author: MURDOCK, Judge. THOMPSON, Judge, PITTMAN, Judge,

text:
    L.K.D.H., individually and as next friend of J.L.D., a minor v. PLANNED PARENTHOOD OF ALABAMA, INC.
    2040661.
    Court of Civil Appeals of Alabama.
    May 26, 2006.

      Robert M. Echols, Jr., Birmingham, for appellant.
    Charles A. McCallum III and Eric D. Hoaglund of McCallum, Hoaglund, Cook & Irby, L.L.P., Vestavia Hills, for appellee.
   MURDOCK, Judge.

L.K.D.H., as next friend of her minor daughter, J.L.D., appeals from a summary judgment entered against her in that capacity and in favor of Planned Parenthood of Alabama, Inc. L.K.D.H. also appeals from a separate summary judgment entered against her individually, and in favor of Planned Parenthood.

In January 2002, L.K.D.H., individually and as next friend of J.L.D., filed a complaint in the Jefferson Circuit Court alleging claims of negligence and willful or wanton conduct against Planned Parenthood. The claims arose out an abortion procedure performed on L.K.D.H. in June 1999 when she was pregnant with J.L.D. The procedure allegedly injured both L.K.D.H. and J.L.D. According to answers to interrogatories, J.L.D. was born with “a hole in her heart” and an “inverted tube that led from her lungs to her heart causing her body not to be able to receive enough oxygen.”

As to the claims asserted on behalf of J.L.D., L.K.D.H. alleged that Planned Parenthood “was operating or causing to be operated a medical treatment facility in Jefferson County, Alabama, [and that it] provided medical treatment to [L.K.D.H.] which injured and otherwise caused permanent damages and injuries to [J.L.D.]” The complaint continued:

“As a proximate consequence of the negligence of the Defendant ], ... [J.L.D.] was injured and suffered other damages, including pain and suffering, mental anguish and emotional distress, physical injuries, and was caused to incur medical bills, legal expenses, payment of various expenses ..., and suffered other injuries, some of which are permanent.”

In addition to the claims asserted on behalf of J.L.D., L.K.D.H. also alleged that as a result of Planned Parenthood’s wrongful conduct she had personally suffered various injuries and damages, including “permanent” injury, “pain and suffering, loss of income, ... mental anguish and emotional distress,” medical expenses, and legal expenses. L.K.D.H., individually and on behalf of J.L.D., requested a judgment against Planned Parenthood for $1,000,000 in compensatory damages and for punitive damages.

After a failed mediation, the circuit court entered an order in July 2004 setting the case for a trial to be held in February 2005. The order also required L.K.D.H. to identify her expert witnesses, including a summary of each expert witness’s opinion, on or before September 10, 2004, and it required each party to provide, 14 days before trial, a list of witnesses that that party intended to call at trial.

Also in July 2004, Planned Parenthood filed a motion for a summary judgment as to the claims asserted on behalf of J.L.D. In its motion, Planned Parenthood challenged only whether L.K.D.H., on behalf of J.L.D., had stated a cognizable claim for relief against Planned Parenthood. Relying solely on Elliott v. Brown, 361 So.2d 546 (Ala.1978), a case involving a failed vasectomy, Planned Parenthood argued that the claims asserted on behalf of J.L.D. were simply claims alleging “wrongful life” (i.e., claims alleging that but for Planned Parenthood’s wrongful conduct J.L.D. would not have been born) and that “under Alabama law, a child ean[not] pursue a malpractice claim against a medical provider arising out of a failed abortion procedure.” Planned Parenthood specifically did “not contest the [factual] allegations asserted [on behalf of J.L.D.],” but it stated that it reserved the right to contest such matters should its motion for a summary judgment be denied. It also noted that “there are clear issues pertaining to duty, standard of care, causation and damages that substantially undermine [the] claims [asserted on behalf of J.L.D.] which are reserved for a later time, if necessary.” Thus, the only issue before the circuit court on the motion for a summary judgment as to the claims asserted on behalf of J.L.D. was whether Alabama law allows for a cause of action on behalf of a child against an abortion provider based on negligent acts that cause the child to be born in an injured or deformed condition. L.K.D.H. did not file a response to Planned Parenthood’s summary-judgment motion as to the claims asserted on behalf of J.L.D.

In August 2004, the circuit court entered an order granting Planned Parenthood’s motion for a summary judgment as to the claims asserted on behalf of J.L.D. Specifically, the circuit court concluded that the facts as alleged by L.K.D.H., on behalf of J.L.D., were undisputed for purposes of Planned Parenthood’s motion and that, “in view of Elliott,” Planned Parenthood was entitled to a judgment as a matter of law.

In December 2004, Planned Parenthood filed a motion for a summary judgment as to L.KD.H.’s individual claims. In support of its motion, Planned Parenthood filed an affidavit from Dr. Richard O. Davis, a practicing physician who is licensed in the State of Alabama and who is “experienced in obstetrics and gynecology, maternal and fetal medicine and is the Medical Director of Planned Parenthood of Alabama, Inc.” Dr. Davis’s affidavit states, in pertinent part:

“5. In particular, the medical records reflect that an abortion procedure was performed on [L.K.D.H.] at Planned Parenthood of Alabama, Inc. on June 5, 1999 to terminate a pregnancy of approximately 7.4 gestation weeks, which was confirmed by ultrasound. Dr. Elizabeth Kemp performed the evacuation procedure on June 5, 1999 using a suction curettage which is an appropriate procedure based upon [L.KD.H.’s] history and condition. Dr. Kemp properly confirmed the evacuation and identified the products of conception. Furthermore, the products of conception were submitted for a pathology examination which confirmed the removal of products of conception.... Accordingly, the medical records and pathology report confirm the procedure was properly performed.
“6. Nonetheless, particularly during an early gestation period, such as in the case here, it is not uncommon for there to be a continuing pregnancy notwithstanding the exercise of reasonable care, skill and diligence as other similarly situated health care providers in the same general line of practice. In my opinion, the care and treatment rendered to [L.K.D.H.] met or exceeded the required standard of care.
“7. Likewise, I am familiar with the follow-up care and treatment provided to patients undergoing pregnancy termination procedures by medical providers, such as [Planned Parenthood] and, in my opinion, the care and treatment provided [L.K.D.H.] by [Planned Parenthood], at all times, met or exceeded the required level of such reasonable care, skill and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in like cases.”

Planned Parenthood noted that L.K.D.H. had not designated any expert witnesses to testify at trial in support of her claims, as she was required to do by the July 2004 order. Planned Parenthood asserted that because it had presented substantial evidence as to the applicable standard of care through Dr. Davis’s affidavit, L.K.D.H. had the burden of presenting substantial evidence, through expert testimony, that Planned Parenthood had breached the applicable standard of care. Planned Parenthood further argued that because “[L.K.D.H.] has not procured any expert testimony to establish her case and cannot refute the expert testimony of Dr. Davis,” she could not “prove a breach of the standard of care as required by Alabama Code [1975], § 6-5-548.” See § 6-5-548(a) (“[T]he plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.”). Therefore, Planned Parenthood requested that the circuit court enter a summary judgment in favor of Planned Parenthood as to L.KD.H.’s individual claims.

Upon motion by L.K.D.H., the circuit court entered an order giving her until January 3, 2005, to respond to Planned Parenthood’s motion. On December 28, 2004, L.K.D.H. filed a response to Planned Parenthood’s motion for a summary judgment as to her individual claims, along with a supporting affidavit signed by her and a supporting affidavit from Dr. James A. Mankin, Jr., a physician licensed to practice medicine in the State of Alabama.

On January 4, 2005, Planned Parenthood filed a motion to strike Dr. Mankin’s affidavit on the ground that L.K.D.H. had failed to comply with the circuit court’s July 2004 scheduling order. L.K.D.H. filed a response to Planned Parenthood’s motion to strike, asserting that the “affidavits submitted in opposition to the pending motion for summary judgment are required by law, impose no hardship on [Planned Parenthood], and simply confirm the pending claims of [L.K.D.H.].”

