author: LYONS, Justice.

text:
    FEDERATED MUTUAL INSURANCE COMPANY v. ABSTON PETROLEUM, INC., et al.
    1051589.
    Supreme Court of Alabama.
    April 13, 2007.

      Jeff Friedman, P. Thomas Dazzio, Jr., H. Spence Morano, and Lee T. Patterson of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham, for appellant.
    J. Patrick Courtney III, Mobile, for ap-pellees Victor Schill and Cynthia Schill.
    Halron W. Turner of Turner, Onder-donk, Kimbrough & Howell, Chatom, for appellees Abston Petroleum, Inc., and Eddie Abston.
    Vernon L. Wells II of Walston, Wells & Birchall, LLP, Birmingham, for amicus curiae Complex Insurance Claims Litigation Association, in support of the appellant.
   LYONS, Justice.

Federated Mutual Insurance Company appeals from a judgment of the Choctaw Circuit Court in favor of Abston Petroleum, Inc., Eddie Abston, Victor Schill, and Cynthia Schill. We reverse and remand.

I. Factual Background and Procedural History

Victor Schill and Cynthia Schill owned a hardware and grocery store in Silas. The Schills sold gasoline from pumps located in front of the store pursuant to a consignment agreement with Abston Petroleum. Abston Petroleum owned the pumps, the tanks in which the gasoline was stored, and the underground lines connecting the tanks and the pumps, all of which were located on the Schills’ property. In 1999, pursuant to applicable state and federal laws, Abston Petroleum removed the existing underground gasoline storage tanks on the Schills’ property and replaced them with aboveground storage tanks. After the aboveground tanks were installed, the Schills said that they complained repeatedly to Abston Petroleum about leaks in the underground lines from the aboveground tanks to the pumps. The Schills alleged that in May 2001 customers and adjacent landowners complained about a gasoline smell and a gasoline film in and around the store. On June 11, 2001, the Schills notified the Alabama Department of Environmental Management that a significant and dangerous quantity of gasoline fumes was emanating from the leaks, and, as a result, the state fire marshal closed their business. The store remained closed for six to eight weeks while environmental cleanup efforts were conducted and the necessary repairs were attempted. Abston Petroleum ultimately removed all the gasoline pumps and tanks from the Schills’ property, but the Schills were never able to reopen their business.

The Schills sued Abston Petroleum and Eddie Abston, its president (hereinafter collectively referred to as “Abston Petroleum”), alleging that their property was contaminated by gasoline that had leaked from the underground lines owned and maintained by Abston Petroleum, and that the contamination had caused them to suffer personal injury, including a worsening of Cynthia Schill’s migraine headaches, and property damage, including the loss of revenue during the period the store was closed and, ultimately, the loss of their business.

At the time of the gasoline contamination, Abston Petroleum was insured under a commercial general-liability insurance policy issued by Federated Mutual. After Abston Petroleum notified Federated Mutual of the Schills’ personal injury and property damage and their resulting claims, Federated Mutual informed Abston Petroleum that the pollution-exclusion endorsement to its insurance policy with Federated Mutual excluded coverage for the Schills’ claims arising out of the gasoline contamination.

Abston Petroleum filed a third-party complaint against Federated Mutual and Keith Mills, the agent who had sold the Federated Mutual policy to Abston Petroleum and who serviced the account. Ab-ston Petroleum sought a judgment declaring that the policy covered the Schills’ claims against it and asserted claims against Federated Mutual alleging breach of contract, bad faith, and negligent or wanton hiring and retention of Mills. Ab-ston Petroleum asserted claims against Mills of fraudulent misrepresentation and suppression, and claims against both defendants of conspiracy to defraud and negligent or wanton procurement of insurance. The trial court severed Abston Petroleum’s claims against Federated Mutual and Mills from those of the Schills against it.

In July 2004, the Schills settled them action against Abston Petroleum, entered into a $500,000 consent judgment and no-nexecution agreement, and dismissed their complaint. Abston Petroleum assigned its rights to the Federated Mutual insurance policy to the Schills. They, in turn, agreed not to proceed further against Abston Petroleum. The Schills and Abston Petroleum agreed to jointly prosecute Abston Petroleum’s claims against Federated Mutual and Mills. The Schills then filed a complaint in intervention in Abston Petroleum’s third-party action against Federated Mutual and Mills. They later filed a motion requesting permission to intervene; the trial court granted that motion.

Abston Petroleum and the Schills moved for a summary judgment as to two counts of the third-party complaint: Count I, seeking a judgment declaring that the Federated Mutual policy provided coverage to Abston Petroleum for the Schills’ claims and damages, and Count II, alleging that Federated Mutual had breached the insurance contract. Abston Petroleum and the Schills also moved for a judgment declaring that Federated Mutual was bound by their consent judgment. The trial court did not rule on that motion. After discovery was completed, Federated Mutual and Mills filed a cross-motion for a summary judgment in their favor as to all claims in the third-party complaint. The trial court entered a summary judgment in favor of Abston Petroleum and the Schills as to Counts I and II of the complaint, holding that Federated Mutual was obligated as a matter of law to provide coverage for the Schills’ damage. The court also entered a summary judgment in favor of Federated Mutual and Mills as to Count III, alleging bad faith against Federated Mutual, and Count VI, alleging that Federated Mutual and Mills had conspired to defraud Abston Petroleum and the Schills. The court denied all motions as to the other claims in the complaint, including the fraud claims against Mills, the claims of negligent or wanton failure to procure insurance against both defendants, and the claims of negligent or wanton hiring and retention against Federated Mutual. The court made the summary judgment final pursuant to Rule 54(b), Ala. R. Civ. P. Federated Mutual appeals the trial court’s summary judgment in favor of Abston Petroleum and the Schills on Count I, seeking a judgment declaring that the Federated Mutual policy provided coverage to Abston Petroleum for the Schills’ personal injury and property damage and their resulting claims, and on Count II, alleging that Federated Mutual had breached the insurance contract.

II. Standard, of Revieiv

“The standard by which this Court will review a motion for summary judgment is well established:
“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12—21—12(d)[,] Ala.Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).’ ”

Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).

III. Analysis

Federated Mutual contends that the pollution-exelusion clause in the insurance policy issued to Abston Petroleum is unambiguous and, therefore, that Federated Mutual is not obligated to indemnify Ab-ston Petroleum for the contamination that occurred on the Schills’ property. Abston Petroleum and the Schills argue that the pollution-exclusion clause is ambiguous and, -therefore, that Federated Mutual should be responsible for the damage sustained by the Schills.

A. History of the Pollutionr-Exclusion Claitse

The pollution-exclusion clause in the Federated Mutual policy is customarily referred to as an “absolute pollution-exclusion clause.” For a thorough discussion of the history of the pollution-exclusion clause and the differences between a qualified pollution-exclusion clause and an absolute pollution-exclusion clause, see Porterfield v. Audubon Indemnity Co., 856 So.2d 789 (Ala.2002).

Examining the absolute pollution-exclusion clause at issue in Porterfield, a clause comparable to the clause in this proceeding, this Court stated that the applicability of the clause depended upon the “affirmative confluence” of three elements:

“[T]he bodily injury or property damage in question must have been caused by exposure to a ‘pollutant’; that exposure must have arisen out of the actual, alleged, or threatened discharge, dispersal, release, or escape of the pollutant; and that discharge, dispersal, release, or escape must have occurred at or from certain locations or have constituted ‘waste.’ In other words, the exclusion comes into play only with respect to bodily injury or property damage arising out of the discharge, dispersal, release, or escape (terms not defined in the policy) of pollutants (a term defined in the policy) at or from certain categories of locations, or which have been transported, stored, handled, treated, disposed of, or processed ‘as waste.’ ”

Porterfield, 856 So.2d at 801. We noted in Porterfield that the absolute pollution-exclusion clause has generated much litigation, much of it involving disputes over whether a particular substance qualified as a pollutant.

Subsections (l)(f) and (2)(f) of the coverage section in the Federated Mutual policy exclude the following from coverage:

“(1) ‘Bodily injur/ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’: []
“(f) At or from any tank, piping, pumps or dispensers at premises, sites or locations in addition to those described in subparagraphs (a), (b), (d) or (e), which are or were at any time owned, leased, installed, removed, tested, repaired or filled by or on behalf of any insured, wherever located (except at residences primarily used for dwelling purposes) which contain, transport or dispense or are designed to contain, transport or dispense:
“(i) motor fuels;
“(2) Any loss, cost or expense arising out of any request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify, or neutralize, or in any way respond to, or assess the effects of ‘pollutants’ or any claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of ‘pollutants’; if the loss[,] cost or expense arises out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’:
“(f) At or from any tank, piping, pumps or dispensers at premises, sites or locations in addition to those described in subparagraphs (a), (b), (d) or (e) which are or were at any time owned, leased, installed, removed, tested, repaired or filled by or on behalf of any insured, wherever located (except at residences primarily used for dwelling purposes) which contain, transport or dispense or are designed to contain, transport or dispense:
“(i) motor fuels;
“Motor fuels means petroleum or a petroleum-based substance that is typically used in the operation of a motor or engine, including but not limited to gasoline, aviation fuel, number one or two diesel fuel, or any grade of gasohol.”

