for Coastal Real Property Damage and Wetlands Real Property Damage, but are not entitled to recover under any other aspect of the Settlement. ".... "(b) Exclusions from the Economic and Property Damages Settlement Class Definition "2.1. Notwithstanding the above, the following individuals and Entities, including any and all of their past and present predecessors, 9 1141170 successors, personal representatives, agents, trustees, insurers, reinsurers, indemnitors, subrogees, assigns, and any other Natural Person, legal or juridical person or Entity entitled to assert any Claim on behalf of or in respect of any such individual or Entity in their respective capacities as such are excluded from the Economic Class. "2.2. Excluded Individuals or Entities: ".... "2.2.4. The following exclusions are based on the substantive nature of the business, not the legal or juridical form of that business. Any of the following types of Entity, or any Natural Person to the extent he or she alleges Economic Damage based on their employment by such an Entity, during the Class Period are excluded: "2.2.4.1. F i n a n c i a l Institutions as identified in the NAICS codes listed on Exhibit 18, which include, by way of example, commercial banks; savings institutions; credit card issuers; credit insurers; factors or other sales finance entities; financial or investment banking entities; lending institutions; real estate mortgage or lending entities; brokers or dealers of securities, commodities, commodity contracts or loans; securities or commodities exchanges; entities serving as custodians, fiduciaries or trustees of securities or other financial assets; or entities 10 1141170 engaged in other financial transaction intermediation, processing, reserve or clearinghouse activities, provided, that the following shall not be excluded solely pursuant to this Section 2.2.4.1 unless they are subject to a different exclusion: stand-alone ATMs, credit unions, pawn shops, businesses engaged predominantly in making payday loans or paycheck advances and businesses that sell goods and services and offer financing on these purchases to their customers." (Capitalization in original.) Regions does not dispute that it falls within the relevant geographical description and that its claim is encompassed within one or more of the damage categories of the class definition. Rather, it argues that, as a financial institution, it was expressly excluded from the economic-and- property-damage-settlement class. Regions emphasizes the following language of the opening paragraph of the class definition: "Economic and Property Damages Settlement Class shall mean the NATURAL PERSONS and ENTITIES defined in this Section 1, subject to the EXCLUSIONS in Section 2 below. If a person or entity is included within the geographical descriptions in Section 1.1 or Section 1.2, and their claims meet the descriptions of one or more of the Damage Categories 11 1141170 described in Section 1.3, that person or entity is a member of the Economic and Property Damages Settlement Class, unless the person or entity is excluded under Section 2 ...." (Capitalization in original; emphasis added.) Regions then points to the following exclusionary provision of Section 2: "2.1. Notwithstanding the above, the following individuals and Entities ... are excluded from the Economic Class. "2.2. Excluded Individuals or Entities: ".... "2.2.4. The following exclusions are based on the substantive nature of the business, not the legal or juridical form of that business. Any of the following types of Entity ... are excluded: "2.2.4.1. Financial Institutions as identified in the NAICS codes listed on Exhibit 18, which include, by way of example, commercial banks; savings institutions; ... provided, that the following shall not be excluded solely pursuant to this Section 2.2.4.1 unless they are subject to a different exclusion: stand-alone ATMs, credit unions, pawn s h o p s , b u s i n es s e s e n g ag e d predominantly in making payday loans or paycheck advances and businesses that sell goods and services and offer financing on these purchases to their customers." 12 1141170 (Emphasis added.) There is no dispute that Regions is the type of financial institution identified in Section 2.2.4.1 of the class definition. Thus, Regions argues that it was expressly and unequivocally excluded from the economic-and- property-damage-settlement class and, that, therefore, the circuit court erred in dismissing its trespass action. BP, on the other hand, cites the following section of the class definition: "1.3.1.11. Businesses/Employers in Otherwise Excluded Gaming, Banking, Insurance, Funds, Defense Contractors and Developers Industries: As more fully described in Exhibit 16 and Section 5.10 below, businesses and employers in these otherwise excluded industries described in Section 2 may submit Claims only for Coastal Real Property Damage and Wetlands Real Property Damage, but are not entitled to recover under any other aspect of the Settlement." (Emphasis added.) BP contends that this section makes clear that banks like Regions can possess claims for coastal real- property damage and for wetlands real-property damage that are covered under the settlement. BP argues: "[B]y stating 'these otherwise excluded industries,' Section 1.3.1.11 confirms that the exclusion detailed in Section 2 does not impact banks' claims for Coastal Real Property Damage and Wetlands Real 13 1141170 Property Damage." (BP's brief, at 19; emphasis in original.) We find this argument unpersuasive. The language of the class definition clearly and unambiguously excludes Regions, a commercial bank, from the class. The definition provides that to be part of the class a party must (1) meet the geographic requirements, (2) meet one or more of the damage categories, and (3) not be subject to an exclusion within Section 2 of the definition. Regions is included within an exception in Section 2. Hence, Regions is not a member of the class. To the extent that the language of Section 1.3.1.11 causes any confusion as to whether an "otherwise excluded industr[y]" is a part of the economic class, that confusion is cleared up by Section 2.1, which begins: "Notwithstanding the above, the following individuals and Entities ... are excluded from the Economic Class." See Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993) ("[T]he use of such a 'notwithstanding' clause clearly signals the drafter's intention that the provisions of the 'notwithstanding' section override conflicting provisions of any other section."). 14 1141170 BP argues that this interpretation of the class definition renders Section 1.3.1.11 meaningless or that it would create an impermissible "opt-in" class. We disagree. Section 1.3.1.11 provides that "businesses and employers in ... otherwise excluded industries described in Section 2 may submit Claims only for Coastal Real Property Damage and Wetlands Real Property Damage, but are not entitled to recover under any other aspect of the Settlement." (Emphasis added.) This section appears to do no more than give non-class members optional access to the claims-administration framework established as a result of the class settlement. First, the word "may" indicates that claims filed pursuant to Section 1.3.1.11 are merely permissive. See Burgess Mining & Constr. Corp. v. City of Bessemer, 312 So. 2d 24, 26 (Ala. 1975) (noting that the word "may" normally connotes a permissive character). When read in relation to the clear and mandatory exclusionary language of the class definition (i.e., "subject to the exclusions"; "unless ... excluded under Section 2"; "[n]otwithstanding the above, the following ... are excluded"; "[a]ny of the following ... are excluded"), Section 1.3.1.11 cannot reasonably be construed as mandating the inclusion of 15 1141170 an "otherwise excluded" entity's coastal-property-damage claims within the MDL class-action settlement. Second, there is no indication that submission of a claim under Section 1.3.1.11 requires class membership. As Regions argues, "nothing in Rule 23[ ,Ala. R. Civ. P.,] or the case law interpreting it suggests that a settlement framework cannot also serve as a basis of rights for non-class members, such as by creating a claim-processing apparatus that is also made available to non-class members." (Regions' reply brief, at 19.) Regions' proffered interpretation is all the more convincing in light of the fact that there is not a limited settlement fund in the MDL class settlement that would be depleted by non-class- member claims. Accordingly, Section 1.3.1.11 may be meaningfully reconciled with the class definition in a way that does not undermine the clear exclusionary language of the definition. IV. Conclusion Based on the clear and unequivocal exceptions to the MDL economic-and-property-damage-settlement class, we conclude that Regions was not a member of the settlement class. Therefore, its trespass claim was not adjudicated as part of 16 1141170 the MDL class-action settlement. Accordingly, the circuit court erred in dismissing Regions' action on the ground of res judicata. We reverse the judgment of the circuit court and remand this case for further proceedings consistent with this opinion. REVERSED AND REMANDED. Bolin, Parker, Wise, and Bryan, JJ., concur. Murdock and Shaw, JJ., dissent. Moore, C.J., recuses himself. 17 1141170 MURDOCK, Justice (dissenting). I agree with the argument advanced by BP P.L.C., BP Corporation North America, Inc., and BP America Inc. (hereinafter referred to collectively as "BP") regarding the import of Section 1.3.1.11 of the settlement framework incorporated in the federal district court's judgment in the multidistrict litigation. That is, I agree with BP that claims asserting real-property damage of the nature asserted by Regions Bank were encompassed within the class settlement as an exception to the general exclusion of financial institutions pursuant to Section 2 of the settlement framework. Regions attempts to counter BP's reasonable reading of the import of Section 1.3.1.11 by putting forth the notion that the purpose of that section is merely to provide to entities who were not parties to the litigation that resulted in the federal court judgment "optional access to the claims administration framework" created in that judgment. I cannot agree that the federal judgment was intended to serve "as a basis of rights for non-class members" who were not parties to the litigation concluded by that judgment. 