After L.K.D.H. filed her response, the circuit court entered an order stating that L.K.D.H. did not “refute” Planned Parenthood’s argument that L.K.D.H. had failed to disclose Dr. Mankin as an expert witness as required by the July 2004 scheduling order. The circuit court concluded, “[t]rial is now less than a month away, and to permit a surprise expert witness to testify at this late date would unduly prejudice [Planned Parenthood].” The circuit court granted Planned Parenthood’s motion to strike Dr. Mankin’s affidavit, citing Coca-Cola Bottling Co. United, Inc. v. Stripling, 622 So.2d 882, 889 (Ala.1993) (holding that a trial court did not err when it refused to allow an expert to testify because the expert “had not been revealed before trial, as required by the pretrial order and by Rule 26(b)(4)(A), Ala. R. Civ. P.”). The circuit court then stated:

“With the elimination of this expert testimony, [L.K.D.H.] has no competent evidence to refute the evidence presented by [Planned Parenthood] that it met or exceeded the applicable standard of care. Under Ala.Code [1975], § 6-5-548, the plaintiff must respond to the defendant’s pending motion by presenting substantial evidence by a similarly-situated health care provider that the defendant somehow breached the standard of care, resulting in her injury. [L.K.D.H.] has failed to meet this burden.”

The circuit court therefore granted Planned Parenthood’s motion for a summary judgment as to L.KD.H.’s individual claims.

L.K.D.H., individually and as next friend of J.L.D., appealed to the Alabama Supreme Court. The Supreme Court transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7(6).

As to L.KD.H.’s claims in her individual capacity, after carefully reviewing the arguments she presented to the circuit court and those she has properly presented on appeal, we cannot conclude that the trial court erred when it entered a summary judgment. L.K.D.H. has argued and cited legal authority for the proposition that an expert witness’s testimony is not necessary “ ‘ “where want of skill or lack of care is so apparent ... as to be understood by a layman.” ’ ” Ex parte Health-South Corp., 851 So.2d 33, 38 (Ala.2002). (quoting Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984), quoting in turn other cases). After carefully considering the evidence and the arguments presented to the circuit court, we cannot conclude that a want of skill or lack of care in the circumstances made the basis of L.KD.H.’s individual claims would be apparent to a layperson without the benefit of expert testimony.

As to the claims asserted on behalf of J.L.D., L.KD.H. argues that the circuit court erred as a matter of law when it agreed with Planned Parenthood’s characterization of those claims as being claims alleging “wrongful life” and entered a summary judgment on the authority of Elliott. We agree.

There is no presumption of correctness as to the circuit court’s entry of a summary judgment, and this court’s review thereof is de novo. E.g., Dellocono v. Thomas Hosp., 894 So.2d 694, 695 (Ala.Civ.App.2004). Rule 56(c)(3), Ala. R. Civ. P., states that a summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Based on the grounds Planned Parenthood asserted in support of its July 2004 summary-judgment motion as to the claims asserted on behalf of J.L.D. and the basis of the circuit court’s order granting Planned Parenthood’s motion, the only issue for our consideration is whether Planned Parenthood was entitled to a judgment as a matter of law under the pleadings and undisputed evidence presented and under the rationale espoused in Elliott. See Hudson-Thompson, Inc. v. Leslie C. King Co., 361 So.2d 541, 542 (Ala.1978) (“Even if the facts are undisputed, the motion should not be granted unless the moving party is entitled to judgment as a matter of law.”); and Miles v. Foust, 889 So.2d 591, 595 (Ala.Civ.App. 2004) (“A trial court considering an unopposed summary-judgment motion must determine whether that motion and the materials submitted in support of that motion warrant a judgment for the movant as a matter of law.”).

Despite the language of the complaint, and despite L.KD.H.’s answer to Planned Parenthood’s interrogatory explaining the “personal injury sustained by [J.L.D.]” that was the basis of the claims asserted on behalf of J.L.D., Planned Parenthood convinced the circuit court that those claims were claims alleging “wrongful life,” as were the plaintiffs claims in Elliott. In Elliott, the defendant allegedly negligently performed a vasectomy on Elliott’s father, which in turn led to the unwanted birth of Elliott. Although Elliott suffered from a deformity, that deformity was solely the result of natural causes. Elliott claimed “that the defendant’s alleged [preconception] negligence caused her birth; i.e., ‘wrongful life.’ ” Elliott, 361 So.2d at 547. Under those circumstances, for the Elliott Court to have allowed an action against the physician would indeed have been to allow an action for the “wrongful life” of the ehild.

In contrast to Elliott, L.K.D.H., on behalf of J.L.D., did not claim in the circuit court and she has not claimed in her brief to this court that J.L.D. had a right not to be born. Instead, she alleged before the circuit court and argues in her appellate brief that Planned Parenthood negligently performed the abortion procedure (an allegation that Planned Parenthood conceded for purposes of the summary-judgment motion as to the claims asserted on behalf of J.L.D.) and that Planned Parenthood’s negligence proximately caused injuries to J.L.D. Thus, unlike in Elliott, in the present case (based on the facts alleged on behalf of J.L.D.) it was the physician’s negligence that caused J.L.D.’s physical injury or deformity. The claims asserted on behalf of J.L.D. seek to hold Planned Parenthood accountable for causing an injury or deformity, not for the fact that J.L.D. was born. In other words, unlike Elliott, the present case is an action alleging “wrongful injury,” not “wrongful life.”

The Supreme Court was careful to emphasize that its holding in Elliott did not mean that negligence on the part of a physician could not serve as the basis for an action against that physician when the negligence caused deformity to a child. Indeed, the Supreme Court specifically stated in Elliott that the child “does not claim that the defendant’s alleged preconception negligence caused her deformity,” 361 So.2d at 547, and that “[tjhis decision should not be construed as any precedent whatsoever where preconception negligence causes deformity, and ivhere absent the negligence, normal birth would have probably occurred.” Id., 361 So.2d at 548 (emphasis added) (the emphasized language is hereinafter referred to as “the reservation language”).

In Elliott, the Supreme Court also cited with approval two cases in which courts approved of a cause of action on behalf of a child for negligence that caused deformities to the child. 361 So.2d at 547. In one of those cases, Renslow v. Mennonite Hospital, 67 Ill.2d 348, 367 N.E.2d 1250, 10 Ill.Dec. 484 (1977), the Illinois Supreme Court stated “that there is a right to be born free from prenatal injuries foresee-ably caused by a breach of duty to the child’s mother.” 67 Ill.2d at 357, 367 N.E.2d at 1255, 10 Ill.Dec. at 489. In the other case, Jorgensen v. Meade Johnson Labs., Inc., 483 F.2d 237 (10th Cir.1973), the United States Court of Appeals for the Tenth Circuit concluded that under Oklahoma law the plaintiff had stated a cause of action on behalf of a child when the complaint alleged that the child had suffered “personal injuries including retardation, deformity, [and] pain and suffering” as a result of the mother’s preconception use of the defendant’s birth-control pill. 483 F.2d at 238. The Tenth Circuit Court of Appeals stated:

“We are persuaded that the Oklahoma courts would treat the problem of the injuries alleged here as one of causation and proximate cause, to be determined by competent medical proof. Such personal injury cases raise factual issues turning on the medical evidence.... And such treatment of the problem would accord with the predominant view that an action may be maintained for prenatal 'injuries negligently inflicted if the injured child is born alive.”

483 F.2d at 240 (footnote omitted).

Renslow and Jorgensen are consistent with the recognition by the Alabama Supreme Court of a cause of action on behalf of a child for wrongful prebirth actions that result in an injury to the child. In 1926, in the context of a case involving prebirth injury to a child, the Alabama Supreme Court concluded that the plaintiff had no cause of action for damages on behalf of the child but that “the mother, of whom the unborn child was a part at the time of the injury, may recover for any damage to it which was not too remote to be recovered at all.” Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611, 612, 108 So. 566, 566 (1926). Stanford was subsequently overruled, however, by Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972). In Huskey, our Supreme Court explained that “Stanford ... was based upon the prevailing medical opinion of that day that a fetal child was a part of the mother and was not a ‘person’ until it was born”; that a wrongful-death action based on prenatal injuries to a child who had reached the stage of viability was appropriate; and that “[t]o give further force to Stanford would give protection to an alleged tort-feasor.” 289 Ala. at 54, 265 So.2d at 596-97. Similarly, in Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973) the Alabama Supreme Court held that “the right to maintain an action for the wrongful death of an unborn child depends on the right of the particular child, if he had survived, to maintain an action for injuries sustained,” and that a child’s prenatal injuries, even if incurred before the child has reached viability, can support an action for wrongful death when the child is subsequently born alive. 291 Ala. at 330, 280 So.2d at 761 (emphasis added). See also Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974) (recognizing a cause of action for the wrongful death of a stillborn child that died as a result of prebirth injuries when the child died after it reached viability).

