author:
PER CURIAM. YATES, Presiding Judge, CRAWLEY, Judge,
      THOMPSON, Judge,

text:
    Paul E. GARDNER and Celia H. Gardner v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    2000279.
    Court of Civil Appeals of Alabama.
    Jan. 18, 2002.

      Frank M. Wilson, Montgomery; and Lynn W. Jinks III and Christina D. Crow of Jinks, Daniel, Crow & Seaborn, L.L.C., Union Springs, for appellants.
    Michael B. Beers and Winston W. Edwards of Beers, Anderson, Jackson, Hughes & Patty, P.C., Montgomery, for appellee State Farm Mutual Automobile Insurance Company.
    Stephen E. Whitehead and Michael J. Clemmer of Lloyd Gray & Whitehead, P.C., Birmingham; and Michael E. Jones of Jones & Sport, Luverne, for appellee A1 Snellgrove.
   PER CURIAM.

On August 27, 1999, the plaintiffs, Paul E. Gardner and Celia H. Gardner, sued State Farm Mutual Automobile Insurance Company (“State Farm”) and Al Snell-grove in the Crenshaw County Circuit Court, alleging breach of contract, conversion, unjust enrichment, and negligent and/or wanton supervision. The Gardners’ claims arose after two State Farm employees absconded with some of their premium payments, along with payments of other State Farm customers.

Following discovery, State Farm and Snellgrove moved for a summary judgment. At the hearing on the summary-judgment motion, the Gardners voluntarily dismissed their unjust-enrichment claim. After the hearing, the trial court entered a partial summary judgment for the defendants on the claims alleging conversion, negligent supervision, and wanton supervision and for Snellgrove on the breach-of-contract claim, leaving the breach-of-contract claim pending against State Farm only. Pursuant to Rule 54(b), Ala. R. Civ. P., the trial court directed the entry of a final judgment on the partial summary judgment. The Gardners appealed from the summary judgment as to their conversion, negligent-supervision, and wanton-supervision claims. The Gardners’ appeal was transferred to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Because this appeal is from a summary judgment, our review is de novo. See EBSCO Indus., Inc. v. Royal Ins. Co. of America, 775 So.2d 128 (Ala.2000). In reviewing a summary judgment, an appellate court uses the same standard of review that a trial court uses “in determining whether the evidence before the court made out a genuine issue of material fact.” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). Once the movant makes a prima facie showing that no genuine issue of material fact exists and that he or she is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (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 Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, an appellate court must view the evidence in a light most favorable to the nonmoving party and entertain such reasonable inferences as the trier of fact would have been free to draw. Renfro v. Georgia Power Co., 604 So.2d 408 (Ala.1992).

Facts

Viewing the evidence in a light most favorable to the Gardners, as the applicable standard of review requires, the record indicates the following material facts. State Farm and its allied companies have a number of local offices across Alabama. Each local office is supervised by an “independent contract agent.” The independent contract agent is paid commissions on policies sold from his or her local office, is responsible for staffing the office, and pays all office expenses from those commissions. Local office employees may become licensed insurance agents through the sponsorship of State Farm; after becoming licensed, staff employees are authorized to sell State Farm policies. Local office employees are also authorized to quote premiums, to receive premium payments, and to issue binders for coverage under the aegis of the independent contract agent’s state insurance license.

Each State Farm local office has, among other accounts, a premium-fund account into which each insurance premium paid to employees at a State Farm local office is to be deposited. At the time a State Farm insured makes a premium payment, a staff employee accepts the payment, applies it to the insured’s policy, and gives the insured a receipt. The payment is then typically entered into State Farm’s computer system.

The record also indicates that each State Farm independent contract agent assigned to a local office has a register in which he or she is to record all deposits in order to reconcile the office accounts. Each day, the agent generates a summary of the day’s deposits, and is responsible for reconciling monthly bank statements with the entries of premium payments in the State Farm computer system. Typically, a premium-fund-account reconciliation should be completed as soon as possible after the State Farm independent contract agent receives the office’s monthly bank statements.

In addition to supervising local-office personnel, the independent contract agent in each State Farm local office is given authority, in regard to certain “smaller” insurance claims, to write claim checks up to $5,000 on a State Farm account to facilitate the prompt payment of smaller claims. State Farm refers to such authority as “agent-draft authority,” and recommends that its independent contract agents use agent-draft authority as often as possible because doing so is convenient for policyholders and helps cement policyholders’ relationships with the agent. Only the independent contract agent in a local office may sign checks pursuant to agent-draft authority — staff employees are not to sign such checks.

Each State Farm local office has a book of perforated blank checks for the purpose of making agent-draft-authority payments. These checks are issued in sequence, and State Farm has procedures to be followed for checks that are voided or spoiled. After an agent has prepared an agent-draft-authority check, it is given to the insured, and a copy is sent to the State Farm regional office. The bank account from which agent-draft-authority checks are drawn is owned by State Farm; thus, checks drawn on a local office’s agent-draft-authority are not returned to the issuing local office, but are returned by the bank to a State Farm regional office, which thereafter prepares a monthly check report for the local office listing the pertinent payees, amounts, policy numbers, and insurance coverages. However, State Farm apparently has no procedure in place to ensure that the signature on the draft is actually that of the independent contract agent.

When, for some reason, there is temporarily not an independent contract agent in one of its local offices, State Farm designates that office as an “emergency services program” or “ESP.” When a local office is designated as an ESP, the staff employees remain in place, continuing to quote premiums, to take applications, to accept premium payments, and to bind coverage; additionally, the staff employees become salaried employees of State Farm. When an office is designated as an ESP, the sole responsibility for financial management of that office is transferred to the State Farm agency field office to which that local office has been assigned. Because an ESP, by definition, has no independent contract agent in residence, personnel in an ESP do not have agent-draft authority to issue small claim checks. As one might surmise, ESP status is generally expected to last only for short periods.

Each State Farm local office (including ESPs) is assigned to an “agency field office.” The field office is headed by an “agency field executive” and is assigned at least one “agency field consultant.” When a local office is being managed by an independent contract agent, State Farm field employees visit the office at least once a month to reconcile the premium-fund account. Field employees also respond to questions or problems the independent contract agent may have, and they assist in training staff employees for the local office.

During the period pertinent to the Gard-ners’ claims, State Farm’s local office in Luverne, Alabama, was supervised by the Dothan agency field office. Tim Bryan was the field employee assigned to the Luverne local office; he was the only field employee in southeastern Alabama, supervising approximately 34 local State Farm offices in that region. Rich Potter was the agency field executive in charge of the Dothan-area State Farm agency field office beginning in November 1997.

Periodically, State Farm agency field offices perform a “business management assistance review” of local offices. When a review is held, it must include an on-site review of an independent contract agent’s premium-fund account records and that agent’s procedure for agent-draft authority. During the review, the field employee is to review three randomly selected client files. The field employee is also to specifically review claims paid to household members of agents or staff members. Although State Farm has published a manual for use in training its employees on how to conduct a business management assistance review, Bryan testified that he was not trained using that manual.

In 1994, Elizabeth McKinnon, who was the independent contract agent at State Farm’s local office in Luverne, hired Sharon Davis as a staff employee. Davis later became a licensed agent for State Farm, serving in that capacity until May 1999. In October 1995, McKinnon left the Lu-verne local office, causing that office to be converted to an ESP. Consistent with the change, Davis became directly employed by State Farm, although she continued to function as a staff employee with the same duties and responsibilities she previously had. In October 1996, the ESP status of the State Farm local office in Luverne terminated when Tracy Townley came to the Luverne office as a trainee agent, acting as the office’s independent contract agent on a trial basis. In April 1997, Townley hired Cindy Sipper as a staff employee.

In July or August 1997, Townley left State Farm’s employment, causing the Lu-verne local office to again became an ESP. At that time, State Farm asked Sipper to become a licensed agent. During State Farm’s internal evaluation of Sipper, it was discovered that she had a poor credit history; nevertheless, Bryan recommended that she be licensed, and Sipper subsequently obtained an Alabama insurance license.

The Luverne local office continued on ESP status until defendant Snellgrove became a trainee agent in January 1998. At the time, Snellgrove had investigated fraudulent claims for State Farm for several years, but lacked experience as an agent and in office management. Snell-grove completed a year as a trainee agent and became an independent contract agent in 1999, serving the office’s approximately 1300 insureds.

During Snellgrove’s year as a trainee agent, the Gardners contend, State Farm became aware of problems in the Luverne office; they base that contention upon several insurance transactions involving Re-nae Ray. In February 1998, Ray paid money to purchase State Farm life-insurance coverage, and she purchased automobile insurance coverage from State Farm in April 1998. In August 1998, she financed the purchase of a Jeep automobile, which she also sought to insure through State Farm. In each instance, Ray dealt with Davis and Sipper.