18 1141170 Therefore, I respectfully dissent. My position as set out herein is consistent with that of Justice Shaw, with whose special writing I agree in the main. 19 1141170 SHAW, Justice (dissenting). I respectfully dissent. The issue in this case is whether Regions Bank is excepted as a member of the "Economic Class" by an exclusion in a settlement agreement ("the agreement") or whether it is a member of the "Economic Class" by operation of an exception to that exclusion. There is no dispute that Regions and its particular claim for damages are included under the general definition of members of the Economic Class. Regions claims, however, that it is excepted from the class by an exclusion in Section 2 of the agreement. That section states, in pertinent portions: "2.1. Notwithstanding the above [Section 1, defining the members of the class], the following individuals and Entities ... are excluded from the Economic Class. "2.2. Excluded Individuals or Entities: ".... "2.2.4. ... Any of the following types of Entity ... are excluded: "2.2.4.1. F i n a n c i a l Institutions ... which include, by way of example, commercial banks; savings institutions; credit card issuers; credit insurers; factors or other sales finance entities; financial or investment banking entities; 20 1141170 lending institutions; real estate mortgage or lending entities; brokers or dealers of securities, commodities, commodity contracts or loans; securities or commodities exchanges; entities serving as custodians, fiduciaries or trustees of securities or other financial assets; or entities engaged in other financial transaction intermediation, processing, reserve or clearinghouse activities ...." (Emphasis added.) There is no dispute that Regions is a "Financial Institution" as contemplated by Section 2.2.4.1. It contends that it is therefore excluded as a member of the class. On the other hand, BP P.L.C., BP Corporation North America, Inc., and BP America Inc. (hereinafter referred to as "BP") contend that, in Section 1 of the agreement, which defines the members of the class, there is an exception to the exclusion found in Section 2.2.4.1. The section BP identifies states: "1.3.1.11. Businesses/Employers in Otherwise Excluded Gaming, Banking, Insurance, Funds, Defense Contractors and Developers Industries: As more fully described in Exhibit 16 and Section 5.10 below, businesses and employers in these otherwise excluded industries described in Section 2 may submit Claims only for Coastal Real Property Damage and Wetlands 21 1141170 Real Property Damage, but are not entitled to recover under any other aspect of the Settlement." (Emphasis added.) BP contends that Regions, although an "otherwise excluded" banking business under Section 2, specifically, Section 2.2.4.1, is nevertheless included, under the exception to the exclusion found in Section 1.3.1.11, as a class member for its claim of real-property damage. I agree. The main opinion notes that Section 2.1, which follows Section 1.3, begins with the phrase "[n]otwithstanding the above." Generally, such a phrase signals that the language that follows is not impacted by the language that precedes it. I agree that this is generally the case: Section 1 defines the members of the class, and Section 2.1 sets forth that certain persons and entities, despite those definitions, are not considered members of the class even though they would otherwise fit within the definitions of Section 1. Nevertheless, I believe that a section of a document that precedes such a "notwithstanding" clause can specifically indicate that portions of it are not impacted by the following section. In other words, the part of a document that creates a general rule can indicate that a portion of the general rule 22 1141170 is not impacted by an exception in a following portion that starts with the term "notwithstanding." Here, Section 2.1 indicates that it provides exclusions to Section 1, but Section 1.3.1.11 explicitly provides that it is not impacted by any exclusions contained in "Section 2": "businesses and employers in these otherwise excluded industries described in Section 2 may submit Claims only for Coastal Real Property Damage ...." (Emphasis added.) Section 1.3.1.11 states that "Section 2" does not apply to the entities listed in Section 1.3.1.11 that have certain damage claims; Section 1.3.1.11 states that it is an exception to Section 2 and thus is also an exception to the phrase contained in Section 2 stating "[n]otwithstanding the above."3 To hold that Section 2.1 trumps Section 1.3.1.11 (despite the fact that Section 1.3.1.11 states that Section 2 does not apply) would render Section 1.3.1.11 meaningless. However, Another part of the agreement recognizes that these 3 otherwise "excluded industries" can assert damage claims; Section 5.10.4.1.1 of the agreement states: "Businesses/employers in these categories of excluded industries ['Gaming, Banking, Insurance, Funds, Defense Contractors and Developers'] are barred from recovery in the Settlement for any type of Business Economic Losses, but are permitted to pursue Coastal Real Property Damage and Wetlands Real Property Damage Claims." 23 1141170 "[t]he law is settled that this Court is bound to construe contracts so as to give meaning to all provisions whenever possible." Board of Water & Sewer Comm'rs of City of Mobile v. Bill Harbert Constr. Co., 870 So. 2d 699, 710 (Ala. 2003). Nevertheless, the main opinion suggests that Section 1.3.1.11 still retains a function: "This section appears to do no more than give non-class members optional access to the claims- administration framework established as a result of the class settlement." ___ So. 3d at ___. I disagree; the language of Section 1.3.1.11 will not allow such optional access for non- members of the class. Specifically, Section 1.3.1.11 states that one "may submit Claims only for Coastal Real Property Damage." (Emphasis added.) The term "Claim" is capitalized, signaling that it is assigned a specific definition by the agreement. "Claim" is defined in Section 38.19 as "any 4 demand or request for compensation (other than Bodily Injury Claims or Expressly Reserved Claims), together with any properly completed form and accompanying required documentation, submitted by a Claimant to the Settlement Section 38.1 states: "For purposes of this Agreement, the 4 following terms (designated by capitalization throughout this Agreement) shall have the following meanings." 24 1141170 Program." (Emphasis added.) A "Claimant," as defined by Section 38.20, is "any Natural Person or Entity that submits a Claim to the Settlement Program seeking compensation as a member of the Economic Class." (Emphasis added.) "Claims" are submitted to the "Settlement Program" by a "member of the Economic Class." (Emphasis added.) Thus, non-members of the Economic Class do not submit a "Claim." The terms of Section 1.3.1.11 thus contemplate only members of the class filing Claims. Therefore, it does not appear that Section 1.3.1.11 can be read to create an alternate process for non-members. It is true that Section 1.3.1.11 uses permissive language, i.e., one "may submit Claims." (Emphasis added.) The main opinion interprets this to mean that Section 1.3.1.11 allows that one may optionally participate in the "claims- administration framework" as a non-class member. I disagree. The word "may" here does not allow the option to participate in the settlement; instead, it is stating that the "only" type of "Claim" that can ("may") be sought is "for Coastal Real Property Damage and Wetlands Real Property Damage," "but" not for recovery "under any other aspect of the Settlement." "May" refers to what type of Claim "may" be filed (damage to 25 1141170 real property), and not where a Claim "may" be filed (within the claims-administration framework or somewhere else, such as a circuit court). One may file property-damage Claims (as a class member), "but" may not file for, and recover on, other types of Claims. I think that Regions was a member of the "Economic Class" under the agreement; thus, it is barred by the doctrine of res judicata from maintaining its action in the Baldwin Circuit Court. I therefore respectfully dissent. 26	January 29, 2015
6a3e8f53-ab8c-46fc-a314-bfb75e66d17c	Ex Parte Pope	706 So. 2d 1156	1951366	Alabama	Alabama Supreme Court	706 So. 2d 1156 (1997) Ex parte Max C. POPE, Sr., as trustee of the bankruptcy estate of Apex Coal Corporation. (Re Max C. POPE, Sr., as trustee of the bankruptcy estate of Apex Coal Corporation v. WARCO, INC., et al.). 1951366. Supreme Court of Alabama. November 14, 1997. 1157 J. Gusty Yearout and C. Jeffery Ash of Yearout, Myers & Traylor, P.C., Birmingham, for petitioner. H. Thomas Wells, Jr., Jayna Partain Lamar, and J. Alan Truitt of Maynard, Cooper & Gale, P.C., Birmingham, for respondents Gulf States Paper Co., Warco, Inc., and William A. Walker. ALMON, Justice. Max C. Pope, Sr., as trustee of the bankruptcy estate of Apex Coal Corporation ("Apex"), is the plaintiff in an action pending in the Jefferson Circuit Court. He petitions for a writ of mandamus directing that court to set aside its order granting the defendants' motion to compel arbitration of Apex's claims. Apex entered into a contract with Warco, Inc., the predecessor of Gulf States Paper Corporation, by which Apex was to extract coal from land owned by Warco. At issue is the arbitrability of the dispute that arose between the parties when Apex discovered that Warco and Gulf States had charged it a brokerage fee for each ton of coal Apex mined. Apex asserts that the contract does not provide for any such brokerage fee, and our reading of the contract discloses no such provision. Under Apex and Warco's "Agreement for Coal Extraction Services," Apex was to receive 80% of the sales price for the coal that it mined from Warco's land. The Agreement contained two provisions for arbitration, one in paragraph 6 and the other in paragraph 23: Apex filed for Chapter 11 bankruptcy protection in 1992, and in December 1993 it discovered that Warco had charged Apex a brokerage fee in the amount of $2.00 per ton for coal delivered under the Agreement. In April 1995, Apex's Chapter 11 bankruptcy case was converted to a Chapter 7 liquidation case. In August 1995, Pope, as the trustee in bankruptcy, commenced an action on behalf of Apex against Warco, Gulf States, William A. Walker (the manager of the minerals business for Gulf States), and fictitiously named defendants, alleging breach of contract, fraud, suppression, deception, conversion, and willful and wrongful interference with a business relationship. All these claims pertained to the charging of the brokerage fee, which, Apex alleges, "is not provided for in the Agreement for Coal Extraction Services and is contrary to the express provisions of same." The defendants moved to compel arbitration and to stay discovery, and the circuit judge granted the motion on the ground that the arbitration provision in Paragraph 23 was broad enough to cover the dispute over the brokerage fee. The Federal Arbitration Act (FAA) provides, in pertinent part: 9 U.S.C. § 2. However, parties will not be required to arbitrate any dispute that they did not agree to arbitrate. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945, 115 S. Ct. 1920, 1925, 131 L. Ed. 2d 985, 994 (1995); Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57-58, 115 S. Ct. 1212, 1216, 131 L. Ed. 2d 76, 84 (1995); Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S. Ct. 1248, 1256, 103 L. Ed. 2d 488, 500 (1989); A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 361 (Ala.1990); Ala.Code 1975, § 8-1-41(3). Apex and Warco did not agree in Paragraph 6 to submit the instant dispute to arbitration. That paragraph provides for arbitration of disputes regarding mining operations, and the charging of a brokerage fee has nothing to do with the mining operations. The circuit court held that the dispute was arbitrable under Paragraph 23, because that paragraph refers to disputes over "the sum paid for ... services." However, the full phrase is "the sum paid for the services rendered Warco by Contractor [Apex]." If a "brokerage fee" were provided for, it would presumably be a sum paid by Apex (or deducted from a payment to Apex) for services rendered Apex by Warco. The language of the paragraph and of the contract in its entirety reveals that the parties expressed no intention to submit a dispute such as this one to arbitration. The paragraph provides that arbitration will be instituted "[i]n the event after thirty (30) days, the parties cannot agree as to the adjusted price." The "adjusted price" refers to the price of the coal, and the adjustments referred to are changes in market conditions, costs, and such factors affecting the cost and value of the coal itself that were not foreseeable 1159 at the time the contract was executed. This provision contemplates a bargaining process for adjustments in prices based on changing conditions, and a submission of a proposed adjustment to arbitration if the parties cannot agree during that process. It does not provide for arbitration of any and all disputes arising out of the contract that may affect the sums that Warco pays Apex. It certainly says nothing about arbitration of a claim that Warco breached the contract and committed fraud and conversion by deducting unauthorized sums from the amount paid to Apex. For the foregoing reasons, the dispute does not come within the terms of the two limited arbitration clauses in the contract. Warco and Gulf States also argue that Apex agreed to arbitrate this dispute, in a June 21, 1994, letter from its president, Jerry W. Williams, to Gulf States. In opposition to the motion to compel arbitration, however, Williams gave an affidavit in which he stated the following regarding that letter: This action was filed on August 4, 1995, more than a year after Williams had sent his letter suggesting arbitration of the brokerage fee dispute. According to Williams's affidavit, Gulf States, rather than submitting the controversy to arbitration, back at the time when Williams wrote the letter, offered to "renegotiate the agreement." After a failure of such negotiations, it cannot now invoke an earlier suggestion of arbitration by the then president of Apex. Moreover, Apex is in bankruptcy, and this action has been filed by the trustee of the bankruptcy estate. The trustee is charged with a duty to administer the bankruptcy estate in the exercise of his sound discretion. "Clearly, the trustee is entitled to tremendous leeway in the exercise of his discretionary business judgment when operating the debtor's business." In re Vel Rey Properties, Inc., 174 B.R. 859, 864 (Bankr. D.D.C.1994). In exercising this discretion, he should not be bound by earlier contrary actions of the corporate officers that have not led to any detrimental reliance by another party. "[I]t is clear that the conduct of the Debtor cannot operate as an estoppel against the Trustee." Matter of Munzenreider Corp., 34 B.R. 82, 85 (Bankr.M.D.Fla.1983). Gulf States, far from relying on Williams's letter proposing arbitration, instead suggested a "renegotiation" of the brokerage fee. Under these circumstances, the trustee of Apex's bankruptcy estate is not bound to arbitrate this dispute because of the June 1994 letter from Williams to Gulf States. Because the arbitration clauses in the Agreement between Apex and Gulf States do not cover the instant dispute over the brokerage fee, there has been no agreement to arbitrate this dispute. For this reason and the other reasons stated in this opinion, the order compelling arbitration is due to be set aside. WRIT GRANTED. SHORES, KENNEDY, COOK, and BUTTS, JJ., concur. HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., dissent, with opinions by HOOPER, C.J., and HOUSTON, J. HOOPER, Chief Justice (dissenting). I join Justice Houston's dissent but add that the parties in this matter entered into a contract and should be bound by its clear wording. The majority says that Paragraph 6 of that agreement permits the Apex bankruptcy trustee to avoid being bound to arbitration. Yet, Paragraph 6 clearly states that the parties will arbitrate any conflict that arises over whether the mining operations are being conducted in accordance with the agreement. Warco and Apex dispute the existence of the brokerage fee. It does not matter if the conflict involves coal, management, mines, or money. All of these things relate to the "mining operation," and it is obvious that the true intent of the document dictates that the parties arbitrate this conflict. *1160 HOUSTON, Justice (dissenting). The specific enforcement of a predispute arbitration agreement violates both Alabama statutory law and Alabama public policy, unless federal law preempts them. Lopez v. Home Buyers Warranty Corp., 670 So. 2d 35 (Ala.1995). The Federal Arbitration Act preempts contrary state law and, thus, renders enforceable a predispute arbitration agreement contained in a contract that "involves" interstate commerce. Jim Burke Automotive, Inc. v. Beavers, 674 So. 2d 1260 (Ala.1995), citing Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). It goes without saying that the parties will not be required to arbitrate any dispute that they did not agree to arbitrate. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995); Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995); Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989); A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala.1990); Ala. Code 1975, § 8-1-41(3). It appears from the materials presented that the contract at issue in the present case "involves" interstate commerce (the coal extracted by Apex was sold out of state), within the meaning of the Federal Arbitration Act. See Hurst v. Tony Moore Imports, Inc., 699 So. 2d 1249 (Ala. 1997). Therefore, the dispositive issue is whether the parties agreed to submit this dispute to arbitration. The trial court held that the dispute was arbitrable under Paragraph 23, because that paragraph refers to disputes over "the sum paid for ... services." Basically, this is an action to determine whether Warco and Gulf States (as successor to Warco) paid Apex all that it should have been paid under the contract. The gravamen of Apex's allegations is that Warco and Gulf States improperly charged it a brokerage fee and, therefore, that it was not paid the full amount due under the contract for the coal extraction services that it had provided. The 6th and 23rd paragraphs of the contract clearly contemplate the arbitration of any dispute arising out of the mining operations concerning "the sum paid for the services rendered Warco [and Gulf States] by [Apex]." To me, those paragraphs are broad enough in scope to encompass the present dispute. Because, in my view, the arbitration clauses in the contract cover the instant dispute over the brokerage fee, I conclude that Apex and Warco had an agreement to arbitrate this dispute. Apex has failed to demonstrate to me that it has a clear legal right to the relief requested, Ex parte State ex rel. McKinney, 575 So. 2d 1024 (Ala.1990); therefore, I would not direct the trial court to set aside its order compelling arbitration. HOOPER, C.J., and MADDOX and SEE, JJ., concur.	November 14, 1997
314b1ea8-6400-44bc-95a1-5a11be493678	Ex parte M.D. and S.W.	N/A	1140187	Alabama	Alabama Supreme Court	Rel: 02/06/2015 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 ____________________ 1140187 ____________________ Ex parte M.D. and S.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: M.D. and S.W. v. S.C.) (Lauderdale Juvenile Court, JU-10-246.01; Court of Civil Appeals, 2130549) PARKER, Justice. WRIT DENIED; NO OPINION. 1140187 Stuart, Bolin, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents. 2 1140187 MOORE, Chief Justice (dissenting). Because I would grant M.D.'s petition for a writ of certiorari, I respectfully dissent. M.D., the father of C.C.W., was not living with the mother, S.W., when she gave birth to C.C.W. in early 2010. Several months later the maternal grandmother, E.C., and her husband, S.C., successfully petitioned the juvenile court for temporary custody, arguing that S.W. was leading a dissolute life and would leave C.C.W. with them for weeks at a time. M.D. intervened in the case. Proceedings took place involving C.C.W., which extended into 2013. During that time, M.D. and S.W. reunited, acquired employment and housing, and sought to recover custody of C.C.W. During this same period the grandmother, E.C., died. The trial court gave custody of C.C.W. to the stepgrandparent, S.C., on the ground of dependency. According to M.D.'s verified statement of facts, "S.C. ... stated that he had made no allegations of wrong doing against ... M.D." M.D. also alleges that C.C.W. regularly visited with M.D. and S.W. after they were reunited and that both parents were working and had a home for C.C.W. M.D. 3 1140187 argues that the juvenile court did not find him to be an unfit parent and that the child accordingly was not dependent, i.e., requiring protection from the State, as pertained to him. With dependency not an issue as to M.D., the proceeding, M.D. argues, was really one to determine custody. In that posture the natural parent's right to custody should have prevailed against the competing claim of a stepgrandparent. "According to the United States Supreme Court, the right of parents to custody of their children 'is perhaps the oldest of the fundamental liberty interests....' Troxel v. Granville, 530 U.S. 57, 65 (2000). This fundamental liberty interest 'does not evaporate simply because [parents] have not been model parents or have lost temporary custody of their child to the State.' Santosky v. Kramer, 455 U.S. 745, 753 (1982)." Ex parte J.W., 140 So. 3d 457, 462 (Ala. 2013) (Moore, C.J., dissenting). Because the Court of Civil Appeals affirmed the custody award to the stepgrandparent without an opinion, M.D. v. S.C. (No. 2130549, Sept. 12, 2013), ___ So. 3d ___ (Ala. Civ. App. 2013) (table), we have no facts before us to contradict M.D.'s prima facie case for custody. Thus, I would grant M.D.'s petition to discover if his fitness was tried by consent without objection, Rule 15(b), Ala. R. Civ. P., and, if so, 4 1140187 whether the constitutional standard that must be met before M.D. could be deprived of custody was met. See J.L. v. W.E., 64 So. 3d 631 (Ala. Civ. App. 2010) (affirming a finding of dependency as to the mother but reversing the finding of dependency as to the father). 5	February 6, 2015
c4946e3a-b4dd-49cd-904d-9f728ed0049a	Lindy Mfg. Co. v. Twentieth Century Marketing, Inc.	706 So. 2d 1169	1951168	Alabama	Alabama Supreme Court	706 So. 2d 1169 (1997) LINDY MANUFACTURING COMPANY v. TWENTIETH CENTURY MARKETING, INC. 1951168. Supreme Court of Alabama. November 21, 1997. 