Despite the apparent distinction between Elliott and the present case, and despite the import of the Supreme Court’s reservation language in Elliott as quoted and emphasized above, Planned Parenthood argues that the reservation language in Elliott is inapplicable because if the abortion procedure had been “successful” J.L.D. would not have been born, i.e., “normal birth would probably [not] have occurred.” We find Planned Parenthood’s position disturbing. According to Dr. Davis’s affidavit, when an abortion provider properly performs an abortion procedure, i.e., is not negligent, “particularly during an early gestation period, such as in the case here, it is not uncommon for there to be a continuing pregnancy.” (Emphasis added.) In light of the “not uncommon” possibility that a child will survive even a properly performed abortion procedure, it is untenable for Planned Parenthood to argue that it should be able to avoid liability to the child who is thereafter born no matter how deficient the abortion provider’s actions or how serious the harm the provider might cause to the child.

As to the specifics of the Elliott opinion, Planned Parenthood’s argument in the present case reveals a misunderstanding of the issue presented in Elliott and a failure to appreciate the context in which and the purpose for which the Supreme Court used the reservation language at issue. First, the negligence of the medical provider in Elliott did not cause the deformity of the child, only the child’s birth. That is why the Supreme Court specifically cautioned that Elliott did not serve to insulate a medical provider from liability when its “negligence causes [the] deformity.” 361 So.2d at 548. Second, Elliott was not an abortion case. There is no indication in Elliott that the “absent the negligence, normal birth would have probably occurred” statement was intended to bar a cause of action in the context of an abortion procedure. To the contrary, the clear purpose of this statement by our Supreme Court was to specifically and expressly hold open the possibility that a medical provider might indeed be liable when it causes a child to be born with abnormalities that the child would not have had in the absence of the provider’s wrongful conduct.

Finally, we note that when the Supreme Court in Elliott concluded that there was no cause of action for “wrongful life,” it was concerned with the inherent difficulty of calculating damages when a child claims it would have been better not to have been born than to have been born with deformities. Elliott, 361 So.2d at 547-48. The same difficulty does not exist in the present case, in which the comparison is between a normal life and a life spent coping with an injury or deformity caused by an abortion provider’s alleged negligence. Cf Keel v. Banach, 624 So.2d at 1030 (Allowable damages in an action alleging “wrongful birth” include “the extraordinary expenses [the parents] incur because of the child’s unhealthy condition.”).

The United States Supreme Court has decided that a mother has a right under certain circumstances not to give birth to her child. Neither the United States Supreme Court nor the Supreme Court of Alabama has ever ruled that a medical provider, or for that matter a mother, can engage, with some blanket of constitutional protection, in negligent or reckless conduct that deforms or injures a child so long as the deformity or injury is inflicted on the child before it leaves the womb. To embrace this position as the law of the land in Alabama would give license to those who would undertake to end the life of an unborn child to do so as carelessly or recklessly as they wish without bearing any responsibility to those who are injured or deformed as a result and who are left to cope with the consequences of the provider’s wrongful acts. It would be hard to imagine a more troubling development in our law.

Based on the foregoing, we conclude that the circuit court erred when it determined that L.K.D.H., on behalf of J.L.D., could not, as a matter of law, state a claim for injuries that J.L.D. suffered as a result of the alleged wrongful conduct of Planned Parenthood.

The circuit court’s judgment is due to be affirmed as to L.KD.H.’s individual claims. As to the summary judgment on the claims asserted on behalf of J.L.D., the circuit court’s judgment is due to be reversed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

BRYAN, J., concurs.

THOMPSON, J., concurs in part and concurs in the result in part, with writing.

PITTMAN, J., concurs in part and concurs in the result in part, with writing, which CRAWLEY, P.J., joins.

THOMPSON, Judge,

concurring in part and concurring in the result in part.

In granting the summary-judgment motion presented by Planned Parenthood as to the claims asserted on behalf of J.L.D., the trial court erred when it relied solely on Elliott v. Brown, 361 So.2d 546 (Ala.1978), and considered the cause of action brought by L.K.D.H. on behalf of J.L.D. to be a wrongful-life action. The realities of the situation presented in this case are that, despite efforts to eliminate the pregnancy, a child was born alive with a heart defect. It is generally recognized that negligence resulting in the live birth of a deformed or defective child is actionable. See Keel v. Banach, 624 So.2d 1022 (Ala.1993) (recognizing cause of action in Alabama for wrongful birth); see also Cardwell v. Welch, 25 N.C.App. 390, 391, 213 S.E.2d 382, 383 (1975)(reeognizing, like “virtually all American jurisdictions, a right of action in a child to recover for its prenatal injuries caused by the tortious act of another”); and Womack v. Buchhorn, 384 Mich. 718, 187 N.W.2d 218 (1971)(set-ting forth a detailed discussion of holdings of other jurisdictions regarding a negligence action for prenatal injuries brought on behalf of a surviving child). A duty of reasonable care is owed to the mother as well as to the child. Keel v. Banach, supra.

With regard to the remainder of the main opinion, I concur to affirm the trial court’s summary judgment in favor of Planned Parenthood on L.KD.H.’s individual claims.

PITTMAN, Judge,

concurring in part and concurring in the result in part.

I concur in that portion of the main opinion affirming the summary judgment as to L.K.D.H.’s own claims. Although L.K.D.H. undoubtably can be said to have been damaged under traditional tort principles (see Speck v. Finegold, 268 Pa.Super. 342, 364-66, 408 A.2d 496, 508 (1979), aff'd in pertinent part, 497 Pa. 77, 439 A.2d 110 (1981), and Snow v. Allen, 227 Ala. 615, 619, 151 So. 468, 471 (1933)), she has failed to demonstrate that expert evidence is unnecessary.

As to that portion of the main opinion reversing the summary judgment as to the claims brought by L.K.D.H. on behalf of J.L.D., I concur only in the result. Given the ultimate purpose of the procedure undertaken by L.K.D.H., it is unclear to me whether the entirety of the caveat enunciated by the Alabama Supreme Court in Elliott v. Brown, 361 So.2d 546, 548 (Ala.1978), applies here. I believe that the Alabama Supreme Court will ultimately have to expound upon the scope of Elliott ’s holding and the caveat thereto.

CRAWLEY, P.J., concurs.

      . As noted above, the circuit court struck Dr. Mankin’s affidavit on the ground that L.K.D.H. had failed to comply with the July 2004 scheduling order. L.K.D.H. has not adequately argued, or cited any legal authority that would support an argument, that the circuit court’s basis for striking Dr. Mankin’s affidavit was erroneous. See Rule 28(a)(10), Ala. R.App. P.; see also Robbins v. Sanders, 927 So.2d 777, 785 (Ala.2005) (“It is the obligation of an appellant adequately to identify and to argue the nature of any asserted error, citing in the process relevant supporting legal authority.”). Thus, we have not considered whether the circuit court erred by striking Dr. Mankin’s affidavit on the ground asserted.

      . L.K.D.H. did not answer that the injury was that J.L.D. was born; rather, she stated that "[J.L.D.] has a small hole in her heart and when she was born there was tube inverted that led from her lungs to her heart causing her body not to be able to receive enough oxygen.” Planned Parenthood filed L.K.D.H.'s answers to interrogatories in support of its July 2004 summary-judgment motion as to the claims asserted on behalf of J.L.D.

      . Although Alabama recognizes a cause of action for "wrongful birth,” i.e., "a claim for relief by parents who allege they would have avoided conception or would have terminated the pregnancy but for the negligence of those charged with prenatal testing, genetic prognosticating, or counseling parents as to the likelihood of giving birth to a physically or mentally impaired child," Keel v. Banach, 624 So.2d 1022, 1024 (Ala. 1993) (emphasis added), the present case does not involve such a cause of action. As our Supreme Court stated in Keel,

      "The nature of the tort of wrongful birth has nothing to do with whether a defendant caused the injury or harm to the child, but, rather, with whether the defendant’s negligence was the proximate cause of the parents’ being deprived of the option of avoiding a conception or, in the case of pregnancy, making an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child.”
      624 So.2d at 1029.