B. Whether the Pollution-Exclusion Clause Is Ambiguous

This Court has recognized that “[t]he issue whether a contract is ambiguous or unambiguous is a question of law for a court to decide.” State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 308 (Ala.1999). “ ‘If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court....’” Slade, 747 So.2d at 308 (quoting McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991)). Because the question of ambiguity is one of law, we must first decide whether the pollution-exclusion clause in the Federated Mutual policy is ambiguous or unambiguous. If the clause is unambiguous, then this Court must enforce the terms of the insurance policy as written. Safeway Ins. Co. of Alabama, Inc. v. Herrera, 912 So.2d 1140 (Ala.2005).

Abston Petroleum and the Schills argue that the pollution-exclusion clause is ambiguous because, they argue, the clause does not specifically define “gasoline” as a “pollutant” and because Eddie Abston did not expect that gasoline would be considered an excluded pollutant under the policy. Eddie Abston testified in an affidavit that, in his eyes, gasoline is not' a pollutant and that “gasoline should be considered in its normal circumstance, not in the unusual/accidental circumstance.” He insists that gasoline is neither an irritant nor a contaminant, and, therefore, Abston Petroleum and the Schills argue, gasoline does not come within the definition of pollutant as stated in the policy.

Abston Petroleum and the Schills rely heavily on Molton, Allen & Williams, Inc. v. St. Paul Fire & Marine Insurance Co., 347 So.2d 95 (Ala.1977), in which this Court held that whether a clause in an insurance policy is ambiguous is to be determined by deciding what a reasonable, ordinary person applying for insurance would expect the policy to mean, and they argue that the scope of the pollution-exclusion clause should not be defined by resorting to technical definitions of terms in the clause that differ from what a reasonable, ordinary person would have understood those terms to mean. Although the pollution-exclusion clause in Molton, Allen & Williams was a qualified pollution-exclusion clause rather than an absolute pollution-exclusion clause, Abston Petroleum and the Schills argue that that distinction was not dispositive to this Court’s holding that the pollution-exclusion clause in Mol-ton, Allen & Williams was ambiguous because the insured could have reasonably expected from reading the clause that its construction activity would be covered. Abston Petroleum and the Schills also rely upon Molton, Allen & Williams to support their argument that Eddie Abston reasonably expected that the personal injury and property damage allegedly suffered by the Schills as a result of gasoline leaks would be covered by the liability policy he purchased to cover his gasoline-distribution business. Abston Petroleum and the Schills state in their brief that Eddie Ab-ston “purchased a TETRO PAC’ policy [from Federated Mutual] for $30,500 expecting that third party negligence or accident claims involving his gasoline business would be covered.”

We first address whether the absolute pollution-exclusion clause in the Federated Mutual policy is ambiguous. That determination requires us to consider whether gasoline can be considered a “pollutant” as that term is defined by the policy. Although whether such a clause excludes coverage for damages arising out of gasoline contamination is a question of first impression for this Court, a number of other courts have analyzed similar pollution-exclusion clauses and determined that those clauses exclude damages for claims similar to those of the Schills, i.e., personal injury and property damage caused by gasoline that has leaked from storage tanks or pipes. In so doing, these courts have necessarily concluded that gasoline is a pollutant as defined by the policy under consideration.

As previously noted, under the terms of the pollution-exclusion clause at issue here, the policy does not cover injury or damage

“arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ ...
“... [a]t or from any tank, piping, pumps or dispensers at premises, sites or locations ... which are or were at any time owned, leased, installed, removed, tested, repaired or filled by or on behalf of any insured ... which contain, transport or dispense ... motor fuels.”

(Emphasis added.) Compressing the operative language quoted above, we read the clause to exclude damage arising out of the discharge from any tank or piping owned or installed by any insured, which transports motor fuels. A pollutant is “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” (Emphasis added.) In the amicus curiae brief filed by the Complex Insurance Claims Litigation Association (“the Association”) in support of Federated Mutual, the Association explains why gasoline should be included within the definition of a pollutant in the policy:

“Gasoline leaking from piping connecting an above ground storage tank and gasoline pumps is plainly a liquid ‘irritant’ or ‘contaminant’ excluded by the term ‘pollutants.’ The focus of the inquiry under the absolute pollution exclusion is not on the nature of the substance alone, but on the substance in relation to the property damage or bodily injury. Even if a substance such as gasoline is commercially useful in one context, it may become a pollutant when it is released and becomes a ‘foreign’ substance in another medium.”

The Association and Federated Mutual support their argument in favor of this well-reasoned approach by citing for this Court’s review cases from other jurisdictions that have held that an absolute pollution-exclusion clause precludes coverage for gasoline and other petroleum products when those products are acting as pollutants. See United States v. Standard Oil Co., 384 U.S. 224, 226, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966) (rejecting Standard Oil’s argument that oil was not refuse because it was a commercially valuable and useful product and holding that even a commercially valuable and useful product becomes a pollutant when it contaminates a river); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118 (2d Cir.1990) (absolute pollution-exclusion endorsement barred coverage for losses incurred when fuel oil escaped from holding tank); Owners Ins. Co. v. Farmer, 173 F.Supp.2d 1330 (N.D.Ga.2001) (holding that diesel fuel is unambiguously a pollutant under the terms of pollution-exclusion clause of insurance policy); North Georgia Petroleum Co. v. Federated Mut. Ins. Co., 68 F.Supp.2d 1321 (N.D.Ga.1999) (absolute pollution-exclusion clause unambiguously excluded coverage for claims arising out of petroleum leaks from underground storage tanks); Guilford Indus. Inc. v. Liberty Mut. Ins. Co., 688 F.Supp. 792, 794 n. 1 (D.Maine 1988), aff'd, 879 F.2d 853 (1st Cir.1989) (table) (“[I]t is common knowledge that oil spills, leaks, or discharges are commonly considered polluting events. Plaintiffs argument that it could not reasonably have expected oil to be considered a pollutant is disingenuous.”); Harrison v. R.R. Morrison & Son, Inc., 862 So.2d 1065, 1072 (La.Ct.App.2003) (holding that policy with pollution-exclusion clause identical to the one here precluded coverage for claims for injury and damage caused when gasoline was released from underground storage tank because “gasoline is a liquid contaminant within the plain meaning of pollutant in the insurance policy” and “the plain meaning of the policy should control”); Wagner v. Erie Ins. Co., 2002 Pa.Super. 166, 801 A.2d 1226 (2002) (gasoline that leaked into soil from underground line clearly was a pollutant pursuant to service station’s insurance policy, which excluded coverage for damage resulting from release of pollutants); Truitt Oil & Gas Co. v. Ranger Ins. Co., 231 Ga.App. 89, 498 S.E.2d 572 (1998) (gasoline that had leaked from storage container and contaminated surrounding environment was pollutant according to unambiguous definition of “pollutant” in insurance policy; therefore, policy did not need to specifically list gasoline as a pollutant); Millers Mut. Ins. Ass’n of Illinois v. Graham Oil Co., 282 Ill.App.3d 129, 135-36, 218 Ill.Dec. 60, 668 N.E.2d 223, 228 (1996) (interpretation of “gasoline” as the term was used in a pollution-exclusion clause as a liquid that can be an irritant or contaminant and therefore a pollutant “comports not only with the plain, ordinary, and popular meaning of ‘pollutant,’ but also with common sense”); Crescent Oil Co. v. Federated Mut. Ins. Co., 20 Kan.App.2d 428, 437, 888 P.2d 869, 875 (1995) (“The clear language of the pollution exclusion excludes coverage for property damage caused by gasoline leaking from [the policyholder’s] underground tanks.”); Heyman Assocs. No. 1 v. Insurance Co. of Pa., 231 Conn. 756, 776, 653 A.2d 122, 133 (1995) (“the clear and unambiguous language of the absolute pollution exclusions excludes coverage for the plaintiffs spill of fuel oil”); Legarra v. Federated Mut. Ins. Co., 35 Cal.App.4th 1472, 1481, 42 Cal.Rptr.2d 101, 106 (1995) (“ ‘[The insured’s] contention that petroleum is not a pollutant within this definition [in the pollution-exelusion clause defining pollutant to include “any solid, liquid, gaseous or thermal irritant or contaminant”] is belied both by science and common sense. Petroleum, either as a liquid or a gas, has been found to be an environmental contaminant or irritant both by courts and legislatures.’ ” (quoting Staefa Control-Sys. Inc. v. St. Paul Fire & Marine Ins. Co., 847 F.Supp. 1460, 1471 (N.D.Cal.1994))); United States Fire Ins. Co. v. Ace Baking Co., 164 Wis.2d 499, 505, 476 N.W.2d 280, 283 (Wis.Ct.App.1991) (“[I]t is a rare substance indeed that is always a pollutant; the most noxious of materials have their appropriate and nonpolluting uses. Thus, for example, oil will ‘pollute’ water and thus foul an automobile’s radiator, but be essential for the engine’s lubrication.”).

