author: COBB, Judge. BASCHAB, Judge,

text:
    CITY OF MONTGOMERY v. Thyno ZGOUVAS.
    CR-05-0039.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.

      Stephanie Smithee, Montgomery, for appellant.
    William R. Blanchard, Montgomery, for appellee.
    David Gespass and Thomas B. Diasio, Birmingham, for amici curiae American Civil Liberties Union of Alabama and American Civil Liberties Union, in support of the appellee.
   COBB, Judge.

Thyno Zgouvas was charged in Montgomery Municipal Court with violating Ordinance No. 1-9 of the City of Montgomery, which makes the commitment of a misdemeanor as defined by the laws of the State of Alabama within the city limits an offense against the City. Specifically, Zgouvas was accused of making harassing communications in violation of § 13A-11-8(b), Ala.Code 1975, which states:

“(b)(1) Harassing Communications. A person commits the crime of harassing communications if, with intent to harass or alarm another person, he or she does any of the following:
“a. Communicates with a person, anonymously or otherwise, by telephone, telegraph, or any other form of written or electronic communication, in a manner likely to harass or cause alarm.
“b. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.
“c. Telephones another person and addresses to or about such other person any lewd or obscene words or language.
“Nothing in this section shall apply to legitimate business telephone communications.
“(2) Harassing communications is a Class C misdemeanor.”

Zgouvas was convicted in Montgomery Municipal Court and appealed bis conviction to the Montgomery Circuit Court pursuant to § 12-14-70, Ala.Code 1975. Zgouvas filed a motion to dismiss the charge, alleging that § 13A — 11—8(b)(1), Ala.Code 1975, is vague and overbroad. The trial court granted Zgouvas’s motion, and the City of Montgomery now appeals the trial court’s order granting Zgouvas’s motion.

Our Supreme Court recently reiterated the standard of review when determining whether a statute is constitutional:

“This Court ‘ “should be very reluctant to hold any act unconstitutional.” ’ Ex parte D.W., 835 So.2d 186, 189 (Ala.2002) (quoting Ex parte Boyd, 796 So.2d 1092, 1094 (Ala.2001)). ‘[I] n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.’ Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) (emphasis added). This is so, because ‘it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.’ 246 Ala. at 9, 18 So.2d at 815 (emphasis added).”

McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005).

Before making any determination whether § 13A-ll-8(b)(l)a is constitutional, a court must first determine whether Zgouvas has standing to challenge the constitutionality of the statute.

“ ‘Not all controversies ... are justiciable. Justiciability is a compound concept, composed of a number of distinct elements. Chief among these elements is the requirement that a plaintiff have “standing to invoke the power of the court in his behalf.” ’ Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998) (quoting Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990)). ‘Standing turns on “whether the party has been injured in fact and whether the injury is to a legally protected right.” ’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.l999)(quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.l998)(Kourlis, J., dissenting)).
“ ‘When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction. Barshop v. Medina County Underground Water Conservation District,925 S.W.2d 618, 626 (Tex.1996) (“Standing is a necessary component of subject matter jurisdiction”). See also Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (“‘standing “is perhaps the most important of [the jurisdictional] doctrines” ’ ”); National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (“Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.”); Romer v. Board of County Comm’rs of the County of Pueblo, supra, 956 P.2d at 585 (“standing is a jurisdictional prerequisite to every case and may be raised at any stage of the proceedings”) (Martinez, J., dissenting); Cotton ' v. Steele, 255 Neb. 892, 587 N.W.2d 693 (1999). But see Hertz- berg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998) (standing is not jurisdictional).’
“State v. Property at 2018 Rainbow Drive, 740 So.2d at 1028.”

J.L.N. v. State, 894 So.2d 751, 753 (Ala.2004).

An exception to the aforementioned rule exists for questions of overbreadth in First Amendment speech-or-expression cases. As the United States Supreme Court has explained:

“It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable. See, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-799, and n. 15, 104 S.Ct. 2118, 2125, and n. 15, 80 L.Ed.2d 772 (1984); Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987). This exception from general standing rules 4s based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. See, e.g., New York v. Ferber, 458 U.S. 747, 772, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113 (1982); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985). Thus, the Court has permitted a party to challenge an ordinance under the overbreadth doe-trine in cases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker, see Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940); Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965); Taxpayers for Vincent, 466 U.S., at 798, n. 15, 104 S.Ct., at 2125, n. 15, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected, see Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Jews for Jesus, 482 U.S., at 574-575,107 S.Ct., at 2572.”

Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 129-30, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992).

Thus, Zgouvas may challenge the constitutionality of the statute in question based on the overbreadth doctrine. However, because the vagueness doctrine is a separate and distinct concept, we must consider whether Zgouvas has standing to challenge the statute based on vagueness. A review of Zgouvas’s motion to dismiss, the transcript of the hearing before the trial judge regarding Zgouvas’s motion, and Zgouvas’s brief to this Court indicates that Zgouvas is not challenging the constitutionality of the statute as it applies to him, but instead is basing his challenge on hypothetical situations involving “a person who uses the telephone to warn another of a fire, flood, storm or other apparent imminent hazard.” (Appellee’s brief, p. 12). In fact, Zgouvas challenges this statute as being vague based on its use of the term “alarm.”

However, upon reviewing the written deposition given by the complainant, we conclude that this is obviously a situation where Zgouvas “communicate[d] ... in a manner likely to harass .... ” § 13A-11-8(b)(l)a. The complainant alleged that she assisted Zgouvas while he was making a purchase for his girlfriend in the store where she was employed. The item apparently had to be ordered. The next day Zgouvas telephoned the store, and the complainant informed him the item had not arrived. Zgouvas then told her that he was coming by the store later to give her something. When he arrived, Zgouvas presented a bouquet of flowers and a letter for the complainant. Two days later Zgouvas telephoned the store repeatedly, and the complainant’s coworkers took messages for her. That evening Zgouvas appeared at the store inquiring of the complainant about the status of the item ordered. In the conversation that ensued, the complainant told that Zgouvas that things needed to remain professional between the two as she had a boyfriend and Zgouvas apparently had a girlfriend. The next day the complainant telephoned Zgouvas and informed him that the item he had ordered had arrived. When Zgou-vas arrived at the store to collect the item, he presented the complainant with a bottle of vodka, a bottle of cranberry juice, and another letter. The complainant later telephoned Zgouvas and told him not to call her or send her gifts again and that if he shopped in the store again someone else would have to assist him. Zgouvas then told the complainant to tell her boyfriend that “if he ever hurt [her] there was a Greek man following [her] around Montgomery trying to date [her].” (C. 10.) The complainant alleges that the following week Zgouvas followed her as she was leaving the shopping center where she is employed. A week later Zgouvas sent the complainant a large, expensive bouquet of flowers and a DVD of the movie Serendipity. The complainant also alleges that on numerous occasions Zgouvas would telephone her place of business and would hang up when someone answered the telephone.

These alleged acts, if true, clearly indicate that Zgouvas’s apparent intent was to harass, not to alarm, the complainant. Thus Zgouvas’s alleged actions fall squarely within the parameters of the conduct the legislature intended to thwart by the adoption of § 13A-ll-8(b)(l)a. In order to raise a constitutional challenge regarding vagueness, Zgouvas is forced to assert hypothetical situations that are in no way associated with the facts surrounding the case against him. Thus, Zgouvas does not have standing to challenge the constitutionality of § 13A-ll-8(b) based upon the vagueness doctrine.