      . I note that this case was transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975, a statute that indicates that cases within the Alabama Supreme Court’s appellate jurisdiction presenting “novel legal question[s]“ having “significant statewide impact” should not be transferred.


source: Caselaw Access Project

author: BASCHAB, Judge.

license: Public Domain

text:
    Richard FERRELL v. STATE of Alabama.
    CR-05-0831.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      Richard Ferrell, pro se.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On May 4, 1987, the appellant, Richard Ferrell, pled guilty to first-degree escape. The trial court sentenced him, as a habitual offender, to serve a term of life in prison. See § 13A-5-9(c)(2), Ala.Code 1975. On September 7, 2005, the appellant filed a motion for reconsideration of his sentence pursuant to § 13A-5-9.1, Ala. Code 1975. After the Alabama Department of Corrections (“DOC”) responded, the circuit court summarily denied the motion. This appeal followed.

The appellant argues that the circuit court improperly determined that he was not eligible for reconsideration of his sentence.

“There are three requirements for eligibility to have a sentence reconsidered under § 13A-5-9.1: (1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the HFOA became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole pursuant to § 13A-5 — 9(e)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A-5-9(c)(2), see Prestwood[ v. State, 915 So.2d 580 (Ala.Crim.App.2005) ]; and (3) the inmate is a ‘nonviolent convicted offender.’ An inmate must satisfy all three requirements before he or she is eligible for reconsideration of sentence under § 13A-5-9.1.”

Holt v. State, [Ms. CR-04-1250, March 3, 2006] — So.2d-,-(Ala.Crim.App. 2006).

On September 15, 2005, the circuit court entered an order in which it found that the appellant satisfied the first two requirements set forth in Holt and ordered DOC to provide information it could use to determine whether the appellant was a nonviolent offender. After DOC responded, the circuit court denied the appellant’s motion, stating in part:

“Upon a review of the records supplied by the Department of Corrections the Court has determined that the Defendant was paroled on this case on June 15, 1992. His parole was revoked on July 5, 2000 and he was sent back to continue serving his sentence. He was paroled again on July 30, 2001. His parole was revoked again on January 31, 2005.
“Section 13A-5-9.1, Code of Alabama, 1975, as amended, states in part ‘... for consideration of early parole.... ’ This Court finds that the Defendant has already received the benefit of early parole and is therefore not eligible for relief.”

(C.R. 57.)

Although the circuit court found that the appellant satisfied the first two eligibility requirements set forth in Holt, it did not determine whether he was a nonviolent offender. Rather, it determined that he was not eligible for reconsideration of his sentence because he had previously been paroled. Once eligibility has been determined, the fact that an offender has previously been paroled may be a relevant and material factor to consider when deciding whether to resentence the offender. However, it is not relevant when making the initial determination of whether the offender is eligible to have his sentence reconsidered. Because the circuit court erroneously based its determination that the appellant was not eligible to have his sentence reconsidered on the fact that he had previously been paroled, it erred when it denied his motion on that ground. Accordingly, we reverse the circuit court’s judgment and remand this case to the circuit court for that court to set aside its order denying the appellant’s motion for reconsideration and to consider the appellant’s motion pursuant to this court’s holding in Holt.

REVERSED AND REMANDED.

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

      . In his brief to this court, the appellant also argues that his sentence exceeds the maximum authorized by law because the circuit court allegedly erroneously used one of his prior theft of property convictions to enhance his sentence. However, his argument, which he raises for the first time on appeal, would be cognizable in a Rule 32 petition rather than in a § 13A-5-9.1 motion. Therefore, it is not properly before this court.


author: COBB, Judge.

text:
    William Larry SULLIVAN v. STATE of Alabama.
    CR-04-1947.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      William Sullivan, pro se.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   COBB, Judge.

William Larry Sullivan appeals the circuit court’s summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief, in which he attacked the sentence imposed on him for his March 1990 conviction for murder. Sullivan appealed his conviction, and this Court affirmed the conviction with an unpublished memorandum. Sullivan v. State, 586 So.2d 309 (Ala.Crim.App.1991) (table). On February 22, 2005, Sullivan filed this Rule 32 petition, raising what he alleged to be constitutional and jurisdictional claims as well as alleging that newly discovered material facts required that the conviction and/or sentence be vacated by the court. All these claims stem from Sullivan’s assertion that he was sentenced under the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, based on a 1979 marijuana-possession conviction of which, he contends, he was fully and unconditionally pardoned in 1983 or 1984. In response to Sullivan’s petition, the State asserted that the Alabama Board of Pardons and Paroles did not have any record of Sullivan’s receiving a pardon for any offense. The State also represented to the trial court that the Alabama Board of Pardons and Paroles did have record of a letter from Governor Don Siegelman’s office in 2000 requesting that Sullivan be pardoned, but the Board did not honor that request. (R. 24.)

The trial court did not hold an evidentia-ry hearing but instead denied Sullivan’s petition. However, on May 17, 2005, the trial court entered an order finding that Rule 32.2(a)(3)-(4), Ala. R.Crim. P., barred Sullivan from receiving relief because the record did not reflect that he had ever raised in a previous appellate proceeding the issue regarding receiving an enhanced sentence based on a conviction for which he claimed he had been pardoned. The trial court also held that Sullivan’s petition was successive under Rule 32.2(b), Ala. R.Crim. P. Further, the trial court held that Sullivan had not met his burden of pleading and proving the fact necessary to entitle him to relief and he failed to clearly state with specificity a statement of grounds upon which relief was sought. (Supp. R. 6-7.)

On appeal, Sullivan argues the trial court erred by not having a hearing pursuant to Rule 32.9, Ala. R.Crim. P., because without a hearing he was unable to prove the facts he alleged in his petition. We agree.

As we have previously stated:
“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts.”

Boyd v. State, 913 So.2d 1113, 1125 (Ala.Crim.App.2003). A Rule 32 petitioner is not automatically entitled to an evidentiary hearing on any and all claims raised in his petition. Boyd, 913 So.2d at 1126. Rule 32.7(d) permits a trial court to summarily dismiss the petition in certain circumstances. For example, the trial court may summarily dismiss a petition when a sim-pie reading .of the petition shows that, assuming every allegation of the petition is correct, the petition is obviously without merit or is precluded. Boyd, 913 So.2d at 1126. That is not the case here.

Rule 32.3 places the burden of pleading by the preponderance of the evidence the facts necessary to entitle the petitioner to relief. Sullivan pleaded in his petition that his sentence has been enhanced based on a conviction for which he was later pardoned. Without reaching the merits of the petition, we nóte that if Sullivan’s allegations are true then this may be sufficient grounds for granting his petition. The State argued in response to Sullivan’s petition that the Board of Pardons and Paroles did not have any record of Sullivan’s having been pardoned for any conviction. Because of this question of fact, the trial court should have held a hearing pursuant to Rule 32.9 or received evidence in an alternative manner as allowed by that rule. It did not. Instead, the trial court entered an order making findings of facts that are not supported by the record. (Supp. R. 6-V.)

Therefore, we reverse the trial court’s order denying Sullivan’s petition for post-conviction relief and remand this matter for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

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

      . "Supp. R.” denotes items contained in the supplemental record.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Jerry Arthur RIGGS, Sr., Respondent.
    No. SC05-973.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Rehearing Denied Nov. 30, 2006.

      John F. Harkness, Jr., Executive Director, and Kenneth L. Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL; and Lorraine Christine Hoffmann and Lillian Archbold, Bar Counsel, The Florida Bar, Fort Lauderdale, FL, for Complainant.
    Kevin P. Tynan of Richardson and Tyn-an, PLC, Tamarac, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Jerry Arthur Riggs, Sr., be found guilty of professional misconduct and suspended from the practice of law for three years. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings and recommendations.

FACTS

The Florida Bar filed a complaint against Riggs, alleging that he engaged in misconduct regarding client funds, committed acts involving dishonesty and misrepresentation, and violated trust account requirements. After holding a hearing, the referee issued a report in which he made the following findings and recommendations.

Count I, Rafael and Maria Suncar.

Riggs represented Rafael and Maria Sun-car in a Miami-Dade County residential real estate transaction. The Suncars, through Argent Mortgage, financed the purchase of a foreclosed home from the seller’s lender, U.S. Bank. In November 2003, upon receipt of the funds from Argent Mortgage, Riggs was obligated to satisfy the U.S. Bank mortgage, a second mortgage to American General Home Equity, and certain other obligations. However, after Argent Mortgage wired $171,174.58 to Riggs’s trust account for the purposes of closing, he failed to pay the $118,000 U.S. Bank mortgage. Riggs did not and has not remitted these proceeds. The Suncars did not receive satisfaction of the U.S. Bank mortgage, although they did receive satisfaction on a second mortgage through American General Home Equity for $9000.