In support of their argument that gasoline is not a pollutant, Abston Petroleum and the Schills also cite cases from other jurisdictions. See Governmental Interins. Exch. v. City of Angola, 8 F.Supp.2d 1120 (N.D.Ind.1998) (term “pollutants” as used in absolute pollution-exclusion clause was ambiguous as to whether it included kerosene); Hocker Oil Co. v. Barker-Phillips-Jackson, Inc., 997 S.W.2d 510, 518 (Mo.Ct.App.1999) (“[F]ailure [of the policy] to identify ‘gasoline’ as a pollutant in its pollution exclusion resulted in uncertainty and indistinctness. The policy was, therefore, ambiguous as to whether gasoline was a pollutant for purposes of the exclusion.”); American States Ins. Co. v. Kiger, 662 N.E.2d 945, 949 (Ind.1996) (“the term ‘pollutant’ does not obviously include gasoline and, accordingly, is ambiguous”).

In response to Abston Petroleum and the Schills’ argument that gasoline is not a pollutant under the policy because it is not specifically listed as a pollutant, the Association cites Harnischfeger Ccrrp. v. Harbor Ins. Co., 927 F.2d 974, 976 (7th Cir.1991), in which the United States Court of Appeals for the Seventh Circuit explained why it would be impractical to list thousands of substances in defining “pollutant” in an insurance policy:

“Drafters cannot anticipate all possible interactions of fact and text, and if they could the attempt to cope with them in advance would leave behind a contract more like a federal procurement manual than like a traditional insurance policy. Insureds would not be made better off in the process. The resulting contract would be not only incomprehensible but also more expensive.”

We conclude that the better-reasoned approach is that applied by the majority of courts that have reviewed a pollution-exclusion clause identical to or markedly similar to the clause in the Federated Mutual policy before us. We hold that gasoline, although not a pollutant when properly used for the purposes for which it is intended, is clearly a pollutant when it leaks into the soil from underground lines or tanks or when fumes from such a leak are so dangerous that a business must be closed, as was the case here. The simple fact that gasoline serves a vital purpose when released from a properly constructed tank into the confines of an internal combustion engine does not permit us to blink reality and overlook the deleterious consequences that occur when gasoline is introduced into the soil or when its fumes escape into the atmosphere. Because we conclude that gasoline is clearly a pollutant as that term is used in the policy, any argument that the pollution-exclusion clause is ambiguous cannot be supported. Because we hold that the clause is unambiguous, we need not consider the arguments made by Ab-ston Petroleum and the Schills that we should consider the drafting and regulatory history of such clauses or that the policy must be construed against the insurer, who drafted it.

C. Whether an Insured’s Reasonable Expectations Can Overcome Unambiguous Language

We now turn to the argument made by Abston Petroleum and the Schills that Eddie Abston reasonably expected that any claims involving his gasoline-distribution business would be covered by the Federated Mutual policy, despite his testimony that he never read the pollution-exclusion clause before Federated Mutual denied coverage for the Schills’ claims. This Court limited the doctrine of reasonable expectations as applied to an insurance policy in Slade, supra. We there stated:

“The' rule (or doctrine) of reasonable expectations of the parties is based on Aetna Casualty & Surety Co. v. Chapman, 240 Ala. 599, 200 So. 425 (1941)....
“ ‘In giving effect to [the rule that the insured is entitled to the protection which he may reasonably expect from the terms of the policy he purchases], it is equally important that the contract made by the parties shall prevail, and no new contract be interpolated by construction.
“ ‘Provisions clearly disclosing their real intent are not to be given a strained construction to raise doubts where none reasonably exist. No citation of authority need be made in support of these well settled principles.’
“[Chapman, 240 Ala. at 602, 200 So. at 426-27.]
“In Lambert v. Liberty Mutual Insurance Co., 331 So.2d 260, 263 (Ala.1976), a ‘stacking’ case arising in regard to the statutorily mandated offer of uninsured-motorist coverage, this Court referred to Chapman and then stated:
“ ‘As Professor Keeton analyzes it, the principle of reasonable expectations insures that “[t]he objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.” R. Keeton, Basic Text on Insurance Law § 6.3(a), at 351 (1971).’
“(Emphasis in original.) Then the Court observed that its application' of the rule of reasonable expectations in the context of stacking uninsured-motorist coverages allowed an insured to enjoy increased coverage because ‘where an expectation ... is in conflict with a limiting clause in the policy, the resulting ambiguity must be resolved in favor of the insured due to the nature of insurance contracts.’ Id. at 263.
“However, the Court found that Lambert was not within the zone of persons entitled to have a reasonable expectation of stacked coverages, because he was an employee of the purchaser of the policy. Id. at 263-65. The Court also held that Lambert was not a person required by statute to be covered under uninsured-motorist provisions and that the plain terms of the policy limited the amount of coverage provided for him; this, the Court held, was a separate basis for affirming the summary judgment for the insurer. Id. Given the Court’s finding that Lambert was not within the zone of persons entitled to a reasonable expectation of stacked coverages and its finding of a separate basis for affirming, we must conclude that, to the extent Lambert is inconsistent with Chapman’s requirement that, for the rule of reasonable expectations to apply, there be, as a predicate, doubts as to the real intent of the policy, the statements in Lambert are dicta.
“Moreover, we are not here presented with separate provisions of an insurance policy each of which is unambiguous when read without reference to the other but, when read together, create a conflict giving rise to an ambiguity. Compare West American Ins. Co. v. Biggs, 348 So.2d 258 (Ala.Civ.App.1977). The State Farm policy at issue here clearly limits its coverage by citing the policyholder to a specific ensuing section of the policy that contains several exclusions from coverage. At least one court has found that such a reference gives the insured reasonable notice of the exclusion. See Kane v. Royal Ins. Co., 768 P.2d 678, 684 (Colo.1989).
“Other courts have limited the use of the doctrine of reasonable expectations to situations in which an insurance policy is ambiguous. See, e.g., Rodriguez v. General Acc. Ins. Co., 808 S.W.2d 379, 381 (Mo.1991); Riffe v. Home Finders Assocs., Inc., 205 W.Va. 216, 517 S.E.2d 313 (1999). Furthermore, expectations that contradict a clear exclusion are not ‘objectively reasonable.’ Wellcome v. Home Ins. Co., 257 Mont. 354, 359, 849 P.2d 190, 194 (1993). Such a limit on the doctrine of reasonable expectations is necessary. Otherwise, this Court would be faced with the strong temptation to substitute its notion of equity for the unambiguous terms of a contract and the doctrine could be used to invalidate every policy exclusion. See Millar v. State Farm Fire & Cas. Co., 167 Ariz. 93, 97, 804 P.2d 822, 826-27 (Ct.App.1990), review denied, 168 Ariz. 144, 811 P.2d 1081 (Ariz.1991) (‘If ... all that was required to defeat the operation of a policy exclusion under the reasonable expectation doctrine was a provision attempting to qualify or limit the scope of policy coverage, then every policy exclusion would be invalid as contrary to the insured’s reasonable expectation of coverage.’).
“Accordingly, we conclude that the Slades’ expectations of coverage do not require us to construe their policy so as to find coverage. Their expectations were limited by the unambiguous terms of their policy and therefore their expectations of coverage could not be ‘objectively reasonable.’ See Wellcome, supra.

Slade, 747 So.2d at 311-12.

We therefore hold that the argument that Eddie Abston reasonably expected that any claims involving his gasoline-distribution business would be covered by the Federated Mutual policy does not provide a basis for finding coverage for the Schills’ losses. Eddie Abston’s expectations were limited by the unambiguous terms of the pollution-exclusion clause; therefore, his expectations of coverage could not be “objectively reasonable.”

IV. Conclusion

Because the pollution-exclusion clause is unambiguous, the personal injury and property damage suffered by the Schills are not covered by the Federated Mutual policy issued to Abston Petroleum, and the trial court therefore erred in entering a summary judgment in favor of Abston Petroleum and the Schills on Counts I and II of the complaint. We reverse the judgment and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . We concluded that the substance at issue in Porterfield — lead paint — qualified as a pollutant under the terms of the absolute pollution-exclusion clause in the policy. However, we ruled in favor of the insured because the exclusion was ambiguous in the context of treating the presence of lead-paint flakes, chips, and/or dust in a residential apartment as a discharge, dispersal, release, or escape of a pollutant. 856 So.2d at 805.

      . The policy elsewhere defines "pollutants” as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

      . The Association informs us in its amicus curiae brief that the vast majority of courts nationwide — over 100 cases from 36 jurisdictions — have upheld and enforced pollution-exclusion clauses like the one at issue here, which bar coverage for harms caused by exposure to a variety of pollutants. See Quadrant Corp. v. American States Ins. Co., 154 Wash.2d 165, 173-74, 110 P.3d 733, 738 (2005) (noting number and citing cases): Deni Assocs. of Florida, Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1137 n. 2 (Fla.1998) (same).


source: Caselaw Access Project

author: PITTMAN, Judge. MOORE, Judge,

license: Public Domain

text:
    Michael DODD v. William B. BURLESON and Jeanette Burleson.
    2050556.
    Court of Civil Appeals of Alabama.
    April 20, 2007.

