author: JOHNSTONE, Justice.

text:
    Ex parte Charlie Mae PARKER. (In re Charlie Mae Parker v. State of Alabama).
    1010487.
    Supreme Court of Alabama.
    Jan. 17, 2003.

      Robert G. Poole of Whittelsey & Whit-telsey, P.C., Opelika, for petitioner.
    William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, asst. atty. gen., for respondent.
   JOHNSTONE, Justice.

Charlie Mae Parker pleaded guilty to unlawful possession of marijuana in the first degree. The trial court sentenced her to three years in prison. Before pleading guilty, Parker preserved her right to appeal the denial of her motion to suppress marijuana seized at her residence pursuant to a search warrant. The ground of her motion to suppress was that the search warrant was based on a deficient affidavit.

Upon Parker’s appeal, the Court of Criminal Appeals affirmed her conviction in an unpublished memorandum. Parker v. State, (No. CR-00-1762, October 19, 2001) 851 So.2d 686 (Ala.Crim.App.2001) (table). The Court of Criminal Appeals also overruled Parker’s application for rehearing. Parker then petitioned this Court for a writ of certiorari, which we granted to determine whether the content of the affidavit submitted as support for the issuance of the warrant to search Parker’s residence was sufficient to constitute probable cause for the issuance of the warrant. We reverse and remand.

At the time of the search, Parker resided with one Tabitha Hutchinson at 8895 Lee Road 72, Waverly, Lee County, Alabama. On May 10, 1999, Investigator Van Jackson of the Lee County Sheriffs Department obtained a warrant to search Parker’s and Hutchinson’s residence. This search warrant was not executed. On May 18, 1999, Investigator Jackson obtained a second warrant to search this residence. To obtain this second search warrant, Investigator Jackson submitted his affidavit stating:

“Within the past 72 hours, undercover Officer Jimmy Martin purchased approximately $100.00 in crack cocaine from Tabitha Hutchinson at her residence.
“The Lee County Sheriffs Department has received information over the past few years that Tabitha Hutchinson has been selling crack cocaine out of her residence which is located at 8895 Lee Road 72, Waverly, Lee County, Alabama. The Lee County Sheriffs Department began conducted [sic] an undercover drug operation targeting Hutchinson’s residence. This investigation has been going on since November of 1998; anonymous tips, confidential informants, and undercover officers have all provided information supporting that drugs are being sold out of this residence. Undercover Officer Martin has purchased crack cocaine from several different subjects and Hutchinson while at/or near this residence. Officer Martin was able to purchase crack cocaine approximately seven different times from Hutchinson and/or someone near her residence. The quantity of crack cocaine purchased has ranged from Twenty Dollars to One Hundred Dollars worth. These purchase has [sic] been monitored and some recorded by law enforcement surveillance teams. The crack purchased in these cases has been submitted to the Department of Forensics [sic] Sciences for drug analysis. The result revealed that all of the compressed substances submitted had the presence of Cocaine, a Schedule II controlled substance. The Lee County Sheriffs Department has received information that Hutchinson always keeps a quantity of crack cocaine inside her residence.”

In Parker’s motion to suppress the marijuana seized during the execution of this second search warrant, she contended that Investigator Jackson’s affidavit was false in its statement that, “[w]ithin the past 72 hours, undercover Officer Jimmy Martin purchased approximately $100.00 in crack cocaine from Tabitha Hutchinson at her residence.” Parker contended further that Investigator Jackson did not testify to any other information that would supply probable cause to issue the search warrant.

At the suppression hearing, Investigator Jackson admitted that the last controlled buy made by police at Parker’s residence was on May 7, 1999 and was not “within the past 72 hours” of his application for the May 18, 1999 search warrant. He said that the “within the past 72 hours” language was an “administrative error.” Investigator Jackson testified that he had obtained a few other warrants against Hutchinson on the bases of controlled buys made at or near her residence before May 7, but that he had not told the judge who issued the May 18, 1999 search warrant about the specific dates and circumstances of these controlled buys. Investigator Jackson admitted that his affidavit contained the only information that he had supplied to the judge to support issuance of the search warrant. The trial court summarily denied Parker’s motion to suppress the marijuana.

Parker argues that, because Investigator Jackson knowingly gave false information to the judge issuing the search warrant and gave insufficient other information to the judge to establish probable cause for the issuance of the search warrant, it was invalid. Therefore, Parker contends that the evidence seized pursuant to that warrant should have been suppressed and that the conviction based on that evidence should be reversed.

The United States Supreme Court has said:

“[an] officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.
“Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.”

United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citations and footnotes omitted; emphasis added).

In Lewis v. State, 589 So.2d 758 (Ala.Crim.App.1991), the Court of Criminal Appeals addressed an issue not materially distinguishable from the one raised by Parker, and reversed that defendant’s conviction based on evidence that should have been suppressed pursuant to the defendant’s motion to suppress. The Lewis court stated:

“The appellant’s residence was searched and the diazepam was seized pursuant to a search warrant. The affidavit on which the warrant was based stated: ‘That within the last seventy-two hours, a reliable, confidential informant advised this affiant that said informant had been at the above-described residence and observed a quantity of powder cocaine.’ ...
“The appellant contends that the affidavit on which the search warrant was based is deficient because it does not state when the cocaine was seen at the appellant’s residence by the informant. She contends that a search under a warrant issued on an affidavit alleging an undated observation is unreasonable.
“The State argues that the statement of the affiant is a typographical error to which the ‘good faith’ exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), should apply. The State contends that the assumption that the issuing judge was made aware of all information establishing probable cause should suffice to invoke the good faith exception. The State also argues that the oral testimony of the affiant is sufficient to cure the defective [affidavit]. The arguments of the State are without merit. The error in the affidavit was not merely clerical because it was an omission that resulted in the issuance of a warrant not reasonably supported by the record. There was no evidence to support a presumption that the trial judge inquired about or was informed of any information about the time of the affiant’s alleged observation of cocaine. There also is no evidence that the affiant’s oral testimony in the suppression hearing had been presented to the issuing magistrate.
“This Court in Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990), found that an affidavit supporting the warrant issued for the search of Nelms’ residence was deficient for failing to state when the drugs were seen by the informant at the appellant’s residence. The Nelms affidavit stated ‘... that within the last seventy-two hours a confidential police informant ... stated to the affiant that they had seen crack cocaine in the residence of Tommie Lee Nelms ....’ The almost identically-worded affidavit in the present case is likewise deficient, because it fails to refer to the date when the informant allegedly observed cocaine at the appellant’s residence. Moreover, the officer in Nelms testified that in drafting the warrant, he intended the seventy-two hours to refer to the time period in which he had spoken to the informant, id. at 386, but also to include the time since the informant had observed the drugs. Id. at 387. However, the officer in Nelms testified that he did not recall exactly what he had told the issuing magistrate about how long it had been since the informant had observed the drugs. Id. at 386-87. Thus, this court held that because ‘we cannot assume that this information was conveyed to the ... judge, ... the affidavit did not support a finding of probable cause and there was not sufficient oral testimony to cure the problem with the affidavit.’ Id. at 387. Similarly, in the instant case, although the officer testified that the 72 hours was intended to include the time that the informant observed the drugs, there is no indication that this information was conveyed to the issuing magistrate.”

Lewis, 589 So.2d at 759-60 (emphasis added).

