author: WOODALL, Justice.

text:
    Brant STEELE v. ROSENFELD, LLC, and Lance Elkins.
    1040568.
    Supreme Court of Alabama.
    Nov. 18, 2005.
    Rehearing Denied Feb. 10, 2006.

      Michael D. Smith of Hubbard, Smith, Mellwain, Brakefield & Browder, P.C., Tuscaloosa, for appellant.
    Clatus Junkin and Charles E. Harrison of Junkin, Harrison & Junkin, P.C., Fay-ette; and Samuel W. Junkin of Junkin, Harrison & Junkin, P.C., Tuscaloosa, for appellees.
   WOODALL, Justice.

Brant Steele appeals from a declaratory judgment in favor of Rosenfeld, LLC, and Lance Elkins in an action by Elkins and Rosenfeld, LLC, to determine the ownership interest, if any, of various parties in Rosenfeld, LLC. We affirm.

I. Factual Background

The events underlying this dispute began in October 1998. At that time, Elkins owned a three-story building in Tuscaloosa, known as the “Rosenfeld building.” An ongoing business, known as the AESCO Superstore (“the Superstore”), which El-kins operated as R & T Enterprises, Inc., occupied the first floor. Steele offered to “buy,” and Elkins agreed to “sell,” the third floor of the Rosenfeld building for $70,000. Elkins and Steele agreed to an initial payment of $20,000, with the remaining $50,000 to be paid in annual installments, beginning January 1, 2000. On November 23, 1998, Steele paid Elkins $20,000 and took possession of the third floor. No documents evidencing these transactions were executed.

Approximately one month later, Elkins received from Chris Glover an offer to “buy” the second floor of the Rosenfeld building for $40,000. Elkins accepted that offer, and Glover paid him $40,000 in cash. Shortly thereafter, Glover expressed concern about the legality or enforceability of his “purchase,” and Elkins and he sought the advice of legal counsel. According to the final order of the trial court in this case, counsel advised Elkins and Glover “that what they proposed was legally impossible without a condominium declaration.” (Emphasis added.) Subsequently, according to the trial court,

“[ajfter further investigation, it was determined to be unfeasible to have the building made a condominium. [Counsel] suggested that [Rosenfeld, LLC,] be formed that would hold title to the building with Elkins, Glover, and Steele owning shares of the LLC. The LLC was formed on January 15, 1999, with Elkins owning 66.67% of the [membership] and Chris Glover owning 33.33% of the [membership]. Title to the building was transferred to Rosenfeld LLC.
“Rosenfeld LLC leased the first floor to the plaintiff Elkins [d/b/a the Superstore], and the second floor to Chris Glover. Brant Steele did not sign a lease for the third floor, but continued to occupy the third floor. Plaintiff Elkins presented defendant Steele with a promissory note for the purchase of a interest in Rosenfeld LLC. Defendant Steele never signed the promissory note.”

(Emphasis added.)

Pursuant to the “Articles of Organization of Rosenfeld, LLC” (“the articles”), and the “Operating Agreement of Rosen-feld, LLC” (“the operating agreement”), Elkins served as manager of Rosenfeld, LLC (hereinafter referred to as “Rosen-feld”). From November 23, 1998, through March 26, 2001, Steele paid Elkins $37,775.20 of the $70,000 due under their oral arrangement for Steele to purchase the third floor of the Rosenfeld building, and, according to Steele, on a “couple of occasions,” he gave Elkins personal checks “for the payment of taxes or insurance or other expenses of maintaining [Rosen-feld’s] business.” However, Steele’s name does not appear in the articles or in the operating agreement.

The Rosenfeld building was destroyed by fire on July 16, 2001. At the time of the fire, there were in force two insurance policies covering the building. Rosenfeld was the named insured under a policy issued by Nationwide Mutual Fire Insurance Company (“Nationwide”) for $960,000. The Superstore was the named insured under a policy issued by Great River Insurance Company (“Great River”) for $1,000,000. The lease between the Superstore and Rosenfeld provided that “in the case of insurance against damage to the demised premises by fire,” the “loss, if any, [would] be adjusted with and ... payable to [Rosenfeld].”