      Oliver J. Latour, Jr., Foley, for appellant.
    M. Lionel Leathers of Leathers Law Firm, Winfield, for appellees.
   PITTMAN, Judge.

This is the second time this grandparent-visitation ease has come before this court. See Dodd v. Burleson, 932 So.2d 912 (Ala.Civ.App.2005) (“Dodd I”). The two-judge main opinion in Dodd I summarized much of the pertinent legal and procedural background:

“As the New Jersey Supreme Court noted in Moriarty v. Bradt, 177 N.J. 84, 109, 827 A.2d 203, 218 (2003), cert denied, 540 U.S. 1177 (2004), courts that have assessed the constitutional application of their states’ grandparental-visitation statutes have typically ‘engaged in one of two modes of analysis: (1) interpreting the statutes to require satisfaction of a harm standard in order to overcome the presumption in favor of a fit parent’s decision or (2) avoiding the articulation of any standard at all and analyzing the statutes on a case-by-case basis.’ Although Troxel [v. Granville, 530 U.S. 57 (2000),] implied that either approach would be acceptable,’ id., certain members of this court, in wrestling with the question of the proper application of § 30-3-4.1[, Ala.Code 1975,] as originally enacted, have voiced support for a harm standard.... This case, however, squarely presents the question whether that standard should be held to have survived the Legislature’s recent amendment of § 30-3-4.1.
“Initial Procedural Background
“In May 2004, William B. Burleson and Jeanette Burleson (‘the grandparents’), who are the maternal grandparents of three children born to Diana Burleson Dodd (‘the mother’) and Michael Dodd (‘the father’), filed a petition in the Marion Circuit Court seeking a pendente lite and permanent award of visitation rights with the children, the appointment of a guardian ad litem to represent the children’s interests, and other appropriate relief. The grandparents alleged that the father had ‘made known his wishes to deny visitation rights’ to the grandparents; they also averred that their visitation with the children would be in the children’s best interests and would not endanger their physical or emotional health. The father answered the petition and averred that § 30-3-4.1 violated his due-process rights under the United States and Alabama Constitutions; however, he did not serve the Attorney General with a copy of his answer asserting that constitutional challenge. The grandparents then sought additional pendente lite relief upon learning that the father had moved from Marion County to Baldwin County with two of the three children.
“Trial Proceedings
“The trial court then held an ore ten-us proceeding over three separate days in June and August 2004. The evidence adduced at those hearings tended to indicate that the father had married the grandparents’ daughter in 1985 and that that marriage had produced three children: an older daughter who is no longer a minor, a younger daughter who is now 16 years old, and a son who is now 7 years old. During the marriage, the father, the mother, and the children all lived in Marion County in close proximity to the grandparents. According to the daughters’ testimony, the children spent a lot of time at the grandparents’ residence. Specifically, in May 2001, the mother was diagnosed with breast cancer; during and after the surgical treatment of that cancer, the grandparents provided assistance in the care of the children. In October 2001, the father suffered severe injuries from a mishap involving the operation of a motorcycle; he was hospitalized for over a month and underwent physical therapy for several months thereafter, during which period the grandparents provided the bulk of the children’s care.
“In November 2002, the mother was again diagnosed as having cancer. However, unlike the mother’s previous onset of cancer, surgical treatment was unavailable, and she died in February 2003. During the mother’s final illness, relations between the father and the older daughter became strained; after the mother’s death, the father began severing relationships with family friends and entered into a social relationship with a widow from Walker County, a mother of two children, whom the father would later marry. During their courtship, which involved a brief cohabitation, relations between the father and the grandparents became increasingly tense, which began to affect the previously close relationship that the grandparents had had with the children. It appears that the father resented the grandparents’ profound disapproval of his eventual second wife, or at least their disapproval of the extent and rapid development of the father and his second wife’s relationship, as well as the grandparents’ recounting to the children their memories of the mother; the father began occasionally denying the children permission to visit with the grandparents and wrote a letter to the grandparents insisting that the grandparents ‘keep [their] negative comments and opinions to’ themselves when the children were present.
“The father married his new wife in December 2003; however, the relationship between the father and the grandparents did not improve. In fact, not only did that relationship worsen, but the father also quarreled to such an extent with the older daughter that he screamed at her, slapped her repeatedly, and directed her to move out of the family home; she was not permitted to resume living in the family home for the remainder of her minority. Matters between the father and the grandparents appeared to come to a head in late April and early May 2004; in apparent reaction to the grandparents’ discussion of the mother in the son’s presence, the father began denying all contact between the son and the grandparents and sent a letter to the grandparents threatening either to move from Marion County or to obtain a restraining order preventing contact between the grandparents and the two younger children. After the grandparents initiated the instant action seeking visitation rights, the son informed the grandparents that he had been forbidden to ever return to the grandparents’ home.
“At the first hearing in the cause, on June 22, 2004, the father, the older daughter, and the mother of one of the older daughter’s friends testified. The older daughter testified, in pertinent part, that she had been kicked out of the family home after a violent quarrel but that she and the father had since been attending counseling sessions. The older daughter described the grandparents as ‘[w]onderful’ and agreed that they had been an integral part of the lives of each of the children.
“The older daughter opined that the grandparents loved her ‘[unconditionally,’ but when asked whether the grandparents would love and take care of her siblings the same way, she responded, ‘They want to, but he [the father] won’t let them.’ The older daughter testified that the grandparents had purchased a number of items for the younger sister and had attended a number of sporting and cheerleading events involving the daughters. She also testified that the son had asked her on each occasion she had seen him since she had moved out whether he could see the grandparents but that, upon being reminded of the situation, he had stated[,] ‘Oh yeah. Daddy won’t let me.’ The older daughter admitted to wishing that she could, in stealth, take her siblings to the grandparents’ home to visit with them, and she testified that the children, being the grandparents’ only grandchildren, were ‘all [the grandparents have] got left’ following the mother’s death.
“At the second hearing, on June 28, 2004, among the' witnesses called by the parties was the younger daughter. The younger daughter testified at that hearing that she and the son loved her grandparents and that she wanted the grandparents to remain a part of her life; however, she testified that she had not visited with the grandparents in four months. The younger daughter expressed a desire to see the grandparents ‘like we used to, when we wanted to, or when we went over’ instead of, in her words, being ‘forced to see them any certain amount of time’; she added that she did not want either the father or the grandparents to be mad at her. The younger daughter expressed optimism that the father would not interfere with visitation between the two younger children and the grandparents, but she admitted that as of the date of the hearing she had lost the ability to simply telephone the grandparents and ask to visit them. Finally, the younger daughter testified that there had been discussions between family members about the father, his new wife, and the two younger children moving from Winfield, which is located in Marion County, but that she had been told that such a move would not happen ‘any time soon.’
“A third hearing in the cause occurred on August 11, 2004, at which all of the parties and a number of other witnesses testified. During that hearing, it was revealed that the father, his new wife, and the two younger children had moved from Winfield to Fairhope, which is located in Baldwin County, in early July 2004 and that the previous family home in Winfield had been listed with a broker for sale. The father admitted during that hearing that no relatives of the father or his new wife lived in Fairhope and that the move had been prompted by a desire to ‘start over’ in a place free of ‘rumors.’ The father denied that the move was made solely to keep the younger children from the grandparents.
“After the three hearings, the trial court entered a judgment granting the grandparents’ petition on August 20, 2004. In pertinent part, the trial court’s judgment referred to the significant relationship that the grandparents had had with the children, including ‘quasi-parental’ duties as to their care during 2001; the judgment specifically determined that visitation between grandparents and the children would be in the best interests of the children. The visitation awarded consisted of the following periods: one 24-hour period every two weekends, a six-week period each summer, one week beginning on Christmas Day, one week during school spring break, three days at Thanksgiving, and one day at Easter and on Mother’s Day weekend. The father was directed to transport, either personally or via a des-ignee, the children to and from the Win-field City Hall for visitation. The grandparents were also awarded reasonable telephone contact with the children. The father was also cited (but not punished) in the judgment for his contempt of particular interlocutory orders, and he was made responsible for paying an attorney fee to counsel for the grandparents and to the children’s guardian ad litem.”

Dodd I, 932 So.2d at 915-18.