Likewise, in Thomas v. State, 353 So.2d 54 (Ala.Crim.App.1977), the Court of Criminal Appeals reversed a conviction based on evidence validly challenged by a motion to suppress grounded on the staleness of the information in the affidavit submitted to support the issuance of the warrant for the search that resulted in the seizure of the evidence. The Thomas court stated:

“The affidavit is deficient because it fails to show that the information received from the informant was fresh as opposed to being remote. Davis v. State, 46 Ala.App. 45, 237 So.2d 685, affirmed, 286 Ala. 117, 237 So.2d 640 [(1970)]. The affidavit stated that the informant ‘had observed’ heroin being used and sold from the premises described. The affidavit does not state the date or the time the informant allegedly observed the heroin on the premises. The affidavit in this case is strikingly similar to one this Court, through Harris, J., ruled to be legally insufficient. Walker v. State, 49 Ala.App. 741, 275 So.2d 724, cert. denied, 290 Ala. 371, 275 So.2d 732 [ (1973) ].
“In Walker, supra, Judge Harris stated:
“ ‘... “Had observed” could have been any time in the past. The informer did not tell the officer-affiant the date or time he allegedly observed the narcotics on the premises. There is nothing in the affidavit which hints of time except the use of the past tense in connection with the informant’s telephone report to affiant.’
“The fact that heroin was previously seized on February 23, 1973, at 2624 Tempest Drive, Apartment H, did not establish probable cause to believe that heroin was on the premises three weeks later.
“Also, the fact that on March 6, 197S, an undercover police officer purchased a quantity of heroin from Eric Rogers on the premises did not establish probable cause to believe that a week later such narcotic would be still found thereon. Seven days is a considerable length of time in which to remove heroin from the premises or dispose of it in another fashion. Such makes for a stale warrant. Haynes v. State, 50 Ala.App. 96, 277 So.2d 372 [ (1973) ]; Miller v. State, 54 Ala.App. 230, 307 So.2d 40 [ (1974) ].”

Thomas, 353 So.2d at 56 (emphasis added).

The only statement in Investigator Jackson’s affidavit that could support a finding of probable cause is the statement that the particularly described controlled buy was made “within the last 72 hours.” This statement is false without dispute. This falsehood in the affidavit precipitated the issuance of a warrant not supported by probable cause to believe that cocaine was still located in the house on May 18, when the second affidavit was sworn and presented and the second search warrant was issued. The only controlled buy specifically described by the affidavit to have been made inside the house occurred 11 days earlier, on May 7. Therefore, the warrant should not have been issued. See Lewis, supra; Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990); and Thomas, supra. See also Alford v. State, 381 So.2d 203, 205 (Ala.Crim.App.1979), holding, “[s]ufficient evidence must be stated in the affidavit to support a finding of probable cause for issuing the search warrant,” and “[t]he affidavit must state specific facts or circumstances which support a finding of probable cause[;] otherwise the affidavit is faulty and the warrant may not issue.”

Furthermore, the affidavit does not establish a pattern of cocaine sales from the house occupied by Hutchinson and Parker that would support the conclusion that the cocaine that was there on May 7, 1999, was still there on May 18,1999, when Investigator Jackson applied for the second search warrant and submitted the second affidavit. The statements about Officer Martin’s other buys are only sophistry to create an illusion of ongoing cocaine sales from the house. That is, the affiant swore:

“Undercover Officer [Jimmy] Martin has purchased crack cocaine from several different subjects and Hutchinson while at/or near this residence. Officer Martin was able to purchase crack cocaine approximately seven different times from Hutchinson and/or someone near her residence.” (Emphasis added.)

Testimony of two alternatives joined by the disjunctive conjunction “or” does not constitute evidence of either alternative. For example, if a lawyer were to ask a witness whether the traffic light was red, and the witness were to answer, “Well, it was red or green,” the lawyer would not yet have any proof that it was red.

Thus, Investigator Jackson’s affidavit testimony that Officer Martin had purchased crack from “Hutchinson while at/or near this residence” is not evidence that Officer Martin had purchased crack at this residence. The equal alternative, that Officer Martin purchased the crack near this residence, can mean that he purchased the crack six doors down the street.

Likewise, Jackson’s statement that Officer Martin purchased “crack cocaine approximately seven different times from Hutchinson and/or someone near her residence” is not evidence that he purchased crack from Hutchinson at all. The expression and/or means, in the alternative, and or or. In other words, and/or is “used as a function word to indicate that two words or expressions are to be taken together or individually.” Merriam-Webster’s Collegiate Dictionary 43 (10th ed.1999) (emphasis added). In the case now before us, the expression “Hutchinson and/or someone ” means, alternatively, Hutchinson and someone or Hutchinson or someone. Thus, Investigator Jackson has equally sworn that the seven purchases were from just “someone” “near” the residence — once again, for aught that appears, six doors down the street. Explained differently, if a prosecutor were to ask a witness, “Did you buy crack from Hutchinson?”, and the witness answered, “Well, I bought it from Hutchinson and/or someone,” the prosecutor would not yet have any evidence that Hutchinson had sold crack. Cf., Southern Ry. Co. v. Bunt, 131 Ala. 591, 596, 32 So. 507, 509 (1902) (holding that “the averment as it stands in the disjunctive, embraces two different causes of action, and affirms neither, but merely that it is one or the other”).

Similarly, the statements of unattributed hearsay in the affidavit do not contribute to a showing of probable cause. Specifically, the affidavit recites:

“The Lee County Sheriffs Department has received information over the past few years that Tabitha Hutchinson has been selling crack cocaine out of her residence. ... [Ajnonymous tips, confidential informants, and undercover officers have all provided information supporting that drugs are being sold out of this residence. ... The Lee County Sheriffs Department has received information that Hutchinson always keeps a quantity of crack cocaine inside her residence.”

The hearsay in these recitations is not only without any dates to establish recency but is without attribution or detail to establish reliability.

“ ‘[A] magistrate must be presented with facts as to the source of the information in the affidavit and the underlying circumstances from which it could be concluded that the source was reliable.’ United States v. Kirk, 781 F.2d 1498, 1505 (11th Cir.1986).”

Sims v. State, 587 So.2d 1271, 1275 (Ala.Crim.App.1991). “Hearsay information may be sufficient when its accuracy is corroborated by other facts stated by the affiant as true to his own knowledge.” Lewis v. State, 426 So.2d 932, 936 (Ala.Crim.App.1982).

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observation of the affiant, the issuing authority of the search warrant must be informed of some of the underlying circumstances from which the informant concluded that the drugs were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or his information reliable.”

Reed v. State, 401 So.2d 131, 134 (Ala.Crim.App.1981).

“Probable cause may be established on hearsay information of unidentified informants. However, the issuing magistrate must be informed of some of the underlying circumstances from which the informants concluded that the marijuana was where they claimed it was, and some of the underlying circumstances from which the affiant concluded that the informants were credible or their information reliable.”

Johnson v. State, 48 Ala.App. 650, 651, 266 So.2d 906, 907 (Crim.1972). The declar-ants of this hearsay are only generically identified, and their reliability is not established. The affidavit does not disclose whether the hearsay is firsthand, secondhand, thirdhand, or even more remote and does not foreclose that the hearsay is mere rumor or conjecture.