On December 21, 2001, Nationwide issued a check payable to Rosenfeld for $300,000. At approximately that same time, Great River issued a check payable to, among others, the Superstore and Ro-senfeld for $300,000. Great River subsequently issued a second check in the amount of $27,500. These payments were for the purported actual cash value of the Rosenfeld building. On December 30, 2001, Glover died, and his father, Fred M. Glover, Jr., was appointed administrator of Glover’s estate (hereinafter “the Glover estate”). On March 21, 2002, the First Baptist Church of Tuscaloosa purchased the Rosenfeld building. Rosenfeld netted approximately $116,000 from that transaction.

Steele made no payments under his oral arrangement with Elkins after the fire. After Glover’s death, however, discussions began between Elkins and Steele regarding the disposition of the moneys received for the Rosenfeld building and the future of Rosenfeld. The discussions focused on two options. In one option, Elkins contemplated purchasing a new building and Rosenfeld would continue to exist as a limited liability company. That option, in substance, would have required Steele to “buy in” to Rosenfeld by contributing toward the purchase price of the new building, in addition to paying the amount he still owed under his oral arrangement with Elkins. In the second option, Elkins proposed, in substance, to “buy out” Steele’s interest in Rosenfeld for the difference between a portion of the proceeds of the insurance and the sale of the Rosenfeld building, and the amount Steele still owed under his oral arrangement with Elkins.

Steele did not agree to either option, and, on April 3, 2003, Elkins and Rosenfeld filed this declaratory-judgment action seeking to determine Elkins’s, the Glover estate’s, and Steele’s interests in Rosen-feld. The complaint averred that Elkins, Steele, and the Glover estate claim some interest in Rosenfeld, and sought a determination of (1) the “percentage of ownership interest in [Rosenfeld]” possessed by Elkins, Steele, and the Glover estate, and (2) the “appropriate disbursement amounts, if any,” of the moneys resulting from the insurance payouts and the sale of the Rosenfeld building to which Elkins, Steele, and the Glover estate are entitled. Steele and the Glover estate filed counterclaims, averring, among other things, that Elkins was concealing the receipt of $650,000 in insurance proceeds from Great River, and, consequently, that he had converted “hundreds of thousands of dollars representing the proceeds paid to Rosen-feld under the policies of insurance issued by Nationwide and Great River.” The counterclaims alleged conversion and breach of fiduciary duty, and requested legal and equitable relief.

The trial of the case was bifurcated, with the complaint for a declaratory judgment, namely, the issues regarding the ownership interests in Rosenfeld, tried first on the basis of evidence presented ore tenus. The trial court entered an interlocutory order, declaring that Steele possessed no interest in Rosenfeld, and, therefore, that he was entitled only to reimbursement of the money he had paid pursuant to his oral agreement with Elkins to purchase the third floor of the Rosenfeld building. The order further declared that the Glover estate possessed a one-third interest in Ro-senfeld and that it was “entitled to lk of any monies that are ultimately determined to be assets of Rosenfeld.” Steele filed a motion to alter, amend, or vacate the order. The trial court denied that motion and certified the interlocutory order as a final judgment, pursuant to Ala. R. Civ. P. 54(b). Steele appealed.

II. Issues and Arguments

Steele argues for a reversal of the order on three grounds. First, he contends that he has valid contractual rights to a portion of the proceeds from the insurance policies and the sale of the Rosenfeld building. Second, he argues that he is entitled to some of the proceeds under the doctrine of equitable conversion. Third, he insists that he is entitled to a share of the proceeds based upon a theory of equitable estoppel.

A. Contractual-Rights Theory

Steele contends that the oral agreement between Elkins and him constituted an executory contract for the purchase of a one-third membership interest in Rosen-feld, to be fully performed upon payment in full of the agreed-upon price for the third floor of the building. Furthermore, Steele insists that Elkins and he reached an oral agreement after the fire, that is, a second oral agreement, to the effect that “the balance of the purchase price due Elkins [from Steele under the original oral agreement] would be paid from ‘Steele’s share of the insurance proceeds. ” Steele’s brief, at 38 (emphasis added; footnote omitted). Under the second oral agreement, according to Steele, “Steele’s purchase price was paid in full ” as soon as Elkins received Nationwide’s check, which was issued on December 21, 2001, and at that point Steele was entitled to full membership in Rosenfeld and a right to a portion of the remaining insurance proceeds and the proceeds from the sale of the Rosenfeld building. Steele’s brief, at 38 (emphasis added). Thus, he contends that the executory contract has been fully performed and that he is entitled to a share of the proceeds.