The main opinion in Dodd I pretermit-ted review of four issues that had not been preserved at the trial level (the validity of a visitation order apparently rendered on July 16, 2004; the allowance of the grandparents’ amended complaint; the taxation of the guardian ad litem’s fee to the father; and the award of an attorney fee to the grandparents), and opined that the father’s direct challenge to § 30-3-4.1, as applied to him, was foreclosed because he had failed to serve the Attorney General with a copy of his answer. 932 So.2d at 918. The main opinion in Dodd I did, however, review (and reject) the father’s argument that a harm standard should be applied to the grandparents’ visitation request:

“The father’s second challenge to the visitation aspects of the trial court’s judgment asserts that the trial court should not have, as he says, determined the question of visitation based upon a best-interests standard. It is that challenge that squarely presents for review whether § 30-3-4.1, as amended, should be held to require a showing of harm as a prerequisite for a judgment awarding grandparental visitation. For the reasons stated herein, we conclude that the application of the harm standard does not survive the Legislature’s 2003 amendments to § 30-3-4.1.
“In R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001), we reversed a judgment awarding ‘overnight and other unsupervised visitation rights to [a] grandfather, consisting of one weekend per month, as well as an additional day during the week preceding New Year’s Day and one day for Grandparents’ Day.’ 812 So.2d at 364. Although all five judges of this court concurred in the reversal, three judges concluded that § 30-34.1, as then in effect, was unconstitutional as applied to the litigants in that case, whereas one judge concluded that § 30-3-4.1 was facially unconstitutional. Both the main opinion and Presiding Judge Yates’s special writing in R.S.C. agreed that that portion of former § 30-3^4.1(e) setting forth a rebuttable presumption in favor of grandparental visitation was, under Troxel [v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000) ], unconstitutional.
“In L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002), four judges of this court agreed that Troxel did not compel a conclusion that § 30-3-4.1 had no constitutional field of application (thereby rejecting the proposition that § 30-3-4.1 was facially unconstitutional). The main opinion (joined by two judges) indicated that § 30-3-4.1, without the presumption in favor of grandparental visitation, was ‘enforceable because it provides a standard — the factors listed in § 30-3-4.1(d) — upon which the court may rely in determining when and under what circumstances to award visitation.’ 826 So.2d at 187. Under the rationale set forth in the main opinion, so long as a petitioning grandparent adduced ‘clear and convincing evidence’ that the best interests of the pertinent child would be served by awarding grandparental visitation, a trial court could properly award such visitation on a case-by-case basis. 826 So.2d at 186-87. However, two other judges who agreed that § 30-3-4.1 was not facially unconstitutional opined in L.B.S. that, as a matter of due process, a grandparent seeking a visitation judgment must make a showing of substantial harm to the child if the requested visitation is not granted. L.B.S., 826 So.2d at 187, 188 (opinions of two judges concurring in the court’s judgment of reversal only). Because the ‘harm’ class of cases amounted to a subset of the larger class of cases as to which former § 30-3-4.1 could be constitutionally applied under the main opinion in L.B.S., appellate decisions since L.B.S. pertaining to grandparental visitation have tended to analyze whether the facts in those cases fit within the narrower ‘harm’ class. C.D.P. v. D.P., 927 So.2d 841 (Ala.Civ.App.2005), and Richburg v. Richburg, 895 So.2d 311 (Ala.Civ.App. 2004).
“However, as we have intimated, the Legislature has not simply remained silent since R.S.C. and L.B.S. In 2003, the Legislature enacted Act No. 2003-383, Ala. Acts 2003, in response to the infirmities identified by this court in the aftermath of Troxel. First, in Act No. 2003-383, the Legislature removed the portion of § 30-3-4.1(e) that had provided that ‘[tjhere shall be a rebuttable presumption in favor of visitation by any grandparent’ so as to remove the language that had largely impelled this court’s decision in R.S.C. concerning the constitutionality of former § 30-3^4.1. Second, the Legislature specifically amended § 30-3-4.1(d) so as to include ‘the wishes of any parent who is living’ among the factors to be considered in determining whether the best interests of a child would be served by awarding grandparental visitation, making explicit what the main opinion in L.B.S. had held to be implicit in the general direction in former § 30-3-4.1(d)(6) that trial courts are to consider ‘[ojther relevant factors’ in their best-interests calculus. Notably, however, the Legislature in 2003 reaffirmed the statutory best-interests standard despite intimations from members of this court that a harm standard was constitutionally required: where § 30-3-4.1(d) formerly provided that a trial court ‘shall grant any grandparent of the child reasonable visitation rights if the court finds that the best interests of the child would be served by the visitation,’ § 30-3-4.1(d), as amended in 2003, provides that ‘the court shall determine if visitation by the grandparent is in the best interests of the child.’
“We can interpret the 2003 amendments to § 30-3^11 only as an endorsement by the Legislature of the judiciary’s use of the case-by-case approach taken by the main opinion in L.B.S. and as a simultaneous rejection of the proposition that the ‘harm’ standard should be the touchstone by which the propriety of a judgment awarding grandparental visitation should be judged. Moreover, contrary to the position espoused in certain special writings in L.B.S., it has become clear in the five years since Troxel was decided that due process does not require a showing of harm in all cases as a prerequisite to a judgment awarding grandparental visitation. Indeed, Trox-el itself appears to stand for the opposite proposition, as the Oregon Supreme Court recently noted:
“ ‘[A] majority of the Court strongly indicated [in Troxel] that the presumption in favor of a parent’s decisions was not so strong that it could be overcome only by a showing that the parent poses a risk of harm to the child. As previously discussed, Justices Stevens and Kennedy each expressly rejected the Washington Supreme Court’s conclusion that a finding of harm to the child is required to overcome the parental presumption .... Moreover, the plurality declined to consider the lower court’s reliance on the “harm” standard ... but cited tuith approval various statutes that would be inconsistent with such a standard.’
“In re Marriage of O’Donnell-Lamont, 337 Or. 86, 101, 91 P.3d 721, 730 (2004) (emphasis added), cert. denied, 543 U.S. 1050, 125 S.Ct. 867, 160 L.Ed.2d 770 (2005).
“In reaching the conclusion that under § 30-3-4.1, as amended in 2003, a harm standard is neither constitutionally required nor desired by the people of Alabama (speaking through their elected representatives in the Legislature), we follow the lead of the Kentucky Court of Appeals. That court, in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky.Ct.App.2004), overruled Scott v. Scott, 80 S.W.3d 447, 451 (Ky.Ct.App.2002), which had held that ‘grandparent visitation may only be granted over the objection of an otherwise fit custodial parent if it is shown by clear and convincing evidence that harm to the child will result from a deprivation of visitation with the grandparent.’ (Footnote omitted.) The rationale in Vibberi is instructive in this case, and we adopt it as our own:
‘Scott imposed an unworkable standard of proving by clear and convincing evidence that harm to the child would result from discontinuing the relationship between a child and a grandparent. We believe that the Scott court incorrectly interpreted the Troxel case ... as requiring such a strict standard, holding that the familiar “best interest” standard was no longer constitutionally permissible. However, the Supreme Court carefully avoided setting any such precedent in Troxel, as the plurality opinion of the Court explicitly stated:
“ ‘ “we do not consider ... whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.”
‘Troxel [, 530 U.S. at 73, 120 S.Ct.] at 2064. Nevertheless, this Court in Scott created a standard which was, at the time, believed to satisfy the requirements of Troxel. It is the opinion of this Court now that Scott set an unnecessarily strict and unworkable standard.
“ ‘We believe that a modified “best interest” standard can be used in cases where grandparent visitation is sought within the constitutional framework of Troxel. What Troxel requires us to recognize is that a fit parent has a superior right, constitutionally, to all others in making decisions regarding the raising of his or her children, including who may and may not visit them. A fit parent’s decision must be given deference by the courts, and courts considering the issue must presume that a fit parent’s decision is in the child’s best interest.
“ ‘Where we differ from Scott is in the method by which grandparents may challenge that decision. Scott allows only one avenue for grandparents to challenge the decision, requiring them to show by clear and convincing evidence that depriving the child of visitation with the grandparent would harm the child. We believe this test to be too narrow, in that among other things it does not adequately take into account a situation where visitation is withheld by the parents out of vindictiveness.
“ ‘We now hold that the appropriate test under [the applicable grandpa-rental-visitation statute] is that the courts must consider a broad array of factors in determining whether the visitation is in the child’s best interest, including but not limited to: the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time spent together; the potential detriments and benefits to the child from granting visitation; the effect granting visitation would have on the child’s relationship with the parents; the physical and emotional health of all the adults involved, parents and grandparents alike; the stability of the child’s living and schooling arrangements; the wishes and preferences of the child. The grandparent seeking visitation must prove, by clear and convincing evidence, that the requested visitation is in the best interest of the child.’
144 S.W.3d at 294-95 (emphasis added [in Dodd I ]).
“The father’s second argument assumes the continued vitality of the proposition that a case must fall within the harm subset in order for a judgment awarding grandparental visitation to be affirmed. Although that stance might have had some practical force in the legal climate existing before the Legislature’s amendments to § 30-3^1.1, it is inconsistent with the conclusion we reach today concerning the effect of those amendments. Moreover, the trial court’s decision to award definite visitation to the grandparents, given the factual background leading up to that court’s judgment, is wholly consistent with the letter and spirit of § 30-3-4.1. Thus, to the extent that the trial court applied a ‘best interests’ standard in conformity with § 80-3-4.1(d) that accounts for the pertinent factors specified by the Legislature, especially the wishes of a living parent such as the father, we cannot conclude that that judgment is in error.”

Dodd I, 932 So.2d at 918-21.