Because Investigator Jackson’s affidavit was deficient for the reasons stated in this opinion, the warrant to search Parker’s residence was not based on probable cause. Therefore, the evidence seized during the consequent unlawful search was inadmissible. Leon, Lewis, Nelms, and Thomas, supra.

We reverse the judgment of the Court of Criminal Appeals affirming the defendant’s conviction based on marijuana admitted into evidence over the defendant’s valid motion to suppress. We remand this cause for that court to remand to the trial court with instructions to vacate the defendant’s conviction and sentence and to conduct proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HOUSTON, SEE, LYONS, HARWOOD, and WOODALL, JJ„ concur.

MOORE, C.J., and BROWN and STUART, JJ., dissent.


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Charlie Mae PARKER v. STATE of Alabama.
    CR-00-1762.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.
    Robert G. Poole, Opelika, for appellant.
    William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, deputy atty. gen., for ap-pellee.
   On Remand from the Alabama Supreme Court

WISE, Judge.

Charlie Mae Parker was convicted of unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Ala.Code 1975. She was sentenced to three years’ imprisonment. On October 19, 2001, this Court affirmed Parker’s conviction in an unpublished memorandum. Parker v. State (No. CR-00-1762, October 19, 2001), 851 So.2d 636 (Ala.Crim.App.2001) (table). This Court overruled her application for rehearing on November 16, 2001. Parker petitioned the Alabama Supreme Court for certiorari review; that court granted Parker’s petition, and on January 17, 2003, reversed our judgment affirming Parker’s conviction and remanded this case with instructions for us to instruct the Lee Circuit Court to vacate Parker’s conviction and sentence. Ex parte Parker, 858 So.2d 941 (Ala.2003).

Therefore, in accordance with the judgment of the Supreme Court, we remand this case for the circuit court to vacate the defendant’s conviction and sentence and to conduct proceedings consistent with the Alabama Supreme Court’s opinion. Ex parte Parker, 858 So.2d 941 at 947.

REVERSED AND REMANDED.

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


author: WOODALL, Justice.

text:
    Ex parte Timothy BARNETT. (In re State of Alabama v. Timothy Barnett).
    1012094.
    Supreme Court of Alabama.
    March 14, 2003.

      Timothy Barnett, pro se.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for respondent.
   On Application for Rehearing

WOODALL, Justice.

This Court’s order of November 27, 2002, denying Timothy Barnett’s petition for a writ of mandamus is withdrawn, and the following opinion is substituted therefor.

Barnett petitions this Court for a writ of mandamus, directing the trial judge to “produce and answer” a Rule 32, Ala. R.Crim. P., petition of which the trial court has no record. We deny the petition.

Barnett was convicted of capital murder on April 28, 1999; he was sentenced to life imprisonment without the possibility of parole. The Court of Criminal Appeals affirmed the conviction. Barnett v. State (No. CR-98-1915, April 21, 2000), 810 So.2d 805 (Ala.Crim.App.2000) (table).

On July 1, 2002, Barnett filed a petition for a writ of mandamus in the Court of Criminal Appeals, alleging that the trial judge had “abused his discretion by failing to rule on [his] Rule 32 petition.” On July 15, 2002, the respondent trial judge answered, stating: “The records of the Circuit Court of Autauga County have been diligently searched and the Rule 32 Petition that Mr. Barnett alleges to have filed on April 30, 2001, does not exist.” The Court of Criminal Appeals dismissed Barnett’s petition. Ex parte Barnett (No. CR-01-1954, July 19, 2002), - So.2d -(Ala.Crim.App.2002) (table). On August 1, 2002, Barnett filed in this Court a petition for a writ of .mandamus. He alleges that on April 30, 2001, he mailed a petition for postconviction relief, pursuant to Ala. R.Crim. P. 32, to the Autauga Circuit Court by placing the petition in the prison mail system at the St. Clair Correctional Facility. He did not include a copy of that petition with his filings to this Court. Apparently, it concerned certain mental evaluations relevant to his conviction. Barnett asks this Court to order the trial judge to allow him to file his Rule 32 petition nunc pro tunc as though it was filed on April 30, 2001.

Mandamus is an extraordinary writ, and will issue only when the petitioner has demonstrated that, among other things, “the respondent has an imperative duty to perform and has refused to do so.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (emphasis added); see also Ex parte Mercury Fin. Corp. of Alabama, 715 So.2d 196, 198 (Ala.1997).

With his petition, Barnett includes as exhibits his own affidavit and affidavits from three individuals who allegedly saw Barnett standing in line in the prison mail room with his Rule 32 petition. He does not provide a prison mail log or any type of receipt. Most significantly, he offers no evidence indicating that he has refiled, or has even attempted to refile, the Rule 32 petition with the circuit court. Thus, it appears that the Rule 32 petition still has not been received by or filed with the circuit court. This Court cannot grant Barnett’s requested relief — at this time— because there is no pending Rule 32 petition for this Court to direct the circuit court to treat as having been filed on April 30, 2001.

Therefore, the petitioner having failed to show that the Autauga Circuit Court has received the Rule 32 petition, or any purported refiling of the petition, which petitioner alleges he delivered to the prison authorities on April 30, 2001, for mailing, and it appearing to the Court that the petitioner has failed to show that the circuit court has refused, upon the request of the petitioner, to treat a refiled petition as having been filed on April 30, 2001, the petition must, of necessity, be denied.

ORDER OF NOVEMBER 27, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; PETITION DENIED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ„ concur.


author: HOUSTON, Justice. LYONS, Justice JOHNSTONE, Justice

text:
    Ex parte LIBERTY NATIONAL LIFE INSURANCE COMPANY. (In re Thomas E. Deas v. Liberty National Life Insurance Company et al.)
    1020057.
    Supreme Court of Alabama.
    March 14, 2003.

      D. Brent Baker and Ross A. Frazer of Frazer, Greene, Upchurch & Baker, L.L.C., Mobile, for petitioner.

      Frederick P. Gilmore of Gilmore Law Office, Grove Hill, for respondent.
   HOUSTON, Justice.

Liberty National Life Insurance Company (“Liberty National”) petitions for a writ of mandamus directing the Clarke Circuit Court to permit Liberty National to amend its answer to the complaint filed against it by Thomas Deas. Liberty National seeks to add as an affirmative defense Alabama’s 20-year rule of repose and contends that until our recent clarification of the rule of repose in Ex parte Liberty National Life Insurance Co., 825 So.2d 758 (Ala.2002), Liberty National was justified in not asserting the rule as an affirmative defense and that it should have been allowed to amend its answer after we released our opinion in Ex parte Liberty National. We agree, and we grant the petition and issue the writ.

On June 1, 1958, Thomas Deas purchased a $5,000 whole-life policy from Liberty National. According to Deas, the policy was to be “paid up” in 20 years. Deas also alleges that on or about May 15, 1978, he received notice that his policy was in fact “paid up.”

On December 22,1978, a $3,000 loan was taken against the policy. Deas claims that he had nothing to do with the loan, and that he never received either the check Liberty National issued in his name or the $3,000. The check was cashed or deposited in December 1978. Deas alleges that he first learned in March 1999 that in 1978 a loan had been taken against his policy for $3,000 and had not been repaid, leaving only a small amount of value in the policy.