In the alternative, Steele contends that he need not be a “full member” of Rosen-feld, as “member” is defined in the Alabama Limited Liability Company Act, Ala. Code 1975, § 10-12-1 et seq. (“the Act”), to acquire a right to a “one-third distribution of the insurance proceeds.” Steele’s brief, at 37. Ala.Code 1975, § 10 — 12—2(j) defines a “member” as “[a] person reflected in the required records of a limited liability company as the owner of some governance rights of a membership interest in the limited liability company.” (Emphasis added.) Steele does not assert that he ever had any “governance,” i.e., voting, rights in Rosenfeld before Rosenfeld received the insurance proceeds. Instead, he argues that the rights of membership in an Alabama limited liability company may essentially be bifurcated into “financial rights” and “full membership (i.e., governance) rights.” Steele’s brief, at 33.

Under this theory, according to Steele, “a [full] member assigns his [financial] interest to another party, which party is not made a substituted member until completing the formalities of the Operating Agreement and Act, but [who] does obtain the financial rights of the transferor, who retains formal membership, and thus, voting rights.” Id. In this manner, Steele insists, he “obtained financial rights when [Rosen-feld] was formed, and had contracted, once his payments to Elkins were complete, to obtain full membership (i.e., governance) rights as well.” Id. Thus, he contends, in essence, that his initial affiliation with Ro-senfeld involved two independent contracts: the first being fully executed for the transfer of financial rights; the second being executory for the eventual transfer of voting rights. He argues that the declaratory judgment must be reversed, based on the trial court’s failure to find the existence of a fully executed enforceable contract.

Elkins contends, however, that his oral agreement with Steele, standing alone, is “insufficient, under [the Act] and under the terms of the governing [instruments] of [Rosenfeld], to give Steele [an interest] in [Rosenfeld].” Elkins’s brief, at 24. In that connection, Ala.Code 1975, § 10-12-33, provides, in pertinent part:

“(a) Except as otherwise provided in the operating agreement:
“(1) An assignee of an interest in a limited liability company may become a member only if the other members unanimously consent. The consent of a member may be evidenced in any manner specified in the operating agreement, but in the absence of such a specification, consent shall be evidenced by a written instrument, dated and signed by the member.”

(Emphasis added.) Article YI of the articles states: “Additional members may be admitted but only upon the unanimous written consent of the then existing members.” (Emphasis added.) Similarly, § 9.1(B) of the operating agreement prohibits the admission of additional members “without the prior written consent of Members holding at least seventy-five (75%) of the membership interests (other than the Member who is the transferor of such transferee).” (Emphasis added.)

It is undisputed that there is no writing purporting to constitute the assent of Glover, who, the trial court found, owned one third of Rosenfeld. Elkins argues that the fact “that no ... written [approval of the purported] assignment was ever executed is fatal to [Steele’s] attempt to claim any benefits of membership in [Rosenfeld].” Elkins’s brief, at 33 (emphasis added). We agree.

The clear and unambiguous provisions of the Act, the articles, and the operating agreement require the written consent of Glover to Steele’s becoming a member of Rosenfeld. Section 9.3 of the operating agreement states: “Transfers in violation of the provisions of this Article shall be null and void and of no effect for any purpose.” (Emphasis added.) Assuming, without deciding, the legal validity of bifurcating the rights of membership as Steele advocates, Steele does not explain how — in the absence of compliance with the provisions for transfers — -the purported assignment of the whole or any part of a “package” of interests is effective.