Although the main opinion in Dodd I rejected the “harm” standard, it did sustain the father’s argument that in award- . ing the grandparents visitation, the trial court was acting outside its discretion:

“Under the terms of the trial court’s judgment, the father’s two minor children will be required to travel with the father (or his designee) between their new home in Fairhope and the Winfield City Hall, a round-trip distance of approximately 600 miles, once every two weeks for a single day of visitation, not to mention being required to spend substantial amounts of time with their grandparents during each academic-vacation period, including six weeks during the summer. While the father’s actions in moving to Fairhope could properly have been determined to have been calculated to deprive the grandparents of any contact with the minor children, we cannot conclude that the proper remedy for that conduct is to impose such a rigorous visitation schedule that would have such adverse effects on the minor children. Compare Mann v. Mann, 725 So.2d 989, 993 (Ala.Civ.App.1998) (reversing, as an abuse of discretion, a visitation judgment that ‘require[d] the children, ages two and four, to be in the car for approximately eight hours’ every other weekend).
“Under the trial court’s judgment, the remaining minor children are at risk of being prevented from forming and maintaining any substantial social and familial bonds in their new home community, a result that we are confident was not intended by the Legislature. In its zeal to reconstitute the previous relationship between the grandparents and the minor children, the trial court has, we feel, overlooked the overarching goal that § 30-3^11 was intended to achieve: furtherance of children’s best interests through reasonable visitation with grandparents. As to the specific amount and terms of visitation awarded by the trial court, then, we must reverse the trial court’s judgment; we remand for the trial court, being mindful of the need of the children to be a part of their new home, to craft a new judgment permitting more limited visitation with the grandparents.”

932 So.2d at 921-22 (footnote omitted).

One judge concurred in the main opinion in Dodd I, and three judges concurred in the result. Presiding Judge Crawley, joined by Judge Bryan, opined in a special writing that the main opinion unnecessarily discussed “what showing would be required as a matter of due process in order to award grandparental visitation under the amended statute,” while Judge Mur-dock indicated his continued adherence to his views expressed in R.S.C. and L.B.S. 932 So.2d at 922.

On remand from Dodd I, the trial court entered a new visitation judgment. In pertinent part, the judgment on remand provides that the grandparents are to have (1) “summer visitation” consisting of “[fourteen days during the non-school months in two seven-day increments,” as to which “[t]he father ... shall ... give written notice by certified mail to the ... grandparents ... of the two periods that he deems would least interfere with the formation and maintenance of the minor children’s social and familial bonds in their new home community”; (2) Christmas visitation “[f]rom 12:00 noon December 27th to 12:00 noon January 1st, New Year’s Day, a period of five days”; (3) Thanksgiving visitation “[f]rom 12 noon on the Friday after Thanksgiving to 12:00 noon Sunday, a period of two days”; and (4) spring-break visitation “[f|rom 12:00 noon on Saturday of the break until 12:00 noon Wednesday, a period of four days.” After noting that it had specifically awarded visitation equaling 25 days, or approximately “6.85% of a calendar year,” the trial court also noted that the grandparents were to have “additional” visitation “at other reasonable times and places to be exercised in Baldwin County, Mobile [County] or the Florida panhandle” upon giving 60 days’ advance notice by certified mail to the father, whereupon the father would have 30 days within which to deny the requested visitation by “specifically stating [his] reasons” for doing so. The parties were directed to exchange the children for visitation in Prattville, Alabama, unless otherwise agreed. The grandparents were also awarded “reasonable telephone contact” with the children, which that court defined as “a telephone call placed by the [grandparents] to [the father’s] home telephone number on alternating days with the [grandparents’] actually speaking with each child for a minimum of 10 minutes without interruption or excuse.” The grandparents were also granted the right to “reasonable contact with their grandchildren in public venues.”

The father again appeals. He first posits that the visitation schedule set forth on remand is not “reasonable” within the mandate of the main opinion’s instructions in Dodd I. We disagree; the trial court has substantially. reduced a visitation award that would have resulted in the children traveling back and forth across Alabama once every two weekends and every Easter and Mother’s Day, as well as requiring them to spend six weeks away from home each summer and one week each winter and spring academic break. Limiting the grandparents to in-person visitation of 14 days in the summer and 11 days during fall and spring school terms, apart from visitation approved by the father, seems to us to be well within the realm of a “reasonable” award of visitation within the meaning of Dodd I.

The father also contends that the visitation awarded on remand exceeds “that which was reasonably necessary to avoid ... harm.” In so contending, the father expressly invokes the “harm” standard as evoked by the special writings in R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ. App.2001), and L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002) (as well as Judge Murdock’s dissenting opinion in K.S. v. H.S., 900 So.2d 1223 (Ala.Civ.App.2004))— a standard the main opinion in Dodd I noted was not consistent with the Legislature’s intent in amending § 30-3-4.1. Because there may be some confusion engendered by the fact that Dodd I was not a majority opinion, we take this opportunity, as a court, to expressly and unequivocally reaffirm the principles espoused in the main opinion in Dodd I: (a) that the Legislature, by amending § 30-3-4.1, espoused the judiciary’s use of the case-by-case approach taken by the main opinion in L.B.S. as to the propriety of a specific award of grandparental visitation, rather than endorsing the “harm” standard; (b) that due process does not require a showing of harm in all cases as a prerequisite to a judgment awarding grandparental visitation; and (c) that, in lieu of applying a “strict and unworkable” harm standard, courts must consider a “broad array of factors” in determining whether the visitation with the grandparents is in the child’s best interests. Because the father’s invocation of the discarded “harm” standard is inconsistent with the main opinion in Dodd I and with § 30-3-4.1, as amended, his argument is fundamentally flawed, and we reject it.

The father further argues, in other portions of his brief, that the trial court’s judgment on remand is erroneous because, he says, the trial court “failfed] to consider the wishes of a fit parent,” a factor specified in § 30-3-4.1(d)(6) as a component of the 2003 amendment to that statute. At trial, when the father was asked what visitation between the grandparents and the children, if any, he believed would be appropriate, he replied that visitation during school weeks would “probably be out of the question”; that he wanted the children “to be able to go to the worship service that they choose to go to at then1 new home”; and that as to weekends, he had “no problems with [the grandparents] coming down [to Fairhope] and seeing those kids, just so it doesn’t disrupt their whole lives.” According to the father’s brief, the trial court “simply did not in any way take into consideration the wishes of’ the father by awarding visitation that did not precisely conform to that testimony.

The father’s argument is not sound. The trial court could well have concluded, consistent with § 30-3^f.l(d)(6), that the father’s concerns regarding the children’s involvement in school and in church activities were well founded, and that court’s judgment on remand reflects a salutary regard for those concerns in that it limits visitation to academic break periods scattered through the calendar year. The trial court could simultaneously have properly determined, notwithstanding the father’s desire that the grandparents come to Fair-hope, that the children should spend “guaranteed” visitation periods with the grandparents in Winfield, the community in which the children had spent them entire lives before the father remarried and chose to relocate, and we reject the father’s intimation that the location of the visitation expressly ordered reflects a complete disregard for the father’s wishes in contravention of § 30-3-4.1(d)(6).

The father also objects to certain other provisions of the trial court’s order on remand. The father’s arguments regarding what he terms “oppressive” telephone-contact guarantees under the trial court’s judgment on remand are supported, if at all, by only general citations to Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), R.S.C., and L.B.S., and by anecdotal remarks concerning what telephone contact might normally be awarded a parent in a custody order involving two divorcing parents. “Citations to general authority do not meet the requirements of Rule 28, Ala. R.App. P.,” regarding the adequacy of arguments to warrant substantive appellate review. Stockton v. CKPD Dev. Co., LLC, 936 So.2d 1065, 1078-79 (Ala.Civ.App.2005).

The father also complains of various provisions incorporated into the judgment on remand that first appeared in the trial court’s original judgment, including provisions restraining the parties from disparaging one another, directing the parties to cooperate, mandating that the father provide the grandparents with a copy of the children’s medical-insurance cards for use in emergencies, stipulating that the parties will notify one another of emergencies involving the children, and requiring the father to provide the grandparents with copies of the children’s academic calendars and written notices of the time and nature of their activities. The propriety of those specific additional provisions was not raised on the initial appeal in this case; consequently, we do not reach that issue in this second appeal. See Bankruptcy Auths., Inc. v. State, 620 So.2d 626, 627 (Ala.1993) (failure of appellant to raise issue in first appeal pertaining to error allegedly existing in judgment barred review of that issue on second appeal).

As the foregoing history, facts, and authorities reveal, this appeal, when stripped to its essence, presents a simple question:' Did the trial court act correctly in entering a judgment on remand from this court in Dodd I that afforded the grandparents substantially less in terms of guaranteed visitation than its previous judgment had? Because we are convinced that the judgment on remand “further[s] [the] children’s best interests through reasonable visitation with [the] grandparents,” Dodd I, 932 So.2d at 922, we answer that question in the affirmative. The trial court’s judgment is therefore affirmed.

AFFIRMED.

THOMPSON, P.J., concurs.

MOORE, J., concurs in the result, with writing, which BRYAN and THOMAS, JJ., join.

MOORE, Judge,

concurring in the result.

As Judge Murdock, Judge Crawley, and Judge Bryan, concurring in the result in the earlier opinion in this case, concluded, this case does not involve a consideration of the constitutionality of § 30-3-4.1, Ala. Code 1975. Dodd v. Burleson, 932 So.2d 912, 922-23 (Ala.Civ.App.2005) (“Dodd I”). Hence, this case is not an appropriate vehicle for this court to settle the question of whether § 30-3-4.1 offends the Due Process Clause of the Fourteenth Amendment by not requiring a showing of substantial harm in all cases as a prerequisite to awarding grandparental visitation. Therefore, I cannot join in the main opinion’s decision to “reaffirm” the principles set out in Dodd I, which were dictum in that opinion.