Deas sued Liberty National in the Clarke Circuit Court on February 13, 2001, alleging fraud, negligence, wantonness, and conversion. Each of Deas’s claims is based upon allegedly wrongful actions of Liberty National that occurred on or before December 1978.

On April 3, 2001, Liberty National filed an answer; that answer did not include the rule of repose as an affirmative defense. On January 18, 2002, we released our decision in Ex parte Liberty National, which clarified the law on the rule of repose. On February 22, 2002, Liberty National filed a motion for a summary judgment, asserting for the first time the rule of repose as a defense to Deas’s claims. Deas filed a response, arguing that, because the rule of repose is an affirmative defense, it was deemed waived when Liberty National did not assert it in its answer.

At a March 20, 2002, hearing on the motion, Liberty National was granted a continuance so that it could reply to Deas’s waiver argument. The next day, however, Liberty National filed a motion for leave to amend its answer to add the rule of repose as an affirmative defense. The trial court denied this motion on August 28, 2002. This petition followed.

A writ of mandamus, being a drastic and extraordinary remedy, will issue to correct a trial court’s ruling regarding the amendment of pleadings only when it is shown that the trial court has exceeded its discretion. Rector v. Better Houses, Inc., 820 So.2d 75 (Ala.2001). For the reasons below, we hold that the trial court exceeded its discretion in refusing to allow Liberty National to amend its answer.

Typically, if a party fails to plead an affirmative defense, that defense is deemed to have been waived. Robinson v. Morse, 352 So.2d 1355, 1356 (Ala.1977) (citing 5 Wright & Miller, Federal Practice & Procedure § 1278, pp. 339-52); see also Rule 8(c), Ala. R. Civ. P. However, there are exceptions to this rule, one of which is that an affirmative defense can be revived if a party is allowed to amend his pleading to add the defense. Piersol v. ITT Phillips Drill Div., Inc., 445 So.2d 559, 561 (Ala.1984) (stating that “where no actual prejudice to the opposing party is shown, and no undue delay is demonstrated, a court may permit the amendment of the answer to include a defense of the running of the period of the statute of limitations, though Rule 8(c) of the Alabama Rules of Civil Procedure requires such a defense to be pleaded as an affirmative defense”).

Rule 15(a), Ala. R. Civ. P., reflects Alabama’s liberal policy in favor of allowing amendments to pleadings:

“Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause. A party shall plead in response to an amended pleading within the time remaining for a response to the original pleading or within ten (10) days after service of the amended pleading, whichever period may be longer, unless the court orders otherwise.” not been precisely delineated and has been, at times, unclear.

However, the extent of the trial court’s discretion in permitting amendments has

We noted in Ex parte GRE Insurance Group, 822 So.2d 388, 390 (Ala.2001), that under Rule 15 amendments to pleadings are to be “freely allowed” unless there exists some valid reason to deny them, such as “actual prejudice or undue delay”:

“ ‘ “[R]efusal of an amendment must be based on a valid ground,”’ Ex parte Bailey, 814 So.2d 867, 869 (Ala.2001) (quoting Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975)) (emphasis omitted), such as ‘actual prejudice or undue delay.’ Ex parte Thomas, 628 So.2d 483, 486 (Ala.1993).”

However, as evidenced by the placement of the phrase “freely allowed” in the text of Rule 15, that phrase applies only to those amendments sought “more than forty-two (42) days before the first setting of the case for trial.” Rule 15, Ala. R. Civ. P. In that situation, a trial court has no discretion; it can deny a requested amendment only if there exists a “valid ground” for the denial, such as “actual prejudice or undue delay.” Ex parte GRE Ins. Group, 822 So.2d at 390. In other words, the burden is on the trial court to state a valid ground for its denial of a requested amendment.

When, as here, the amendment is sought within the 42-day window, the trial court is free to deny a party leave to amend his or her pleading unless the party can demonstrate “good cause.” Rule 15, Ala. R. Civ. P. The language of Rule 15 makes clear that upon a showing of “good cause” a trial court is not required to allow the amendment; after such a showing allowing the amendment becomes an option the trial court can choose. Id. (“... and leave shall be given only upon a showing of good cause”) (emphasis added). However, in light of the overarching liberal policy of allowing amendments under Rule 15, the appropriate way to view the request for leave to amend, if a party demonstrates “good cause,” is as though the request had been brought more than 42 days before trial, when the trial court does not have “unbridled discretion” to deny the leave to amend, but can do so only upon the basis of a “valid ground” as stated above. Ex parte Bailey, 814 So.2d 867, 869 (Ala.2001).

Here, there is no evidence of either actual prejudice or undue delay. The only possible prejudice to Deas stemming from allowing Liberty National to amend its answer that the parties have mentioned is the fact that Deas’s claims might be extinguished. However, this fact, even if true, does not establish prejudice:

“‘[I]t is obvious that an amendment, designed to strengthen the movant’s legal position, will in some way harm the opponent.’ Cuffy v. Getty Ref. & Mktg. Co., 648 F.Supp. 802, 806 (D.Del.1986). ‘In the context of a [Rule] 15(a) amendment, prejudice means that the nonmov-ing party “must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely.’” Id. ... (Quoting Heyl & Patterson Int’l v. F.D. Rich Housing of Virgin Islands, Inc., 668 F.2d 419, 426 (3d Cir.1981).) ‘And by prejudice to the rights of the other party is meant, without loss to him other than such as may result from establishing the claim or defense of the party applying.’ McDaniel v. Hoblit, 34 Wyo. 509, 515, 245 P. 295, 297 (1926)(emphasis added [in Ex parte GRE Ins. Group]). In other words, the defense asserted in the amended answer is not prejudicial, merely because it might constitute a meritorious defense to the plaintiffs claim.”

Ex parte GRE Ins. Group, 822 So.2d at 391 (some emphasis original; some emphasis added); see also Bracy v. Sippial Elec. Co., 379 So.2d 582, 584 (Ala.1980) (“Where an amendment merely changes the legal theory of a case or adds an additional theory, but the new or additional theory is based upon the same set of facts and those facts have been brought to the attention of the other party by a previous pleading, no prejudice is worked upon the other party.”).

Given the state of the law on April 3, 2001, when Liberty National filed its original answer, Liberty National was justified in not including the rule of repose as an affirmative defense. As Liberty National correctly points out in its brief to this Court, the case of Oehmig v. Johnson, 638 So.2d 846 (Ala.1994), provided Liberty National with a legitimate reason to believe that the rule of repose was not a viable defense. In Oehmig, 638 So.2d at 851, we stated in dicta that “the time for the rule of repose cannot run until there is at least constructive notice of a potential claim.” Given Liberty National’s apparent acknowledgment that Deas did not discover the problems with his policy until March 1999, the language from Oehmig precluded the use of the rule of repose as a defense. It was not until we clarified the law in Ex parte Liberty National that it became obvious that the rule of repose could be a viable defense to Deas’s claims. We hold that Liberty National has demonstrated that it had “good cause” for not including the defense in its initial answer.