We now turn to the question of whether § 13A-ll-8(b) is overbroad. “[T]he overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when 'judged in relation to the statute’s plainly legitimate sweep.’ ” City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). For a statute to be invalidated on its face based on the overbreadth doctrine, the over-breadth must be substantial. Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). “Even though the challenge be based on the First Amendment, the overbreadth doctrine is not casually employed. ‘Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is “strong medicine” and have employed it with hesitation, and then “only as a last resort.” ’ ” Los Angeles Police Dep’t v. United Reporting Pub. Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (quoting New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), quoting in turn Broadrick, 413 U.S. at 613, 93 S.Ct. 2908).

In its order, the Montgomery Circuit Court found that § 13A-ll-8(b)(l)a was “both vague and overbroad in contravention of the First, Fifth, and Fourteenth Amendments of the United States Constitution.” (C. 26-27.) Previously, this Court has upheld the constitutionality of § 13A-ll-8(b) and § 13A-ll-8(a)(l)b, Ala. Code 1975. In South v. City of Mountain Brook, 688 So.2d 292 (Ala.Crim.App.1996), the defendant was convicted of making harassing communications. The evidence showed that South telephoned his estranged wife at her mother’s house between 20 and 30 times in one day and during the telephone calls referred to his wife in profane terms. On appeal, South challenged the constitutionality of § 13A-11-8, Ala.Code 1975, because, he said, his communications to his wife in those telephone calls did not constitute “fighting words.” In upholding the constitutionality of this statute, Judge Taylor, writing for this Court, stated:

“The appellant specifically questions the constitutionality of § 13A-ll-8(b) and contends that the ‘fighting words’ standard should apply to harassing communications as well as harassment. This is an issue of first impression in Alabama and this is, therefore, our first opportunity to consider whether ‘fighting words’ are required to sustain a conviction under § 13A-ll-8(b). The State of Kentucky addressed this issue in Yates v. Commonwealth, 753 S.W.2d 874 (Ky.App.1988). The Court of Appeals of Kentucky stated:
“ ‘Appellant questions the constitutionality of KRS 55.080 which states:
“ ‘(1) A person is guilty of harassing communications when with intent to harass, annoy or alarm another person he:
“ ‘(a) Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail or any other form of written communication in a manner which causes annoyance or alarm and serves no purpose of legitimate communications; or
“ ‘(b) Makes a telephone call, whether or not conversation ensues, with no purpose of legitimate communication.
“ ‘(2) Harassing communications is a Class B misdemeanor.
. We do not have to “add” the phrase “fighting words” to KRS 525.080 to make it constitutional. In fact due to the nature of the statute that phrase would be of no consequence.
“ ‘KRS 525.080 pertains to telephone and written communication. It does not concern face to face communication in a public place where confrontations could arise, but rather it relates to protecting one’s right to privacy. The First Amendment protects the right to free speech. However, there is a difference between communication in a public forum and the type which this statute regulates. This form of communication intrudes upon a justifiable privacy interest of the recipient and therefore, this right to communicate must be considered in light of a person’s right “to be left alone.” Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). No individual whose intention is to annoy, alarm, or harass has the right to impose his ideas on an unwilling listener not in a public forum.
“ ‘Appellant also argues that KRS 525.080 is unconstitutionally vague and overbroad. The fact that the statute is not limited to “fighting words” does not render it overbroad. As stated above, that phrase has no bearing on this statute. In addition, insulting or “fighting” words are not the only speech beyond the scope of the constitution; included are libelous, the profane, and the lewd and obscene. Chaplinsky [v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ]. Regardless of that point, KRS 525.080 does not regulate speech but rather intentional use of private communication to annoy, alarm, or harass the receiver which serves no purpose of legitimate communication.
“ ‘The statute is not overbroad nor does it prohibit legitimate free speech but rather it punishes the manner used to convey the communication. KRS 525.080(l)(a) specifically states “in a manner which causes ...” and it does not even matter if the conversation ever ensues in (l)(b). It is the conduct that is controlled; the manner used which intrudes on an individual’s right to be left alone and not the thoughts or ideas conveyed. Freedom of speech does not include freedom to convey messages when, where, and haw one chooses. That right must be adjusted to the rights of others. Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951).’

753 S.W.2d at 875-876.

“We adopt the reasoning of the Court of Appeals of Kentucky in Yates. Alabama’s statute, like the Kentucky statute in Yates, regulates the intentional use of a private communication with the intent to harass or alarm another person. In this case, the appellant’s act of calling Mary Winfrey to harass or annoy her is the basis of his conviction.

“Further, this statute protects the recipient from unwanted or offensive communications.

“ ‘Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual “to be let alone” in the privacy of the home, “sometimes the last citadel of the tired, the weary, and the sick.” [Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) ] Id., at 125, 89 S.Ct. at 954 (Black, J., concurring). See generally Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Rowan v. United States Post Office Dept, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).’

“Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263, 276 (1980).

“The appellant’s conviction for harassing communications did not violate his constitutional right to free speech. The ‘fighting words’ standard as applied to harassment under § 13A-ll-8(a)(l)b does not apply to ‘harassing communications’ prohibited under § 13A-ll-8(b).”

688 So.2d at 295-96 (emphasis added).

Similarly, in Brooks v. City of Birmingham, 485 So.2d 385 (Ala.Crim.App.1985), the defendant was convicted of making harassing communications in violation of § 13A-ll-8(a)(l)b, Ala.Code 1975. The evidence showed that Brooks tailgated a motorist, then pulled alongside the motorist, rolled down her automobile window, and shouted obscenities at the motorist. On appeal, Brooks challenged the constitutionality of § 13A-ll-8(a)(l)b as being vague and overbroad. This court opined:

“It is argued in brief of counsel for appellant that § 13A-11-8 ‘is vague and overbroad and is therefore in direct contradiction to the First and Fourteenth Amendments to the Constitution of the United State of America.’ We do not agree with this contention of appellant nor with his argument to the effect that his contention is supported by Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), and N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). We are of the opinion that the language used by defendant, according to the testimony of the alleged victim, constituted ‘fighting words’ and/or ‘those which by their very utterance inflict injury or tend to incite any immediate breach of the peace’ and are within the Constitutional right of the Legislature to proscribe, as held in Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). We conclude that none of the cases of the Supreme Court cited by appellant supports the issue presented by appellant as to the unconstitutionality of Code of Alabama, § 13A-ll-8(a).”

485 So.2d at 387. Although South and Brooks are factually distinguishable from the instant case, this Court’s reasoning in those cases is applicable here.

In its order, the Montgomery Circuit Court found that § 13A-ll-8(b)(l)a was both vague and overbroad, although the circuit court’s order does not state the basis for the court’s reasoning that the statute was vague and overbroad. However, in his motion and during a hearing on the motion, Zgouvas argued that the statute in question was vague and overbroad because of its use of the word “alarm.”

As the Alabama Supreme Court has aptly stated:

“In passing on the validity of a statute it must be remembered that the legislature, except insofar as specifically limited by the state and federal constitutions, is all-powerful in dealing with matters of legislation; that a legislative act is presumed to be constitutional and valid, and all doubts are to be resolved in favor of its validity; that a statute, if reasonably possible, must be so construed as to sustain its validity and will not be declared invalid unless the court is clearly convinced that it cannot stand; that all questions of propriety, wisdom, necessity, utility and expediency in the enactment of laws are exclusively for the legislature, and are matters with which the courts have no concern.”