1170 F. A. Flowers III and L. Tennent Lee III of Burr & Forman, Birmingham; and Tazewell T. Shepard and John O. Cates of Wilmer & Shepard, Huntsville, for appellant. David H. Meginniss and S. A. Watson, Jr., of Hornsby, Watson & Meginniss, Huntsville, for appellee. COOK, Justice. Lindy Manufacturing Company appeals from a judgment entered on a jury verdict in favor of Twentieth Century Marketing, Inc., in this action seeking damages for fraud and breach-of-contract and seeking a declaratory judgment. We affirm. Lindy makes three contentions on appeal: 1) The evidence was insufficient to prove that Lindy was obligated to pay commissions to its former sales representative, Twentieth Century, after the termination of the parties' contract; 2) the evidence was insufficient to support the damages award; and 3) the trial court erred in allowing the introduction of an alleged "pattern and practice" of fraud by Lindy. Lindy Manufacturing Company is a family-owned business located in Huntsville; it manufactures electronics components. Twentieth Century, also located in Huntsville, is an independent manufacturer's representative. In 1986, Twentieth Century and Lindy agreed that Twentieth Century would represent Lindy's products to a local manufacturer of electronic devices. The agreement between Twentieth Century and Lindy did not specify its duration, nor did it address termination of the agreement or payment of commissions upon termination. Later in 1986, Twentieth Century and Lindy entered an oral agreement that authorized Twentieth Century to sell Lindy's products to a division of Chrysler Corporation, located in Huntsville, that manufactures electronic components for installation in Chrysler vehicles. Domer Ishler, the owner of Twentieth Century, testified that Lindy agreed to pay Twentieth Century a 5% commission on Chrysler orders for Lindy products that 1171 were obtained through Twentieth Century's efforts. Ishler also testified that the parties did not discuss the duration of the agreement, procedures for terminating the agreement, or any payment of commissions upon termination. In 1988, as a result of Twentieth Century's efforts, Lindy began to receive orders from Chrysler. From 1988 to 1993, Lindy paid Twentieth Century the agreed-upon 5% commission on Lindy's sales to Chrysler. In return, Twentieth Century continually represented Lindy's products to Chrysler; a Twentieth Century representative regularly walked the production lines at Chrysler in case a problem arose involving one of Lindy's products. Additionally, when Chrysler required its suppliers to maintain a "Just In Time" ("JIT") inventory maintenance and delivery system, Twentieth Century, at its own expense and on Lindy's behalf, installed a JIT at its own facility and allowed Lindy to use it. Domer Ishler testified that Twentieth Century consistently lost money on the Lindy/Chrysler account during the period 1986 through 1993, and that the overall amount of Twentieth Century's loss on the account was $205,000. In 1994, Twentieth Century realized a $12,000 profit on the Lindy/Chrysler account. In 1993, at Chrysler's request, Lindy installed the JIT system at its plant to handle inventory procedures for parts sold to Chrysler. In April 1993, Twentieth Century's president, Robert Byard, and Varney Harmon, the Twentieth Century representative assigned to the Lindy/Chrysler account, met with Lindy's president, David Collins, and its vice-president, Margaret Hill, to discuss a temporary reduction of Twentieth Century's commissions to 3% so that Lindy could recoup the expense of installing the JIT system at Lindy's plant. According to Byard and Harmon, they told Hill and Collins that Twentieth Century's commission had to be restored to 5% at some point in order for Twentieth Century to realize a profit on the Lindy/Chrysler account. Following the April 1993 meeting, Hill wrote the following "confirmation" letter to Robert Byard: Both Byard and Harmon testified, however, that the 4% commission referred to in Hill's letter had not been discussed or agreed to at the April 1993 meeting. In August 1994, discussions began regarding Lindy's terminating its relationship with Twentieth Century. Hill informed Harry Brooks, who had become president of Twentieth Century, that she wanted to hire someone to act as an "in house" manufacturer's representative for the Chrysler account. Following an exchange of letters between Lindy and Twentieth Century, which revealed increasingly hostile positions, Hill wrote a letter to Domer Ishler on November 8, 1994, terminating Twentieth Century as Lindy's representative and enclosing the summons and complaint in this action. Lindy paid Twentieth Century the 3% commission, agreed upon during the April 1993 meeting, through January 1995. Twentieth Century did not dispute Lindy's right to terminate the parties' agreement, and it did not dispute the payment of the 3% commission. However, according to Twentieth Century, Lindy was obligated to pay commissions to Twentieth Century for as long as Lindy received orders from Chrysler, because the Chrysler account was obtained through the efforts of Twentieth Century. Lindy, in its declaratory judgment complaint against Twentieth Century, sought declarations 1) of the parties' rights under the "manufacturer's representative agreement" between the parties (particularly regarding Lindy's right to terminate what Lindy alleged was an "at will agreement"); and 2) of the applicability of, and the parties' rights pursuant to, the Alabama Sales Representative's 1172 Commission Contracts Act (Ala. Code 1975, § 8-24-1 et seq. (1996 Cum. Supp.)). Lindy amended the complaint to add a claim for the return of all monies it claimed to have paid to Twentieth Century by mistake after the termination of the agreement or after Lindy was no longer obligated to continue paying Twentieth Century. Twentieth Century filed an answer, stating affirmative defenses, and counterclaimed for a declaration that it had a property right in future orders Lindy would receive from Chrysler. Twentieth Century contended that it had obtained the Chrysler account for Lindy and, as a result, was "continually due" the commission, without further performance. Twentieth Century also claimed that, pursuant to § 8-24-3,[1] it was entitled to damages equal to three times the loss it had sustained as a result of Lindy's alleged breach of contract. Lindy denied Twentieth Century's allegations and argued that the relief sought by Twentieth Century would force the parties into "an interminable contractual relationship contrary to public policy and the law of the State of Alabama." Twentieth Century amended its counterclaim to add claims alleging fraud and breach of contract. The trial court granted Twentieth Century's motion for directed verdict on Lindy's claim regarding the Act, holding that it applied to the pending action, but denied Twentieth Century's motion for directed verdict on Lindy's claim for the recovery of money "paid by mistake." The trial court also denied Lindy's motions for directed verdict on Twentieth Century's fraud and breach of contract claims. The jury returned a verdict for Twentieth Century on its breach of contract claim against Lindy, awarding compensatory damages of $1,893,645.60 (lost profits and interest, trebled). The jury found in favor of Lindy on Twentieth Century's fraud claim and in favor of Twentieth Century on Lindy's claim for recovery of money paid by mistake. The total amount of the damages awarded by the judgment entered on the jury's verdict was $2,193,645.60 (the compensatory damages award plus $300,000 in attorney fees). The trial court denied Lindy's post-judgment motions, and this appeal followed. Lindy contends there is no evidence that it agreed to pay post-termination commissions to Twentieth Century for as long as Chrysler continued to purchase Lindy parts. Because the oral agreement between Lindy and Twentieth Century did not specifically provide for the payment of post-termination commissions, Lindy claims the jury's finding that Lindy was obligated to pay such commissions contravenes Alabama law prohibiting the factfinder from considering the parties' unexpressed intent as to contract terms. Therefore, argues Lindy, the jury verdict for Twentieth Century on its breach-of-contract claim was not supported by the evidence and the trial court should have granted Lindy's motion for a directed verdict on this issue. In Driver v. National Security Fire & Casualty Co., 658 So. 2d 390 (Ala.1995), the appellant claimed that the trial had court erred in denying the appellant's motion for a directed verdict on a particular issue and in submitting that issue to the jury. The Driver Court held: 658 So. 2d at 392 (citations omitted). A review of the record in this case reveals that there was substantial evidence presented by both parties regarding the issue of payment of post-termination commissions, and that this evidence created a factual dispute from which reasonable persons could draw contrary conclusions. The trial court did not err in denying Lindy's motion for a directed verdict on this issue and submitting Twentieth Century's claim for post-termination commissions to the jury. According to Lindy, applying Alabama's objective, rather than subjective, test of contract formation (Murray v. Alfab, Inc., 601 So. 2d 878 (Ala.1992)) to the evidence proves that there was no "meeting of the minds" as to the duration or termination of its agreement with Twentieth Century, or as to the payment of commissions to Twentieth Century. Therefore, says Lindy, the agreement did not contain the provision that Twentieth Century now seeks to enforce, and an alleged breach of a provision that is not part of the agreement will not support a breach of contract claim. Lilley v. Gonzales, 417 So. 2d 161 (Ala.1982). The oral agreement under which Twentieth Century acted for Lindy was the result of a meeting involving Domer Ishler, the owner of Twentieth Century; David Collins, the owner of Lindy; and Richard Martul, the general manager of Lindy's Huntsville plant. Ishler testified that Twentieth Century brought the Chrysler account to Lindy with the understanding that Twentieth Century would receive a 5% commission on all the Chrysler business Twentieth Century's efforts generated on Lindy's behalf. Ishler stated that the word "indefinitely" may not have been used in the meeting at which the agreement was finalized, but that Lindy did agree that as long as it enjoyed the Chrysler business obtained through Twentieth Century's efforts Lindy would pay Twentieth Century a 5% commission. Ishler also stated that Martul told him that Twentieth Century would be "protected" on the accounts Twentieth Century developed for Lindy. Collins testified that, in entering the agreement for Twentieth Century to act as Lindy's representative, the parties understood that Lindy would pay for all of the future Chrysler sales Twentieth Century "acquired" for Lindy. Keel v. Weinman, 266 Ala. 684, 687, 98 So. 2d 611, 614 (1957) (quoted as authority in MOCO, Inc. v. Gaines, 484 So. 2d 470 (Ala. Civ.App.1985)). Lindy maintains that the parties did not agree upon a procedure for payment of commissions after termination of their agreement, but that it is the custom in the industry for a manufacturer to pay commissions to a terminated manufacturer's representative only for products sold within 30 days of the termination of the parties' agreement. Lindy terminated its relationship with Twentieth Century on November 8, 1994, and continued to pay Twentieth Century through January 1995. Therefore, says Lindy, even if post-termination payment of commissions to Twentieth Century was an understood provision of the agreement, the evidence shows that Lindy complied with the industry's 30-day requirement by paying Twentieth Century through January 1995. Russell Hayden, who now works for Lindy and who receives commissions for the Chrysler account, testified that his written agreement with Lindy provides for the payment of post-termination commissions for 30 days. However, despite Hayden's statement that the 30-day provision was "typical" in the industry, he later testified that during his initial negotiations with Lindy, he gave Lindy 1174 a standard contract form developed by the Electronics Representative Association. That contract provided for compensation of the manufacturer's representative "at the time of or after termination, for representative's efforts in developing customers in its territory which, because of representative's efforts would be likely to continue to purchase products from the manufacturer after termination." Hayden testified that when he negotiated his employment terms with Lindy, Lindy had never heard of a 30-day limit on post-termination commission payments. Gray Allen, an independent manufacturer's representative, testified that, when he worked as a representative for Lindy, it had been his expectation that he would be paid post-termination commissions on any business he brought to Lindy. Domer Ishler testified that, unless the parties agree otherwise, a manufacturer's representative should be paid commissions on all business generated by the efforts of the representative. As noted above, witnesses testified concerning the "custom and usage" in the industry with regard to the payment of post-termination commissions. This Court has consistently acknowledged the importance of such testimony in the proper case: Ex parte McClarty Construction & Equipment Co., 428 So. 2d 629, 633-34 (Ala.1983) (citations omitted). Mall Gift Cards, Inc. v. Wood, 288 Ala. 355, 360, 261 So. 2d 31, 35 (1972) (citations omitted). The Sales Representative's Commission Contracts Act, held by the trial court to apply here, provides: Section 8-24-2. The statute requires that commissions "due at the time of termination" be paid within 30 days, but it also requires that commissions yet to accrue be paid within 30 days of the date on which they become due. Clearly, the statute contemplates that a sales representative is to be paid commissions that accrue on accounts that, because of his or her efforts on behalf of the principal, continue to provide business to the principal following termination of the representative. And, despite Lindy's contention to the contrary, the payment of post-termination commissions is consistent with an agreement that is terminable at the will of either party. 