When Liberty National filed its motion to amend its answer, a trial date had been set, and the motion was filed within 42 days of the trial date. That trial date was then continued indefinitely, and at the time the trial court ruled on Liberty National’s motion, the case had not been reset for trial. Liberty National filed its motion to amend approximately two months after our decision in Ex parte Liberty National. However, there is no indication that this delay was unreasonable or troublesome, or that the amendment, if allowed, will cause any undue delay in the resolution of the case. Cf. Rector, 820 So.2d at 77-78 (holding that the trial court did not exceed its discretion in refusing to allow an amendment to a complaint sought 7 months after the original complaint was filed and within 30 days of the original trial date, where the plaintiff had all of the information necessary to amend her complaint from the outset of the action); Walker v. Traughber, 351 So.2d 917, 922 (Ala.Civ.App.1977) (holding that the trial court did not exceed its discretion in denying a request to amend an answer to assert affirmative defenses where that request was made on the day the case was called for trial and where the requesting attorney had those defenses available to him from the outset of the action).

Clearly, then, had Liberty National’s first response to our Ex parte Liberty National decision been to timely seek an amendment of its answer to add the rule of repose as an affirmative defense, it would have been entitled to do so. Furthermore, Liberty National’s filing a motion for a summary judgment based on the rule of repose before asking for leave to amend its answer, while perhaps making denial of the summary judgment proper, does not in any way bar the trial court from allowing Liberty National to amend its answer, nor did it prejudice Deas.

Because we hold that Liberty National did demonstrate “good cause,” and because we can find no evidence of actual prejudice or undue delay that would be caused by allowing Liberty National’s requested amendment, we conclude that the trial court exceeded its discretion in denying Liberty National’s motion for leave to amend. We issue the writ of mandamus and direct the trial court to grant Liberty National’s motion for leave to amend its answer to include the rule of repose as an affirmative defense.

PETITION GRANTED; WRIT ISSUED.

SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ„ concur.

MOORE, C.J., and LYONS and JOHNSTONE, JJ., dissent.

LYONS, Justice

(dissenting).

I join Justice Johnstone’s well-supported discussion of the inadequacy of Liberty National’s showing of good cause that might excuse it for failing to include the affirmative defense of repose in its original answer filed on April 3, 2001.

In Ex parte Liberty National Life Insurance Co., 825 So.2d 758 (Ala.2002), Liberty National attached to its petition for the writ of mandamus certain documents that had been presented to the trial court on April 30, 2001, just under a month after it filed its answer in this case, in support of its motion for a summary judgment on the ground of repose. Among these is an opinion of the Dallas Circuit Court in an action styled Moore v. Liberty National Life Insurance Co., Civil Action No. CV-00-306, in which the trial court held that the plaintiffs’ claims were barred by Alabama’s common-law doctrine of repose. The trial court stated as follows:

“The rule of repose is not subject to tolling of any kind, except where there have been affirmative acts of the defendant explicitly and unambiguously acknowledging the existence and validity of the plaintiffs claim. Ex parte Grubbs, 542 So.2d 927, 930-31 (Ala. 1989); Boshell v. Keith, 418 So.2d 89, 91 (Ala.1982); Snodgrass v. Snodgrass, 176 Ala. 276, 280-81, 58 So. 201, 201-02 (1912).”

This order was entered on February 8, 2001, almost two months before the answer was filed in this proceeding. Our opinion in Ex parte Liberty National is entirely consistent with this settled principle of Alabama law. This Court held as follows:

“The difference between the rule of repose and a statute of limitation is further demonstrated by the rule’s sole exception. We have stated that ‘[t]he only circumstance that will stay the running of the 20 year period of repose is a recognition of the existence of the claimant’s right by the party defending against the claim.’ ”

825 So.2d at 765 (quoting Boshell v. Keith, 418 So.2d 89, 91 (Ala.1982)).

Also instructive is Liberty National’s posture in Ex parte Liberty National with respect to Oehmig v. Johnson, 638 So.2d 846, 851 (Ala.1994). In this proceeding, Liberty National views Oehmig as the obstacle to the availability of the defense of repose that justified its failure to assert the defense in this proceeding when it filed its original answer on April 3, 2001. However, in its reply brief in Ex parte Liberty National, Liberty National addressed Oehmig and the issue of the effect of lack of notice on the availability of the bar of repose as follows:

“Third, despite the Plaintiffs’ suggestion otherwise (see Respondents’ Br. at 14-18), the running of Alabama’s rule of repose is not dependent on notice. As early as 1954, this Court announced that repose ‘is not controlled by an absence of notice.’ Merrill v. Merrill, [260 Ala.408, 411,] 71 So.2d 44, 45-46 ([ ]1954). Accord Eatman v. Goodson, [262 Ala. 242, 248,] 78 So.2d 625, 630 ([ ]1954) (observing Merrill ‘repudiated’ the belief ‘that lack of notice would prevent the running of the prescriptive period’). In Ballenger v. Liberty National Life Insurance Company, [271 Ala. 318, 123 So.2d 166 (1960),] this Court reaffirmed Merrill, holding ‘[l]ack of notice is not sufficient to avert the application of the doctrine [of repose].’ [271 Ala. 318, 322,] 123 So.2d 166, 169 ([ ]1960). The statement from Oehmig v. Johnson, [638 So.2d 846 (Ala.1994),] on which Plaintiffs rely is both dicta — because it is unnecessary to the Court’s holding (on page 850) that ‘the rule of repose cannot be used against one with valid record title by one who clearly does not have title’ and inconsistent with long-standing precedent of the rule of repose. 638 So.2d 846, 851 (Ala.1994), citing neither Merrill nor Ballenger).”

Liberty National’s reply brief at p. 10-11. Standing in stark contrast is the following statement at page 6 of Liberty National’s petition in this proceeding:

“Liberty National filed its answer on April [3], 2001. At that point in time, the rule of repose did not appear to be a viable defense under Alabama law. See Oehmig v. Johnson, 638 So.2d 846 (Ala. 1994), abrogated by Ex parte Liberty National Life Ins. Co., [825 So.2d 758 (Ala.2002) ].”

Its dismissal of Oehmig v. Johnson as dictum in its brief filed in Ex parte Liberty National, while relying upon precedent “as early as 1954,” belies Liberty National’s present contention as to the state of the law on April 3, 2001. This Court’s holding in Ex parte Liberty National simply mirrors the foregoing argument in the reply brief by citing Ballenger and Merrill and declining to permit Oehmig to control, as it was dictum “inconsistent with the well-established understanding of the rule of repose.” 825 So.2d at 765 n. 3. I note parenthetically that the concept that Oeh-mig has been “abrogated” does not appear in this Court’s opinion; it is a term employed solely by a publisher in describing the history of Ex parte Liberty National.

What appears to have happened in the instant case is a simple matter of Liberty National’s various attorneys failing to get on the same page. But for recent cases such as Rector v. Better Houses, Inc., 820 So.2d 75 (Ala.2001), holding that delay alone is justification for refusing to permit the amendment of a complaint, I would have viewed more favorably Liberty National’s attempt to excuse failure to amend on the candid admission of oversight, relying on Poston v. Gaddis, 372 So.2d 1099 (Ala.1979), dealing with allowance of leave to amend to assert an affirmative defense and citing National Distillers & Chemical Corp. v. American Laubscher Corp., 338 So.2d 1269 (Ala.1976), in which this Court held that neither long delay nor the fact that a proposed amendment is motivated by counsel’s afterthought as to the best theory upon which to proceed suffice as reasons for denying leave to amend.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. The validity of the main opinion depends on two of its cardinal holdings. The first of these holdings is that Liberty National has demonstrated “good cause” for its failure to plead the rule of repose in its original April 3, 2001 answer. The second of these holdings is that the trial judge exceeded his discretion in denying, on the ground of “undue delay,” the March 21, 2002 motion filed by Liberty National for leave to amend its answer to assert the rule of repose. I respectfully submit that both of these holdings are mistaken.