In February 2004, Riggs learned that a third-party bidder was attempting to purchase the Suncars’ home in accordance with U.S. Bank’s foreclosure. Riggs contacted the Attorneys’ Title Insurance Fund (ATIF), of which he was a member, to inform it that he no longer possessed the Suncars’ funds to satisfy the U.S. Bank mortgage. He claimed that a dishonest employee had victimized him. After numerous hearings, ATIF satisfied the U.S. Bank mortgage and suspended Riggs’s ability to underwrite title insurance. Riggs has repaid ATIF approximately $10,000 of the $118,000 debt.

Based on these findings, the referee found that Riggs violated the following provisions of the Rules Regulating the Florida Bar: rules 4-1.3(a lawyer shall act with reasonable diligence and promptness when representing a client); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 5-l.l(b)(client money or other property that the lawyer has in his control, which is not subject to setoff for attorneys fees, shall be accounted for and delivered to the client; if not, it shall be deemed conversion); and 5-l.l(e)(upon receiving client funds, the lawyer shall promptly notify the client and render full accounting).

Count II, Other Transactions. After Riggs failed to respond to the Bar’s request for his Bank of America (Bank) records for his “Client Account,” the Bar subpoenaed the Bank. Riggs requested that the Bank deny the requested records. Thereafter, Riggs sought representation by an attorney, who tendered some of the trust account records to the Bar and lifted the restrictions on the Bank’s subpoena. As a result, the Bar completed an audit reviewing Riggs’s bank accounts, but primarily reconstructing his real estate trust account and IOTA trust account for the period of October 2002 through December 2003.

The Bar’s audit revealed various incidents of account mishandling. Based solely on the Suncar matter, there was a $108,836 shortage in Riggs’s real estate trust account as of December 2003. The real estate trust account only had a balance of $15,194, while Riggs still had a $124,030.71 liability to the Suncars. Also, Riggs failed to remit over $1300 in insurance concerning another matter, identified as the “Batista/Rutledge” closing, which he handled in December 2003. Furthermore, Riggs deposited several “fees” or “attorney fees” checks into the trust accounts during the audit period. Depositing earned fees into a trust account is a violation of the Rules Regulating Trust Accounts. Additionally, Riggs deposited checks concerning personal matters into his real estate trust account. Riggs paid personal expenses totaling $18,959 from his trust accounts, including payments for employee salaries, furniture, office equipment, automotive repairs, cabinets, and a gift to a relative. The audit also revealed Riggs transferred and commingled funds between multiple accounts for no apparent reason. For example, Riggs transferred a $4000 fee related to the “Murphy case” from the IOTA account to the real estate trust account without explanation. Riggs also deposited escrow funds from various other clients into his operating account and savings account and made numerous online transfers between accounts.

Because the account transfers were not fully identified by name or purpose, the Bar’s auditor was sometimes unable to identify the case related to the transfers. As a result, the Bar requested by letter in August 2004 that Riggs identify the client names and matters relating to the transfers. Riggs did not provide a complete written response. Thus, Riggs’s noncompliance with the Bar’s request renders him in violation of rule 4-8.4(g)(a lawyer shall not fail to respond in writing to any official inquiry by bar counsel or disciplinary agency).

In addition, during December 2003 to March 2004, Riggs’s trust account balances were negative, sometimes by over $9700. As a result, trust account checks were returned for insufficient funds. Riggs had overdraft protection on his real estate trust account, which was linked to his savings account. The Florida Bar Rules Regulating Trust Accounts prohibit overdraft protection. Rule 5 — 1.2(c)(4) states that a lawyer shall authorize and request any bank where the lawyer is a signatory on a trust account to notify the Bar’s staff counsel of any trust check returned due to insufficient or uncollected funds. Riggs did not direct the Bank to follow this requirement. Also, Riggs did not notify the Bar of any trust check returned for insufficient or uncollected funds, as is required pursuant to the rules. Although Riggs was not in compliance with the rules applicable to lawyer trust accounts, he certified on his 2001-2002 and 2003-2004 Florida Bar Annual Membership Fees Statements that he read and was in compliance with such rules.

Based on these facts, the referee found Riggs violated rules 4-1.15 (a lawyer shall comply with the Florida Bar Rules Regulating Trust Accounts), 4-8.4(c)(a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), 5-l.l(a)(l)(no commingling of funds), 5-1.1(g)(2)(all nominal and client short-term funds shall be placed in an IOTA and each Florida lawyer must annually certify, in writing, that he is in compliance with or exempt from the rule provisions), and 5-1.2(b)(1) and (c)(noncompliance with minimum trust accounting records).

Riggs testified that the trust account shortages were due to a $13,902.87 overpayment to Dr. Rex Allen for a real estate closing and the misconduct of his former employee, Tammy Campbell. Riggs claimed Campbell stole the account funds. The referee did not find that Campbell was responsible for the missing funds. The facts found by the referee demonstrate that Riggs handled the refinancing of Campbell’s home in December 2003, approximately one month after the Sun-cars’ closing. Riggs asserted that Campbell was able to steal the funds due to the refinancing. To support this argument, he testified that he filed an incident report with the police alleging Campbell engaged in theft and forgery. However, Riggs did not file the report with police until August 2005, which was two months after the Bar filed the disciplinary complaint and over eighteen months after the Suncars’ funds disappeared in 2003. After considering the evidence, the referee concluded that Riggs failed to adequately supervise Campbell and failed to properly maintain his trust account.

Sanction. With regard to recommending a disciplinary sanction, the referee found three mitigating and three aggravating factors. In aggravation, the referee found: (1) prior discipline; (2) dishonest or selfish motive; and (3) substantial experience in the practice of law. In mitigation, the referee found: (1) character or reputation; (2) imposition of other penalties or sanctions; and (3) remorse.

As to discipline, the referee recommended that Riggs (1) receive a three-year suspension; (2) undergo probation for three years from the date of reinstatement, during which he must hire a certified public accountant to conduct monthly reviews of his trust accounts, submit quarterly reports to the Bar certifying that he is in compliance with trust accounting requirements, submit to random audits of his accounts by the Bar, and bear the costs associated with these terms of probation; (3) pay for and attend The Florida Bar’s Trust Accounting Workshop as a condition precedent to reinstatement; and (4) pay the Bar’s costs of $13,729.65.

Riggs petitioned for review of the referee’s report.

ANALYSIS

First, Riggs challenges the referee’s findings of fact and conclusion that he violated rule 4-8.4(c)(a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation). Riggs claims the Suncar mortgage was not satisfied because of insufficient funds in the trust account. He continues to argue the shortage was due to theft by his former paralegal, Campbell, and an overpayment to Dr. Allen. Although Riggs admits that he had an obligation to properly supervise Campbell, he asserts that he should not be found guilty of violating rule 4-8.4(c) because his failure to supervise Campbell was unintentional conduct.

Generally, a referee’s finding of fact regarding guilt carries a presumption of correctness that should be upheld unless clearly erroneous or without record support. Fla. Bar v. Vining, 761 So.2d 1044, 1047 (Fla.2000). Riggs concedes that he is guilty of some rule violations involving commingled funds, trust account procedures, and record maintenance. However, Riggs disputes the referee’s finding of a violation of rule 4-8.4(c). He claims that a rule 4-8.4(c) violation requires intent, and he asserts that he did not have intent. We agree that intent is an element of a violation of rule 4 — 8.4(c). We disagree, however, with Riggs’s narrow interpretation of intent under the rule. Further, and contrary to Riggs’s continuing arguments, the referee did not find that Campbell stole the funds.

In Florida Bar v. Fredericks, 731 So.2d 1249 (Fla.1999), the Court stated that “in order to satisfy the element of intent it must only be shown that the conduct was deliberate or knowing.” Id. at 1252; see also Fla. Bar v. Brown, 905 So.2d 76, 81 (Fla.2005); Fla. Bar v. Barley, 881 So.2d 163, 169 (Fla.2002). In Fredericks, the motive behind the attorney’s action was not the determinative factor. Rather, the issue was whether the attorney deliberately or knowingly engaged in the activity in question. Here, Riggs’s failure to supervise his employee constitutes intent because he knowingly assigned his trust account responsibilities to Campbell and then failed to manage her activities. Knowingly or negligently engaging in sloppy bookkeeping amounts to intent under rule 4-8.4(c). See Fla. Bar v. Smith, 866 So.2d 41, 46 (Fla.2004) (holding that the respondent had the requisite intent and therefore violated rule 4-8.4(c) because she had deliberately or knowingly engaged in negligent bookkeeping). Thus, the referee’s finding that Riggs violated rule 4-8.4(c) is supported by evidence in the record.