Steele says only that the parties’ failure to comply with the requirements “cannot now be used by [Elkins] to his advantage and Steele’s detriment.” Steele’s brief, at 36. However, he cites no authority in his principal brief for the proposition that this Court can ignore noncompliance with those requirements. Authority for this argument appears for the first time in Steele’s reply brief. “The law of Alabama provides that where no legal authority is cited or argued, the effect is the same as if no argument had been made.” Bennett v. Bennett, 506 So.2d 1021, 1023 (Ala.Civ.App.1987) (emphasis added). “[A]n argument may not be raised, nor may an argument be supported by citations to authority, for the first time in an appellant’s reply brief.” Improved Benevolent & Protective Order of Elks v. Moss, 855 So.2d 1107, 1111 (Ala.Civ.App. 2003), abrogated on other grounds, Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638 (Ala.2003). Where an appellant first cites authority for an argument in his reply brief, it is as if the argument was first raised in that reply brief, and it will not be considered. For these reasons, Steele has failed to demonstrate that he has a contractual right to a portion of the proceeds.

B. Equitable-Conversion Theory

Next, Steele argues that he is “entitled to one-third of ... the insurance proceeds under the theory of equitable conversion, because the LLC interest was effectively destroyed during the time in which Steele’s contract for purchase of the interest was executory.” Steele’s brief, at 52 (emphasis added). We disagree with the application of the doctrine of equitable conversion.to the transfer of an interest in a limited liability company.

“An interest in a limited liability company is personal property.” Ala.Code 1975, § 10-12-6 (emphasis added). “However, this doctrine of equitable conversion is applicable only when there is a specifically enforceable contract between the parties, and the changes in the rights, duties, powers, and liabilities of the parties that result from the making of the contract are consequences of the equitable right to specific performance,” Roberts v. Adams, 47 P.3d 690, 695 (Colo.Ct.App.2001) (emphasis added), in contracts for the sale of real estate. See also Passey v. Great Western Assocs. II, 174 Ariz. 420, 427, 850 P.2d 133, 140 (Ariz.Ct.App.1993) (“the doctrine [of equitable conversion] applies only to real estate contracts that are capable of being specifically performed”); People v. Alexander, 663 P.2d 1024, 1030 n. 6 (Colo.1983); III American Law of Property § 11.22, at 62-63 (1952). Because this case involves the purported transfer of an interest in personalty, i.e., an interest in Rosenfeld, Steele’s equitable-conversion argument has no merit.

In an apparent attempt to circumvent the consequences of this rule that the doctrine of equitable conversion applies only to real-estate contracts capable of specific performance, Steele urged the trial courL—/or the first time in his posttrial motion to alter, amend, or vacate the judgment—to “pierce the veil” of Rosenfeld, and regard the purported transfer of an interest in Rosenfeld as, in fact, a contract for the sale of real estate. Specifically, Steele argued:

“The operations of [Rosenfeld] are such as to justify the court’s disregard of the entity, piercing the veil and treating El-kins, Glover, and Steele as one-third owners of the [Rosenfeld] building. Thus, Steele would have an executory contract for the purchase of his interest in the building and would be entitled to a share of the insurance proceeds under the doctrine of equitable conversion.”

(Emphasis added.) In its order overruling the posttrial motion, the trial court expressly declined to consider the issue of piercing the corporate veil.

It is well settled that “a trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so,” and that “[w]e will reverse only if the trial court abuses that discretion.” Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369-70 (Ala.1988). See also Diamond v. Aronov, 621 So.2d 263, 266-67 (Ala.1993); Blackmon v. King Metals Co., 553 So.2d 105, 106 (Ala.1989); D.J. Sherwood Transp., Inc. v. Road Shows, Inc., 656 So.2d 884, 887 (Ala.Civ.App.1995). The trial court did not exceed its discretion in declining to consider this argument.