When Ray contacted Davis to inform her that the lienholder on the Jeep had requested proof of insurance on the Jeep, Davis told Ray that she would “take care of that”; however, the lienholder continued to contact Ray with requests for insurance. Ray then contacted the State Farm regional office in Birmingham in October or November 1998 to obtain proof of insurance. At that time, State Farm personnel informed her that they had no record of her having purchased life insurance, that her automobile insurance had lapsed, and that she had never had any insurance on the Jeep. Ray was told to contact Potter in State Farm’s agency field office in Dothan, who told her that he would get back to her. Potter then contacted Snellgrove, who discovered that one or more of Ray’s insurance policies had lapsed; Snellgrove, in turn, asked Davis to explain the situation. Davis told Snellgrove that it was a clerical error. Snellgrove asked Potter and Bryan to come to Luverne to review Ray’s policies, at which time Potter and Bryan met with Snellgrove, Davis, and Sipper.

Potter stated in his deposition:

“This meeting was a culmination of an investigation I had done into [Ray’s] problem, and this was — again, there was a lot of information there and I laid it out for them and we were asking for an explanation as to what happened. And Sharon Davis, I believe, volunteered some information about the fact that she had failed to send an application in for an automobile insurance policy. And in an attempt to cover up that mistake, she made a mistake and sent another application in. So in the meeting she just said [‘]I messed up, I did something I wasn’t supposed to do.[’] And she may have even mentioned termination at that time; [‘]hey, if you want to fire me, I’ll understand.!’]”

Potter then reviewed Ray’s checks and the records kept by Davis:

“So I had copies of these checks and I had a payment history here, and I just— I could not match up the payments or the copies of the checks that she sent to me and where they were supposed to be applied. So far as a lapse in insurance coverage, there may have been lapses in insurance coverage. But I’ll be honest with you, I couldn’t make heads or tails of this.”

After talking with Davis and reviewing the documentation on the policies, Potter recommended that Davis be fired. In contrast, Bryan believed that Davis had simply made a mistake. Snellgrove, who had the authority to fire Davis, did not do so.

The Gardners have had State Farm automobile insurance since the mid-1980s, and have insured several automobiles under policies obtained through the State Farm local office in Luverne. Before 1998, State Farm issued insurance policies for a Pontiac Grand Prix automobile and a Ford Ranger truck, as well as proof-of-insurance cards indicating that those vehicles were insured by State Farm under separate policy numbers. Typically, the Gardners were billed each month by State Farm for their automobile-insurance premiums, which they paid to Davis or Sipper.

Sometime in 1998, the Gardners traded the Grand Prix for a Pontiac Trans Sport automobile and traded the Ford Ranger for a Ford F-150 truck. On one occasion thereafter, Paul Gardner attempted to pay an insurance premium to Snellgrove personally; however, Snellgrove could not locate the pertinent insurance policy in the local office computer. At that time, either Davis or Sipper said she would find the policy, after which one of them printed a premium receipt.

In May 1999, the president of a local bank, who was a friend of Snellgrove’s, contacted Snellgrove to tell him that one of the local office’s employees had deposited into her personal bank account a claim check made out to an insured, Deborah Holley, who was Sipper’s former sister-in-law. The claim check that was deposited was for damage to Holley’s car; however, that car had not actually been damaged.

In response to the bank president’s information, Snellgrove contacted field employee Bryan and met with Davis and Sipper. Davis and Sipper explained that Holley had been in financial trouble, that they had given her money out of their own pockets, and that Sipper had endorsed the claim check as Holley’s reimbursement. However, Davis and Sipper later accused each other of wrongdoing, and they were terminated by Snellgrove in May 1999. Both Davis and Sipper have since pleaded guilty to first-degree theft.

In May 1999, Celia Gardner called State Farm’s local office in Luverne to ask about the deductible on her policy because Paul Gardner’s truck had sustained a cracked windshield. However, she never submitted a written claim. The Gardners contend that they made no claim because the new employees that were hired by Snell-grove after Davis and Sipper’s termination could not find a policy number for the Gardners’ vehicles.

During the weeks following the termination of Davis and Sipper, it was discovered that premium payments that had been made through the Luverne local office on as many as 200 State Farm policies had not been deposited into the local office’s premium-fund account; these unfor-warded payments totaled approximately $78,000. State Farm also discovered that 700 automobile policies and 100 fire-insurance policies had lapsed between 1996 and the time Davis and Sipper were fired. Potter testified that in 1998 he had thought the number of cancellations was “a little bit” higher than normal, and that he had discussed the issue with Snellgrove.

William Tevendale, State Farm’s “vice president of agency” in Alabama, testified by deposition that Davis and Sipper had been paid claim checks out of the agent-draft-authority account; apparently, Davis and Sipper forged Snellgrove’s signature on the checks. Tevendale stated that it would be “unusual” for a staff employee to be paid out of that account. Tevendale also testified that Snellgrove had signed documents with State Farm stating that premium payments were to be submitted “promptly” to State Farm and that agents are responsible for premiums until State Farm receives them. It appears that Snellgrove has paid $2,500 to State Farm for Davis and Sipper’s theft; however, it is unclear whether State Farm will seek further reimbursement from Snellgrove.

Conversion

We first consider the correctness of the summary judgment on the Gard-ners’ conversion claim against State Farm and Snellgrove. Under Alabama law, conversion consists of an act or omission by defendant with intent to assert control over property of the plaintiff. Martin v. Luekie & Forney, Inc., 549 So.2d 18 (Ala.1989). In order to prove a prima facie case of conversion, a plaintiff must show that he has a general or special title to the property or the immediate right to possession of the property. Lapeyrouse Grain Corp. v. Tallant, 439 So.2d 105, 108 n. 1 (Ala.1983). Conversion requires “a wrongful exercise of dominion over property in exclusion or defiance of a plaintiffs rights, where said plaintiff has ... the immediate right of possession.” Empiregas, Inc., of Gadsden v. Geary, 431 So.2d 1258, 1260 (Ala.1983).

At the time of the conversion, the plaintiff must have had general or specific title and actual possession or the entitlement to immediate possession of the property. Rice v. Birmingham Coal & Coke Co., 608 So.2d 713 (Ala.1992). To sustain an allegation of conversion the plaintiff must be able to show legal title and immediate right of possession. Thompson v. Ford Motor Credit Co., 550 F.2d 256 (5th Cir. 1977).

The gravamen of the Gardners’ conversion claim is that Davis and/or Sipper, purportedly within, the scope of their employment with State Farm and/or Snell-grove, diverted specifically identifiable moneys (i.e., their premium payments) that the Gardners had paid to Davis and/or Sipper to keep their State Farm insurance policies in force. However, the Gardners’ theory is, as a matter of insurance law, unsound because, at the time they made their premium payments to Davis and Sipper, the premium payments became the property of State Farm and not the property of the Gardners:

“An agent authorized to deliver the policy upon which the premium charges were based is vested thereby with apparent authority to collect the premiums, so that payment to him is payment to the company. Nor is it material that the agent entrusted with delivery of the policy failed to remit the premium to the insurer prior to the loss upon which the claim was predicated.
“The receipt of premiums by an agent appointed either expressly or by implication by the insurer to deliver the policy and collect premiums has been considered a receipt of such premium by the insurer. The fact that such agent, authorized to collect premiums, fails to remit them to the insurance company, does not deprive the insured of his protection. The majority rule seems to be that from the insured’s point of view it is immaterial whether such agent fails to remit the premiums to the insurer until after the loss ...; if the insured was entitled to rely upon such agent’s apparent authority to receive, premiums, the payment is a valid one, irrespective of actual receipt by the company.”

John A. Appleman, Insurance Law & Practice, § 7982 at 373-76 (rev.2d ed.1985) (emphasis added).

“Payment [of premiums] to a proper agent of the insurer is sufficient payment although the agent fails to give the insured a receipt therefor or to remit or turn over the money to the insurance company, or to credit the insured with the amount of the payment.
“Th[is] rule ... is applied without regard to whether it is the initial premium or not and even though the policy is not to take effect until the first premium is paid. The fact that the insurer’s agent failed to remit the first premium to the insurer, the agent having express authority to collect the first premium, does not prevent such fact from being a payment to the insurer. An insurance company is not absolved from liability on an insurance policy even if it never received the first premium from its agent and the policy was never returned, where the policy provided that the first premium might be paid to the agent and that the policy would not take effect unless such payment was made and the policy delivered within 30 days from its date.”

George J. Couch, Couch on Insurance 2d § 31:125 at 161-62 (2d ed.1985). Thus, when Davis and Sipper failed to remit the Gardners’ premium payments to State Farm, Davis and Sipper may have been guilty of conversion, but it was a conversion of property belonging to State Farm — not of property belonging to the Gardners.