Jansen v. State ex rel. Downing, 273 Ala. 166, 168, 137 So.2d 47, 48 (1962). This Court is charged with the responsibility “ ‘to give effect to the legislative intent whenever that intent is manifested.’ ” Ex parte Gadsden Reg’l Med. Ctr., 904 So.2d 234, 236 (Ala.2004), quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003). “ ‘[W]hen a term is not defined in a statute, the commonly accepted definition of the term should be applied.’ ... Also, ‘we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says.’ ” Ex parte Gadsden Reg’l Med. Ctr., 904 So.2d at 236, quoting Bean Dredging, 855 So.2d at 517.

Chapter 11 of Section 13A of the Code of Alabama does not define “alarm.” Merriam-Webster’s Collegiate Dictionary 28-29 (11th ed.2005), provides four definitions for the noun “alarm.” The only definition that would be applicable to the use of “alarm” in § 13A-ll-8(b)(l)a. is “sudden sharp apprehension and fear resulting from the perception of imminent danger.” Zgouvas argues that the use of the word “alarm” in § 13A-ll-8(b)(l)a. “make[s] it criminal to forecast a storm, predict political trends, or warn against epidemics of illness.” (Appellee’s brief at p. 8.) We disagree. To give the statute the effect that was obviously intended by the legislature the word “alarm” cannot be considered in a vacuum but must be considered in the context of the phrase of which it is a part: “in a manner likely to harass or cause alarm.” When considering the word in context of the entire section of this statute, and particularly the phrase containing “alarm,” it is obvious that the legislature intended the word alarm to only apply to situations where the speaker’s words or actions cause fear of imminent danger, and that danger in some way finds its impetus with the speaker. The legislature did not intend for the term “alarm” as used in § 13A-ll-8(b)(l)a. to encompass instances when one warns another of danger from a storm or illness. This is something that “men of common intelligence” can discern.

Furthermore, § 13A-ll-8(b)(l) requires that the perpetrator act “with intent to harass or alarm another person.” Thus, a trier of fact must determine the intentions of the actor. As amicus curiae American Civil Liberties Union notes in its brief, the United States Supreme Court has upheld state statutes that prohibit or ban acts or speech that are carried out with the intent to intimidate. See, Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). As the City of Montgomery notes, whether Zgouvas intended to harass the complainant was a question for the jury.

This Court has previously held that a specific-intent requirement can ameliorate vagueness and overbreadth problems. Culbreath v. State, 667 So.2d 156 (Ala.Crim.App.1995), abrogated on other grounds by Hayes v. State, 717 So.2d 30 (Ala.Crim.App.1997). The crux of § 13A-18-ll(b) is whether the actor or speaker intends to harass or alarm another. Without this intent, his speech and actions are lawful. We therefore find that the specific-intent requirement contained § 13A-11-8(b)(l)a. cures any potential overbreadth concerns.

Because § 13A-U-8(b)(l), Ala.Code 1975, is not overbroad, we reverse the order of the Montgomery Circuit Court dismissing the charges against Zgouvas and remand this matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and SHAW and WISE, JJ., concur. BASCHAB, J., concurs in the result, with opinion.

BASCHAB, Judge,

concurring in the result.

The majority reverses the trial court’s order dismissing § ISA — 8—11(b)(1), Ala. Code 1975, as unconstitutionally vague and overbroad on the ground that the appellee does not have standing to challenge the statute on vagueness grounds and on the ground that the statute is not unconstitutionally overbroad. I am compelled to concur in the result for several reasons.

First, the majority presents a summary of the “facts” of the case. During the hearing, the only references to the facts of the case were the following:

“[DEFENSE COUNSEL]:
He’s — essentially, he’s charged with, believe it or not, with sending flowers and making telephone calls to a woman he was interested in. And she for whatever reason on her own decided to charge him with a crime....
“[PROSECUTOR:] Furthermore, whether his intent was to alarm or harass her is a jury question. You know, of course, the facts deal a little bit more than just, you know, he’s called her a few times and sent her a gift.”

(R. 3, 6.) The majority presents a much more detailed statement of facts, apparently relying on a deposition the victim signed when law enforcement officers investigated the case. It also states that

“[a] review of Zgouvas’s motion to dismiss, the transcript of the hearing before the trial judge regarding Zgouvas’s motion, and Zgouvas’s brief to this Court indicates that Zgouvas is not challenging the constitutionality of the statute as it applies to him, but instead is basing his challenge on hypothetical situations involving ‘a person who uses the telephone to warn another of a fire, flood, storm or other apparent imminent hazard.’ ”

953 So.2d at 438. However,

“ ‘[a]ssertions in an unverified motion are bare allegations and cannot be considered as evidence or proof of the facts alleged.’ Blount v. State, 557 So.2d 1333 (AIa.Crim.App.1989); see also, Similton v. State, 672 So.2d 1363 (Ala.Crim.App.1995).”

McCollum v. State, 678 So.2d 1210, 1213 (AIa.Crim.App.1995). Thus, defense counsel’s assertions in the motion to dismiss did not constitute evidence. Further, the victim’s deposition, which was not admitted during the hearing on the motion to dismiss, is hearsay and cannot be considered as evidence. Finally, defense counsel’s assertions during the hearing on the motion did not constitute evidence. See State v. Woodruff, 460 So.2d 325, 327 (Ala.Crim.App.1984). Therefore, it is improper for this court to make a determination that the appellee does not have standing to raise a vagueness challenge based on facts that were not properly presented to the trial court.

Second, I note that, based on the scant facts presented during the hearing, it appears that the appellee did not generally have standing to challenge the constitutionality of § 13A — 8—11(b)(1), Ala.Code 1975. However, the City did not raise the issue of standing in the trial court. As we noted in Snavely v. City of Huntsville, 785 So.2d 1162, 1166 n. 1 (Ala.Crim.App.2000):

“Based on the facts of this case, Snavely did not have standing to make this argument. However, the State did not raise a claim at trial or on appeal that Snavely lacked standing to challenge the constitutionality of § 32-5-192, Ala.Code 1975. Thus, the State waived any claim that Snavely lacked standing. See State v. Ivey, 709 So.2d 502, 507 (Ala.Cr.App.1997).”

See Cook v. State, 574 So.2d 905, 908 (Ala. Crim.App.1990) (holding that “the issue of standing was not raised by the State at trial and has therefore been waived”). See also City of Mobile v. Weinacker, 720 So.2d 958 (Ala.Civ.App.1998). Therefore, the City waived any claim that the appellee lacked standing, and it is not appropriate for this court to rely on that ground to reverse the trial court’s decision.

Third, I do not agree with all of the majority’s analysis concerning the appel-lee’s argument that the statute is over-broad. Nevertheless, I agree with its ultimate conclusion that the statute is not overbroad.

For these reasons, I respectfully concur in the result.

      . In his motion to the trial court, Zgouvas argued:
      "The ordinance/statute fails to establish reasonably clear guidelines for law enforcement officials and triers of fact to' prevent arbitrary. and discriminatory enforcement. Under the language of this statute, police, prosecuting attorneys, judges, and juries are permitted to pursue their personal predilections in enforcing the law. Due process does not countenance this result.”
      (C. 23.) During the hearing, Zgouvas used as an example of ’.'a newscaster [getting] on the TV and [saying] there’s a bomb in the building downtown in a manner — an alarming manner intended to cause alarm.” (R. 4.)