C. Equitable-Estoppel Theory

Finally, Steele contends that Elkins should be “estopped to deny Steele’s status as a member, or, alternatively, from withholding consent to Steele’s becoming a member” of Rosenfeld. Steele’s brief, at 41 (emphasis added). More specifically, he argues:

“By presenting Steele with his LLC ‘package’ Elkins, in effect, made the representation to Steele that by performing the terms of the promissory note and agreement to purchase, Steele would become a full member of [Rosenfeld]. Relying on this representation, Steele, who had already contributed $20,000 in the form of a down payment, began making, and Elkins continued accepting, the installment payments required under the note and agreement as well as the ... payments for taxes and insurance. Steele was also allowed to remain in possession of the third floor of the Ro-senfeld Budding.... According to the arrangement between Elkins and Steele, once the insurance proceeds were paid to Elkins, Steele’s obligation to him under the note was completely satisfied. [Elkins] cannot now be allowed to deny the validity of the agreement, or alternatively, to withhold [his] consent.
“In fact, there was ample evidence before the trial court indicating that both Elkins and Glover knew of and consented to Steele being a member of Rosenfeld, LLC.”

Steele’s brief, at 47-48.

Elkins, however, contends that to afford Steele membership status in Rosenfeld “in the complete absence of any of the formal requisites imposed by statute or Operating Agreement” for the addition of a member would impermissibly afford him “membership by estoppel.” Elkins’s brief, at 42-43. We agree with Elkins.

In Vergos v. Waterman Building Partnership, 613 So.2d 383, 389 (Ala.1993), this Court said:

“The courts of some states have held that, ‘[a]s between the parties themselves, there may exist an estoppel to allege or deny a partnership relation.’ 68 C.J.S. Partnership § 21 (1950).... This Court has not adopted that position. In Waters v. Union Bank of Repton, 370 So.2d 957, 960 (Ala.1979), we held that a partnership ‘is never established by implication or operation of law, at least in the situation where the dispute concerning the existence of a partnership is between the parties.’ ”

(Emphasis added.) On that basis, this Court refused to entertain an estoppel theory asserted by a seven-member partnership to prevent the dissociation of the signatory of a “letter agreement” purporting to make the signatory a member, where two of the members had not assented in writing as required by the “partnership agreement,” notwithstanding that the signatory had “ ‘held himself out to third parties as a partner, participated in the management of the Partnership, was provided privileged and confidential Partnership information by the other partners, was treated as a partner and considered to be a partner by the other members of the Partnership.’ ” 613 So.2d at 387. Otherwise stated, among the parties to a partnership, membership cannot be acquired by estoppel.

The provisions pertinent to this case are fully consistent with this rule, and we see no reason to apply a different rule in the context of a limited liability company. See Ala.Code 1975, § 10-12-8(a) (providing that, for statutory purposes, limited liability companies are generally treated as partnerships).

Under § 10-12-33(a)(l), membership accretion must be “evidenced by a turitten instrument, dated and signed” by all the existing members. (Emphasis added.) Likewise, the articles condition the admission of additional members “upon the unanimous written consent of the then existing members.” Art. VI (emphasis added). We will not disregard the plain meaning of these provisions in order to afford Steele membership in Rosenfeld on the basis of implied representations and the purported acquiescence of Glover and Elkins in certain actions by Steele.

III. Conclusion

For the foregoing reasons, Steele has failed to demonstrate that the trial court erred in overruling his post-judgment motion. Therefore, the order of the trial court declaring that Steele possessed no interest in Rosenfeld is affirmed.

AFFIRMED.

NABERS, C.J., and LYONS, SMITH, and PARKER, JJ., concur.

      . This appeal involves no issue regarding the interest of the Glover estate in Rosenfeld or the claims of the Glover estate against Rosen-feld and Elkins.

      . Although Steele asserts that this is a question of first impression in Alabama, he cites no caselaw from any jurisdiction in support of his argument that membership rights in a limited liability company may be so bifurcated.
      "Rule 28(a)(10), Ala. R.App. P., requires the appellant to cite relevant authority in support of its arguments. This is so, because ' "it is neither our duty nor function to perform all the legal research for an appellant." ’ Henderson v. Alabama A & M Univ., 483 So.2d 392, 392 (Ala. 1986) (quoting Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ. App.1984)).”

        Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 708 (Ala.2004) (emphasis added).

      . Also, the articles state: "Upon the death ... of a member in the Company, the business of [Rosenfeld] shall not be continued and [Rosen-feld] shall be dissolved unless there is obtained the written consent of all the remaining members of [Rosenfeld] ... and there are at least two remaining members.” (Emphasis added.) Steele does not claim that he became a member after the death of Glover.