1175 Twentieth Century maintains that as soon as Lindy was assured of a steady stream of business from Chrysler, and after receiving a business forecast from Chrysler showing a substantial increase in the amount of business Lindy would enjoy from Chrysler, Lindy terminated Twentieth Century, refused to pay further commissions, and simultaneously filed a declaratory judgment action seeking court approval of its actions.[2] A Chrysler representative testified that Chrysler had projected that it could generate as much as $16 million in business for Lindy over a five-year period, and that Hill knew of these projections. In a May 1994 letter, Chrysler informed Hill of Chrysler's projection that the value of business it would give to Lindy in 1994 would be more than $3.5 million. Although Hill responded by stating that Lindy's projection for 1994 was closer to $1.5 million, she also answered a Chrysler questionnaire by indicating that Lindy could handle the higher volume of business Chrysler projected for the 1994-95 year. The evidence supports the jury's verdict that Lindy breached its contract with Twentieth Century by refusing to pay post-termination commissions to Twentieth Century while continually receiving orders from Chrysler and despite Chrysler's communicated projections of increased orders to Lindy. The trial court correctly entered a judgment on that verdict and correctly denied Lindy's post-judgment motions to overturn it.[3] Lindy next contends that the trial court erred as a matter of law in allowing Twentieth Century to introduce evidence in support of an alleged "pattern and practice" of fraud by Lindy. The jury, however, found in favor of Lindy on Twentieth Century's claim of fraud. Rule 45, Ala. R.App. P. Therefore, any error in the trial court's allowing Twentieth Century to introduce this evidence objected to by Lindy was harmless. A jury verdict that is not supported by the evidence (i.e., that is excessive or 1176 speculative) or that includes an amount not legally recoverable is flawed and must be set aside. Fraser v. Reynolds, 588 So. 2d 448 (Ala.1991); Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). Lindy claims that all three of the criteria for finding a damages verdict to be "flawed"excessive, speculative, and illegalapply here. We disagree. Lindy first argues that the damages awarded Twentieth Century are "grossly" excessive. During its eight years of representing Lindy, Twentieth Century lost $205,000 and ultimately realized only $12,000 profit in 1994. Lindy claims that "there is nothing in the record even remotely suggesting that Twentieth Century's performance would improve in the future." According to Lindy, Twentieth Century failed to prove any lost profitspast, current, or future. Lindy also points out that the trial court charged the jury that if it found in favor of Twentieth Century on its breach-of-contract claim, Twentieth Century would be entitled to recover damages based on the evidence of lost profits and not on the basis of gross commissions. However, says Lindy, Twentieth Century offered Chrysler's projection of the volume of business Lindy could expect to receive from Chrysler over the next five years, but omitted any evidence of what Twentieth Century's expenses and overhead would be during the same period. The evidence, says, Lindy, supported only a finding of gross commissions. Lindy relies on the decision in Ex parte Woodward Construction & Design, Inc., 627 So. 2d 393, 394 (Ala.1993): Twentieth Century argues that, under the specific facts of this case, gross commissions are the same as lost profits. The damages award, according to Twentieth Century, represents accrued commissions, as well as commissions that will accrue beyond the date the agreement was terminated because Lindy will benefit in the future from the business Twentieth Century acquired for Lindy. The damages award, says Twentieth Century, represents commissions on business that will result in substantial profit to Lindy because of Twentieth Century's earlier efforts, but without Twentieth Century's having to incur future expenses on Lindy's behalf. Twentieth Century contends that Lindy erroneously includes an amount for projected expenses for "servicing" the Lindy/Chrysler account in its discussion of future commissions to Twentieth Century. However, says Twentieth Century, the parties agreed that Lindy would pay Twentieth Century for business it obtained for Lindy. "Servicing" the account was not discussed, and Margaret Hill specifically testified that Lindy could not direct Twentieth Century in the manner in which it carried out its obligations to Lindy. Again, Twentieth Century points out that overhead and expenses would not be incurred after termination of the agreement. Lindy next contends that the jury's award was the result of speculation and conjecture. Johnson v. Harrison, 404 So. 2d 337, 340 (Ala.1981) (citations omitted). Here, says Lindy, there are too many contingencies in its relationship with Chrysler to support the damages award. For example, there is no guarantee that Lindy will not be placed on Chrysler's "no bid" list again, which in itself would result in a substantial diminution in the value of the projected business on which Twentieth Century claims future commissions. Further, says Lindy, Chrysler may decide to change the way it orders parts or to change the design of the parts themselves, either of which would have an effect on Lindy's business with Chrysler. Twentieth Century presented evidence that it was only through its efforts that Lindy became one of Chrysler's suppliers, and evidence that Twentieth Century continually represented Lindy interests at Chrysler during the term of the parties' agreement. As a result, says Twentieth Century, Lindy is now one of a select group of Chrysler suppliers. According to the testimony of the Chrysler representative, under a new procurement system at Chrysler, certain suppliers are now known as "partners," and it is Chrysler's intention to maintain a steady volume of business with these suppliers. Thus, testified the Chrysler representative, as long as Lindy stays off Chrysler's "no bid list" (by promptly supplying a good product), Lindy can expect to receive constant future orders from Chrysler. Twentieth Century also points out that the Chrysler representative testified that if a Lindy part is taken out of production (i.e., if the Chrysler vehicle in which the Lindy part is installed is no longer being produced), then a new Lindy part will be ordered for the new production. The Lindy part taken out of "production" will continue to be needed as a "service" part for the Chrysler vehicle for which it was made. The record reveals that after Twentieth Century obtained the Chrysler account for Lindy, Lindy twice expanded its Huntsville plant in reliance, in part, on the growing and anticipated orders from Chrysler. There was evidence that Twentieth Century invested over $446,000 in developing the Chrysler account for Lindy, but that in 1994, just as Twentieth Century had reached the point of expecting a profit on the Lindy/Chrysler account, Lindy terminated its agreement with Twentieth Century. The Chrysler representative testified that Chrysler's five-year projection for the volume of business it would give to Lindy was that the amount could be as much as $16 million. Witnesses for both parties provided evidence that the expected "life" of a part manufactured by Lindy and sold to Chrysler was three to five years. In his correspondence with Hill regarding the proposed termination of the parties' agreement, Ishler wrote, on September 12, 1994, and on November 1, 1994: It was not speculation by the jury that led to its conclusion that Twentieth Century's efforts on behalf of Lindy reasonably resulted in Chrysler's five-year projection for its business with Lindy. Jamison, Money, Farmer & Co. v. Standeffer, 678 So. 2d 1061, 1067 (Ala.1996) (emphasis added). See, also, Mannington Wood Floors, Inc. v. Port Epes Transp., Inc., 669 So. 2d 817 (Ala.1995). There is no question as to the nature of the damages, and there was evidence from which the jury could reasonably compute the extent of the damages award as it did. "`[W]hen there is no evidence ... of any misconduct, bias, passion, prejudice, corruption, improper motive, or cause not consistent with the truth and the facts, there is no statutory authority to invade the province of the jury in awarding compensatory damages.'" Duck Head Apparel Co. v. Hoots, 659 So. 2d 897, 908 (Ala.1995) (quoting Pitt v. Century II, Inc., 631 So. 2d 235, 240 (Ala. 1993)) (citations omitted). Finally, Lindy argues that prejudgment interest is not recoverable as a matter of law, because the damages specified in § 8-24-3 do not include interest. According to Lindy, if interest "is not enumerated as a recoverable item in the statute, recovery of it is therefore precluded," citing Locklin v. Day-Glo Color Corp., 429 F.2d 873, 877 (7th Cir.1970). The trial court charged the jury: According to Lindy, the statute's silence as to the awarding of interest indicates that the legislature intended that interest not be awarded for a violation of § 8-24-1 et seq. However, as Twentieth Century points out, the Code commissioner's note to § 8-24-2 points out that § 2 of the 1994 act that amended the statute provided that the act "is cumulative to any other law providing any remedy for the recovery of commissions owed to a sales representative by a principal." Under Alabama law, prejudgment interest is available under § 8-8-8 ("Interest accrues on breach of contract"); and see Alabama Pattern Jury Instructions: Civil, § 10.18 (1993). Lindy has shown no error in the judgment entered on the jury's verdict, or in the trial court's denial of Lindy's post-judgment motions. The judgment is due to be affirmed. AFFIRMED. SHORES, HOUSTON, KENNEDY, and BUTTS, JJ., concur. MADDOX and SEE, JJ., concur specially. HOOPER, C.J., concurs in the result. *1179 SEE, Justice (concurring specially). Although I concur with the main opinion, I write specially to clarify that while § 8-24-2, Ala.Code 1975, contemplates that a sales representative's commission contract may require the payment of post-termination commissions, this section does not impose such a requirement. Section 8-24-2(c) provides: (Emphasis added.) This language simply means that once the objective determination is made that a sales contract provides for the payment of post-termination commissions, the agreed-upon post-termination commissions must be paid within 30 days of their due dates. MADDOX, J., concurs. [1] "A principal who fails to pay a commission as required by Section 8-24-2 ["When commission is