      . In support of the argument that § 13A-11-8(b)(1) is unconstitutional, Zgouvas cites a Colorado case, Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975). In Bolles, the Colorado Supreme Court held that Colorado’s harassment statute, which contained language very similar to Alabama’s harassing communications statute, was unconstitutionally over-broad. We note that ”[t]he opinions of our sister states are merely persuasive authority, and this Court is not bound by the doctrine of stare decisis to follow such decisions.” Fox v. Hunt, 619 So.2d 1364, 1367 (Ala.1993). We find Bolles not to be persuasive because the Colorado Supreme Court did not consider the ameliorating effect of the specific-intent requirement of its statute.


source: Caselaw Access Project

author: McMILLAN, Presiding Judge. BASCHAB, Judge,

license: Public Domain

text:
    Curtis Wayne SMITH v. STATE of Alabama.
    CR-05-0144.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.
    Tommy Ray Scarborough, Dothan, for appellant.
    Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Curtis Wayne Smith, appeals from the trial court’s denial of his motion to suppress.

Smith pleaded guilty and was convicted of possession of marijuana in the first degree, a violation of § 13A-12-213, Ala. Code 1975, reserving the right to appeal the trial court’s denial of his motion to suppress. He was sentenced to three years’ imprisonment and was ordered to pay a $1,500 fíne, $75 as a victims assessment, $100 to the Alabama Department of Forensic Sciences, a $2,000 Drug Demand Reduction Act assessment, and court costs.

At Smith’s suppression hearing, Officer Adam Robinson, of the Houston County Sheriffs Department, Narcotics Division, and a former patrol officer, testified that on July 31, 2003, while on routine patrol, he initiated a traffic stop on Smith’s vehicle on Third Avenue for “no tag light.” He contacted dispatch and determined that Smith had no outstanding warrants and also asked the trooper post to determine the Code section for the offense of “no tag light.” He testified that he did not suspect that the appellant was involved in any other criminal activity. Officer Robinson learned from another officer that Smith had been previously associated with drugs. He testified that Smith was thereafter asked to consent to a search of his vehicle and that he refused consent. Subsequently, a canine unit was called and the vehicle was searched. After the drug-sniffing dog “indicated” on the vehicle, the officers recovered the marijuana seeds. He testified that once the seeds were found, Smith indicated that he had more narcotics at his residence. At that time, a verbal search warrant was issued for Smith’s residence. The warrant was executed and marijuana was found. Smith was charged with possession of marijuana in the first degree.

Upon cross-examination by defense counsel, the following occurred:

“Q. Are you familiar with the Section 32-1-4[] m dealing with misdemeanor arrests where it requires that once you issue a traffic citation, you are to immediately release him?
“A [Officer Robinson], No, sir.
“Q. Are you familiar with that one?
“A. No, sir.
“Q. Let me show you this one. (Witness reviewing document.) Have you ever heard of that section?
“A. No, sir.
“MS. BATES: Could I see that, Tommy?
“MR. SCARBROUGH: Yes, ma’am. “Q. So you gave him the ticket and you held him beyond the time that it took for you to issue the ticket, didn’t you?
“A. No, sir. I gave him the ticket. Then we conducted our investigation, and he was arrested from the residence.
“Q. You gave him the ticket. And then you conducted the investigation?
“A. That’s correct. A search warrant was conducted at that time.
“Q. After the ticket?
“A. After the ticket.
“Q. Are you sure about that?
“A, Yes, sir.
“Q. Absolutely?
“A. Oh. Yeah.”

Thereafter, on re-cross-examination, the following transpired:

“Q. But you got that information [that he had narcotics at his residence] after you held him beyond giving him the ticket, didn’t you?
“A [Officer Robinson]. Sir?
“Q. You got that information after you issued the ticket, didn’t you?
“A. I don’t know if I issued him the ticket, then received the information; or received the information, then gave him the ticket.”

Finally, following the testimony of this witness, defense counsel argued in support of his motion to suppress, as follows:

“The [United States Court of Appeals for the] 11th Circuit says that after the ticket is given if there is no reasonable suspicion of any criminal activities, the officer must let him go. And that is what that case says. And I think it applies to the case against Mr. Smith. “There is another case, Alabama case, Peters v. State, 859 So.2d at 451 [ (2003) ]. This is a case where a trooper up in north Alabama stopped a guy on the interstate. He became suspicious, stopped him, and said he was going to give him a warning citation for the traffic offense. After he gave him a citation, then, there was a conversation about searching his vehicle. The defendant would not allow a search. The trooper said you are free to leave, but I’m going to keep your car.
“The trooper called the canine out, and they indicated on the car and found drugs. He had a suppression motion in circuit court, and it was denied. He appealed it. And the Alabama Court of Criminal Appeals reversed the denial of the suppression stating that after the traffic stop was over, the defendant was free to leave, unless the officer has some reasonable articulable suspicion of criminal activity. And that is important here, because the officer said he had no suspicion of any criminal activity at the time he stopped him, before he stopped him, or during the stop until there was some conversation about drugs, and until he called a dog out, and he says the dog alerted on the car.
“So all these cases, Judge, I think support our position that the evidence is due to be suppressed.
“And there is another case I’ll give to you. That is United States v. Purcell [236 F.3d 1274 (11th Cir.2001)]. The only reason I give that to you, Judge, is because in that case the 11th Circuit talks about what is reasonable articula-ble suspicion and what an officer can do and how long he can hold a defendant in a car at a traffic stop.
“So I’d ask that you consider these, read them, Judge, before you make a ruling. And I ask that you suppress any evidence found in the car, suppress the search warrant that resulted from the illegal search and any evidence found by the officers against the defendant.
“THE COURT: What says the State?
“MS. BATES: Judge, he did have an articulable suspicion. He had the dog indicating that there were drugs in the car. And in addition to that, the testimony was actually that at the time he made the stop he had no suspicion of any crime other than the tag light. But once the stop was made, and he saw the defendant, he realized that he had information that the defendant had been in possession of drugs in the past. And at that time, and only at that time, did he call the dog. And the dog indicated. And marijuana seeds were found in the vehicle. The defendant gave the officer a statement that he had more marijuana at his home. And based on that statement, he got a search warrant, and it was there. The evidence is not due to be suppressed.
“MR. SCARBROUGH: Judge, these cases also state that the government cannot use the fact that drugs were found as their probable cause. So, therefore, their suspicion was correct. You can’t do that. These cases tell you can’t do that.
“Further, there was no reasonable artic-ulable reason stated by the officer, Judge. And they are due to be suppressed, all the evidence.
“THE COURT: Okay. I’ll look at it.”

Officer Robinson testified on direct examination that the citation was issued within 20 minutes after the stop. Smith refused consent to search his vehicle; however, the canine unit was summoned and “indicated” or “sat” on the vehicle, and marijuana seeds were then found in the car. At that point, Officer Robinson stated that Smith admitted that he had narcotics in his home, so a search warrant was obtained verbally. On cross, he also testified with certainty that the narcotics investigation did not commence until after the citation was issued. It was- not until recross that the officer indicated that he was uncertain whether the citation was issued before or after Smith’s admission. In Peters v. State, 859 So.2d 451, 453-54 (Ala.Crim.App.2003), this court addressed a similar situation and quoted State v. Washington, 623 So.2d 392, 395-96 (Ala.Crim.App.1993), in finding:

“Once the traffic offender signs the UTTC [Uniform Traffic Ticket and Complaint], the arresting officer is to ‘forthwith release him from custody.’ § 32-l-4(a)[, Ala.Code 1975], The officer may further detain the driver only if he has probable cause to arrest the driver for some other non-traffic offense, see Hawkins v. State, 585 So.2d 154 (Ala. 1991), or has a reasonable suspicion of the driver’s involvement in some other criminal activity justifying further detention for investigatory purposes under Terry v. Ohio[, 392 U.S. 1 (1968) ], see United States v. Tapia, 912 F.2d 1367 (11th Cir.1990). '
‘“Reasonable suspicion is a less demanding standard than probably cause.’ Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). However, reasonable suspicion exists only if the officer has ‘specific, particularized, and articulable reasons indicating that the person [stopped] may be involved in criminal activity.’ Hickman v. State, 548 So.2d 1077, 1080 (Ala.Cr.App.1989). ‘To determine whether reasonable suspicion existed for a particular stop, the totality of the circumstances, as known to the officer at the inception of the stop, [or, in this case, at the time of the continued detention>] must be considered.’ Arnold v. State, 601 So.2d 145, 149 (Ala.Cr.App.1992) (emphasis added [in Washington ]. Accord Lamar v. State, 578 So.2d 1382, 1385 (Ala.Cr.App.), cert, denied, 596 So.2d 659 ([Ala.]1991).”