This case involves the simple question of whether the trial court, on remand, properly complied with this court’s order that it craft a reasonable visitation order that would serve the best interests of the children. Section 30-3-4.1 sets out factors the trial court must consider when determining whether grandparents should be given visitation rights; it does not create any standards regarding the mode or manner of visitation or establish any factors a trial court must consider when fashioning its visitation order. The statute is silent as to the procedure to be followed once the trial court has determined it is in the best interests of the child to have visitation with the grandparents.

Apparently, the Legislature, in amending § 30-3-4.1, intended that the appropriateness of the method and manner of grandparent visitation would be determined as under preexisting law. Alabama law has long held that when granting visitation to grandparents, the trial court has broad discretion in determining the mode of the visitation, the duration of the visitation, the location of the visitation, the scope of the visitation, and any restrictions or conditions on the visitation based on the best interests of the children, and its order will be reversed only if it abuses that discretion. See, e.g., Cockrell v. Sittason, 500 So.2d 1119 (Ala.Civ.App.1986). The father has failed to show that the trial court’s visitation plan was unreasonable and thus an abuse of its discretion. Accordingly, although I cannot concur in all respects with the analysis in the main opinion, I concur in the decision to affirm the trial court’s visitation order as revised on remand.

BRYAN and THOMAS, JJ., concur.

      . Similar telephone contact with the children was afforded to the father during periods the children were visiting with the grandparents.

      . Of course, in citing Vibbert v. Vibbert, 144 S.W.3d 292 (Ky.Ct.App.2004), with approval, the main opinion in Dodd I should not be interpreted as favoring the "array of factors" stated in Vibbert over the factors specified by the Alabama Legislature in § 30-3-4.1(d). To the extent of any conflict that might exist between the two lists of factors, those specified in § 30-3-4.1(d) would be binding upon Alabama courts.

      . Of course, any additional agreed-to visitation under the judgment on remand that the father permits to take place will be within Mobile and Baldwin Counties or in northwest Florida, locations in relatively close proximity to Fairhope. Although the father seizes upon that provision as indicating that the trial court disregarded his wishes regarding the place of visitation, that provision is properly viewed as deferring to the father's wishes as to how closely to limit any other visitation outside the guaranteed visitation between the grandparents and the children.


author: McMILLAN, Presiding Judge.

text:
    Jimmy Lee WEBB v. STATE.
    CR-04-0692.
    Court of Criminal Appeals of Alabama.
    Dec. 23, 2005.
    Jimmy Lee Webb, pro se.
    Troy King, atty. gen., and Kristi L. Dea-son Hagood, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

On November 9, 2004, Jimmy Lee Webb filed a Rule 32, Ala. R.Crim. P., petition, challenging his 1997 conviction for second-degree assault. Webb had pleaded guilty to the charge, and he had not appealed. The State moved to dismiss the Rule 32 petition, arguing that the petition was precluded on numerous grounds and also that on its face it was not meritorious. The trial court summarily dismissed the petition, finding that Webb had waived the alleged defects when he pleaded guilty and that the petition failed to state a claim upon which relief could be granted. We remanded the case by order for the trial court to clarify whether it had granted Webb’s in forma pauperis request or whether Webb had paid the filing fee. The trial court has now filed a return, indicating that on December 13, 2004, Webb was found to be indigent and was granted informa pauperis status.

On appeal, Webb reiterates three of the four issues he raised in his Rule 32 petition. Webb has abandoned a claim that he was deprived of the right to confront the witnesses against him. In cases in which the death penalty has not been imposed, this court is not obligated to consider issues that are not presented in briefs on appeal. Rule 45B, Ala. R.App. P.

I. and III.

Webb contends that the trial court lacked jurisdiction to sentence him because the hearing was conducted in the judge’s chambers, instead of in open court. This claim cannot be considered because Webb failed to object on that ground at the trial court level. The right to a public trial may be waived by the defendant’s failure to object in the trial court to the exclusion of the public. Fisher v. State, 480 So.2d 6, 7 (Ala.Crim.App.1985).

Webb also contends that his indictment was insufficient because it did not allege that the assault was on a correctional officer while the officer was engaged in the performance of his duties. This claim is without merit because Webb was charged under subsection (a)(2) of § 13A-6-21, Ala. Code 1975, rather than under subsection (a)(4). Subsection (a)(2) does not include as an element that the victim be a correctional officer.

II.

Webb contends that the trial court lacked jurisdiction to . sentence him because the court failed to give him an allocution. The State acknowledges that Alabama courts have found that a failure to give a defendant an allocution renders the defendant’s sentence “erroneous” and asks this court to remand the case for an evidentia-ry hearing on the validity of Webb’s claim.

In Ex parte Anderson, 434 So.2d 737-38 (Ala.1983), the Alabama Supreme Court held that, without an allocution or a waiver of allocution, a defendant’s sentence is erroneous and the ease must be remanded. This court has followed Anderson in numerous cases, including Cline v. State, 571 So.2d 368, 372 (Ala.Crim.App.1990). In Newton v. State, 673 So.2d 799 (Ala.Crim.App.1995), the majority relied on Anderson and Cline in holding that, without evidence of an express waiver, the trial court’s failure to afford the defendant his right to allocution violated his due-process rights. The minority dissenting-in Newton noted that the defendant’s sentence had been reduced by a highly favorable negotiated plea agreement and that any error in failing to grant allocution was harmless because it was apparent from the record that the trial judge would not have been receptive to any further reduction in sentence. The minority also indicated that it agreed with Judge Bowen’s dissent in Lancaster v. State, 638 So.2d 1370 (Ala.Crim.App.1993), that allocution is not a jurisdictional matter and therefore may be waived.

This court is bound by precedent and by the decisions of the Alabama Supreme Court, and we must therefore remand this cause for a hearing on the validity of Webb’s claim that he was denied an allocution. However, we note that Webb’s sentence was the result of a favorable plea agreement and that he has not presented any evidence that is likely to mitigate his sentence on remand.

For the foregoing reasons, we set aside Webb’s sentence and remand this cause to the circuit court for resentencing in compliance with the prevailing law.

REMANDED WITH DIRECTIONS.

BASCHAB, J, concurs. COBB, SHAW, and WISE, JJ., concur in the result.

      . Subsection (a)(2) of § 13A-6-21 provides that a person commits the crime of assault in the second degree if, ”[w]ith intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or a dangerous instrument.”
      Subsection (a)(4) provides that a person commits assault in the second degree if, "[w]ith intent to prevent a peace officer . .. from performing a lawful duty, he or she intends to cause physical injury and he or she causes physical injury' to any person.”
      In its response to Webb’s petition, the State explained that Webb's indictment charged that, "with intent to cause physical injury to another person, [Webb] cause[d] physical injury to Walter Rogers by means of a deadly weapon or a dangerous instrument, to-wit: by stabbing him with a sharp instrument.”

      . Webb was charged with two counts of assault in the second degree. Pursuant to the plea agreement, one of those counts was dismissed.

       Note from the reporter of decisions: On June 23, 2006, the Court of Criminal Appeals dismissed the appeal, without opinion.


author: BASCHAB, Presiding Judge.

text:
    Robert Ray THOMPSON v. STATE of Alabama.
    CR-06-0658.
    Court of Criminal Appeals of Alabama.
    April 27, 2007.
    Robert Ray Thompson, pro se.
    Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

On April 16, 1996, the appellant, Robert Ray Thompson, pled guilty to one count of unlawful distribution of a controlled substance in case number CC-94-429, one count of third-degree robbery in case number CC-95-831, and one count of third-degree robbery in case number CC-96-339. The trial court sentenced him, as a habitual offender, to serve concurrent terms of life in prison. See § 13A-5-9(c), Ala.Code 1975. On May 22, 2006, the appellant filed a motion for reconsideration of his sentences pursuant to § 13A-5-9.1, Ala.Code 1975. Without requiring a response, the circuit court summarily denied the motion. This appeal followed.