due; payment."] is liable to the sales representative in a civil action for three times the damages sustained by the sales representative plus reasonable attorney's fees and court costs." [2] Twentieth Century contended that the conduct it alleges Lindy engaged in with regard to Twentieth Century and the Chrysler account is the type of activity in its industry that prompted the legislature to enact the Sales Representative's Commission Contracts Act as part of Alabama's commercial and consumer protection law. Indeed, in declaring that § 8-24-1 et seq. apply here, the trial court specifically held that "this is the type of case that was designed to be litigated under the Act." [3] Although the decision in Kingsley Associates, Inc. v. Moll PlastiCrafters, Inc., 65 F.3d 498 (6th Cir.1995), is not direct authority, a footnote in Kingsley explains one method of dealing with the problem that Twentieth Century alleges exists throughout the industry: "[The plaintiff] asserts that the use of a `life of the part' provision is a common practice in the automobile industry because the sales representative must invest a great deal of time, effort, and money in securing the initial sale. Once the initial sale is made, the buyer may continue to use the part in the manufacture of its automobiles for many years. As many of the parts manufactured by [the defendant] are functional items, such as plastic knobs, switches, and latches, the buyer may use the same part for many model years. Even after the buyer discontinues use of such part, sales will continue for repair and replacement parts. Thus, to guard against opportunistic termination, in which the manufacturer terminates the sales representative to avoid having to pay commissions on future sales, the independent sales representatives inserted `life of the part' provisions in their agreements, requiring that commissions continue to be paid despite termination." 65 F.3d at 502. See, also, Tri-Tube, Inc. v. OEM Components, Inc., 672 So. 2d 1303 (Ala.Civ. App.1995), wherein the Court of Civil Appeals approved the trial court's interpretation of the contract phrase "life of the product" in order to prevent the manufacturer's benefiting from the sales representative's efforts without compensating the sales representative for its efforts on the manufacturer's behalf.	November 21, 1997
fca1e788-3405-4b5a-b637-fb340b3ad876	Ex Parte Moebes	709 So. 2d 477	1960506	Alabama	Alabama Supreme Court	709 So. 2d 477 (1997) Ex parte Thomas F. MOEBES, Jr. (In re Thomas F. MOEBES, Jr. v. TONY MOORE BUICK-GMC TRUCKS, INC.). 1960506. Supreme Court of Alabama. November 14, 1997. 478 Phil D. Mitchell and Bingham D. Edwards of Edwards, Mitchell & Reeves, Decatur, for petitioner. Jerry Knight, Decatur, for respondent. HOOPER, Chief Justice. Thomas F. Moebes, Jr., sued Tony Moore Buick-GMC Trucks, Inc. ("Tony Moore"), stating three counts of fraud in connection with his purchase of a 1989 Buick Riviera "program vehicle" from the Moore dealership. Moebes alleged that during the negotiation of the sale, an agent of the Moore dealership represented to him that the car had not been wrecked, damaged, or repaired, and that the car had been driven by an executive of General Motors. Moebes further alleged that the false representations were the basis of the bargain and that the Moore dealership had acted willfully and recklessly when making these representations. A jury returned a verdict in favor of Moebes, awarding him $4,500 in compensatory damages and $24,500 in punitive damages. Moebes made a motion for a new trial, which the trial court denied. Moebes then appealed to the Court of Civil Appeals. That court considered only one of the issues Moebes raised on the appeal: Whether the trial judge committed reversible error by not allowing Moebes to present the testimony of seven witnesses who claimed to have been similarly defrauded. The Court of Civil Appeals reversed the judgment and ordered a new trial. Moebes v. Tony Moore Buick-GMC Trucks, Inc., 709 So. 2d 475 (Ala.Civ. App.1996). The Court of Civil Appeals stated that the trial court should have allowed the testimony of three of the witnesses for the limited purpose of showing that on other occasions the dealership had misrepresented the classification of a "company car" as an "executive car." This Court granted the writ of certiorari for the purpose of determining whether it was proper for the Court of Civil Appeals to review this case. In light of this Court's holding in Ex parte Weyerhaeuser Co., 702 So. 2d 1227 (Ala.1996), we reverse. In Weyerhaeuser the plaintiff had raised two procedural issues before the Court of Civil Appeals: (1) Whether the trial court erred when it denied her challenges for cause as to three prospective jurors; and (2) Whether the trial court erred when it failed to set aside the jury's punitive damages verdict and denied her a new trial. See Sewell v. Webb, 702 So. 2d 1222 (Ala.Civ.App.1995) (reviewed sub nom. Ex parte Weyerhaeuser Co.). The Court of Civil Appeals held that the trial court had abused its discretion by not granting the plaintiff's motion to strike the three jurors for cause. 702 So. 2d at 1223. This Court reversed the judgment of the Court of Civil Appeals, stating, "Alabama case law is clear that a party who prevailed in the trial court can appeal only on the issue of adequacy of damages awarded." Ex parte Weyerhaeuser Co., 702 So. 2d at 1228; citing DeBardeleben v. Tynes, 290 Ala. 263, 276 So. 2d 126 (1973); Beatty v. McMillan, 226 Ala. 405, 147 So. 180 (1933); Nichols v. Perryman, 615 So. 2d 636 (Ala.Civ.App.1992); Cleveland v. Gilbert, 473 So. 2d 1075 (Ala.Civ. App.1985). On appeal to the Court of Civil Appeals, Moebes complained of the exclusion of certain witnesses' testimony. Under Alabama case law, that issue was an improper one for appeal. As we said in Weyerhaeuser, any review of a punitive damages award should address a question of alleged excessiveness of the award, not a question of its adequacy. This holding is rooted in the nature of the punitive damages award. Compensatory damages are designed to make the plaintiff whole by reimbursing him or her for the loss or harm suffered. Torsch v. McLeod, 665 So. 2d 934, 940 (Ala.1995). In contrast, punitive damages serve "`not to compensate the plaintiff but to punish the wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future.'" Ex parte Weyerhaeuser, 702 So. 2d at 1229, quoting Green Oil Co. v. Hornsby, 539 So. 2d 218, 222 (Ala.1989). See also Life Insurance Co. of Georgia v. Johnson, 684 So. 2d 685 (Ala. 1996), rev'd on other grounds ___ U.S. ___, 117 S. Ct. 288, 136 L. Ed. 2d 207, on remand, 479 701 So. 2d 524 (Ala.1997); Adams v. Robertson, 676 So. 2d 1265, 1291 (Ala.1995); Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775 (1910); Comer v. Age-Herald Publishing Co., 151 Ala. 613, 44 So. 673 (1907). The jury is in the best position to decide the amount of damages that will accomplish this purpose; therefore, we leave this decision to the jury's discretion. Wal-Mart Stores v. Jones, 533 So. 2d 551, 552 (Ala.1988); Dependable Ins. Co. v. Kirkpatrick, 514 So. 2d 804, 807 (Ala.1987); Roberson v. Ammons, 477 So. 2d 957, 961 (Ala.1985); Randell v. Banzhoff, 375 So. 2d 445, 448 (Ala. 1979), cert. denied, 444 U.S. 1081, 100 S. Ct. 1034, 62 L. Ed. 2d 765 (1980). The trial judge, in his discretion, determines the relevancy of a witness's testimony. Sweeney v. Purvis, 665 So. 2d 926, 930 (Ala.1995); City of Birmingham v. Moore, 631 So. 2d 972, 974 (1994); Crest Constr. Corp. v. Shelby County Bd. of Educ., 612 So. 2d 425, 431 (Ala.1992); Joseph Land & Co. v. Gresham, 603 So. 2d 923, 926 (Ala.1992). Moebes alleges that the witnesses' testimony would have established a pattern and practice of fraud on the defendant's part. However, pattern and practice evidence is for one purpose only determining the amount of punitive damages. Ala. Code 1975, § 6-11-21. An appellate court may review an appeal by a winning party only as to the adequacy of the compensatory damages awarded. Because there is no right to challenge on appeal an alleged inadequacy of punitive damages, the Court of Civil Appeals should not have heard this matter at all. Its judgment is reversed, and the case is remanded with instructions to reinstate the judgment of the trial court. REVERSED AND REMANDED WITH INSTRUCTIONS. MADDOX, SHORES, HOUSTON, and SEE, JJ., concur. KENNEDY, COOK, and BUTTS, JJ., dissent. KENNEDY, Justice (dissenting). I dissent, not based on the adequacy of the damages awarded by the trier of fact, but based on the majority's reversal of the Court of Civil Appeals' decision to consider Moebes's allegations of error on the part of the trial court. The majority bases its ruling on the proposition that "a party who prevailed in the trial court can appeal only on the issue of adequacy of the damages awarded." 709 So. 2d at 478. However, I believe that when the trial court's alleged errors are properly preserved, the prevailing party should not be prevented from seeking appellate review of those alleged errors. To summarily refuse to consider a party's allegations of error, simply because that party prevailed at trial, is patently unfair and disregards the notion that this Court should seek the uniform application of the laws of this state. BUTTS, J., concurs.	November 14, 1997
a0120070-30e0-4129-842b-73b375091bca	Barnette v. Wilson	706 So. 2d 1164	1960308	Alabama	Alabama Supreme Court	706 So. 2d 1164 (1997) Greg BARNETTE and Mike Mosko v. John WILSON. 1960308-CER. Supreme Court of Alabama. November 14, 1997. 1165 S. Greg Burge and Joseph W. Buffington of Heninger, Burge & Vargo, Birmingham, for plaintiffs. J. Bernard Brannon, Jr., of Brannon & Guy, P.C., Montgomery, for defendant. HOOPER, Chief Justice. Greg Barnette and Mike Mosko, both former City of Montgomery police officers, filed a slander action against John Wilson, the chief of police for the City of Montgomery, in the United States District Court for the Middle District of Alabama. That federal court, acting pursuant to Rule 18, Ala.R.App.P., certified to this Court the following question: The federal district court set out the following facts in its certification to this Court: Barnette and Mosko were, during the period 1989-90, members of the "Return our Turf" team ("ROT"), a division of the Narcotics and Intelligence Bureau of the Montgomery Police Department. The captain of the ROT team during this period was Larry Armstead. Capt. Armstead began receiving anonymous telephone tips indicating that particular members of the team would stop suspects and, if they found drugs and money on the suspects, would take the money but not make an arrest. Mosko was one of two officers specifically referred to in the telephone tips by their nicknames. Mosko's nickname was "Old Dude." On one occasion when Capt. Armstead was out with the ROT team executing a search warrant, he spotted money and jewelry in the apartment being searched; later, after two ROT team officers, the plaintiff Greg Barnette and Officer Marty Wooten, had entered and exited the room, the jewelry was gone. Based upon the telephone tips, his personal observation, and confidential conversations with other officers in the department, Capt. 1166 Armstead set up a "sting" operation that targeted six members of the ROT team. The sting was executed by using a police department trainee posing as a crack cocaine dealer. The police planted $2,300 and 9 grams of cocaine in an apartment. Two officers arrested the trainee outside the apartment, and Officers Barnette, Mosko, Wooten, and Bertarelli entered the apartment. After the officers left the apartment, both the money and the drugs were gone. The