It appears that the “reasonable suspicion” that Officer Robinson had to detain Smith was predominately that an officer had informed him that he believed that Smith had been previously associated with drugs. This was insufficient to detain Smith. See R.W. v. State, 913 So.2d 505, 510 (Ala.Crim.App.2005) (“[Reasonable suspicion is determined not by looking at each circumstance individually, but by looking at the totality of the circumstances surrounding the indictment.”). In this case, there was no “particularized and objective basis,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), for detaining Smith. Smith was stopped about 7:30 p.m. for “no tag light” and the officer acknowledged that he had no belief that Smith was involved in any criminal activity; the other officer’s indication that he believed that Smith had at some time in the past been involved with drugs did not supply a “particularized and objective basis” for Smith’s detention.

Moreover, Smith’s refusal to consent to the search could not have supplied the necessary “reasonable suspicion.”

“ ‘[Ijnformation obtained ... during this further detention cannot be considered in evaluating whether the trooper had reasonable suspicion to further detain the defendant in the first place.’ [State v.] Washington [623 So.2d 392] at 397 [ (Ala.Crim.App.1993) ]. A defendant’s ultimate refusal to consent to a search of the vehicle cannot be considered as a factor in the officer’s determination of reasonable suspicion. State v. Washington, supra.

Peters v. State, 859 So.2d at 454. See also Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); Arnold v. State, 601 So.2d 145, 149 (Ala.Crim.App.1992).

The only evidence presented by the State indicated that the citation was issued within approximately 20 minutes after the stop occurred at about 7:30 p.m. Smith was arrested at his home at about 9:15 p.m. The State requests that this cause be remanded because it is unclear whether the citation was issued before or after the drug-sniffing dog alerted on Smith’s vehicle. The State then, in brief, quotes the officer’s testimony originally stating that the search warrant for the house was not issued and the investigatory procedures did not occur until after the citation was issued and his later testimony, on record, that he did not know the order of the two occurrences. Because the officer has twice been asked the sequence of these events, responding firmly originally and then stating that he did not know, it seems a waste of judicial economy to ask a third time.

Based on the certainty of the officer’s original responses indicating that the citation issued before the search warrant and the drug investigation, and the timing of events established by documents in the record, it appears that Smith was unlawfully detained after he was cited for “no tag lights.” Therefore, the judgment is due to be reversed and this cause remanded, because the trial court erred in denying the motion to suppress. The judgment is reversed and the cause remanded to the Houston Circuit Court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

Officer Robinson’s testimony as to when he gave the appellant a ticket is not clear. On cross-examination, he stated that it “[pjrobably” took him “upwards of twenty minutes” to issue a ticket to the appellant and that “it usually took [him] about fifteen to twenty minutes” to write a ticket. (R. 9, 12.) However, he never stated with certainty how long it took him to issue the ticket to the appellant.

Also, Robinson’s testimony as to when he received the information about the narcotics and when he conducted his investigation is not clear. On cross-examination, he testified that they conducted their investigation and search after he issued the ticket. On re-cross-examination, he testified that he was not sure whether he received the information about the narcotics before or after he issued the ticket to the appellant. The majority states that, “[b]e-cause the officer has twice been asked the sequence of these events, responding firmly originally and then stating that he did not know, it seems a waste of judicial efficiency to ask a third time.” 953 So.2d at 449. However, the defense did not ask Robinson the same question on cross-examination and re-cross-examination. On cross-examination, the defense asked when the investigation and search were conducted. On re-cross-examination, the defense asked, for the first time, when he received the information about the narcotics that caused him to detain the appellant and conduct a narcotics investigation.

Thus, from the record before us, it is not clear whether Robinson obtained the information about the narcotics before or after he issued the ticket to the appellant. Therefore, we should remand this case to the trial court for clarification as to whether Robinson received the information about the narcotics that caused him to detain the appellant for further investigation before or after he issued the ticket to the appellant. Accordingly, I respectfully dissent.

      . Officer Robinson was the only witness for the State, and he repeatedly testified that he did not have a clear memory of the offense, e.g., he could not remember if he wrote the ticket, whose ticket book was used, whose patrol car he was traveling in, when the stop was made, or whose canines were used.

      . Section 32-1-4, Ala.Code 1975, was amended effective July 1, 2006. At' the time of the traffic stop, § 32-1-4 provided:
      "(a) Whenever any person is arrested for a violation of any provisions of this title punishable as a misdemeanor, the arresting officer shall, unless otherwise provided in this section, take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice, and such person shall, if he so desire, have a right to an immediate hearing, or a hearing within 24 hours at a convenient hour and such hearing to be before a magistrate within the county or city wherfe such offense was committed. Such officer shall thereupon and upon the giving by such person of a sufficient Written bond, approved by the arresting officer, to appear at such time and place, forthwith release him from custody.

      “(c) An officer violating any of the provisions of this section shall be guilty of misconduct in office and shall be subject to removal from office.”

      . The citation for “no tag light” was dismissed by the district attorney before the suppression hearing.


author: PARIENTE, J.

text:
    Michelle MACOLA, et al., Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. SC05-1021.
    Supreme Court of Florida.
    Oct. 26, 2006.
    Rehearing Denied March 27, 2007.

      Shea T. Moxon, Angela E. Rodante, and Dale M. Swope of Swope and Rodante, P.A., Tampa, FL, and Roy D. Wasson of Wasson and Associates, Miami, FL, Paul T. Cardillo, Tampa, FL, and Lefferts L. Mabie, III, Tampa, FL, for Appellants.
    B. Richard Young and Stephen D. Gill of Young, Bill, Fugett and Roumbos, P.A., Pensacola, FL, for Appellee.
    Philip M. Burlington and Bard D. Rock-enbach of Burlington and Rockenbach, P.A., West Palm Beach, FL, on behalf of the Academy of Florida Trial Lawyers; Alyssa M. Campbell of Williams, Montgomery and John Ltd., Chicago, IL, on behalf of Property Casualty Insurers Association of America; Tracy R. Gunn of Fowler, White, Boggs, Banker, P.A., Tampa, FL, on behalf of Florida Defense Lawyers’ Association; Paul L. Nettleton of Carlton Fields, P.A., Miami, FL, on behalf of State Farm Mutual Automobile Insurance Company; and Ronald L. Kammer and Andrew E. Grigsby of Hinshaw and Culbertson, LLP, Miami, FL, Laura A. Foggan, John C. Yang and Anthony E. Orr of Wiley, Rein and Fielding, LLP, Washington, D.C., on behalf of Complex Insurance Claims Litigation Association, as Amici Curiae.
   PARIENTE, J.