Because the Gardners had no title to— or possessory right in — their premium payments after they made the payments to Davis and Sipper as apparent agents of State Farm, the Gardners have no claim against State Farm for conversion. Compare Huntsville Golf Dev., Inc. v. Ratcliff, Inc., 646 So.2d 1334 (Ala.1994) (architect relinquished property right in architectural plans when he assigned plans to bank for loan); Drennen Land & Timber Co. v. Privett, 643 So.2d 1347 (Ala.1994) (landowner who signed a timber-sales agreement never claimed that the timber company did not have the right to possession of the timber, so landowner had no claim for conversion); Ligon Furniture Co. v. O.M. Hughes Ins., Inc., 551 So.2d 283 (Ala.1989) (furniture company relinquished any right of immediate possession to fire-damaged property when it transferred possession of furniture to salvage company); Lapeyrouse Grain Corp. v. Tallant, supra (if farmers intended delivery of wheat to granary to be a sale rather than a bailment, then they did not have the ownership or right of possession of the property necessary for a conversion claim); American Standard Life Ins. Co. v. Johnson, 231 Ala. 94, 163 So. 632 (1935) (insurance agent who indorsed notes to company could not maintain action against company for conversion of the notes); Kansas City, M. & B.R.R. v. Wagand, 134 Ala. 388, 32 So. 744 (1902) (when owner abandoned a mule he could not thereafter maintain an action for conversion of the mule); Jones v. State Farm Mut. Auto. Ins. Co., 679 So.2d 1114 (Ala.Civ.App.1996) (auto insurer that paid insured for theft of car did not commit conversion by taking possession from buyer following insured’s purported sale to buyer; insured had assigned legal title to insurer and buyer therefore lacked legal title and right to possession); Automotive Acceptance Corp. v. Powell, 45 Ala.App. 596, 234 So.2d 593 (Ala.Civ.App.1970) (plaintiff who had had his automobile repossessed upon default of chattel mortgage could not maintain an action for conversion of the auto). Thus, the trial court correctly entered the summary judgment in favor of State Farm and Snellgrove on the Gardners’ conversion claim. See Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988) (appellate court may affirm judgment of trial court on any ground, including grounds not raised below).

Negligent Supervision and Wanton Supervision

We next consider the correctness of the summary judgment as to the Gardners’ claims of negligent supervision and wanton supervision. Our Supreme Court has noted that a claim of negligent supervision is stated as follows:

“In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice. While such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of, it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant to leave it to the jury whether they would have come to his knowledge, had he exercised ordinary care.”

Armstrong Bus. Servs. v. AmSowth Bank, 817 So.2d 665, 682 (Ala.2001) (citations and internal quotation marks omitted).

In this case, the Gardners have presented substantial evidence indicating that State Farm and Snellgrove knew or should have known as of October or November 1998, that Davis and Sipper were not fit employees, when it was revealed that payments made by Renae Ray on life and automobile insurance policies, payments that were handled by Davis or Sipper, had not been forwarded to State Farm and that proof of automobile insurance coverage for her Jeep was not provided to the Jeep’s lienholder. State Farm’s own agency field executive testified that he could not “make heads or tails” of the situation at the time he investigated Ray’s complaints, and Snellgrove rejected Potter’s recommendation to fire Davis and Sipper at the time. Moreover, despite State Farm’s policy that checks issued under agent-draft authority not be issued by anyone other than the independent contract agent in a local office, State Farm and Snellgrove faded to follow these procedures in a manner that would have prevented Davis and Sipper’s theft of funds by the issuance of checks payable to them that were drawn pursuant to the Luverne local office’s agent-draft authority. From that evidence, the trier of fact could conclude that State Farm and Snellgrove knew, or should have known, of the incompetency of Davis and Sipper to remain as employees in the Luverne local office after at least late 1998.

State Farm and Snellgrove contend that the Gardners can show no damage arising from any failure to properly supervise Davis and Sipper because, they say, the Gardners were entitled, as a matter of insurance law, to continued insurance coverage despite the failure of Davis and Sipper to properly transmit the Gardners’ premium payments. However, that position overlooks evidence in the record that Paul Gardner procured and paid for other insurance from GEICO after State Farm personnel informed him that he had no coverage; further, it ignores that the Gardners, after being told that they had no coverage with State Farm, elected not to present a claim for payment for a cracked truck •windshield that may have been payable under their State Farm automobile-insurance coverage. The trier of fact could reasonably conclude that the conduct of State Farm and Snellgrove in failing to properly supervise Davis and Sipper led to the Gardners’ being informed that they did not have insurance coverage with State Farm and, thereafter, to their being injured by forgoing a valid claim and/or by paying an “unnecessary” premium to GEI-CO to procure insurance coverage to substitute for coverage they were entitled to have from State Farm. See Ramsey v. Avco Fin Servs., 646 So.2d 142, 143-44 (Ala.Civ.App.1994) (noting that in tort, a party “may recover all his damages if they flow directly and naturally from the breach [of duty] and are not speculative”).

However, we reach a different conclusion as to the Gardners’ wanton-supervision claim. In addition to requiring proof that an employer knows or should know that an employee is incompetent, a claim of wanton supervision carries the additional requirement that the plaintiff demonstrate that the employer has “wantonly disregarded] its agent’s incompetence,” i.e., that it acted or omitted to act “with reckless indifference to the consequences of said act ... or omission,” being “aware from [its] knowledge of existing circumstances and conditions that [its] conduct would probably result in injury to another or in damage to [another’s] property.” Armstrong Bus. Servs., 817 So.2d at 679-80 (emphasis added).

While the discovery that Davis and Sipper had not properly handled payments made by Ray arguably provided State Farm and Snellgrove with constructive notice that Davis and Sipper were not, in fact, competent employees, the record does not indicate that State Farm or Snellgrove, in retaining Davis and Sipper after the Ray incident, acted with knowledge that their retention would probably caúse harm to other State Farm insureds. Indeed, State Farm field representatives who reviewed Ray’s complaints could not agree as to whether Davis and Sipper’s conduct in that case was a simple “clerical error.” Also, while the Gardners point to the sheer number of cancellations of State Farm insurance policies between 1996 and 1999 (i.e., 800 policies), the record indicates that cancellations during that period were only slightly elevated above the level that State Farm personnel considered normal for a local office. Moreover, while Snellgrove, in his capacity as a State Farm independent contract agent, failed to review monthly reports of agent-draft-authority checks issued from the Luverne office that might have revealed that Davis and Sipper were issuing such checks to themselves, Potter testified that there was no requirement that Snellgrove do so. Finally, there is no indication in the record that State Farm had experienced a defalcation of a nature comparable to Davis and Sipper’s from which it could be said to have obtained knowledge that such a theft was probable. Thus, the trial court correctly entered the summary judgment as to the Gardners’ wanton-supervision claim.

Conclusion

Based upon the foregoing facts and authorities, we affirm the summary judgment in all respects except as to the Gardners’ negligent-supervision claim against State Farm and Snellgrove. As to that claim, we reverse the summary judgment, and we remand the cause for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN and MURDOCK, JJ., concur.

YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur in part and dissent in part.

YATES, Presiding Judge,

concurring in part and dissenting in part.

I agree with the per curiam opinion that the Gardners failed to present substantial evidence of conversion. I also agree that the Gardners’ negligent-supervision claim should be presented to a jury. However, I do not agree that the Gardners failed to present substantial evidence of wanton supervision. Therefore, I dissent as to this issue.

The supreme court in Ledbetter v. United American Insurance Co., 624 So.2d 1371, 1373 (Ala.1993), held that in order for an employer to be liable for negligent supervision, the plaintiff

“ ‘must show or demonstrate that [the employer] had notice or knowledge (actual or presumed) of [the employee]’s alleged incompetency for [the employer] to be held responsible; demonstrating liability on [the employer]’s part requires affirmative proof that [the employee]’s alleged incompetence was actually known to [the employer] or was discoverable by [the employer] if it had exercised care and proper diligence.”

(Citation omitted.)

Section 6 — 11—20(b)(3) defines “wantonness” as “[c]onduet which is carried on with a reckless or conscious disregard of the rights or safety of others.” The supreme court has distinguished negligence and wantonness:

“What constitutes wanton misconduct depends on the facts presented in each particular case. South Central Bell Telephone Co. v. Branum, 568 So.2d 795 (Ala.1990); Central Alabama Electric Coop. v. Tapley, 546 So.2d 371 (Ala.1989); Brown v. Turner, 497 So.2d 1119 (Ala.1986); Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972). A majority of this Court in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142 (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 actionable 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.
510 So.2d at 145. See also Central Alabama Electric Coop. v. Tapley, supra, and South Central Bell Telephone Co. v. Branum, supra.

Valley Bldg. & Supply, Inc. v. Lombus, 590 So.2d 142, 144 (Ala.1991).