four officers were detained and were questioned at police headquarters. Another officer was instructed not to let the officers out of his sight while they were detained. At some point, each of the four officers was allowed to visit the restroom unattended. Later, a body search of each of the four disclosed $560 on Bertarelli (approximately one-fourth of the total), but no money was found on the other three officers. A large portion of the money was found in the sewer line of the police station. Bertarelli stated that in the apartment Wooten had approached him, holding four envelopes, and that Wooten handed him one of the envelopes, which contained one-fourth of the money that had been in the apartment. Early the next morning, the four officers were called back to the police station and were presented with three alternatives. An attorney retained by the Police Benevolent Association acted as an intermediary with the ROT team officers and the police department officials. The first two alternatives would have had Bertarelli and Wooten go to jail and would have had Mosko and Barnette become the subject of a messy public investigation that the police chief guaranteed would result in the firing of both officers. The third alternative was that if all four officers resigned immediately, the department would not press criminal charges and would not release to the press the names of the four. All four men immediately tendered written resignations, although Barnette and Mosko maintained that they were innocent. Fifteen minutes later, Chief Wilson stated at a press conference: "I feel like we accomplished what we wanted to do. We found four dirty cops and four dirty cops are gone." At this same conference, Chief Wilson specifically named the four ROT team officers involved. As a result of the press conference, the local news media published related stories for several weeks. Officers Mosko and Barnette filed a defamation action against Police Chief Wilson. A jury returned a verdict in favor of the plaintiffs on the slander claim. Wilson moved for a judgment as a matter of law. See Rule 50(a), F.R.Civ.P. He claimed that he was not liable for damage resulting when the news media repeated his statement. The federal district court determined that the case involved a question of law without "clear controlling precedent" and certified the question to this Court. A jury has found that the original publication by Chief Wilson was slanderous. The federal district court has certified its question. Because the jury has already returned a verdict in this case and the federal court has asked a certified question of limited scope, this Court may not address the merits of the slander action against Chief Wilson. We must limit our discussion to answering the certified question. "The general rule is that one who publishes a defamatory statement will not be held liable for the repetition of it by others. 53 C.J.S. Libel and Slander § 85. When, however, the second publication is a natural and probable consequence of the first, the initial publisher is responsible for it. Giordano v. Tullier, 139 So. 2d 15 (La.App.1962). `Where there were circumstances, known to the original defamer at the time of his publication that might reasonably lead him to expect a repetition, he is responsible for it.'" Davis v. National Broadcasting Co., 320 F. Supp. 1070, 1072 (E.D.La.1970). In Davis, the plaintiff sued NBC as the original publisher of a defamatory statement that was reprinted six weeks later in a newspaper. In Muirhead v. Zucker, 726 F. Supp. 613 (W.D.Pa.1989), the plaintiff alleged that a news release concerning a lawsuit was false and defamatory and had been motivated by malice. The defendants claimed that they 1167 had only provided information to the newspaper and argued that they could not be held responsible for the results that followed the newspaper's publication of that information. The court stated that this line of reasoning was "ludicrous." 726 F. Supp. at 617. An actor is presumed to intend the logical outcome of his actions. One who publishes a defamatory statement to news media will not be shielded from liability just because the harm to the person defamed has resulted from the republication by the news media. Once a person makes a defamatory publication, the person defamed has a cause of action. Normally, the original publisher of a defamation is not responsible for the consequences of its repetition by others. While we find no prior Alabama case law directly on point, this Court will follow the lead of other jurisdictions that have considered this issue and have created an exception to the general rule: When the original publisher of a defamatory statement might reasonably expect the statement to be repeated, the original publisher is responsible for the damage that results from that repetition of the slander. Therefore, the answer to the certified question is yes. QUESTION ANSWERED. KENNEDY, J., concurs. MADDOX, ALMON, HOUSTON, and SEE, JJ., concur specially. SHORES and COOK, JJ., concur in the result in part and dissent in part. HOUSTON, Justice (concurring specially). I concur because of the way the question is presented: By concurring, I am not agreeing that the repetition of the alleged defamatory information in a newspaper or on radio or television is a slander. I believe that if, with the intent to have them published by radio, television, or newspaper, one presents defamatory statements to reporters from those media, the publication of the defamatory statements by those media is the publication of a libel and not the publication of a slander. See Restatement (Second) of Torts, § 568 cmt. f (1977); First Independent Baptist Church of Arab v. Southerland, 373 So. 2d 647 (Ala. 1979). But that is not the question certified to this Court. MADDOX, ALMON, and SEE, JJ., concur. COOK, Justice (concurring in the result in part and dissenting in part). The question certified to this Court actually involves two separate issues. The first issue is purely a question of proximate cause, namely, whether a police chief, who conducts a press conference to explain to attending representatives of the radio and newspaper media how an undercover "sting operation" had resulted in the dismissal of police officers in his employ, may be liable for the subsequent dissemination by those media of defamatory remarks the police chief made about the terminated officers at the press conference. The second distinct issue is whether the police chief's defamatory remarks in the preceding instance constitute libel, rather than slander. The "question," as it has been certified to this Court, cannot be addressed without first resolving both of these issues. I would answer both questions in the affirmative. Insofar, therefore, as the majority opinion supports the jury's award of compensatory damages, I concur in the result. Insofar, however, as the majority opinion holds that the defamatory remarks were slander, which is the only basis on which the jury could have awarded punitive damages, I cannot agree. As to the extent of liability of the original publisher of defamatory material for damage caused by its subsequent publications, the rule is as follows: W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts § 112, at 795 (5th ed.1984) (emphasis added; footnotes omitted). The Restatement describes the rule similarly: Restatement (Second) of Torts § 576 (1977). The statements made by Chief Wilson fall squarely within this rule. Consequently, I would hold that the jury in this case could have awarded compensatory damages on the ground that Chief Wilson's initial statements were the proximate cause of harm resulting from the foreseeable and intended repetition by the media. Therefore, I concur in the result as to the award of compensatory damages.[1] The award of punitive damages, however, is quite another matter. Ala.Code 1975, § 6-5-186, provides: (Emphasis added.) It is undisputed that the plaintiffs did not solicit a retraction, as required by § 6-5-186. Consequently, the punitive damages awarded by the jury in this case are authorized by Alabama law only if Chief Wilson's remarks are properly characterized as slander. I would hold that they are not. "`Libel consists of the publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words.'" First Indep. Baptist Church of Arab v. Southerland, 373 So. 2d 647, 649 (Ala.1979) (quoting Restatement (Second) of Torts § 568; emphasis in Southerland). Southerland held that statements made in tape-recorded sermons broadcast from a radio stationwere, if defamatory, libel rather than slander. 373 So. 2d at 650. Consistent with that case is the view that "[a] publication of a libel may be made by an oral communication that is intended to be, and is, reduced to writing ... or when a statement is given orally to a newspaper reporter and is published in the paper." Willis v. Perry, 677 P.2d 961, 963 (Colo.App. 1983) (quoting Restatement (Second) of Torts 1169 § 568 cmt. f (1977) (emphasis added)); see also Newton v. Family Federal Savings & Loan Ass'n, 48 Or.App. 373, 616 P.2d 1213 (1980). It would be anomalous and unjust to hold Chief Wilson liable for damages flowing from publications in forms which, if the action had been brought against the republishing media, would, by definition, be the basis of a cause of action for libelnot slanderbut, at the same time, deny him the benefit of § 6-5-186, to which the republishing media would be entitled. I consider Chief Wilson's statements, to the extent they are defamatory, different in no substantive respect from dictations made to a stenographer for written dissemination. See Restatement (Second) of Torts § 568 cmt. f (1977) ("[O]ne who dictates to a stenographer a letter that defames a third person may become liable for libel on the basis of the oral communication when the stenographer takes it down, even though no other person sees it"). I would hold that Chief Wilson's statements are subject to § 6-5-186, and, consequently, are not subject to the imposition of punitive damages. To the extent, therefore, that the majority opinion characterizes the defamation as slander and supports the imposition of punitive damages, I respectfully dissent. SHORES, J., concurs. [1] Although Restatement § 576 limits the application of this rule to "special harm," which it defines as "the loss of something having economic or pecuniary value," § 575 cmt. b, no issue has been presented to us regarding the type of compensatory damages awarded, that is, general or special.	November 14, 1997