We have for review two questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit. Because both appellants have filed only common law third-party bad faith causes of action, we rephrase the certified questions into a single question:

DOES THE TENDERING OF THE POLICY LIMITS BY AN INSURER IN RESPONSE TO THE FILING OF A CIVIL REMEDY NOTICE UNDER SECTION 624.155, FLORIDA STATUTES (2005), BY THE INSURED AFTER THE INITIATION OF A LAWSUIT AGAINST THE INSURED BUT BEFORE ENTRY OF AN EXCESS JUDGMENT PRECLUDE A COMMON LAW BAD FAITH CAUSE OF ACTION BY THE INSURED AND INJURED THIRD PARTIES?

For the reasons that follow, we answer the rephrased certified question in the negative.

FACTS AND PROCEDURAL HISTORY

This case arises out of a common law cause of action for third-party bad faith brought by Michelle Macóla, the injured third party, and Inge Quigley, the insured, (jointly referred to as the appellants) against Government Employees Insurance Company (GEICO). On May 18, 1999, Inge’s husband, Frances Quigley, negligently caused an automobile accident that resulted in personal injuries and property damage to Macóla. At the time of the accident, Quigley was insured by GEICO under an insurance policy that contained a bodily injury liability limit of $800,000 and a property damage liability limit of $100,000. On May 19, 1999, Inge Quigley notified GEICO of the accident and informed the insurer that both her husband and Macóla had suffered serious injuries in the accident. GEICO assigned an insurance adjuster to handle the claim.

On October 19, 1999, Macola’s attorney, Michael Roe, sent GEICO a settlement offer seeking payment of the bodily injury liability limit under the insurance policy, and property damage in the amount of $1,377.81. This offer did not result in a settlement agreement. Roe filed suit on behalf of Macóla against Quigley in Florida state court, asserting a claim for personal injuries but not for property damage. GEICO assigned counsel to defend Quig-ley in this suit. On July 11, 2000, after suit had been filed but before entry of an excess judgment, Paul Cardillo, Quigley’s personal counsel, filed a statutory Civil Remedy Notice of Insurer Violation (“civil remedy notice”) with the Department of Insurance against GEICO. Quigley alleged a statutory violation by GEICO’s failure to settle with Macóla for the policy limits when the insurer had an opportunity to do so.

On August 25, 2000, within sixty days after the civil remedy notice was filed, GEICO sent Cardillo a letter that stated in part:

Enclosed is a check in the amount of $300,000.00 which represents the entirety of the Quigley’s policy limits, and a policy release which we request our insured sign and return to us. By the tender of our policy limits, we have cured the Civil Remedies Complaint. Mr. and Mrs. Quigley are now free to use the $300,000.00 in order to settle all claims brought against them as a result of this accident.

Cardillo acknowledged receipt of the check and the release but stated that his acknowledgment did not constitute acceptance. Cardillo did not deposit or cash the check. Macola’s civil suit against Quigley proceeded to trial and on July 9, 2002, the trial court entered a final judgment against Quigley in the amount of $1,541,941.61 for Macola’s personal injuries. The trial court also awarded Macóla attorney’s fees in the amount of $212,500.

Thereafter, Macóla filed a common law third-party bad faith suit against GEICO in Florida state court, alleging that GEI-CO breached its duty of good faith to Quigley by failing to settle with Macóla when the insurer had the opportunity to do so. Macóla further alleged that GEICO failed to timely inform Quigley of Macola’s settlement offer, and failed to timely advise Quigley of the likelihood of a judgment exceeding the policy limits and what actions could be taken to avoid an excess judgment. GEICO removed the case to federal court and filed an answer denying liability and raising eight affirmative defenses.

Quigley then filed a separate common law third-party bad faith action against GEICO in federal court, asserting the same allegations as Macóla. Because both causes of action were based on the same underlying facts, the district court consolidated the two cases. As its fifth affirmative defense to both complaints, GEICO asserted that it had cured any statutory third-party bad faith by tendering the bodily injury liability limit within sixty days of the filing of the civil remedy notice. The appellants filed motions for partial summary judgment in which they alleged that GEICO’s cure argument was legally insufficient. GEICO filed a consolidated motion for summary judgment against the appellants in which it contended that the cure theory was legally controlling. The district court denied the appellants’ motion for partial summary judgment and granted GEICO’s motion for summary judgment based on the insurer’s theory that the tender of the $300,000 cured any statutory third-party bad faith. The district court also concluded that under the election of remedies doctrine, Quigley’s filing of the civil remedy notice estopped the appellants’ common law third-party bad faith action, and, in the alternative, that GEI-CO’s tender of the policy limits constituted a full satisfaction of the common law claim.

On appeal, the appellants argued two issues: (1) GEICO’s tender of the policy limits did not constitute an adequate cure under the circumstances of this case, and (2) even if GEICO’s tender did cure the statutory third-party bad faith claim, it did not bar a common law third-party bad faith action. The Eleventh Circuit determined that “because the statutory and common law bad-faith claims ... depend upon substantially similar factual allegations, they appear to be consistent under Florida law.” Macola v. Gov’t Employees Ins. Co., 410 F.3d 1359, 1364 (11th Cir. 2005). The Eleventh Circuit therefore concluded that the district court erred in holding that Quigley’s filing of the civil remedy notice constituted an election of remedies that estopped Quigley from pursuing a common law third-party bad faith action. See id.

The Eleventh Circuit also addressed both issues raised by the appellants but certified them to this Court for resolution.

ANALYSIS

The rephrased certified question involves a pure question of law that arises from undisputed facts and is therefore subject to de novo review. See Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 396 (Fla.2005).

A. Common Law Third-Party Bad Faith Claim

When handling claims against its insured, an insurer “has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980). More specifically, the Court explained in Gutierrez that

when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured. This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.

Id. at 785 (citations omitted); see also Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1125 (Fla.2005) (“Under liability policies ... insurance companies took on the obligation of defending the insured, which, in turn, made insureds dependent on the acts of the insurers.... This placed insurers in a fiduciary relationship with their insureds ... [and] courts began to recognize that insurers ‘owed a duty to their insureds to refrain from acting solely on the basis of their own interests in settlement.’ ”) (first alteration in original) (quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla.1995)); Berges v. Infinity Ins. Co., 896 So.2d 665, 672 (Fla.2004) (“It has long been the law of this State that an insurer owes a duty of good faith to its insured. See Gutierrez, 386 So.2d at 785. Thus, ‘[t]he insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and . settle if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.’ Id.”) (altera-, tion in original).

In Thompson v. Commercial Union Insurance Co., 250 So.2d 259, 264 (Fla.1971), we recognized the right of an injured third party to maintain an action against the insurer under the common law to recover the amount of an excess judgment, based on the insurer’s alleged breach of the duty of good faith in handling the insurance claim. Although a third party was allowed to bring a common law bad faith cause of action directly against an insurer, the Court later clarified that its decision in Thompson was not meant to change either the basis or theory of recovery regarding such actions:

We did not extend the duty of good faith by an insurer to its insured to a duty of an insurer to a third party. The basis for an action remained the damages of an insured from the bad faith action of the insurer which caused its insured to suffer a judgment for damages above his policy limits. Thompson merely allowed the third party to bring such an action in his own name without an assignment.

Fidelity & Cas. Co. v. Cope, 462 So.2d 459, 461 (Fla.1985). However, this common law causé of action arose only in the third-party context, and did not authorize common law first-party actions by an insured against its own insurer for failing to act in good faith when settling a claim brought by the insured against its insurer, such as in the uninsured motorist context or other claims for first-party benefits. If an insurer acted in bad faith in settling a claim filed by its insured, the only common law action available to the insured was a breach of contract action against the insurer in which damages were limited to those contemplated by the parties in the insurance policy. See Talat Enters., Inc. v. Aetna Cas. & Sur. Co., 753 So.2d 1278, 1281 (Fla.2000).