Second, Riggs argues that the referee’s recommended sanction of a three-year suspension is not supported by existing case law. He claims that a ninety-day suspension is appropriate. He bases this argument on his version of the facts, which is that Campbell stole the funds. As stated above, the referee did not find that Campbell committed theft of the funds. Further, the record does not clearly demonstrate that she absconded with the account money.

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

It is well settled that the misuse of funds held in trust is one of the most serious offenses a lawyer can commit and that disbarment is presumed to be the appropriate sanction. Fla. Bar v. Travis, 765 So.2d 689, 691 (Fla.2000); see also Fla. Bar v. Tillman, 682 So.2d 542 (Fla.1996). However, there are cases involving attorney misconduct relating to client funds in which the attorneys were disciplined by lengthy suspensions instead of disbar-ments. See Fla. Bar v. Whigham, 525 So.2d 873 (Fla.1988)(three-year suspension). In light of the facts of this case, a lengthy suspension is the appropriate sanction.

The record indicates that Riggs commingled funds, maintained shortages in the accounts, and failed to keep adequate records. Further, the record demonstrates that Riggs failed to adequately supervise Campbell and failed to properly maintain his trust account. The attorney in Whig-ham also failed to properly manage his trust accounts; he received a three-year suspension. Because Whigham supports the instant referee’s recommended sanction of a three-year suspension, the sanction has a reasonable basis in existing case law. See Fla. Bar v. Temmer, 753 So.2d 555 (Fla.1999). Accordingly, we approve the referee’s recommended discipline.

CONCLUSION

Jerry Arthur Riggs, Sr., is hereby suspended for three years, effective nunc pro tunc, May 6, 2005, the effective date of the emergency suspension in Florida Bar v. Riggs, 901 So.2d 121 (Fla.2005)(table). Also, Riggs shall pay for and attend The Florida Bar’s Trust Accounting Workshop as a condition precedent to reinstatement. He shall be placed on probation for three years from the date of his reinstatement, during which he must hire a certified public accountant to conduct monthly reviews of his trust accounts, submit quarterly reports to the Bar certifying that he is in compliance with trust accounting requirements, submit to random audits of his accounts by the Bar, and bear the costs associated with these terms of probation. Riggs shall accept no new business until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Jerry Arthur Riggs, Sr., in the amount of $13,729.65, for which sum let execution issue.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.


author: PER CURIAM. CANTERO, J., BELL, J.,

text:
    AMERICAN WALL SYSTEMS, INC., etc., Petitioner, v. MADISON INTERNATIONAL GROUP, INC., etc., et al., Respondents.
    No. SC05-868.
    Supreme Court of Florida.
    Oct. 5, 2006.
    Rehearing Denied Nov. 29, 2006.
    Loreen I. Kreizinger and Justine S. An-agnos of Loreen I. Kreizinger, P.A., Fort Lauderdale, FL, for Petitioners.
    W. Bruce Del Valle of Del Valle Law Group, P.A., Kissimmee, FL, Stephen C. Chumbris and Gerald D. Davis of Holland and Knight, LLP, St. Petersburg, FL, for Respondents.
   PER CURIAM.

We have for review American Wall Systems, Inc. v. Madison International Group, Inc., 898 So.2d 111 (Fla. 5th DCA 2005), which expressly and directly conflicts with this Court’s decision in Wilson v. Salamon, 923 So.2d 363 (Fla.2005). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

This Court entered an order accepting jurisdiction and granting review of the district court’s decision on November 30, 2005, after the petitioner sought review claiming that the decision conflicted with other district court decisions. While the petition for review was pending this Court issued its decision in Wilson, which is now final. In Wilson we expressly receded from our prior decision in Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1951), a decision expressly relied upon by the district court in American Wall as authority for affirming a trial court order dismissing the petitioner’s action for failure to prosecute. Because we have receded from Gulf Appliance, we conclude that the district court decision should be quashed.

By our order of November 30, 2005, we have determined that we have jurisdiction although we did not expressly set out the basis for jurisdiction in the order. Having already accepted jurisdiction, we further determine that it would be inappropriate to discharge jurisdiction for the additional reason that the case was pending review in this Court when we decided Wilson.

On the authority of our decision in Wilson, the decision under review is quashed, and this matter is remanded to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in Wilson.

It is so ordered.

LEWIS, C.J., and ANSTEAD, PARIENTE and QUINCE, JJ„ concur.

CANTERO, J., dissents with an opinion, in which WELLS and BELL, JJ., concur.

BELL, J., dissents with an opinion.

CANTERO, J.,

dissenting.

When this case was filed here, we did not have jurisdiction to review it. Although the petitioner’s jurisdictional brief alleged conflict with several cases, none of them actually conflicted with the decision below — as the majority apparently concedes. Undaunted by such lack of jurisdiction, however, we retained the case for several months, anticipating a possible eventual conflict with a case not yet decided: our then-forthcoming decision in Wilson v. Salamon, 923 So.2d 363 (Fla.2005). Finally, more than half a year after the petition was filed, we granted review based on the newly created conflict with Wilson. See Am. Wall Sys., Inc. v. Madison Int’l Group, Inc., 917 So.2d 191 (Fla.2005) (granting review).

I object to this manipulative method of asserting jurisdiction. I would discharge review as improvidently granted. Even if we technically have the power to hold eases until we acquire jurisdiction' — -which I doubt — for reasons of judicial efficiency and fundamental fairness we should not exercise it. Not only does such a process leave the parties in jurisdictional limbo while we decide the soon-to-be-conflicting case, and not only does it reward otherwise-meritless jurisdictional arguments, but it also fails to show proper respect to the. constitutional role of the district courts. The fairer approach is simply to determine our jurisdiction based on the conflicts alleged by the petitioner, or at most based on cases already decided at the time we consider our jurisdiction.

In the analysis that follows, I discuss (I) whether we have the constitutional authority to hold cases in anticipation of future conflict, and (II) if so, whether we should exercise that authority.

I. Do We Have Constitutional Authority?

The Florida Constitution speaks of conflict jurisdiction in the present tense. We have discretion to “review any decision of a district court of appeal ... that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.” Art. V, § 3(b)(3), Fla. Const, (emphasis added). Under the plain meaning of this provision, we cannot review a district court’s ruling merely because it will conflict with a future case; it must be one that presently “conflicts” with existing caselaw. As we said many years ago, the conflict must be “real, live and vital.” Nielsen v. City of Sarasota, 117 So.2d 731, 735 (Fla.1960) (emphasis added).

The question here is what counts as a “live” conflict. One could argue that the conflict must exist at the time of the district court’s decision. We have never construed our jurisdiction so strictly, and I do not argue for such an interpretation now. Implicit in our constitutional authority to review conflicts is the power to hold cases at least long enough to determine whether a conflict actually exists. Without this power, our jurisdiction would be meaningless. See Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla.1988) (concluding that our “final and inherent power to determine what constitutes express and direct conflict” gives us subject-matter jurisdiction to consider petitions for review in any case that “hypothetically could create conflict”). If a conflict arises after the district court’s decision but before we consider the parties’ jurisdictional briefs, we need not ignore it. To the contrary, we have a constitutional duty to resolve the jurisprudential confusion.

We cannot, however, hold cases indefinitely. As a former chief justice of this Court explained after the 1980 jurisdictional amendments, there is only a “small area” in which a district court’s decision can “become in direct conflict with a supreme court decision rendered after the district court has ruled.” Arthur J. England, Jr., et al., Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U. Fla. L.Rev. 147, 190 (1980) (emphasis omitted). It must happen “either during the time available to seek supreme court review ... or before the supreme, court acts on a petition for review otherwise properly filed (so that a notice of additional authority could be filed).” Id. Once we conclude that no conflict exists, our duty changes: it is now to deny review. No constitutional justification remains for retaining the case. Even if we anticipate that a conflict might develop because of a case pending in our Court, we lack authority to control the case in the present. We cannot get from here to there.

A recent example may illustrate this point. Last year, in Goldberg v. Florida Power & Light Co., 899 So.2d 1105 (Fla.2005), we resolved a conflict with Martinez v. Florida Power & Light Co., 863 So.2d 1204 (Fla.2003), released a month after the petition in Goldberg was filed. The petitioner promptly filed a notice of supplemental authority. As a result, we did not need to hold the case in anticipation of a future conflict. By the time we considered whether to grant review, a conflict already existed.