      . At any rate, the two cases Steele cites in his reply brief merely stand for broad, general principles of law and have no specific application to this case.


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    Luther Wilton BLACKWOOD v. CITY OF HANCEVILLE and Steven Conner.
    1041261.
    Supreme Court of Alabama.
    Feb. 3, 2006.

      William P. Traylor III and Jason L. Yearout of Yearout & Traylor, P.C., Birmingham, for appellant.
    James R. Shaw and Jason M. Kirsch-berg of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellees.
   HARWOOD, Justice.

This appeal presents an issue of first impression: What is the effect on the immunity afforded peace officers by § 6-5-338(a), Ala.Code 1975, of the conditions and limitations imposed on drivers of emergency vehicles by § 32-5A-7(b)(3) and (d), Ala.Code 1975?

Section 6-5-338(a) provides, in pertinent part:

“Every peace officer ... shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.”
Section 32-5A-7 provides:
“(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
“(b) The driver of an authorized emergency vehicle may:
“(1) Park or stand, irrespective of the provisions of this chapter;
“(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
“(3) Exceed the maximum speed limits so long as he does not endanger life or property;
“(4) Disregard regulations governing direction of movement or turning in specified directions.
“(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of Section 32-5-213 and visual requirements of any laws of this state requiring visual signals on emergency vehicles.
“(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

The underlying case arose from an April 24, 2002, collision between a patrol car being driven on an emergency run by Officer Steven Conner, a City of Hanceville police officer, and an automobile in which Luther Wilton Blackwood was a passenger. Blackwood suffered severe injuries as a result of the wreck and sued Conner and the City of Hanceville (“the City”) in the Cullman Circuit Court, seeking compensatory damages on the theory that Conner’s negligence and the City’s negligent training and supervision of him caused the collision. In their answer to Blackwood’s complaint, Conner and the City asserted immunity under § 6-5-338 and subsequently moved for a summary judgment predicated on that immunity. The Cullman Circuit Court initially denied the summary-judgment motion, but on the defendants’ motion to alter, amend, or vacate that denial, the court entered a summary judgment for Conner and the City. Blackwood appeals.

Standard of Review

“ We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).

“ ‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” ’ § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala. 2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala. 2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

Facts

The facts of the case, viewed, as the standard of review requires, most favorably to Blackwood, the nonmoving party, are as follows:

Conner is a captain with the City’s police department. On the day of the accident he had just completed issuing a speeding ticket to a motorist at 4:00 p.m. when he heard a radio dispatch advising that another police officer for the City, Jeff Rainwater, was en route to the scene of an automobile accident just outside the city limits involving personal injury. Conner testified in his deposition that Rainwater “had already gone by me at Code III,” i.e., in emergency-response mode with full lights and siren. Conner remembers also that “somebody told me that it was a wreck and it was real bad.” He elected to proceed to the accident scene to provide backup, proceeding with lights and siren fully activated. When he had traveled approximately one-half mile he was approaching the Johnson’s Crossing intersection, which Conner acknowledged in his deposition was “more dangerous than any other intersection” in the area. A red Chevrolet Beretta automobile, the driver of which was subsequently determined to be intoxicated, pulled out from a service station located on the southeast corner of the intersection, to Conner’s right. Attempting to avoid that vehicle, Conner lost control of his patrol car and traveled through the intersection into the opposing lanes of traffic, colliding head-on with the automobile occupied by Blackwood.

Critically important to our disposition of this appeal is the fact that the state trooper who investigated the accident involving Conner’s patrol car stated in his accident-investigation report (submitted by Black-wood as a part of his opposition to the motion for a summary judgment and not objected to by the defendants) that he calculated Conner’s minimum speed at the time of impact to have been between 91 and 101 miles per hour. The summary-judgment record also contains the trooper’s affidavit stating, after reciting his qualifications and experience and the basis for his opinion: “[I]t is my opinion, within a reasonable degree of certainty, that at the time of impact Mr. Conner’s vehicle was traveling at a minimum of between 91 and 101 miles per hour.” Conner, on the other hand, testified in his deposition that he estimated that his speed just before the collision was around 75 miles per hour and that “I just know I wasn’t running ninety miles an hour.” The parties agree that the speed limit for the stretch of road on which the accident involving Conner occurred was 55 miles per hour.