In Big B, Inc. v. Cottingham, 634 So.2d 999 (Ala.1993), the plaintiff sued the corporate operator of a drug store and one of the store’s employees, alleging false imprisonment, assault and battery, and negligent or wanton supervision; she alleged that the employee forced her to engage in a sex act with him. The supreme court affirmed a judgment based on a jury verdict on wanton supervision. The employee, a security guard, had been the subject of a sexual-harassment complaint by a young female employee. The court held that there was evidence before the jury that indicated that the defendant had not thoroughly investigated that sexual-harassment claim or filed a report with the company headquarters, and it held that the fact that the job the employee held put him in a position to demean or mistreat a female customer or employee was sufficient to allow the wanton-supervision claim to go to the jury, given the evidence indicating a failure to properly investigate the prior claim. In Alfa Mutual Insurance Co. v. Roush, 723 So.2d 1250 (Ala.1998), an Alfa insurance agent met with the plaintiffs, who had just started a new business and were seeking several kinds of insurance coverage. Although Alfa did not sell workers’ compensation insurance, it allowed, and even encouraged, its agents to sell workers’ compensation “pool coverage” from other designated insurance companies, so that it could provide for all of a customer’s needs. Alfa did not publicly distinguish itself from the insurers providing pool coverage and did not otherwise inform customers that it would not be responsible for pool coverage written by its agents. Alfa had a strict system for controlling, monitoring, and auditing how agents handled Alfa’s money. However, it had no safeguards for handling money from the sale of pool coverage. The agent sold the plaintiffs general-liability, products-liability, and automobile insurance from Alfa. He also accepted a premium payment for workers’ compensation insurance. However, he did not procure workers’ compensation coverage; instead, he cashed the check, converted the funds for his personal use, and then misrepresented to the plaintiffs that they had workers’ compensation insurance. The supreme court held that Alfa could be vicariously liable for the agent’s acts. Alfa benefitted from encouraging its agent to write pool coverage. Alfa benefitted from the other policies sold in addition to the pool coverage. Alfa failed to establish any form of agent accountability for pool coverage, although it had many safeguards for its own policies. However, the plaintiffs failed to establish wanton supervision. The court noted that Alfa had received no prior complaints. Alfa did not know or have reason to know that agent was dishonest. Alfa agents normally dealt directly with the pool insurers in obtaining pool coverage.

In the instant case, the Gardners presented substantial evidence, for summary-judgment purposes, indicating that State Farm and Snellgrove knew or should have known about Davis and Sipper’s behavior because of the Rays’ complaint, the agency-draft-authority checks, and the number of lapses. The Rays became concerned after Renae had made several premium payments but had not received an insurance policy. The Rays also received notice from their finance company informing them that the cars had no insurance coverage. The Rays were told by the Birmingham office that it had no evidence indicating that any insurance policies had been issued to them. Rich Potter, an agency field executive, testified that he would have fired Davis after he investigated the Rays’ complaint.

Additionally, the Gardners presented evidence indicating that State Farm and Snellgrove knew of Davis and Sipper’s activities, or should have known of them if they had followed State Farm’s procedures. Only Snellgrove had authority to sign agency-draft-authority checks. There was evidence indicating that Davis and Sipper forged Snellgrove’s name on the checks. Some of those checks were issued to Davis and Sipper. William Tevendale’s testimony indicates that this alone should have been questioned by State Farm and Snellgrove. State Farm would have known about the checks to Davis and Sipper, because the agency-draft-authority checks are returned to State Farm, and Snellgrove would have been given a list each month of every check written out of the agency-draft-authority account, along with the name of the payee.

State Farm is notified by Snellgrove every time a policy lapses. There were 1,300 policyholders in Luverne. In the three years before Davis and Sipper’s termination, 700 automobile policies had lapsed and 100 • fire policies had lapsed. Potter stated that he was concerned about the number of cancellations from the Lu-verne office and that he discussed this with Snellgrove.

The Gardners also submitted substantial evidence from which a jury could find that State Farm and Snellgrove’s conduct was reckless or was committed in conscious disregard to the rights of its insureds. Before the Rays made their complaint, numerous policies in the Luverne office had lapsed. Potter was concerned about the number of lapses. Potter, after reviewing the Rays’ complaint, recommended that Davis be fired. However, he did not notify his superiors of his recommendations. Davis remained employed, with no additional supervision, even after this incident and even though Potter knew that she was still allowed to quote and accept premiums from customers. State Farm knew that Davis and Sipper were employed in the Luverne office when their names appeared as payees on agency-draft-authority checks, but no investigation was made. Snellgrove received a list of the checks drawn on that account, along with the names of the payees, but failed to make any inquiry.

Snellgrove and State Farm argue that the summary judgment was proper because, they say, the Gardners cannot demonstrate that they have suffered any damage on any of their claims.

In Boswell v. Liberty National Life Insurance Co., 643 So.2d 580 (Ala.1994), the plaintiffs sued their insurance company for fraud, alleging that it had switched their cancer insurance policies for cancer policies that cost more and provided less coverage. The trial court dismissed the plaintiffs’ complaint, holding that the plaintiffs had incurred no injury, because no claim had been filed under either plaintiffs policy. The supreme court reversed the judgment of dismissal, stating:

“It is easy to understand the predicament the trial court faced in this case: the standard by which to judge whether a plaintiff has suffered damage or injury from an insurer’s actions, when no claim has been filed, is nebulous at best, because there are two distinct lines of cases in this state. In the first line, the one on which the trial judge relied, claims were disallowed; although there was a period during which the plaintiffs did not receive the coverage for which they had paid, and even though the plaintiffs claimed that this was the result of the defendants’ allegedly fraudulent acts, that period had passed without the plaintiffs’ having filed a claim. See Moore v. Liberty National Life Ins. Co., 581 So.2d 833 (Ala.1991); Allen v. Gulf Life Insurance Co., 617 So.2d 664 (Ala.1993); and Applin v. Consumers Life Insurance Co., 623 So.2d 1094 (Ala.1993). The second line of cases has declared the fraud complete, and actionable, at the time the allegedly fraudulent transaction occurred, viewing the injury or damage as the payment of unnecessary premiums. See, e.g., Willingham v. United Ins. Co. of America, 628 So.2d 328 (Ala.1993); Liberty National Life Insurance Co. v. Waite, 551 So.2d 1003 (Ala.1989); Guinn v. American Integrity Ins. Co., 568 So.2d 760 (Ala.1990); Brewton v. Alabama Farm Bureau Mut. Cas. Ins. Co., 474 So.2d 1120 (Ala.1985); Old Southern Life Ins. Co. v. Woodall, 348 So.2d 1377 (Ala.1977). We now believe that the better law is in this second line of cases. Therefore, to the extent that the holdings in Moore v. Liberty National Life Ins. Co., 581 So.2d 833 (Ala.1991), Allen v. Gulf Life Insurance Co., 617 So.2d 664 (Ala.1993), and Applin v. Consumers Life Insurance Co., 623 So.2d 1094 (Ala.1993), are inconsistent with cases declaring that the injury or damage from the fraudulent transaction is the payment of unnecessary premiums, these cases are overruled.
“Make no mistake, even if the insured files no claim, the loss of what the insured paid for constitutes legal damage or injury. The insurer cannot be allowed to profit from its fraud simply because the insured is ‘lucky’ enough never to have to ‘use’ the coverage.”

Id. at 582.

I find this case analogous to Boswell. Like the plaintiffs in Boswell, the Gard-ners paid unnecessary premiums. The plaintiffs in Boswell received less coverage than they had had under the original policy, while the Gardners received no coverage at all when they paid their premiums. The fact that the Gardners did not file a written claim does not mean that they were not damaged by paying for insurance coverage and not receiving the coverage.

State Farm contends that, by law, it was estopped from denying coverage for the Gardners, based on § 27-23-21. Section 27-23-21 provides, in part, as follows:

“(a) No notice of cancellation of a policy of automobile liability insurance shall be effective unless it is based on one or more of the following reasons:
“(1) Nonpayment of premium;
“(b) This section shall not apply to any policy of automobile liability insurance which has been in effect less than 60 days at the time notice of cancellation is mailed or delivered by the insurer unless it is a renewal policy.”

This statute prevents an insurer from unilaterally cancelling a liability insurance policy without one of the reasons set out by the Legislature. It is designed as a shield to protect the consumer/insured from wrongful cancellation. It was not designed as a sword to protect the insurer from accountability. Furthermore, the supreme court, in Green v. Standard Fire Insurance Co. of Alabama, 398 So.2d 671 (Ala.1981), noted that § 27-23-21 applies only to automobile-liability insurance and not to other kinds of coverage, such as collision and comprehensive, which were involved in the instant case.