Shortly after Goldberg, we considered Levy v. Florida Power & Light Co., 798 So.2d 778 (Fla. 4th DCA 2001), which involved a similar issue. Levy had been stayed for two years pending our decisions in Martinez and Clay Electric Cooperative, Inc. v. Johnson, 873 So.2d 1182 (Fla.2003). Even after those decisions were released, however, the district court’s decision in Levy apparently still did not conflict with any of our decisions. Therefore, we held the case for two more years until Goldberg was decided. I opposed this wait-and-see method of determining jurisdiction and voted to deny review, which we ultimately did. See Levy v. Fla. Power & Light Co., 902 So.2d 790 (Fla.2005) (denying review). Had we granted review in Levy, as we are doing here, we would have done so based on a conflict that developed four years after the district court’s decision. There is no logical distinction between this case and that one.

While I acknowledge that we have implicit authority under the Florida Constitution to hold cases until we have evaluated the jurisdictional briefs — and if a conflict arises in the interim, to base our jurisdiction on it — I question whether the constitution empowers us to continue holding cases over which we lack jurisdiction merely because we anticipate a future conflict, as happened in Levy and again in this case. Although we have never drawn such a distinction, our past practice is generally consistent with it.

II. Should We Exercise Our Jurisdiction?

Even if we have the authority to hold cases indefinitely in anticipation of a future conflict, we should not exercise it. Such a process is unwise and unfair for three reasons.

First, such a process leaves the parties in jurisdictional limbo for an indefinite period while we decide the anticipated conflict case. Depending on how long that takes, the parties could wait for months, or even years (as they did in Levy), only to be informed that we did not have jurisdiction. While some petitioners, unhappy with the result below, might accept such a delay, it will often unfairly prejudice the respondent, who should not have to wait years to reap the benefits of a decision that we never had jurisdiction to review.

Second, holding cases in anticipation of a future conflict will create perverse incentives for parties to file meritless petitions for review. The reason is simple. We have no power to reach out and grab district court decisions that we expect will conflict with our future decisions. Instead, the parties must request our review. Because the parties have no way of knowing what our future decisions will say, they cannot rely on anticipatory conflict in petitioning for review. Rather, they must identify some other plausible basis for jurisdiction. In this case, for example, the petitioner alleged conflict with various other cases, none of which conflicted with the district court’s decision. Thus, whenever we grant review based on a future conflict, we effectively reward the filing of a merit-less petition. After all, if not for the petition, we never could have held the case in the first place. The result is to encourage tenuous petitions for review and, even worse, to penalize conscientious attorneys who have the good judgment to recognize when they do not have a legitimate basis for seeking review in this Court.

Finally, the very concept of anticipatory conflict demeans the role of the district courts in our constitutional system. Under the Florida Constitution, “we are not permitted the judicial luxury of upsetting” a district court’s decision “merely because we might personally disagree with the so-called ‘justice of the case.’ ” Nielsen, 117 So.2d at 734. Rather, the constitution limits our jurisdiction “in order to sanctify the decisions of the Courts of Appeal with an aspect of finality, so essential to prevent any imbalance in the several echelons of the appellate process.” Id. Like it or not, we must permit some district court decisions to become final even though we disagree with them. Of course, we may have an opportunity to apply our views in a future case, after which the district courts would be bound to follow our lead. But as we have acknowledged, “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980) (emphasis added). Anticipatory conflict contradicts these principles. Far from “sanctify[ing] the decisions of the Courts of Appeal with an aspect of finality,” it assumes that the district court’s opinion is wrong and should be denied finality merely because we expect to announce a contrary opinion in the future. Its purpose is not to resolve conflict in Florida law — we have already resolved the conflict — but rather to prevent what we perceive as a single unjust ruling. The people of Florida have not charged us with that narrower responsibility. We should resist the temptation to undertake it, even if we can find a pretext for doing so.

III. Conclusion

For these reasons, I would discharge review as improvidently granted. I respectfully dissent from the majority’s decision to review and quash the decision below.

WELLS and BELL, JJ., concur.

BELL, J.,

dissenting.

I dissent for the reasons set forth in my separate opinion in Wilson v. Salamon, 923 So.2d 363, 370 (Fla.2005) (Bell, J., concurring in part and dissenting in part).

      . I also note that the district court's opinion in Goldberg cited Martinez v. Florida Power & Light Co., 785 So.2d 1251 (Fla. 3d DCA 2001), and mentioned that the case was pending in this Court. Thus, we had independent jurisdiction to review the case under Jollie v. State, 405 So.2d 418, 420 (Fla.1981) (holding that a district court opinion "which cites as controlling authority a decision that is either pending review in or has been reversed by this Court continues to constitute prima facie express conflict and allows this Court to exercise its jurisdiction").

      . When we have based our jurisdiction on conflict with a subsequent decision of ours, it has almost always been based on our Jollie jurisdiction. The district court expressly cited a decision under review in this Court. See, e.g., Mills v. State, 880 So.2d 616 (Fla.2004); State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363 (Fla.2002); Bornemann v. Ure, 826 So.2d 255 (Fla.2002).


text:
    Danny Harold ROLLING, Appellant, v. STATE of Florida, Appellee.
    No. SC06-1966.
    Supreme Court of Florida.
    Oct. 18, 2006.

      Baya Harrison, Monticello, Florida and Clyde M. Taylor, Jr., Tallahassee, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General and Carolyn M. Snurkowski, Assistant Deputy General Counsel, Tallahassee, FL, for Appellee.
   PER CURIAM.

Danny Harold Rolling, a prisoner under sentence of death and an active death warrant, appeals the circuit court’s order denying without an evidentiary hearing his successive motion for postconviction relief. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the circuit court’s order.

FACTS AND PROCEDURAL HISTORY

The execution of Danny Harold Rolling is set for October 25, 2006. The factual background and procedural history of this case are detailed in this Court’s opinion on Rolling’s direct appeal. See Rolling v. State, 695 So.2d 278, 281-83 (Fla.1997). After initially pleading not guilty, on February 15, 1994, the day Rolling’s trial was scheduled to begin, he pled guilty to five counts of first-degree murder, three counts of sexual battery, and three counts of armed burglary of a dwelling with a battery. Id. at 282. “A penalty phase proceeding was held, and the jury recommended that Rolling be sentenced to death for each murder by a vote of twelve to zero. The trial court followed the jury’s advisory recommendation and sentenced Rolling to death for each homicide.... ” Id. This Court affirmed Rolling’s sentences of death, id. at 278, and the United States Supreme Court denied his petition for writ of certiorari. Rolling v. Florida, 522 U.S. 984, 118 S.Ct. 448, 139 L.Ed.2d 383 (1997).

Rolling first filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief in November 1998, and filed an amended motion in April 1999, raising two claims. After conducting an evidentiary hearing, the trial court denied relief, and this Court affirmed. Rolling v. State, 825 So.2d 293, 294 (Fla.2002). Thereafter, Rolling sought federal habeas relief in the United States District Court for the Northern District of Florida. The district court denied relief on July 1, 2005, and Rolling appealed. On February 9, 2006, the Eleventh Circuit issued an opinion affirming the district court’s denial of Rolling’s petition for a writ of habeas corpus. Rolling v. Crosby, 438 F.3d 1296, 1298 (11th Cir.2006). The United States Supreme Court denied certiorari on June 26, 2006. Rolling v. McDonough, — U.S. -, 126 S.Ct. 2943, 165 L.Ed.2d 966 (2006).

On September 22, 2006, Governor Jeb Bush signed a death warrant authorizing Rolling’s execution. In response to the signing of the death warrant, Rolling filed his second 3.851 motion on October 4, 2006, which raised four claims. The State filed a response on October 6, 2006. On October 9, 2006, the trial court entered its order summarily denying all claims raised in the successive motion. This appeal follows.