B. Section 624.155, Florida Statutes (2005)

In 1982, the Legislature enacted section 624.155. See ch. 82-243, § 9, Laws of Fla. This statute was “designed and intended to provide a civil remedy for any person damaged by an insurer’s conduct.” Ruiz, 899 So.2d at 1124. Section 624.155(l)(b)(l), Florida Statutes (2005), provides:

(1) Any person may bring a civil action against an insurer when such person is damaged:
(b) By the commission of any of the following acts by the insurer:
1. Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests....

Thus, section 624.155(l)(b)(l) created a statutory cause of action for first-party bad faith, see Talat, 753 So.2d at 1283, and also codified our decisions in Thompson and Cope authorizing a third party to bring a bad faith action under.the common law. See State Farm Fire Cas. Co. v. Zebrowski, 706 So.2d 275, 277 (Fla.1997). Therefore, the same obligations of good faith that existed for insurers dealing with their insureds in the third-party context were extended by statute to the first-party context.

As part of the statutory cause of action, section 624.155(3)(a), Florida Statutes (2005), sets forth the notice provisions and requires as a condition precedent to bringing suit that both the insurer and the Department of Financial Services receive written notice of the alleged statutory bad faith violation. Section 624.155(3)(d), Florida Statutes (2005), affords the insurer an opportunity to cure the alleged violation, and provides that “[n]o action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.”

In the event the insurer does not cure the alleged violation within the sixty-day period in section 624.155(3)(d), the claimant may proceed with the civil action for statutory bad faith. In addition to creating a statutory bad faith cause of action with conditions precedent; the Legislature also provided that

[t]he civil remedy specified in this section does not preempt any other remedy or cause of action provided for pursuant to any other statute or pursuant to the common law of this state. Any person may obtain a judgment .under either the common-law remedy of bad faith or this statutory remedy, but shall not be entitled to a judgment under both remedies. This section shall not be construed to create a common-law cause of action. The damages recoverable pursuant to this section shall include those damages which are a reasonably foreseeable result of a specified violation of this section by the authorized insurer and may include an award or judgment in an amount that exceeds the policy limits.

§ 624.155(8), Fla. Stat. (2005).

C. Effect of Tender of Policy Limits After Civil Remedy Notice but Before Excess judgment

The rephrased certified question requires us to decide what effect the “cure” provision, section 624.155(3)(d), has on a common law third-party bad faith action when the insured files a notice of a statutory violation after the time for settlement with the injured party has expired but before the entry of an excess judgment. However, before discussing the cure provision, we note that the plain language of section 624.155(8) provides that the civil remedy in section 624.155 “does not preempt any other remedy or cause of action provided for pursuant to ... the common law of this state.” (Emphasis supplied.) Section 624.155(8) also provides that although a statutory cause of action for third-party bad faith does not preempt a common law cause of action, a claimant “shall not be entitled to a judgment under both remedies.” “When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). The language of section 624.155(8) expresses legislative intent not to preclude or limit common law third-party bad faith actions as those actions existed prior to the enactment of the statute.

Rather than limit the type of action available to a claimant, the statute merely ensures that a claimant does not obtain a double recovery by receiving separate judgments when proceeding with two different remedies. Unlike a first-party bad faith action, which must be brought under the statute, a third-party bad faith action can be pursued under both the common law and the statute. However, under section 624.155(8), the claimant is precluded from recovering judgments under both the common law and statutory causes of action. This is similar to the doctrine of satisfaction, which allows all consistent remedies to “be pursued concurrently even to final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.” Barbe v. Villeneuve, 505 So.2d 1331, 1333 (Fla.1987) (quoting Am. Process Co. v. Fla. White Pressed Brick Co., 56 Fla. 116, 47 So. 942, 944 (1908)).

Regarding section 624.155(3)(d), we clearly delineated the effect of this cure provision on a first-party action for bad faith in Talat. Because a cause of action for extracontractual damages for first-party bad faith was unavailable under the common law, we strictly construed the civil remedy statute and held that the tender of the policy limits within the sixty-day period cured any alleged violation of subsection (l)(b)(l). See Talat, 753 So.2d at 1283-84. We explained that the only remedy was statutory and that the statute conditioned the remedy on notice by the insured and failure by the insurer to pay the damages within the cure period. See id. In other words, in the first-party context, “[t]he statutory cause of action for extra-contractual damages simply never comes into existence until expiration of the sixty-day window without the payment of the damages owed under the contract.” Id. at 1284.

We have never construed the cure provision in the context of a third-party bad faith action. And, the difference between first-party and third-party bad faith causes of action is critical. As we recently explained in Ruiz, a third-party bad faith cause of action arises when the insurer fails to act in good faith in handling a claim brought by a third party against an insured, whereas a first-party bad faith cause of action arises when an insurer fails to act in good faith in the processing of the insured’s own first-party claim. See 899 So.2d at 1125. Although section 624.155 is in derogation of the common law with respect to first-party bad faith, the statute codifies the common law with respect to third-party bad faith. Compare Talat, 753 So.2d at 1283 (“[T]he civil remedy provided in subdivision (l)(b)l was not in existence for first-party insureds before the adoption of the civil remedy statute.”), with Zebrowski, 706 So.2d at 277 (“[T]he enactment of section 624.155(l)(b)(l) had the effect of codifying Thompson ... and Cope ... .”). Thus, the premise for our decision in Talat — that the insured had no remedy without the statute — does not apply to third-party actions.

Further, “the essence of a third-party bad faith cause of action is to remedy a situation in which an insured is exposed to an excess judgment because of the insurer’s failure to properly or promptly defend the claim.” Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994) (citing Cope, 462 So.2d at 460). Accordingly, where the underlying tort action against the insured no longer exists, either because the injured party has released the insured from liability or the underlying judgment has been satisfied, the cause of action for third-party bad faith no longer exists. Id. However, the tender of the policy limits to the insured when the underlying tort action is still pending does not eliminate the underlying tort action or the insured’s exposure to an excess verdict. Thus, interpreting section 624.155(3)(d) to allow the tender of the policy limits after the time period to settle has expired to preclude a common law cause of action for third-party bad faith puts the insured in a worse position than he or she would have been in had the Legislature not enacted section 624.155. This result would be inconsistent with the plain language of section 624.155(8) that the civil remedy statute “does not preempt any other remedy or cause of action provided for pursuant to ... the common law of this state.”

Accordingly, we answer the rephrased certified question in the negative. We hold that an insurer’s tender of the policy limits to an insured in response to the filing of a civil remedy notice under section 624.155 by the insured, after the initiation of a lawsuit against the insured but before entry of an excess judgment, does not preclude a common law cause of action against the insurer for third-party bad faith.

D. This Case

In this case, prior to filing a lawsuit against Quigley, Macóla, the third-party plaintiff, had offered to settle if GEICO paid $1,377.81 for property damage and the bodily injury liability policy limit. However, the parties did not reach a settlement. When Quigley’s estate filed the civil remedy notice after Macola’s lawsuit against the estate had been filed but before the excess judgment had been entered, GEICO’s tender of the policy limits to Quigley did not eliminate the risk of an excess judgment or result in the settlement of Macola’s lawsuit. GEICO did not obtain a release of liability from Macóla for its insured. Rather, GEICO sought to have its insured, Quigley, sign a release relieving GEICO of liability. Thus, this case is not like either Cope or Zebrowski, upon which GEICO relies in asserting that a common law third-party bad faith action is precluded in this case.