This dissent will demonstrate, first, that the excuse proffered by Liberty National for its failure to plead the rule of repose in the original April 3, 2001 answer is absolutely illusory. This dissent will demonstrate, second, that the holding of the main opinion on the issue of untimeliness conflicts with the holding by this Court on the same issue in the recent case of Rector v. Better Houses, Inc., 820 So.2d 75 (Ala.2001). Under circumstances not materially distinguishable from the circumstances of the case now before us, Rector holds that seven months’ delay in seeking to amend a pleading constituted such undue delay as was “in itself ground for denying an amendment.” 820 So.2d at 78. The delay in the case now before us was nearly a full year.

In petitioning us for a writ of mandamus, Liberty National claims that, when it filed its answer on April 3, 2001, it believed that it could not invoke the rule of repose against the plaintiff-respondent Mr. Deas. Liberty National claims that its belief to this effect was warranted by a statement in Oehmig v. Johnson, 638 So.2d 846, 851 (Ala.1994), which reads: “The time for the rule of repose cannot run until there is at least constructive notice of a potential claim.” Liberty National claims that it was justified in maintaining this belief and in not invoking the rule of repose against Mr. Deas until this Court issued Ex parte Liberty National Life Insurance Co. (In re Hudson v. Liberty National Life Insurance Co.), 825 So.2d 758 (Ala.2002) (hereinafter “Liberty National (Hudson) ”), which, Liberty National argues, “abrogated” Oehmig v. Johnson.

The very Liberty National (Hudson) now cited by Liberty National to us reveals, however, not only that Liberty National should have known, but that Liberty National actually did know, well before April 3, 2001, that the rule of repose was available to bar Mr. Deas’s claims irrespective of whether or when he acquired notice of his claims. Liberty National (Hudson) reveals that, well before April 3, 2001, Liberty National knew and should have known that a claimant’s lack of notice of his claim would not save his claim from the bar of the rule of repose. In several ways Liberty National (Hudson) reveals this state of knowledge in Liberty National.

First, Liberty National (Hudson) cites the case of Moore v. Liberty National Insurance Co., 108 F.Supp.2d 1266, 1274-75 (N.D.Ala.2000), aff'd sub nom. Moore v. Liberty National Life Ins. Co., 267 F.3d 1209 (11th Cir.2001) (boldface added), with the parenthetical explanation: “(applying Alabama’s rule of repose to bar- claims virtually identical to the claims asserted in this case).” 825 So.2d at 764. In Moore v. Liberty National, well before April 3, 2001, Liberty National successfully invoked the rule of repose to bar the Moore plaintiffs’ Alabama state law claims based on acts committed more than 20 years before the Moore plaintiffs filed their suit, notwithstanding the Moore plaintiffs’ lack of notice and lack of discovery of those claims and notwithstanding the existence of Oehmig v. Johnson and its language about notice and the rule of repose at the very time Liberty National was invoking the rule of repose against the Moore plaintiffs.

Second, in Liberty National (Hudson) itself, the Oehmig v. Johnson statement that “[t]he time for the rule of repose cannot run until there is at least constructive notice of a potential claim” did not deter Liberty National from invoking the rule of repose to bar the claims against Liberty National, even though the plaintiffs suing Liberty National in that case were, like the plaintiff suing Liberty National in the case now before us, claiming lack of notice or discovery of their own claims. The discussion of the rule of repose in Liberty National (Hudson) bespeaks that the parties to that case had already joined issue on the question' of whether those plaintiffs’ lack of notice or discovery- of their own claims would save them from the rule of repose. Only after Liberty National had invoked the rule of repose notwithstanding those plaintiffs’ lack of notice or discovery did this Court issue the Liberty National (Hudson) opinion “abrogating” (as Liberty National now says) the Oehmig v. Johnson language about notice. ,In the case now before us Liberty National could have and should have timely invoked the rule of repose just as it did in Moore v. Liberty National and Liberty National (Hudson), notwithstanding the language about notice in Oehmig v. Johnson, which preexisted all three cases — Moore v. Liberty National, Liberty National (Hudson), and the case now before us.

Third, Liberty National (Hudson) cites precedents which predate April 3, 2001, when Liberty National filed its answer in the case now before us, and which refute the notion that a claimant’s lack of notice or discovery of his own claim would save it from the rule of repose. Liberty National (Hudson) cites Boshell v. Keith, 418 So.2d 89, 91 (Ala.1982), for the proposition that the rule of repose “is not based upon concepts of accrual, notice, or discovery.” 825 So.2d at 764. Likewise, Liberty National (Hudson) quotes Ballenger v. Liberty National Life Insurance Co., 271 Ala. 318, 322, 123 So.2d 166, 169 (1960), for the proposition that “[l]ack of notice is not sufficient to avert the application of the doctrine of repose.” 825 So.2d at 764. Likewise, Liberty National (Hudson) cites Merrill v. Merrill, 260 Ala. 408, 411, 71 So.2d 44, 45-46 (1954), with this parenthetical explanation: “(noting that ‘absence of notice’ does not control the application for the rule [of repose], and that ‘[n]otice does have influence on the question of laches, but not on [repose]’).” 825 So.2d at 764. All of these precedents were just as available to Liberty National when it filed its answer in the case now before us on April 3, 2001, when Liberty National should have pleaded the rule of repose, as these precedents were available to this Court when it issued Liberty National (Hudson) on January 18, 2002, and “abrogated” the notice language in Oehmig v. Johnson.

Fourth, Liberty National (Hudson) dismisses the notice language in Oehmig v. Johnson as mere “dicta” “which was not supported by citation to any authority.” 825 So.2d at 765 n. 3. The status of the notice language in Oehmig v. Johnson as dictum and the absence of authority for that dictum were just as available to Liberty National on April 3, 2001, when it should have pleaded but did not plead the rule of repose in the case now before us, as the status as dictum and the absence of supporting authority were available to this Court on January 18, 2002, when it issued Liberty National (Hudson) “abrogating” that unsupported dictum.

Finally, the discussion of the rule of repose in Liberty National (Hudson) is itself dictum. Thus it could not change the law and thereby provide Liberty National with any basis for claiming that Liberty National was timely invoking a new rule by pleading the rule of repose after the issuance of Liberty National (Hudson).

The foregoing discussion demonstrates that, when Liberty National first answered on April 3, 2001 in the case now before us, Liberty National was already an old hand at invoking the rule of repose against plaintiffs who lacked notice or discovery of their own claims. Liberty National had already so defended itself both before Oehmig v. Johnson in Ballenger v. Liberty National and after Oehmig v. Johnson in Moore v. Liberty National and in Liberty National (Hudson).

On April 3, 2001, Liberty National was on notice of the law which not only allowed but also required that Liberty National then plead the rule of repose against Mr. Deas in order to preserve the bar to his claims. Liberty National cannot rightly claim that Liberty National (Hudson) was its epiphany on the topic of notice and the rule of repose, or is its salvation for its failure to plead the rule of repose timely in its original answer of April 3, 2001.