There was evidence presented that indicated that after Davis and Sipper’s activities, State Farm determined that it would honor all coverage and pay any claims that subsequently arose. Insurance is “a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in the future.” Black’s Law Dictionary 802 (6th ed.1990). When State Farm determined that it would honor the policies, there was no future act or contingency for which it could insure the Gardners, since that time had passed. That means State Farm had no risk when it decided it would essentially “reinstate” coverage for the time when the Gardners paid premiums but no policies were in effect.

State Farm argues that this case is similar to Williamson v. Indianapolis Life Insurance Co., 741 So.2d 1057 (Ala.1999). I disagree. In Williamson, the plaintiff sued his insurance company, claiming that he was told his insurance premiums would “vanish” after 10 years. The plaintiff was subsequently told that he would have to continue paying premiums after the 10 years had passed. The supreme court held that the plaintiff had sustained no damage, yet, because the 10 years had not passed, and, therefore, his allegation that he might, in the future, have to continue paying a premium was speculation. In the instant case, the Gardners’ injury is in the present, not the future. When they paid insurance premiums and received no coverage, their injury occurred.

CRAWLEY, Judge,

concurring in part and dissenting in part.

I concur in the court’s per curiam opinion affirming the summary judgment for State Farm on the Gardners’ conversion claim. I also concur in the reversal of the summary judgment for State Farm on the Gardners’ negligent-supervision claim. However, because I believe the Gardners presented substantial evidence of wanton supervision, I would reverse the summary judgment for State Farm on that claim also. I therefore dissent from the per cu-riam opinion insofar as it affirms the summary judgment on the wanton-supervision claim.

THOMPSON, Judge,

concurring in part and dissenting in part.

I agree that those portions of the trial court’s order granting the summary judgment in favor of State Farm on the Gard-ners’ claims alleging conversion and wanton supervision are due to be affirmed. I would also affirm the summary judgment on the negligent-supervision claim. Therefore, I dissent from the main opinion’s reversal of the trial court’s summary judgment as to that issue.

I conclude that the Gardners have failed to demonstrate that they suffered any damage as a result of State Farm’s alleged negligent supervision of its employees. Paul Gardner testified that he had heard that two local State Farm employees had been accused of some type of misconduct, but that he was not aware of the details. In June 1999, shortly after hearing that rumor, Paul Gardner went to the local State Farm office to make a premium payment on his insurance policy. Paul Gardner testified that a new employee at the local State Farm office informed him that he was not shown in the computer system as having an insurance policy with State Farm. Paul Gardner testified that the new employee asked him if he was “aware of what was going on,” and that he responded “no.” Paul Gardner testified that the new employee told him that because he was not shown in the computer system, he should locate the check stubs and receipts for his premium payments to State Farm and return to the local State Farm office with those stubs and receipts. Paul Gardner did not testify that any State Farm employee told him that he had no insurance coverage.

Celia Gardner testified that in late May 1999, a few days before Paul Gardner tried to make the Gardners’ June 1999 premium payment at the local State Farm office, she contacted Davis about the cracked windshield on her husband’s truck. Celia Gardner testified that Davis told her that State Farm would repair the windshield. However, Celia Gardner testified that “we just never did take [the truck] in [for repairs] because, you know, he had gone in to pay the policy.” Celia Gardner stated that the Gardners had not contacted anyone else at State Farm about having the windshield repaired.

I cannot agree that the Gardners have suffered damage merely because they obtained another insurance policy or because they “elected” not to file a claim for coverage for the cracked windshield. 842 So.2d at 10. Neither Celia Gardner nor Paul Gardner testified that a State Farm employee informed them they had no insurance coverage. Rather, the State Farm employee asked for the Gardners’ documentation regarding their payments.

“In the absence of express and controlling contract or statutory provision, premiums on ordinary insurance policies may be paid to the insurer itself or to its authorized agent, since, if an agent has express, or is clothed with apparent, authority to receive payment of premiums, payment thereof to him by insured is sufficient, and binds the insurer.”

George J. Couch, Couch on Insurance 2d § 31.116 (2d ed.1985). Further, the agent’s failure to properly submit the Gardners’ payments would not affect State Farm’s liability to provide insurance coverage:

“Payment to a proper agent of the insurer is sufficient payment although the agent fails to give the insured a receipt therefor or to remit or turn over the money to the insurance company, or to credit the insured with the amount of the payment.”

George J. Couch, Couch on Insurance 2d, § 31:125 (2d ed.1985).

The Gardners have failed to establish an essential element of their negligent-supervision claim. I would affirm the trial court’s summary judgment in favor of State Farm on all of the Gardners’ claims.

      . The breach-of-contract claim against State Farm was later dismissed pursuant to the parties’ stipulation.

      . Before serving in State Farm's Dothan agency field office, Potter had been a State Farm independent contract agent for 16 years and State Farm’s agency field executive in Mobile for two years.

      . In contrast to an independent contract agent, a trainee agent is a salaried employee of State Farm and does not receive commissions; moreover, trainee agents are reimbursed by State Farm for local-office expenses.

      . Celia Gardner testified that after May 1998, she no longer received a monthly premium bill from State Farm.

      . It is unclear from the record whether Davis or Sipper was identified as the local employee.

      . According to Potter, cancellations generally occur at State Farm when insurance applicants misrepresent their loss records or otherwise provide incomplete information to State Farm personnel.

      . We therefore do not address whether the Gardners’ premium payments amounted to funds that are sufficiently specific and capable of being identified so as to support a conversion claim. See generally Willingham v. United Ins. Co., 628 So.2d 328 (Ala.1993). Furthermore, because the Gardners' conversion claim is the sole claim on appeal under which the Gardners seek to affix vicarious liability, as opposed to direct liability, upon State Farm and Snellgrove (see CP & B Enters., Inc. v. Mellen, 762 So.2d 356, 362 (Ala.2000) (holding that direct and vicarious liability involve distinct issues)), we need not address the circumstances, if any, under which State Farm and Snellgrove might properly have been held to be vicariously liable to the Gardners.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    D.C. v. J.C. and C.C. S.S.C. v. J.C. and C.C.
    2000946 and 2000950.
    Court of Civil Appeals of Alabama.
    Feb. 8, 2002.
    Rehearing Denied April 12, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011562.
    Cecilia A. Pope, Huntsville, for appellant D.C.
    E. Patrick Hill, Huntsville, for appellant S.S.C.
    Steven A. Backer, Huntsville, for appel-lees.
   PITTMAN, Judge.

D.C. (the “father”) and S.S.C. (the “mother”) are the parents of H.C. (the “child”) who was born in April 1995. When the child was 12 days old, the father dropped her. The child’s skull was fractured, which caused her to suffer from permanent-partial paralysis and some brain damage resulting in learning disabilities and seizures. Shortly after the child’s 1995 accident the Madison County Department of Human Resources (“DHR”) filed a dependency petition. The trial court found the child to be dependent and awarded custody to J.C. and C.C. (“the paternal grandparents”) in June 1995. DHR ceased its involvement in the case in 1996, and the paternal grandparents continued to have custody of the child with each parent’s consent.

In February 2001, the paternal grandparents filed a petition to terminate the mother and the father’s parental rights. Following a trial, the juvenile court terminated the mother and the father’s parental rights. The juvenile court’s judgment states, in pertinent part:

“1. The above named child, who previously had been adjudicated to be dependent, and who has been in the physical custody of the [paternal grandparents] since she was twelve (12) weeks old, and the Temporary Legal Custody of the [paternal grandparents] since December 7, 1999, remains a dependent child.
“3. The best interests of the child require entry of this Order. The child suffers from significant medical problems, which are a direct result of an injury sustained in her infancy. The [father] testified [to] dropping the infant. In addition to a traumatic brain injury (TBI), paralysis in her legs and arms, seizures, this child has learning disabilities.
“4. The child has lived all of her six (6) years of life in the home of the [paternal grandparents]. Most — if not all — of her medical, financial, and family care has been provided by the [paternal grandparents].”

A nonparent who seeks to terminate the parents’ parental rights must prove by clear and convincing evidence that the child is dependent and that there are no viable alternatives to a termination of the parents’ parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990). Section 26-18-7(a), Ala. Code 1975, states:

“If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child....
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the [DHR] leading toward the rehabilitation of the parents have failed.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.”

Section 26-18-7(b) further provides that if the child is not in the custody of the parents, the juvenile court may consider whether the parents are providing monetary support for the child, whether they are regularly exercising visitation with the child, and whether they are adjusting their “circumstances to meet the needs of the child.”