The appellant argues that the circuit court erred when it denied his motion to reconsider his sentence in case number CC-94-429. In its order denying the petition, the circuit court found as follows:

“The defendant has filed a Motion pursuant to § 13A-5-9.1, Code of Alabama 1975, for the Court to apply amended § 13A-5-9 retroactively to modify his life sentences in each of the above numbered cases. For the reasons set forth below, the defendant does not qualify for a retroactive modification of those sentences.
“The Morgan County grand jury indicted the defendant for the unlawful sale of cocaine in Case No. CC 94-429, for two counts of first degree robbery in Case No. CC 95-831 and for one count of first degree robbery in Case No. CC 96-339. Having at least four prior felony convictions and being faced with the prospects of two mandatory life without parole sentences if convicted of robbery in the first degree, a Class A felony, in Case Nos. CC 95-831 and CC 96-339, the defendant negotiated the following-plea agreement with the State: he would plead guilty to third degree robbery, a lesser included offense, in each of Case Nos. CC 95-831 and CC 96-339 and to the unlawful sale of cocaine, a Class B felony, in Case No. CC 94-429. In consideration of these pleas, the State agreed to recommend that he be sentenced to life imprisonment on each conviction to run concurrent with each other. The Court accepted the proposed agreement and upon the defendant’s pleas of guilty, sentenced him in accordance with the State’s recommendation.
“There are only two classes of convicted defendants who qualify for retroactive modification of them sentences imposed pursuant to the Habitual Felony Offender Act (HFOA): those sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those sentenced to mandatory life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. In Case Nos. CC 95-831 and CC 96-339, the defendant does not fall into either of these classes because he was convicted of Class C felonies which had a punishment range under the HFOA of fifteen years minimum to life or 99 years maximum.
“While the defendant did receive the mandatory life sentence under the HFOA on his conviction for the unlawful sale of cocaine, a Class B felony, in Case No. CC 94-429, a retroactive reduction of that concurrent sentence pursuant to § 13A-5-9.1 would be a useless act and serve no purpose. The defendant would still have to serve the life sentences imposed in the other two cases on his third degree robbery convictions because the Court has no authority to modify those sentences.
“The Court is satisfied, therefore, that the defendant is not qualified as a matter of law to have his three life sentences modified pursuant to § 13A-5-9.1, Code. It is ORDERED AND ADJUDGED by the Court that his Motion for court ordered evaluation by the Department of Corrections and for the retroactive modification of his sentences is denied.”

(C.R. 43-44.)

With regard to case number CC-95-831 and case number CC-96-339, we agree with the circuit court’s finding that the appellant was not eligible for reconsideration of his sentences. With regard to case number CC-94-429, we addressed a similar situation in Ferrell v. State, 944 So.2d 162, 163-64 (Ala.Crim.App.2006), as follows:

“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(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A-5-9(c)(2), see Prestwood, [ v. State, 915 So.2d 580 (Ala.Crim.App.2005) ]; and (3) the inmate is a “nonviolent convicted offender.” An inmate must satisfy all three requirements before he or she is eligible for reconsideration of sentence under § 13A-5-9.1.’

“Holt v. State, 960 So.2d 726, 734-735 (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 reeo'n-.sideration 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.”

(Footnote omitted.) See also Vinson v. State, 950 So.2d 1233 (Ala.Crim.App.2006); White v. State, 947 So.2d 436 (Ala.Crim. App.2006).

In case number CC-94-429, the record indicates that the appellant satisfied the first two eligibility requirements set forth in Holt. However, the circuit court did not determine whether he was a nonviolent offender. Rather, it found that he was not eligible for reconsideration of his sentence in case number CC-94-429 based on its determination that resentencing him would be pointless because he was also serving life sentences in two other cases. Once eligibility has been determined, the fact that resentencing the offender in a particular case would be pointless because he is also serving another sentence may be a relevant and material factor to consider when deciding whether to resentence him. However, it is not relevant when making the initial determination of whether the offender is eligible to have his sentence reconsidered. Therefore, the circuit court erroneously based its determination that the appellant was not eligible to have his sentence in case number CC-94^129 reconsidered on the fact that it would be pointless because he was also serving life sentences in two other cases. See Vinson, supra; White, supra; Ferrell, supra. Accordingly, we affirm the circuit court’s judgment as to case number CC-95-831 and case number CC-96-339; reverse the circuit court’s judgment as to case number CC-94-429; and remand this case as to case number CC-94-429 for the circuit court to consider the appellant’s motion pursuant to this court’s holding in Holt.

AFFIRMED AS TO CASE NUMBER CC-95-831 AND CASE NUMBER CC-96-339; REVERSED AND REMANDED AS TO CASE NUMBER CC-94^29.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.


author: PER CURIAM.

text:
    Ex parte Clinton Samuel TEASLEY. (In re State of Alabama v. Clinton Samuel Teasley).
    CR-06-0811.
    Court of Criminal Appeals of Alabama.
    April 27, 2007.

      Clinton Samuel Teasley, pro se.
    Submitted on petitioner’s brief only.
   PER CURIAM.

The petitioner, Clinton Samuel Teasley, filed this petition for a writ of mandamus directing Judge John Rochester to correct his institutional records to reflect that a rape charge against Teasley had been dismissed. Teasley’s action in circuit court appears to be an action pursuant to § 41-9-645, Ala.Code 1975. That Code section establishes a procedure by which a convicted defendant may challenge inaccurate information contained in his institutional records. However, this Court does not have jurisdiction to consider an appeal from a § 41-9-645 proceeding; therefore, we cannot consider a mandamus petition that relates to the same subject. See State v. Isbell, 955 So.2d 476 (Ala.Crim.App.2006). “ ‘[J]urisdictional matters are of such magnitude that [appellate courts] take notice of them at any time and do so even ex mero motu.’ ” Ex parte Hargett, 772 So.2d 481, 482 (Ala.Crim.App.1999), quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).

Section 41-9-645, Ala.Code 1975, states:

“If an individual believes such information to be inaccurate or incomplete, he may request the original agency having custody or control of the detail records to purge, modify or supplement them and to so notify the ACJIC [Alabama Criminal Justice Information Center] of such changes.
“Should the agency decline to so act or should the individual believe the agency’s decision to be otherwise unsatisfactory, the individual or his attorney may within 30 days of such decision enter an appeal to the circuit court of the county of his residence or to the circuit court in the county where such agency exists, with notice to the agency, pursuant to acquiring an order by such court that the subject information be expunged, modified or supplemented by the agency of record. The court in each such case shall conduct a de novo hearing and may order such relief as it finds to be required by law. Such appeals shall be entered in the same manner as appeals are entered from the court of probate; except, that the appellant shall not be required to post bond nor pay the costs in advance. If the aggrieved person desires, the appeal may be heard by the judge at the first term or in chambers. A notice sent by registered or certified mail shall be sufficient service on the agency of disputed record that such appeal has been entered.”

(Emphasis added.)

In Baker v. State, 877 So.2d 639 (Ala.Crim.App.2003), we addressed the appropriate appellate court to consider appeals from § 41-9-645, Ala.Code 1975, actions. We held that if such actions were appeal-able, then jurisdiction was proper in the Alabama Supreme Court. After reevaluating our decision in Baker, we believe that the view expressed in the special writing in Baker is correct. Judge Shaw wrote:

“The Alabama Criminal Justice Information Center (‘ACJIC’) is an administrative agency subject to the provisions of the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975. See Jefferson County v. Alabama Criminal Justice Information Ctr. Comm’n, 620 So.2d 651 (Ala.1993). It appears to me that the expungement proceeding here, although tangentially touching on criminal matters, is in the nature of a civil proceeding authorized by § 41-9-590 et seq., Ala.Code 1975. Pursuant to § 41-9-594, the ACJIC Commission has established an internal administrative appeal procedure as a prerequisite for seeking appellate review in the circuit court. See Ala. Admin. Code (Ala. Criminal Justice Info. Ctr. Comm’n), Reg. 265-X-2-.03.
“Section 41-9-645, which, I note, was enacted before the Commission’s creation of the internal administrative appeal procedure, states that an appeal from an agency’s adverse ruling oh a petition for expungement can be taken to the circuit court and that ‘such appeals shall be entered in the same manner as appeals are entered from the court of probate.’ Although it is not entirely clear to me what the Legislature meant by the above-quoted language, I can find no provision in § 41-9-645, or in any other related section, that provides for an appeal of the circuit court’s judgment. Therefore, based on the plain language of § 41-9-645, I respectfully disagree with the majority’s conclusion that § 41-9-645 incorporates the provision in § 12-22-22, Ala.Code 1975, dealing with the appeal of probate rulings to the Supreme Court. Nonetheless, I believe that authorization for appeal can be found in § 41-22-21, Ala.Code 1975. Section 41-22-21 provides for an appeal to the appropriate appellate court of a decision of the circuit court concerning the propriety of an administrative agency’s ruling. Section 12-3-10, Ala.Code 1975, generally vests exclusive jurisdiction in the Court of Civil Appeals of all appeals challenging the decisions of administrative agencies. Furthermore, it is generally understood that the exclusive jurisdiction of the Court of Civil Appeals has not been limited to a direct appeal from a ruling of an administrative agency, but also encompasses appeals from the judgments of lower courts that have reviewed the action of the administrative agency. See Kimberly-Clark Corp. v. Eagerton, 433 So.2d 452 (Ala.1983); SC Realty, Inc. v. Jefferson County, Alabama, Tax Assessor, 638 So.2d 1343 (Ala.Civ.App.1993).”

877 So.2d at 641-42. Presiding Judge Baschab joined Judge Shaw’s special concurrence.

Based on the reasons stated above, we now hold that jurisdiction of an appeal from a § 41-9-645, Ala.Code 1975, action is proper in the Alabama Court of Civil Appeals.

Accordingly, this petition is transferred to the Alabama Court of Civil Appeals.

PETITION TRANSFERRED.

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

      . The Alabama Supreme Court has not had occasion to review our decision in Baker v. State.