In Cope, after filing a bad faith cause of action against one of the insurers involved in the case, the insurer and the injured third party reached a settlement agreement that satisfied a portion of the excess judgment and released all claims against the insurer and the insureds. See 462 So.2d at 460. In Zebrowski, the injured third party, who received a judgment within the policy limits, sought to maintain a bad faith cause of action against the insurer even though the insurer had satisfied the judgment. See 706 So.2d at 275. In both Cope and Zebrowski, the bad faith cause of actions were eliminated when the tort actions against the insureds were resolved.

Similarly, in Cunningham, we approved a procedure whereby the bad faith action was to be tried before the underlying negligence action because the parties stipulated that if there was no bad faith, the third party would settle for the policy limits and there would be a full release of the insured. See 630 So.2d at 180,182. In this case, Quigley was exposed to an excess judgment when GEICO failed to successfully settle the claim with Macóla. While GEICO’s tender of the policy limits may be used by GEICO as evidence of its good faith (or conversely by Quigley and Macóla as further evidence of bad faith), the tender of the policy limits after the filing of the civil remedy notice did not eliminate the underlying tort action, which gave rise to the common law third-party bad faith cause of action against the insurer.

CONCLUSION

For the reasons explained above, we answer the rephrased certified question in the negative. Having answered this question, we return this case to the United States Court of Appeals for the Eleventh Circuit.

It is so ordered.

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

WELLS, J., concurs in result only.

      . (1) IN THE CONTEXT OF A THIRD PARTY
      BAD FAITH CLAIM WHERE THERE IS A POSSIBILITY OF AN EXCESS JUDGMENT, DOES AN INSURER "CURE”ANY BAD FAITH UNDER § 624.155 WHEN, IN RESPONSE TO A CIVIL REMEDY NOTICE, IT TIMELY TENDERS THE POLICY LIMITS AFTER THE INITIATION OF A LAWSUIT AGAINST ITS INSURED BUT BEFORE ENTRY OF AN EXCESS JUDGMENT?
      (2) IF SO, DOES SUCH A CURE OF THE STATUTORY BAD FAITH CLAIM CONSTITUTE A FULL SATISFACTION OF THE JUDGMENT SUCH THAT THE INSURED AND DERIVATIVE INJURED THIRD PARTIES ARE BARRED FROM BRINGING A
      COMMON LAW BAD FAITH CLAIM TO RECOVER THE DIFFERENCE BETWEEN THE POLICY LIMITS AND THE EXCESS JUDGMENT?

        Macóla v. Gov’t Employees Ins. Co., 410 F.3d 1359, 1365 (11th Cir.2005). We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.

      . We also note that we were not asked to consider whether the facts in this case would give rise to a common law cause of action for third-party bad faith, and by the recitation of the facts we do not suggest that such facts would constitute a common law third-party bad faith cause of action.

      . Frances Quigley died during the course of the underlying litigation. His wife, Inge Quigley, was named personal representative of the estate and substituted for Frances Quig-ley in all related litigation. As did the Eleventh Circuit, we use "Quigley" to refer to Frances Quigley or his estate.

      . Because Macóla failed to assert a claim for property damage, both the district court and the Eleventh Circuit considered this claim waived. Ironically, it was GEICO's challenge to the property damage initially claimed by Macóla during settlement negotiations that hindered a possible settlement between the parties. Again, as explained in footnote 2, in reciting this fact we do not express any opinion as to whether a common law cause of action exists against GEICO for third-party bad faith because that issue is not before us.

      . Macóla’s third-party bad faith claim is derivative of Quigley’s claim. Thus, if the filing of the civil remedy notice estopped Quigley from pursuing a common law third-party bad faith action, it also estopped Macóla from pursuing this action.


text:
    Willie PERRY, Petitioner, v. STATE of Florida, Respondent.
    No. SC03-1291.
    Supreme Court of Florida.
    Feb. 1, 2007.
    Carey Haughwout, Public Defender and David J. McPherrin, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio, Myra J. Fried and Claudine M. LaFrance, Assistant Attorney Generals, West Palm Beach, FL, for Respondent.
   PARIENTE, J.

We review Perry v. State, 846 So.2d 584 (Fla. 4th DCA 2003), in which the Fourth District Court of Appeal followed Tillman v. State, 807 So.2d 106 (Fla. 5th DCA 2002), quashed, 934 So.2d 1263 (Fla.2006), which was pending review in our Court, and cited as contrary authority Taylor v. State, 740 So.2d 89 (Fla. 1st DCA 1999). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 420 (Fla.1981). The issue is whether section 776.051(1), Florida Statutes (1997), which prohibits the use of force to resist an arrest, applies apart from arrest scenarios.

After receiving the merits briefs in this case, we stayed the proceedings pending our decision in Tillman v. State, 934 So.2d 1263 (Fla.2006). There we approved the First District Court of Appeal’s decision in Taylor that section 776.051(1) “does not extend beyond arrest scenarios,” and quashed the Fifth District’s decision in Tillman to the contrary. Id. at 1274. We also held that in prosecutions for battery on a law enforcement officer and resisting an officer with violence for crimes committed outside arrest scenarios, the State must prove that the officer was lawfully executing a legal duty. In construing this element, “courts must apply the legal standards governing the duty undertaken by the law enforcement officer at the point that an assault, battery, or act of violent resistance occurs.” Id. at 1271.

After our decision in Tillman became final, we directed the State to show cause why we should not quash the Fourth District’s decision in this case and remand for reconsideration in light of Tillman. In its response, the State asserted that Tillman does not control because an arrest within the meaning of section 776.051(1) extends to the post-arrest strip search resisted by Perry. The State urges us to discharge jurisdiction, while Perry urges us to quash and remand for reconsideration under Tillman.

We must quash the Fourth District’s decision because it is contrary to our construction of section 776.051(1) in Tillman. The Fourth District relied on the Fifth District’s decision in Tillman, which we later quashed, for the proposition that the use of force against a known police officer extends to illegal stops, searches, and detentions. See Perry, 846 So.2d at 587. We expressly rejected this view in Tillman, and cannot permit the same erroneous interpretation of section 776.051(1) to stand here. However, we decline to decide whether an arrest under section 776.051(1) encompasses post-arrest intake procedures such as the strip search in this case. Neither the Fourth District in this case nor this Court in Tillman addressed this issue. This matter, as well as a separate jury instruction issue raised by Perry, are for the Fourth District to address in the first instance under the changed legal landscape of our decision in Tillman.

Therefore, we quash the decision in this case and remand for reconsideration in light of Tillman.

It is so ordered.

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


author: PER CURIAM.

text:
    Rick BARNETT, etc., et al., Petitioners, v. FLORIDA DEPARTMENT OF MANAGEMENT SERVICES, Respondent.
    No. SC06-1224.
    Supreme Court of Florida.
    Feb. 1, 2007.
    Larry E. Levy of the Levy Law Firm, Tallahassee, FL, for Petitioners.
    Robert C. Reid and Theresa Proctor of Bryant, Miller and Olive, P.A., Tallahassee, FL, and Michael S. Davis of Bryant, Miller and Olive, P.A., Tampa, FL, for Respondent.
   PER CURIAM.

We accepted jurisdiction to review Barnett v. Department of Management Services, 931 So.2d 121 (Fla. 1st DCA 2006), in which the First District Court of Appeal certified a question of great public importance. After further consideration, we conclude that we should exercise our discretion and decline review because the circumstances of this case are fact-specific. Accordingly, this review proceeding is dismissed.

It is so ordered.

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