The grandmother testified that the reason she and the grandfather had filed'the petition to terminate the parents’ parental rights was not because of any particular harmful conduct by either parent or any particular harmful environment provided by either parent. In response to a question as to why she and the grandfather had filed the petition, the grandmother testified:

“Well, it’s hard to live every day wondering if [the mother and the father] are going to decide to come and say I want to take [the child] away. We have invested our hearts and soul and life into trying to — well, when we first got her she was almost dead. We were trying to just see that she would live. And then it was to try to see that she got better and now, we’d like to plan for the future. We’d like to — -as any parent would. We feel like she’s ours. We feel like she’s our child so we couldn’t — you know, you can give birth — there’s two kinds of parents. There’s birth parents and parents that love a child and take care of them and cry with them and keep them going, you know. I think there’s a parent that gives you life and a parent that gives you birth, and we feel like we’ve given her life and we would like to continue to give her life and we would like to continue being able to plan for her future. We can’t plan what’s going to happen next year, or next month, because we don’t know when we might be faced with fighting in order to try to do those things that she needs.”

The mother and the father have another child who, after their divorce, is in the mother’s custody. When asked if she would prevent the child from seeing the sibling if the court terminated the parents’ parental rights, the grandmother responded, “No, that would be kind of hard to do. [The child] knows [the sibling], [the child] loves [the sibling.]” The grandmother also testified that she would not prevent the child from seeing the parents, even after the court terminated their parental rights. The grandmother testified, “There again, I think that [keeping the child away from her parents] would be kind of impossible to do. [The child] knows who [the] mother is, she knows who [the] daddy is.”

The father is employed by a restaurant and has a possibility of moving into a management position. He lives in an apartment with a friend. The father has unsupervised visitation, pursuant to the divorce judgment, with the other child who is in the mother’s custody. The father admits to having used marijuana in the past, but testified that he has not smoked it in more than two years.

The mother has custody of her other child. She has remarried and lives in her father’s house and takes care of her father who has medical problems. The mother was recently laid off and her former employer testified that the lay-off was not due to her work performance but for financial reasons. The mother did file for Social Security benefits for the child even though the child is in the paternal grandparents’ custody, and the mother is having to make arrangements to reimburse those Social Security benefits.

We conclude that the record does not contain clear and convincing evidence indicating that the child is dependent. As stated above, both the father and the mother each have housing and have had a stable income. The record does contain evidence indicating that the father and the mother rarely attend the child’s doctor appointments and that they are not prepared to perform the daily therapy and exercises the child requires. Because DHR ceased its involvement several years ago, there is no individualized service plan (“ISP”) requiring the parents to attend doctor appointments or to train themselves to provide the medical needs for the child. The testimony indicates that neither parent has unsupervised visitation with the child. Neither parent provides child support for the child; however, the record contains no child-support order requiring them to pay child support.

The mother and the father each argue that a viable alternative to terminating parental rights exists in this case which is to maintain the present situation — maintain custody with the paternal grandparents and maintain the supervised visitation. We agree. As stated above, the record does not indicate that the parents pose any physical or emotional harm to the child.

Therefore, the juvenile court’s judgment terminating the parents’ parental rights is reversed and the cause is remanded.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ., concur in the result.


author: CRAWLEY, Judge.

text:
    Wesley A. DANIEL v. Kimberly D. DANIEL.
    2001270.
    Court of Civil Appeals of Alabama.
    July 19, 2002.

      Chris Malcom of Malcom, Terry & Shelton, P.C., Moulton, for appellant.
    Joe B. Powell, Decatur, for appellee.
   CRAWLEY, Judge.

In October 1999, Wesley A. Daniel (the “father”) and Kimberly D. Daniel (the “mother”) were divorced. By agreement, the parties were awarded joint legal custody of their two minor children, with the mother having sole physical custody. On October 31, 2000, the father filed a “Verified Petition For Emergency Ex Parte Relief.” In that petition, he alleged that the mother was physically abusive to their children. On November 2, 2000, following a review of the father’s petition, affidavit, and photographs, the trial court ordered that the father be awarded sole temporary legal and physical custody of the children; it scheduled a hearing on the matter in December 2000. On December 13, 2000, the trial court conducted a pendente lite hearing and determined that the father should maintain sole temporary legal and physical custody; the mother was awarded the visitation originally given to the father in the divorce judgment. The trial court also ordered that the children be evaluated by a counselor, that the father enroll in a parenting class, and that the mother pay child support.

A trial on the merits of the father’s petition to modify custody was conducted on August 15, 2001. Following the August 2001 trial, the trial court denied the father’s petition to modify custody and, in turn, restored physical custody of the children to the mother. The father appeals, contending that the trial court applied the wrong standard for custody modification and that its decision was plainly and palpably wrong.

“The ore tenus rule is applicable to child-custody-modification proceedings, and the court’s judgment based on its findings of fact will not be reversed absent a showing that the findings are plainly and palpably wrong.” E.M.C. v. K.C.Y., 735 So.2d 1225, 1228 (Ala.Civ.App.1999). However, in this case, the ore tenus rule has no application because the question presented to this court is not based on a finding of fact; rather, it is one of law— whether the correct burden of proof was imposed by the trial court. This court has established the following standards of proof in custody-modification actions:

“ Where the parties agree to joint legal custody and shared physical custody of the children without a judicial determination preferring either parent, “custody [is] appropriately determined by the trial court according to what [is] in the ‘best interest’ of the children.” Ex parte Couch, 521 So.2d 987, 989 (Ala.1988). However, where the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, “the trial court [is] correct in applying the [Ex parte] McLendon [, 455 So.2d 863 (Ala.1984),] standard and requiring the [parent] to show that a change in custody would materially promote the welfare and best interests of the child, offsetting the disruptive effect of uprooting the child.” Blackmon v. Scott, 622 So.2d 393, 394 (Ala.Civ.App.1993).’ ”

Hoplamazian v. Hoplamazian, 740 So.2d 1100, 1102 (Ala.Civ.App.1999).

The parties’ original divorce agreement provided that they would have joint legal custody of the children and that the mother would have sole physical custody. The court, in its order denying the father’s petition, stated:

“The [father] agreed in October, 1999, that the [mother] was a fit, capable, and suitable parent to have the primary physical custody of their small children. [The father] bears a heavy burden to prove that there has been a substantial change of circumstances since the divorce which proves that the [mother] is no longer fit or capable of having custody of [the minor children]. The [father] has failed to satisfy this burden of proof necessary for the [c]ourt to order a permanent modification of the [children’s] physical custody.”

Here, the standard applied by the trial court appears to have been the standard set out in Ex parte Terry, 494 So.2d 628 (Ala.1986), which applies in cases when a nonparent seeks to overcome the superior right of a parent to custody of a child. Therefore, we hold as a matter of law that the trial court applied the wrong standard to the facts in this case. Accordingly, we remand the case for the trial court to consider the evidence using the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984). See Ex parte Perkins, 646 So.2d 46 (Ala.1994).

The father’s motion to strike portions of the mother’s brief is denied.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.


author: BASCHAB, Judge. BASCHAB, Judge.

text:
    Albert James EVANS v. STATE.
    CR-00-2118.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 2001.
    Opinion on Return to Remand March 1, 2002.

      Albert James Evans, pro se.
    Bill Pryor, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On February 29, 2000, the appellant, Albert James Evans, was convicted of two counts of attempted murder. On March 10, 2000, the trial court sentenced him, as a habitual offender, to imprisonment for life without the possibility of parole on each conviction. See § 13A-5-9(c)(3), Ala. Code 1975. We affirmed his convictions in an unpublished memorandum and issued a certificate of judgment on October 13, 2000. See Evans v. State, (No. CR-99-1199, August 4, 2000) 814 So.2d 1016 (Ala.Crim.App.) (table), cert. denied, (No. 1992192), 807 So.2d 618 (Ala.2000) (table). On May 22, 2001, the appellant filed a Rule 32 petition, challenging his convictions, and he subsequently amended the petition. Without requiring a response from the State, the circuit court summarily denied the petition and the amendment. This appeal follows.

In his petition, the appellant raised several ineffective-assistance-of-counsel claims and a newly discovered evidence claim based on juror misconduct. In its order denying the petition, the circuit court did not address any of the appellant’s claims. Because some of the ineffective-assistance-of-counsel claims and the juror misconduct claim could be meritorious, the circuit court erred in not addressing them. Therefore, we remand this case to the circuit court for that court to make specific, written findings of fact concerning all of the appellant’s ineffective-assistance-of-counsel claims and his juror misconduct claim. On remand, the circuit court may require the State to respond to the appellant’s contentions and/or may conduct an evidentiary hearing. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s written findings of fact and, if applicable, the State’s response and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

On Return to Remand

BASCHAB, Judge.

On February 29, 2000, the appellant, Albert James Evans, was convicted of two counts of attempted murder. On March 10, 2000, the trial court sentenced him, as a habitual offender, to imprisonment for life without the possibility of parole on each conviction. See § 13A-5-9(c)(3), Ala. Code 1975. We affirmed his convictions in an unpublished memorandum and issued a certificate of judgment on October 13, 2000. See Evans v. State, (No. CR-99-1199, August 4, 2000) 814 So.2d 1016 (Ala.Crim.App.) (table), cert. denied, (No. 1992192, October 13, 2000) 807 So.2d 618 (Ala.2000) (table). On May 22, 2001, the appellant filed a Rule 32 petition, challenging his convictions, and he subsequently amended the petition. Without requiring a response from the State, the circuit court summarily denied the petition and the amendment, and the appellant appealed that denial to this court. On October 26, 2001, we remanded this case to the circuit court with instructions that that court make specific, written findings of fact concerning all of the appellant’s ineffective-assistance-of-counsel claims and his juror misconduct claim. See Evans v. State, 842 So.2d 22 (Ala.Crim.App.2001).