e124163a-d7d6-4a23-a8a4-823842333a8e	Ex Parte Arthur	711 So. 2d 1097	1951985	Alabama	Alabama Supreme Court	711 So. 2d 1097 (1997) Ex parte Thomas Douglas ARTHUR. (Re Thomas Douglas Arthur v. State). 1951985. Supreme Court of Alabama. November 21, 1997. Rehearing Denied March 20, 1998. 1098 John P. Rall of Boehl, Stopher & Graves, Paducah, Kentucky (released as counsel April 7, 1997). Lajuana Davis, Montgomery (appointed April 22, 1997). Bill Pryor, atty. gen., and Andy S. Poole, asst. atty. gen., for respondent. SEE, Justice. A jury convicted Thomas Douglas Arthur of murder. The trial court imposed a capital sentence. The Court of Criminal Appeals upheld Arthur's conviction and sentence. Arthur v. State, 711 So. 2d 1031 (Ala.Crim. App.1996). We affirm. More than 20 years ago, Arthur's relationship with his common-law wife ultimately led to his brutally murdering a relative of the woman. Arthur shot the victim in the right eye with a pistol, causing nearly instant death. He was convicted in a 1977 trial and was sentenced to life imprisonment. While on work release during the life sentence, Arthur had an affair with a woman that ultimately led to his brutally murdering that woman's husband, Troy Wicker, in 1982. Arthur shot Wicker in the right eye with a pistol, causing nearly instant death. A jury of Arthur's peers convicted him of the murder of Troy Wicker, and the trial court imposed a capital sentence. That conviction was reversed. Ex parte Arthur, 472 So. 2d 665 (Ala.1985). A second jury of Arthur's peers convicted him of the murder of Troy Wicker, and the trial court again imposed a capital sentence. That second conviction also was reversed. Arthur v. State, 575 So. 2d 1165 (Ala.Crim.App.1990), cert. denied, 575 So. 2d 1191 (Ala.1991). After two complete trials and successful appeals, Arthur asked the trial court to allow him to act as co-counsel in his own defense. Specifically, Arthur requested that one of his two trial attorneys be removed and that Arthur be allowed to act as co-counsel in place of the removed attorney. The trial court granted Arthur's request to act as his own co-counsel along with the other qualified attorney, and the court put the replaced attorney on standby status. Arthur's co-counsel examined witnesses, made opening and closing arguments, and made numerous objections. Arthur, in consultation with his co-counsel, took an active role in cross-examining witnesses, in formulating objections, and in other matters. The third jury of Arthur's peers convicted him of the murder of Troy Wicker.[1] At the sentencing phase of the trial, Arthur asked the trial court to allow him to argue for a capital sentence. The evidence showed that Arthur believed that if he received a capital sentence the sentence would not actually be carried out. Instead, Arthur believed that with a capital sentence he would receive better prison accommodations, more access to the law library, more time to devote to his appeal, a more extensive appeals process, and, based on his prior experience with the capital appellate process, an increased chance for a third reversal. After cautioning Arthur against this course of action, the trial court allowed Arthur to proceed, but refused to exclude mitigating evidence from the sentencing phase of the trial. Eleven jurors recommended capital punishment. After thoroughly reviewing the aggravating and mitigating circumstances, the trial court imposed a capital sentence for the murder of Troy Wicker.[2] After three trials, four appellate reviews, approximately 10 different attorneys, and numerous delays and continuances, Arthur raises over 40 issues before this Court. We 1099 defer to the opinion of the Court of Criminal Appeals with respect to all but two of these issues: (1) whether Arthur's acting as his own co-counsel required a formal colloquy between Arthur and the trial court and an express waiver of his right to full representation by counsel; and (2) whether Arthur's request for capital punishment was made knowingly and voluntarily. Arthur contends that the trial court erred in allowing him to serve as his own co-counsel without first holding a formal colloquy to determine that Arthur had made his decision knowingly and voluntarily. We disagree. The Sixth Amendment to the United States Constitution provides in pertinent part: (Emphasis added.) The Supreme Court of the United States has interpreted these words to afford a criminal defendant the right to be represented by an attorney, see Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), and the right to represent himself without the assistance of counsel, see Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). "Because these rights are basic to our adversary system of criminal justice, they are part of the `due process of law' that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States." Faretta, 422 U.S. at 818 and n. 14, 95 S. Ct. at 2533 and n. 14. On the one hand, the Constitution guarantees an accused the right to assistance of counsel in his defense. On the other hand, it guarantees him the right to abandon the assistance of counsel and to present his own defense. Such an abandonment must be accompanied by a showing in the record that the accused made a knowing and intelligent decision to forgo counsel. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. The trial court did not engage in a formal colloquy with Arthur regarding the disadvantages, if any, of hybrid representation, and Arthur did not expressly waive the right to full representation by counsel. Arthur contends that by granting his request for partial self-representation, without having taken these procedural safeguards, the court infringed his right to assistance of counsel. Faretta, however, did not require a formal colloquy and an express waiver, as Arthur contends. Faretta, 422 U.S. at 835-36, 95 S. Ct. at 2541-42, requires the following: (Emphasis added.) See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986) ("The ultimate test is not the trial court's express advice, but rather the defendant's understanding."). Arthur's literacy is shown in the record by his pre-trial correspondence with the trial court. Arthur's competency and understanding with respect to his decision to act as co-counsel was shown by his experience in the trial and appellate process. This was Arthur's fourth murder trial, his third for the murder of Troy Wicker. Arthur had been heavily involved in the appeals from his first two convictions for Troy Wicker's murder. He had read both records from the previous trials and had an acute understanding of what he was doing. Accordingly, we conclude that Arthur knowingly and intelligently requested to act as his own co-counsel and that in doing so he implicitly waived full representation of counsel.[3] Arthur contends that the trial court erred in allowing him to request a capital sentence without the court's first ensuring that his decision to do so was knowing and voluntary. During the sentencing phase of Arthur's trial, Arthur argued to the jury in favor of capital punishment. Arthur told the jury that if he received a capital sentence, he would get an automatic appeal, that review of the appeal was faster, and that his appeal would be given heightened scrutiny. Arthur also acknowledged that as a prisoner with a capital sentence, he would receive better accommodations and more access to the prison's law library. Arthur's decision to argue in favor of capital punishment was made knowingly, intelligently, and voluntarily. Prior to trial, Arthur wrote a letter to the trial court stating that if found guilty he would ask for capital punishment. Arthur explained to the trial court that he did not have a death wish, but that he would receive numerous practical and procedural advantages if he received a capital sentence. The trial court ensured that Arthur discussed this decision with his co-counsel, who tried to discourage him from such a course. Arthur's decision was based on his previous experience in obtaining reversals of his two earlier convictions and on his experience in prison. Arthur has, in fact, received better treatment in prison. He has had liberal access to the law library. He has received an extra, automatic, review by this Court. It is not for this Court to second-guess trial tactics or strategy. See United States v. Long, 674 F.2d 848, 855 (11th Cir. 1982) (stating that appellate courts should not second-guess trial tactics such as decisions regarding which witnesses should be called to testify); Inmin v. State, 668 So. 2d 152, 155 (Ala.Crim.App.1995) (stating that the decision not to move to dismiss an indictment was a matter of trial strategy and that the court would not second-guess the decision); Graham v. State, 593 So. 2d 162, 166 (Ala.Crim.App.1991) (stating that appellate courts will not second-guess trial tactics such as counsel's deciding not to object to prejudicial hearsay, even if the decision was a bad one); see generally State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994), cert. denied, 513 U.S. 1159, 115 S. Ct. 1120, 130 L. Ed. 2d 1083 (1995) (holding that ineffective assistance of counsel did not occur when, in a capital resentencing proceeding, defense counsel informed the jury that the defendant had received a capital sentence in the first sentencing proceeding); People v. Bone, 154 Ill.App.3d 412, 107 Ill.Dec. 142, 506 N.E.2d 1033 (1987) (approving defense counsel's argument to the jury that his client was guilty, made in the hope of receiving a more lenient sentence). Arthur's tactic clearly shows that he was well informed on the state of the capital punishment system, and we hold that his decision to request capital punishment was a voluntary one.[4] *1101 The judgment of the Court of Criminal Appeals is affirmed. AFFIRMED. HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur. [1] Arthur's accomplice, the wife of Troy Wicker, testified at trial regarding Arthur's murdering of her husband. [2] Arthur's offense was a capital murder because it occurred within 20 years of his 1977 conviction for the previous murder. Ala.Code 1975, § 13A-5-40(a)(13). [3] We note that the better practice is, of course, for the trial judge to hold a formal colloquy with a defendant who has either standby counsel or hybrid representation. Because of Arthur's obvious knowing and intelligent decision in this case, we need not reach the issue whether a waiver of the right to counsel is constitutionally required when a less informed accused is afforded standby counsel or hybrid representation. We note, however, that other courts are not in accord on this issue. Compare, e.g., Metcalf v. State, 629 So. 2d 558 (Miss.1993) (holding that there was no need for a waiver when the accused was never without the advice and expertise of his attorney); Phillips v. State, 604 S.W.2d 904 (Tex.Crim.App.1979) (holding that no waiver is required where accused is afforded hybrid representation); and State v. Layton, 189 W.Va. 470, 432 S.E.2d 740 (1993) (stating that when the accused receives a hybrid-type representation the trial court need not enter into as in-depth a colloquy as would be required for self-representation) with Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir.1976) (holding that the trial court should obtain a waiver of counsel from the accused who had standby counsel because the accused had less than full representation by counsel); United States v. Kimmel, 672 F.2d 720 (9th Cir. 1982) (holding that an accused must knowingly and intelligently waive right to counsel when he assumes core functions of the lawyer); State v. Frye, 224 Conn. 253, 617 A.2d 1382 (1992) (requiring same type of colloquy for hybrid representation as for self-representation); State v. Penson, 630 So. 2d 274 (La. App. 1993) (stating that a waiver is required when the defendant performs many of the functions that an attorney traditionally performs); People v. Dennany, 445 Mich. 412, 445, 519 N.W.2d 128, 142 (1994) (stating that there is "no reason why the standard for waiving part of a constitutional right should be different from the standard for waiver of the entire right"). [4] In any event, the trial court considered all the available evidence before imposing the sentence. It heard arguments on aggravating and mitigating circumstances, and it made specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, each mitigating circumstance enumerated in § 13A-5-51, and any additional mitigating circumstances offered pursuant to § 13A-5-52. The trial court recognized as an aggravating circumstance that this murder was committed while Arthur was serving a life sentence for a previous murder. The trial court also recognized as a mitigating circumstance that the State did not prosecute two of Arthur's accomplices.	November 21, 1997

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