LETHAL INJECTION

Rolling first argues that the trial court erred in denying Rolling’s claim that Florida’s method of execution by lethal injection violates Rolling’s right to be free of cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution, and his right to free speech as guaranteed by the First Amendment. Rolling also argues that the trial court erred in denying Rolling’s motion to obtain public records from the Florida Department of Corrections and the Medical Examiner for the Eighth Judicial Circuit of Florida pertaining to autopsy and toxicology reports of persons executed in Florida by lethal injection and protocols used in the lethal injection process. This Court has explained:

Florida Rule of Criminal Procedure 3.850(d) provides that a defendant is entitled to an evidentiary hearing on post-conviction claims for relief unless “the motion, files, and records in the case conclusively show that the movant is entitled to no relief.” Florida Rule of Criminal Procedure 3.851(f)(5)(B) applies the same standard to successive postconviction motions in capital cases. In reviewing a trial court’s summary denial of postconviction relief without an evidentiary hearing, this Court “must accept all allegations in the motion as true to the extent they are not conclusively rebutted by the record.” Hodges v. State, 885 So.2d 338, 355 (Fla.2004) (quoting Gaskin v. State, 737 So.2d 509, 516 (Fla.1999)). “To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” McLin v. State, 827 So.2d 948, 954 (Fla.2002) (quoting Foster v. Moore, 810 So.2d 910, 914 (Fla.2002)).

Rutherford v. State, 926 So.2d 1100, 1108 (Fla.), cert. denied, — U.S. -, 126 S.Ct. 1191, 163 L.Ed.2d 1145 (2006). We find no error by the trial court under this standard.

Cruel and Unusual Punishment

In his first claim, Rolling argues that a research letter published in April 2005 in The Lancet presents new scientific evidence that Florida’s procedure for carrying out lethal injection may subject the inmate to unnecessary pain. See Leonidas G. Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412 (2005). He supports this claim with an affidavit from one of the study’s authors, Dr. David A. Lubarsky, asserting that Florida’s procedure is substantially similar to the procedures used in the other states evaluated in the study. Rolling ultimately asserts that the information in this study is new information not previously available to this Court when it decided Sims v. State, 754 So.2d 657 (Fla.2000).

The trial court summarily denied this claim and found that Rolling was not entitled to an evidentiary hearing on whether lethal injection, as administered in Florida, constitutes cruel and unusual punishment, stating that this Court determined in Sims, that lethal injection as administered by the Department of Corrections did not constitute cruel and unusual punishment. In Hill v. State, 921 So.2d 579 (Fla.), cert. denied, — U.S.-, 126 S.Ct. 1441, 164 L.Ed.2d 141 (2006), this Court addressed the same claim now asserted by Rolling and upheld the trial court’s summary denial of the claim. We again rejected such a claim in Rutherford v. State, 926 So.2d at 1113-14. As in those cases, we affirm the trial court’s summary denial of this claim in Rolling’s case.

First Amendment Claim

Rolling next asserts that the circuit court erred in denying an evidentiary hearing on his claim that the administration of pancuronium bromide violates his free speech rights as guaranteed by the First Amendment to the United States Constitution. Specifically, Rolling contends that the administration of pancuroni-um bromide, which paralyzes the muscles, violates his right to free speech because it renders him unable to communicate any feeling of pain that may result if the execution procedure is carried out improperly. Thus, Rolling’s claim is inextricably intertwined with his claim that there is a possibility that the first chemical, sodium pento-thal, will not be administered properly, leaving him wholly or partially conscious.

The circuit court summarily denied this claim. In Rutherford, this Court addressed the same claim and found that, because the defendant could not demonstrate that the chemicals involved in lethal injection would be administered improperly in his case, the defendant was not entitled to relief on this claim. 926 So.2d at 1114-15. Therefore, as in Rutherford, we find Rolling’s identical First Amendment claim to be without merit and find no error in the trial court’s denial applying our decision in Rutherford.

Public Records Claim

Rolling next argues that the circuit court erred in denying an evidentiary hearing on his claims arising from his public records requests. On September 28, 2006, Rolling filed a motion for production of additional public records to the Florida Medical Examiner’s Office of the Eighth Circuit of Florida and the Department of Corrections, and a motion for serological samples and for independent testing to the trial court. Rolling requested autopsy reports and toxicology studies performed on the sixteen individuals executed by lethal injection from 2000 to 2005 and all documents related to the Department of Corrections’ administration of lethal injection and Rolling’s own medical records. He also requested to have independent testing of post-execution blood samples of Arthur Rutherford, scheduled for execution on October 18, 2006. The State filed responses opposing each of these requests. On October 4, 2006, the trial court entered an order denying Rolling’s motion for production of additional public records and motion for serological samples and for independent testing because Rolling had served this public records request six days after Governor Bush signed Rolling’s death warrant on September 22, 2006. The trial court stated that Rolling was entitled to his own medical records as long as he complies with Department of Corrections regulations. Rolling then argued that the withholding of public records violates chapter 119, Florida Statutes, the Eighth and Fourteenth Amendments to the United States Constitution, and article I, sections 9 and 17 of the Florida Constitution. The circuit court denied this claim.

Florida Rule of Criminal Procedure 3.852(h)(3) applies to cases in which a mandate was issued prior to the effective date of the rule. The effective date of the rule was October 1, 1998, and this Court affirmed Rolling’s conviction and death sentence on March 20, 1997. The rule states:

Within 10 days of the signing of a defendant’s death warrant, collateral counsel may request in writing the production of public records from a person or agency from which collateral counsel has previously requested public records. A person or agency shall copy, index, and deliver to the repository any public record:
(A) that was not previously the subject of an objection;
(B) that was received or produced since the previous request; or
(C) that was, for any reason, not produced previously.

Fla. R.Crim. P. 3.852(h)(3) (emphasis added). Because there is no evidence in the record that Rolling has ever requested records from the Medical Examiner’s Office or the Department of Corrections before his September 28, 2006 request, we find that the trial court was correct in denying this claim without an evidentiary hearing. See also Rutherford, 926 So.2d at 1115-17 (denying the substantially same records request because the defendant failed to demonstrate that he had previously requested records concerning lethal injection in Florida, and reasoning that rule 3.852(h)(3) “is designed to allow an update of records previously requested”).

THE ABA REPORT

Rolling asserted a claim in the trial court that the American Bar Association report entitled Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report, published September 17, 2006, constitutes newly discovered evidence proving that imposition of the death penalty is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. The trial court denied this claim. We recently addressed this issue in Rutherford v. State, Nos. SC06-1931 & SC06-1946, 940 So.2d 1112, 2006 WL 2884822 (Fla. Oct. 12, 2006), wherein we concluded that the ABA Report is not newly discovered evidence because it “is a compilation of previously available information related to Florida’s death penalty system and consists of legal analysis and recommendations for reform, many of which are directed to the executive and legislative branches.” Id., at 1117. We also held that nothing in the report would cause this Court to recede from its past decisions upholding the facial constitutionality of the death penalty, and that the defendant did not allege how any of the conclusions in the report would render his individual death sentence unconstitutional. Id., at 1118. For these same reasons, we affirm the circuit court’s summary denial of Rolling’s claim.

CONCLUSION

For the reasons explained above, we affirm the circuit court’s order denying Rolling’s successive motion for postconviction relief.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      .On direct appeal, Rolling raised the following six claims of error: (1) the trial court abused its discretion in denying his motion for a change of venue and thereby violated his Sixth Amendment right to be fairly tried by an impartial jury because pervasive and prejudicial pretrial publicity so infected the Gaines-ville and Alachua County community that seating an impartial jury there was patently impossible; (2) the trial court erred in denying Rolling's motion to suppress his statements which were obtained in violation of his Sixth Amendment right to counsel; (3) the trial court erred in denying Rolling’s motion to sever and conduct three separate sentencing proceedings; (4) the trial court erred in denying Rolling’s motion to suppress physical evidence seized from his tent because the warrantless search and seizure violated his reasonable expectation of privacy under the Fourth Amendment; (5) the trial court erred in finding as an aggravating circumstance that the homicide of Sonya Larson was especially heinous, atrocious, or cruel; and finally (6) the trial court erred by giving an invalid and unconstitutional jury instruction on the heinous, atrocious, or cruel aggravating circumstance.

      . The claims were as follows: (1) ineffectiveness of trial counsel regarding change of venue, and (2) ineffectiveness of trial counsel for failing to challenge three particular jurors during voir dire.

      . The claims were as follows: (1) access to the files and records pertaining to Rolling’s case in the possession of certain state agencies has been withheld in violation of chapter 119, Florida Statutes, the Eighth and Fourteenth Amendments to the United States Constitution, and articles 1, 9, and 17 of the Florida Constitution; (2) the existing procedure that the State of Florida utilizes for lethal injection violates the Eighth Amendment to the United States Constitution, as it constitutes cruel and unusual punishment; (3) the administration of pancuronium bromide violates Rolling's First Amendment right to free speech; and (4) newly discovered empirical evidence demonstrates that Rolling’s conviction and sentence of death constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.