On remand, the circuit court made findings of fact concerning some of the appellant’s ineffective-assistance-of-counsel claims. However, it did not make specific, written findings of fact regarding the appellant’s claim that his trial counsel rendered ineffective assistance because he did not object on the ground that the prospective jurors were not properly sworn before voir dire examination. This claim may be meritorious. See Ex parte Hamlett, 815 So.2d 499 (Ala.2000). Therefore, we again remand this case to the circuit court with instructions that that court make specific, written findings of fact as to whether the prospective jurors were properly sworn before voir dire examination. On remand, the circuit court may require the State to respond to the merits of the appellant’s contention and/or may conduct an eviden-tiary hearing. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 35 days after the release of this opinion. The return to remand shall include the circuit court’s written findings of fact and, if applicable, the State’s response and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN, PH., and COBB, SHAW, and WISE, JJ., concur.


author: BASCHAB, Judge. WISE, Judge

text:
    David Steven SNOWDEN v. STATE.
    CR-01-0089.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.
    Kimberly G. Kervin, Prattville, for appellant.

      Bill Pryor, atty. gen., and Jean-Paul Chappell, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On November 6, 1997, pursuant to a negotiated agreement, the appellant, David Steven Snowden, pled guilty to first-degree robbery. Applying the firearm enhancement set forth in § 13A-5-6(a)(4), Ala.Code 1975, the trial court sentenced him to serve a term of twenty years in prison. He filed a notice of appeal, but we dismissed the appeal as untimely filed. See Snowden v. State, (CR-00-2137, July 12, 2001) 837 So.2d 899 (Ala.Crim.App.2001) (table). On August 21, 2001, the appellant filed a Rule 32 petition, challenging his conviction and sentence. After the State responded, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that his sentence exceeds the maximum authorized by law or is otherwise not authorized by law because the trial court allegedly improperly applied the ten-year firearm enhancement set forth in § 13A-5-6(a)(4), Ala.Code 1975, to his base sentence of ten years in prison. Specifically, he contends that, although he represented that he was armed, he did not actually have a firearm at the time of the robbery. He further notes that, during the guilty plea colloquy, the trial court stated:

“[I]f this case involves the use, or threat of use, of a firearm, or deadly weapon, and the plea agreement indicates that it did, the law provides that for the commission of class A felony the term of imprisonment must be not less than twenty years....
“I have been handed a plea agreement whereby you propose to plea guilty to robbery first degree and a recommended sentence of twenty years; which, according to the enhancement, involves the use of, or threat of, use of a firearm.”

(R. 11-12.) Finally, he concludes that “[t]he Court improperly imposed the additional ten (10) year sentence based upon the mistaken belief that the firearm enhancement provision of § 13A-5-6(a)(4), Code of Alabama (1975), included the ‘threat of use of a firearm.’ ” (Appellant’s brief at p. 7.)

The appellant’s argument may be meritorious. The firearm enhancement set forth in § 13A-5-6(a)(4), Ala.Code 1975, applies only in those cases “in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony.” In this case, based on statements it made during the guilty plea proceedings, it appears that the trial court mistakenly believed that the firearm enhancement could be applied even in cases in which the defendant only represented that he was armed with a firearm. However, such an interpretation is contrary to the plain language of § 13A-5-6(a)(4), Ala. Code 1975. During the Rule 32 proceedings, the State did not specifically refute, and the circuit court did not address, the appellant’s contention. Therefore, we remand this case to the circuit court with instructions that that court make specific, written findings of fact as to the appellant’s contention. On remand, the circuit court may allow the State to amend its response and may conduct an evidentiary hearing. If the circuit court finds that the appellant’s argument is meritorious, it may grant appropriate relief. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include any amended filings by the State; the circuit court’s specific, written findings of fact and order, if any; a copy of the plea agreement, if it is available; and a transcript of the evidentiary hearing, if any.

REMANDED WITH INSTRUCTIONS.

COBB and SHAW, JJ., concur; WISE, J., dissents, with opinion, which McMillan, p.j., joins.

WISE, Judge

(dissenting).

I dissent from the majority opinion remanding this case to the circuit court for specific, written findings of fact as to Snowden’s contention that the trial court erroneously applied the “firearm-enhancement” provision set out in § 13A-5-6(a)(4), Ala.Code 1975, resulting in what he claims is an illegal sentence.

I have examined the record, including Snowden’s Rule 32, Ala.R.Crim.P., petition. In his petition, Snowden claims that the trial court erroneously applied the firearm enhancement in § 13A-5-6(a)(4); thus, he argues, the court’s action rendered his guilty plea involuntary and his sentence illegal.

Snowden’s claims are without merit. Any challenge to the voluntariness of his guilty plea is procedurally barred. On November 6, 1997, Snowden pleaded guilty to one count of first-degree robbery. Snowden’s plea was entered as a result of a negotiated plea agreement that advised him the firearm-enhancement provision would apply to his conviction. Snowden had until December 18, 1997, to appeal his conviction; however, no direct appeal was taken. Based on the provisions of Rule 32.2(c), Ala.R.Crim.P., any petition for postconviction relief challenging the volun-tariness of his guilty plea would have to have been filed on or before December 18, 1999. Snowden did not file the instant Rule 32 petition until August 13, 2001. Thus, Snowden’s contention that his plea was involuntary is precluded under Rule 32.2(c).

Snowden’s claim that his sentence is illegal because it exceeds the maximum authorized by law or is otherwise not authorized by law is likewise •without merit. Snowden pleaded guilty to first-degree robbery, a Class A felony. See § 13A-8-41, Ala.Code 1975. The range of punishment for a Class A felony is imprisonment “for life or not more than 99 years or less than 10 years.” § 13A-5-6(a)(l), Ala.Code 1975. Because Snowden’s 20-year sentence is within the range of punishment provided by statute, his sentence does not exceed the maximum authorized by law. Therefore, Snowden’s sentence is not illegal. See Garner v. State; 606 So.2d 177 (Ala.Crim.App.1992), and Harris v. State, 500 So.2d 1292 (Ala.Crim.App.1986) (both cases holding that where a trial judge imposes a sentence within the statutory range of punishment, the appellate court will not review that sentence).

Based on the foregoing, I would affirm the circuit court’s denial of Snowden’s petition. Therefore, I must dissent.

McMILLAN, P.J., concurs.

      . The record before this court does not in-elude a copy of the plea agreement.

      . Snowden contends that he did appeal from his conviction. However, we have reviewed our records and have determined that no direct appeal of Snowden’s conviction was filed with this Court. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992) (this Court may take judicial notice of its own records).


author: PER CURIAM.

text:
    STATE of Alabama v. Shanta PHILLIPS, Vanda Gilmore, Lamont Graves.
    CR-01-1385.
    Court of Criminal Appeals of Alabama.
    May 3, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011544.
    John M. Tyson, Jr., district atty., and JoBeth Murphree, asst, district atty., for appellant.
    T. Jefferson Deen III, Mobile; Claude Patton, Mobile; and Joseph D. Quinlivan, Jr., Mobile, for appellees.
   PER CURIAM.

The district attorney for the Thirteenth Judicial Circuit, John M. Tyson, Jr., appeals the circuit court’s order setting bail for Shanta Phillips, Vanda Gilmore, and Lamont Graves (hereinafter referred to as “the appellees”) — individuals who have been charged with capital murder. The appellees were charged with killing six-year-old Kearis Bonham, who was in a dwelling, as the result of a misfired shot aimed at police officers. The appellees were initially held without bond. The ap-pellees filed petitions for a writ of habeas corpus in the circuit court alleging that the complaints against them failed to charge a capital offense; therefore, they argued, they were constitutionally entitled to have bail set in a reasonable amount. The trial court agreed and set bail at $100,000 for each defendant. The State appealed, requesting that we stay enforcement of the trial court’s order setting bail. We granted the motion for a stay pursuant to § 12-22—90(b), Ala. Code 1975.

The complaints against the appellees charged that the defendants

“did on or about December 12, 2001, while outside of a dwelling, intentionally shoot at Prichard Police Officers — Lieutenant Cedric Nettles, Officer Lance La-porte, Officer Preston Lewis, and Officer Loma McCarroll and one of the bullets struck Kearis Bonham, a child who was six years old, while he was inside of a dwelling, causing his death.”