In Rector, supra, the plaintiff sought to amend her complaint seven months after she had filed it but some time before the defendant filed its motion for summary judgment. In the case now before us, Liberty National sought to amend its answer nearly twelve months after Liberty National had filed it and one month after Liberty National had filed its motion for summary judgment, which is still pending. In approving the trial judge’s disallowance of Rector’s amendment, the Rector Court reasoned:

“In Boros v. Baxley, 621 So.2d 240 (Ala.1993), we explained:

“ ‘Although Rule 15(a) itself calls for liberal amendment, this Court has held consistently that “the grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion.” ’
621 So.2d at 245 (citations omitted). Thus, ‘Rule 15, [Ala. R. Civ. P.], is not carte blanche authority to amend a complaint at any time.’ Stallings v. Angelica Uniform Co., 388 So.2d 942, 947 (Ala. 1980) (quoting Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975)). ‘[U]ndue delay in filing an amendment, when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.’ Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So.2d 979, 984 (Ala.1989). ‘[I]f the court determines ... that a party has had sufficient opportunity to state a claim ... but has failed to do so, leave to amend may properly be denied.’ Walker v. Traughber, 351 So.2d 917, 922 (Ala.Civ.App. 1977).”

820 So.2d at 78 (emphasis added). While Rector’s amendment was proffered within 30 days of the original trial date, the Rector Court did not base its approval of the disallowance of the amendment on any claim or finding of prejudice. The sole rationale was undue delay.

What is sauce for the goose is sauce for the gander. The trial judge in the case now before us did not exceed his discretion in denying, on the ground of undue delay, the March 21, 2002 motion filed by Liberty National seeking leave to amend its answer. Thus, I respectfully submit that we should deny the writ.

LYONS, J., concurs.

      . In Ex parte Liberty National, we discussed the history of the rule of repose and returned, through clarification, to the traditional meaning of the rule; namely, that "the 20-year period begins to run against claims the first time those claims could have been asserted, regardless of the claimant's notice of a claim.” 825 So.2d at 764 (footnotes omitted).

      . See Harkins & Co. v. Lewis, 535 So.2d 104, 117 (Ala.1988).

      . A comparison of the language of Rule 15— "and leave shall be given only upon a showing of good cause” — with the alternative phrase "and leave shall be given upon a showing of good cause” demonstrates the point.

      . In Ex parte Liberty National, 825 So.2d at 764 n. 3, we abrogated the "constructive notice” statement from Oehmig:

      "This statement, which was not supported by citation to any authority, is inconsistent with the well-established understanding of the rule of repose described above. Furthermore, Oehmig was not decided on the basis of this incorrect statement; rather, Oehmig was decided on the basis that the rule of repose could not be used offensively (in a manner similar to the concept of adverse possession) ‘against one with valid record title by one who clearly does not have title’ in order to divest the title owner of property. 638 So.2d at 850. For those reasons, the dicta from Oehmig does not control our decisions.”

      . Rector seems to conflict with Poston v. Gaddis, 372 So.2d 1099, 1105-06 (Ala.1979), which, in turn, seems to support the main opinion in the case now before us. This Court may need to resolve the conflict to achieve consistency.


author: LYONS, Justice.

text:
    Ex parte ATHENS-LIMESTONE HOSPITAL and Dr. Bibi L. Teng. (In re Stacia Lynn P. Wilson, as mother and next friend of Starsha L. Wilson, a deceased minor, and Stacia Lynn P. Wilson, individually v. Athens-Limestone Hospital et al.).
    1020246.
    Supreme Court of Alabama.
    March 14, 2003.

      W. Stanley Rogers, George E. Knox, Jr., and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for petitioner Athens-Limestone Hospital.
    Joseph Miller of Starnes & Atchison, L.L.P., Birmingham, for petitioner Dr. Bibi L. Teng.
    Charles C. Tatum, Jr., Jasper; and James C. King, Jasper, for respondents.
   LYONS, Justice.

Stacia Lynn P. Wilson sued Athens-Limestone Hospital (“the Hospital”) and Dr. Bibi Teng, a pediatrician who was employed by the Hospital, in 1996 alleging medical malpractice, wrongful death, and emotional distress resulting from the death of her minor child, Starsha L. Wilson. In 1999, the trial court entered a summary judgment in favor of Dr. Teng. Wilson appealed to this Court, and we reversed the summary judgment and remanded the case. Wilson v. Teng, 786 So.2d 485 (Ala.2000). On July 29, 2002, shortly before trial in the case was scheduled to begin, the trial court entered a summary judgment for the Hospital on all claims except the medical-malpractice claim based on the acts or omissions of Dr. Teng. On August 5, 2002, the first day of trial, Wilson moved for Dr. Teng to be dismissed as a party, without prejudice. The trial court granted the motion. The Hospital then immediately served on Dr. Teng’s counsel a third-party complaint against Dr. Teng seeking indemnification and filed a motion with the trial court for leave to file the third-party complaint. Dr. Teng’s counsel accepted service of the complaint and informed the trial court that Dr. Teng was prepared for trial.

Wilson objected to the third-party complaint, and the trial court continued the trial in order to consider whether the Hospital’s third-party complaint against Dr. Teng should be allowed. The trial court granted the Hospital leave to file the third-party complaint against Dr. Teng, but severed the indemnity claim from Wilson’s vicarious-liability claim against the Hospital. The order states:

“Ordered, Defendant, Athens-Limestone Hospital’s, Motion for Leave to File Third-Party Complaint is granted. Defendant, Athens-Limestone Hospital’s, third-party complaint vs. Dr. Bibi L. Teng is ordered severed from plaintiffs medical malpractice claim against Athens-Limestone Hospital. The medical malpractice trial is continued until 12/9/02 at 9:00 A.M.”

On August 28, 2002, the Hospital filed a motion to vacate the order severing its third-party claim. The trial court denied the motion, and the Hospital and Dr. Teng petitioned this Court for a writ of mandamus directing the trial court to vacate its order severing the Hospital’s third-party indemnity claim. We grant the petition and issue the writ.

“A writ of mandamus is a

“ ‘drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 8) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ”

Ex parte Wood, 852 So.2d 705 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 508 (Ala.1993)). The sole issue before us is whether the trial court erred in severing the Hospital’s third-party claim against Dr. Teng from Wilson’s claim against the Hospital. A trial court has discretion in deciding whether to sever a third-party claim under Rule 14, Ala. R. Civ. P., and we will not overturn the trial court’s order unless the court exceeded the permissible limits of its discretion. See Ex parte R.B. Ethridge & Assocs., Inc., 494 So.2d 54 (Ala.1986).

This Court has reviewed at least three petitions for the writ of mandamus where the issue was whether a third-party claim should be tried separately. See Ex parte Palughi, 494 So.2d 404 (Ala.1986); R.B. Ethridge & Assocs., Inc.; Ex parte Duncan Constr. Co., 460 So.2d 852 (Ala.1984). Twice, this Court granted the petitions and held that the trial court had exceeded the permissible limits of its discretion in separating or severing the third-party claim from the original action. Palughi, 494 So.2d at 405; Duncan Construction, 460 So.2d at 854. This Court stated:

“In ruling on a motion to strike or sever, the trial court must weigh the need for one trial involving all issues and parties in furtherance of the stated purpose of the rule against the risk of substantial prejudice to the original parties resulting from an undue complication of issues and evidence because of the addition of the third-party defendants.”