The alleged facts surrounding the charges were stated in a letter from an assistant district attorney to the circuit judge. The letter stated:

“The testimony at the preliminary hearing was that the defendant’s agreed upon a plan to lure Prichard police officers to the Queen’s Court Apartment Complex for the purpose of killing them. They fired shots in the air so that the police would respond. They also sent one of the defendants, Tamika Cabbie, to use the telephone to call the police and request that they respond. Two police cars arrived with two officers in each car. The defendants opened fire on the officers while they were in their police cars. The cars were riddled with bullets[;] two officers were wounded, but, miraculously, were not killed. However, one of the bullets struck six year old Kearis Bonham in the head and lulled him. He was standing inside an enclosed porch at the time he was killed. All defendants were bound over to the Grand Jury on capital murder charges. The State argues that the trial court erred in holding that the complaints against the appellees failed to charge capital offenses because the appellees were lawfully charged under the doctrine of transferred intent. The State cites this Court’s case of Farrior v. State, 728 So.2d 691 (Ala.Crim.App.1998), in support of its contention.”

The State proceeded under the theory that the intent to kill the police officers transferred to the intent to kill six-year-old Kearis Bonham.

The State argues that the trial court erred in holding that the complaints failed to charge capital offenses because, it argues, the appellees were lawfully charged under the doctrine of transferred intent. The State cites this Court’s case of Farri- or v. State, 728 So.2d 691 (Ala.Crim.App.1998), in support of its contention.

The appellees argue that the doctrine of transferred intent does not apply in this case because the person lulled was not a police officer. They argue that the “doctrine of transferred intent will apply within the same class of individuals, such as police officer to police officer, or child to child, [but that] it will not transfer capitally from one protected class to another protected class.” (Appellees’s brief to this Court, page 5.) They rely solely on the Alabama Supreme Court’s holding in Ex parte Jackson, 614 So.2d 405 (Ala.1993).

The Alabama Supreme Court and this Court have on more than one occasion held that the doctrine of transferred intent applies to capital offenses. See Ex parte Jackson, supra; Smith v. State, [Ms. CR-97-1258, December 22, 2000] — So.2d-(Ala.Crim.App.2000); Living v. State, 796 So.2d 1121 (Ala.Crim.App.2000); Farrior v. State, 728 So.2d 691 (Ala.Crim.App.1998).

The Alabama Supreme Court in Jackson first addressed the doctrine of transferred intent and its relationship to capital offenses. The Court granted mandamus relief and ordered the trial court to dismiss the capital-murder charges against Jackson because the person killed was not in a motor vehicle — as alleged in the indictment. The indictment charging Jackson with violating § 13A-5-40(a)(17), Ala.Code 1975, specifically alleged that Jackson attempted to kill George Prickett by shooting Prickett while Prickett was in an automobile and that, thereby, Jackson caused the death of Alisha Desha Roberts, who was not in a motor vehicle. The Court explained:

“Under the facts alleged in the indictment, Jackson’s intent to Mil Prickett can certainly be ‘transferred’ to the conduct that actually resulted in the death of Roberts. However, Prickett’s location (in a motor vehicle) cannot be ‘transferred’ to Roberts so as to elevate the crime to capital murder.
“First, the clear statutory language of § 13A-5-40(a)(17), considered together with § 13A-5-40(b) and § 13A-6-2(a)(1), does not yield that result. Section 13A-5-40(b) refers to § 13A-6-2(a)(1) for the definition of ‘murder’; and § 13A-6-2(a)(1) codifies the doctrine of transferred intent in that definition. However, § 13A-5-40(a)(17) makes a ‘murder’ capital only when ‘the victim is killed while in a motor vehicle.’ That is, that section defines a factual circumstance rather than merely a state of mind; and that factual circumstance is not present in this case. Prickett was not ‘killed’ and Roberts was not ‘in a motor vehicle.’ ”

614 So.2d at 407. The capital-murder indictment in Jackson was dismissed not because the doctrine of transferred intent was inapplicable to Jackson’s conduct that resulted in the victim’s death, but because the victim, when she was shot and killed, was not inside a motor vehicle, as provided under the statute defining the offense for which Jackson had been indicted. The Supreme Court noted in Jackson that § 13A-5-40(a)(17) “defines a factual circumstance” that was not present in the case. The Alabama Supreme Court did not reject the doctrine of transferred intent, but rather the doctrine of transferred location.

We have not construed Jackson as narrowly as the interpretation urged by the appellees. We have not held that the doctrine of transferred intent applies only to those situations involving the same definition of capital murder, i.e., where a defendant intended to shoot one occupant of a vehicle but instead shot and killed another occupant of the vehicle. As we stated in Smith:

“Section 13A-5-40(b) specifies that murder, as a component of the capital offense, means ‘murder’ as defined in § 13A-6-2(a)(1): ‘A person commits the crime of murder if ... [w]ith intent to cause the death of another person, he causes the death of that person or another person .... ’ (Emphasis added.)
“ ‘By its language, § 13A-6-2(a)(1) clearly invokes the doctrine of transferred intent in defining the crime of murder. For example, if Defendant fires a gun with the intent to kill Smith but instead kills Jones, then Defendant is guilty of the intentional murder of Jones.
“ ‘. Section 13A-5-40(b) refers to § 13A-6-2(a)(1) for the definition of “murder”; and § 13A-6-2(a)(1) codifies the doctrine of transferred intent in that definition.’
“Ex parte Jackson, 614 So.2d 405, 407 (Ala.1993).
“Thus, depending on the facts of a case, it is conceivable that the offense of murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct could arise from the intent to Mil one person. The court in Living v. State, 796 So.2d 1121 (Ala.Crim.App.2000), reckoned with such possibility. In Living the court stated:
“ ‘On appeal, ... Living argues that the jury could have found that he intentionally killed Jennifer, but that he did not intend to Mil Melissa. Therefore, according to Living, the jury could have found him guilty of murder with regard to Jennifer and guilty of recMess manslaughter with regard to Melissa.
“ ‘Under the doctrine of transferred intent, however, if Living intended to kill Jennifer he would be criminally culpable for murder with regard to the unintended death of Melissa. See Harvey v. State, 111 Md.App. 401, 681 A.2d 628 (1996) (the doctrine of transferred intent operates with full force whenever the unintended victim is hit and killed; it makes no difference whether the intended victim is missed; hit and killed; or hit and only wounded). Several jurisdictions have held that the doctrine of transferred intent is applicable when a defendant kills an intended victim as well as an unintended victim. See, e.g., State v. Fennell, 340 S.C. 266, 581 S.E.2d 512 (2000); Ochoa v. State, 115 Nev. 194, 981 P.2d 1201, 1205 (1999); Mordica v. State, 618 So.2d 301, 303 (Fla.Dist.Ct.App.1993); and State v. Worlock, 117 N.J. 596, 569 A.2d 1314, 1325 (1990).
“ ‘. If Living intended to kill Jennifer, his specific intent would transfer to the killing of Melissa.’
796 So.2d at 1131.”

Smith, — So.2d at- (footnote omitted).

Here, the person actually killed was a six-year-old boy inside a dwelling. Section 13A-5-40(a)(15) defines a capital offense as the murder of an individual under 14 years of age. Section 13A-5-40(a)(16) defines a capital offense as the murder of an individual by use of a deadly weapon fired from outside a dwelling while the victim is inside the dwelling. The factual circumstances surrounding the victim’s murder constituted a capital offense. It is not a murder that defines an offense as capital but the factual circumstances surrounding the murder. The Alabama Supreme Court’s holding in Jackson recognized that the doctrine of transferred intent may apply to transfer the intent to kill from one individual to another but that the doctrine will not operate to transfer the factual circumstances surrounding the murder. This is not a situation where to constitute a capital offense the circumstances surrounding the shooting of the intended victims (police officers) was transferred to the actual victim. Indeed, had one of the officers died, the offense relating to that killing could be murder made capital because the victim was a police officer who was on duty at the time of the killing. This case is not governed by the Supreme Court’s holding in Jackson.

The trial court incorrectly held that the doctrine of transferred intent did not apply to the facts present in the complaints filed against the appellees. The appellees were lawfully charged with capital offenses. The trial court’s ruling granting habeas corpus relief to the appellees is due to be, and is hereby, reversed, and the case remanded for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Section 12-22-90, Ala.Code 1975, specifically gives the State the right to appeal from the trial court’s ruling granting habeas corpus relief.

        . We also take judicial notice of our records. See Hatfield v. State, 784 So.2d 377 (Ala.Crim.App.2000). We have also applied the doctrine of transferred intent in capital cases where we have affirmed the decisions by unpublished memoranda. See White v. State, (No. CR-99-0614, January 12, 2001) 821 So.2d 1029 (Ala.Crim.App.2001) (table), and Long v. State, 805 So.2d 785 (Ala.Crim.App.2000) (table).