Duncan Construction, 460 So.2d at 854. In both Palughi and Duncan Construction, this Court determined that the trial court had exceeded the permissible limits of its discretion in determining that the third-party claims would unduly complicate the issues and evidence as to the original parties. 494 So.2d at 406, 460 So.2d at 854. As this Court stated in Duncan Construction, the record did not “support such a conclusion,” and the trial court did not show that the original parties to the action would be prejudiced if the third-party claim was tried with the original action. 460 So.2d at 854. This Court also noted that the “finding of complexity alone does not automatically entitle a party to the severance of third-party claims.” Duncan Construction, 460 So.2d at 854.

The purpose of third-party practice under Rule 14, Ala. R. Civ. P., is

“ ‘to avoid multiple suits, to allow an entire controversy to be disposed of in one action, thereby saving time and cost and avoiding the serious handicap to the defendant of a time difference between the judgment against him and the judgment in his favor against the party liable over to him.’ ”

Duncan Construction, 460 So.2d at 854 (quoting Ozley v. Guthrie, 372 So.2d 860, 861 (Ala.1979)); Committee Comments on 1973 Adoption, Rule 14, Ala. R. Civ. P. The Hospital’s third-party claim against Dr. Teng clearly falls within the purpose of Rule 14 as described above, and this purpose must be served unless the issues involved in the Hospital’s third-party indemnity claim would “unduly complicate” the original action, resulting in prejudice toward Wilson’s medical-malpractice claim. See Duncan Construction, 460 So.2d at 854.

The Hospital states in its petition that “Rule 14 was written for the situation presented here” and argues that “the indemnity claim in this case would not require proof of a single additional fact.” We agree. If the Hospital is found hable on Wilson’s medical-malpractice claim, it will be because the jury determined that Dr. Teng breached the standard of care in treating Wilson’s daughter. The evidence Wilson would be required to adduce in order to prove liability on the part of the Hospital is the same evidence the Hospital would be required to present in its third-party indemnity claim against Dr. Teng. Consequently, the issues that would be brought into Wilson’s medical-malpractice claim against the Hospital by the inclusion of the Hospital’s third-party indemnity claim are not so complex as to warrant severance of that claim or a separate trial.

Wilson argues that the Hospital’s indemnity claim against Dr. Teng arises out of Dr. Teng’s employment contract, which contains a section entitled “Insurance and Indemnification.” Wilson contends that the Hospital would have to explore this section in trying its third-party claim against Dr. Teng. Wilson argues that such a discussion would be irrelevant to her medical-malpractice claim against the Hospital and that it would unduly complicate and prejudice her claim.

The “Insurance and Indemnification” section of Dr. Teng’s employment contract provides that the Hospital would pay Dr. Teng’s malpractice insurance as a fringe benefit of Dr. Teng’s employment by the Hospital. Wilson contends in her brief that the trial court “was obviously concerned with the prejudice that would be caused by introducing the relevant portion of the Hospital and Dr. Teng’s indemnity agreement to the jury, as the agreement makes reference to malpractice insurance.” We note, however, that neither the trial court’s order severing the Hospital’s third-party claim nor the record reflects that the trial court harbored such a concern.

Even if the contract had been a concern of the trial court, the “Insurance and Indemnification” section is irrelevant to the Hospital’s indemnity claim against Dr. Teng; it would, therefore, be inadmissible. The relevant section of the agreement states:

“A. Hospital shall, on behalf of Physician, if reasonably available from commercial carriers, maintain public liability and professional malpractice insurance in the amount of [space left blank] for each occurrence. This amount may represent coverage in any combination of primary and excess amounts, and Physician shall provide the Hospital with a certificate of insurance as evidence that this coverage has been obtained. In addition, such policy shall provide the Hospital with a certificate of insurance as evidence that this coverage has been obtained. In addition, such policy shall provide for at least thirty (30) days[’] written notice to the Hospital before any alteration of the policy may take effect. As long as the Physician remains an employee of the Hospital, Hospital shall provide payment for the public liability and professional malpractice insurance premiums. In the event Physician is uninsurable, through normal commercial carriers, this Agreement shall terminate immediately.
“B. Nothing in this section shall relieve the Hospital from liability proximately caused by the employees of the Hospital in the normal course of their duties.”

Despite the reference to “Indemnification” in the title of the section, nothing in the body of the section addresses indemnification as that term is used in the context of the claim asserted pursuant to Rule 14 in this action. A master is entitled to recover from his servant damages the master has been required to pay by reason of the negligence of his servant. American Southern Ins. Co. v. Dime Taxi Serv., Inc., 275 Ala. 51, 151 So.2d 783 (Ala.1963). Wilson’s claim that the Hospital was vicariously liable based on the acts or omissions of Dr. Teng was the only claim that survived the summary judgment. No showing is made that the join-der is a sham based on evidence that Dr. Teng is incapable of paying any judgment that might be rendered against her.

Wilson also argues that the Hospital’s indemnity claim is not ripe and that there is no justiciable controversy for the trial court to decide regarding the Hospital’s claim against Dr. Teng. Those arguments are without merit. The plain language of Rule 14 discounts Wilson’s argument that the Hospital’s indemnity claim is not ripe for consideration. Rule 14 was designed for third-party claims like the Hospital’s, because it provides for impleader of “a person not a party to the action who is or may be hable to the third-party plaintiff for all or part of the plaintiffs claim against the third-party plaintiff.” Rule 14, Ala. R. Civ. P. See also Committee Comments on 1973 Adoption to Rule 14 (“But where there is a substantive right over, Rule 14 does permit acceleration of liability by allowing the original defendant to implead a third-party claimed to be hable over to him, although there may be no liability to the original defendant unless and until the original defendant is held liable to the original 'plaintiff.”) (emphasis added).

Wilson also contends that “there is no issue for the Court to decide in this case under the third party complaint,” because Dr. Teng’s counsel “admitted ... that there was no issue regarding her purported duty to indemnify the hospital.” However, Rule 14 makes clear that a third-party claim is not precluded simply because an indemnitor has acknowledged a duty to indemnify. Rule 14(a), Ala. R. Civ. P.. (“The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiffs claim.”). Finally, Wilson’s contention that “there is no controversy regarding the issue of indemnification” because the “Insurance and Indemnification” section of Dr. Teng’s contract with the Hospital sets out “the obligations of each party under the circumstances that arise in this case” is unpersuasive; the section contains no reference to obligations regarding a duty to indemnify by Dr. Teng.

In light of the foregoing, we hold that the trial court exceeded the permissible limits of its discretion when it severed the Hospital’s third-party complaint against Dr. Teng. We direct the court to vacate its order severing the Hospital’s third-party complaint from Wilson’s medical-malpractice action against the Hospital.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

      . The Hospital did not file the third-party complaint with the trial court until October, 15, 2002.

      . This Court denied the petition in R.B. Ethridge & Associates, Inc., which arose in the context of a complex construction case, stating that the trial court had "sufficient grounds” to separate the petitioner’s third-party claim from the original action. 494 So.2d at 58.

      . Dr. Teng’s counsel counters that Dr. Teng “did not 'stipulate' to liability under the third-party indemnity claim” and that the record reflects that Dr. Teng "did not waive any defenses she may have to the third-party indemnity claim.”