The police chief at the time of the accident was Elwin Grimmet, who had succeeded Chief Junior Flannagan. Among the official departmental “rules and regulations” Chief Flannagan had promulgated during his tenure was one that restricted a police vehicle traveling to an emergency from exceeding the posted speed limit by more than 15%. However, Conner testified, and Chief Grimmet filed an affidavit attesting, that when Chief Grimmet came into office (around 1999, according to Conner’s recollection), he rescinded all rules and regulations previously enacted by Chief Flannagan, including the speed limitation on emergency runs. According to Grimmet’s affidavit, the 15% limitation represented “an ineffective restriction on law enforcement and was never the policy of my department when I was chief.” In the memorandum under cover of which Chief Flannagan issued his departmental rules and regulations, he stated “[o]nly the Chief of Police will authorize any variation” from the policies and that “[ojnly published changes will be recognized.” Although Chief Grimmet had advised Conner that he would be issuing “new rules and regulations” to replace those he abrogated upon becoming chief of police, he never did.

In connection with his contention that there were no rules or regulations of the City of Hanceville Police Department in effect at the time of the accident, including the 15% limitation on excess speed, Conner stated in his deposition that “state guidelines” would have substituted to furnish the policy for making emergency calls and approaching an intersection on an emergency run and that the rules promulgated by the Department of Public Safety (“DPS”) required that the speed of a vehicle responding to an emergency situation should be “reasonable and prudent.”

Although Conner contended in his deposition that it could be safe to operate his police vehicle at 90 miles an hour in responding as backup to an accident scene, “depending on the need,” he acknowledged that he had never operated his vehicle between 90 and 100 miles per hour in responding to an accident when he knew another officer was already on the scene, and he admitted that a speed of 90 to 100 miles per hour in such a situation “would not be reasonable.” Asked how he decided the speed at which to proceed when responding to an accident scene, Conner answered that every ease was different, agreed that he would have to take into consideration the traffic conditions, and agreed further that he had the responsibility to operate his vehicle “in a safe manner” at all times, even in emergency situations. At another point in his deposition, when asked if approaching the potentially dangerous Johnson’s Crossing intersection at a speed of between 90 and 100 miles per hour would have been “an unsafe thing to do,” Conner answered “I would think, yes, sir.” Conner stated that “anybody running code, Code III especially!,] needs to operate in a safe manner.”

Explaining why he felt that Chief Flan-nagan’s rule prohibiting responders to a Code III from exceeding the posted speed limit by more than 15% was not a good rule, Conner testified, “I believe that the operator should operate his motor vehicle at a safe and prudent speed,” and the 15% limitation would not “give [the operator of the vehicle] enough”; he testified that whatever the officer felt was reasonable and prudent would be appropriate, “[a]s long as he was safe and safe to the general motoring public.... ” Conner was asked at this point if he had not already responded affirmatively to the question whether “at the time of this accident where you were located if you had been traveling between 90 and 100 miles per hour, that would have been unsafe”; and he had responded to that earlier question, “[y]es, sir. If I had been traveling 90 or 100 miles an hour.” On the other hand, he testified, he “felt like” 75 miles per hour would be safe. Asked if there was “some type of state policy or DPS policy with regard to approaching an intersection when you are on an emergency run,” Conner answered, “[y]es, ma’am, approach with caution.” He agreed that approaching an intersection with caution was a basic precautionary procedure that emergency personnel will take and that he was “under those same policies on the day of this accident.”

Issues and Analysis

The summary-judgment order states, in pertinent part:

“[T]he Court has determined that the allegations of the Complaint taken most favorably to [Blackwood] describe a set of circumstances that are controlled by the application of discretionary function immunity. Assuming facts most favorable to [Blackwood] it is undisputed that the defendant Conner, acting in the course and scope of his employment as an officer for the City of Hanceville Police Department, was responding to an emergency which eventually involved a fatality to a young woman. During the course of his effort to respond to the emergency, he drove in speeds in excess of the posted speed limit while operating sirens and emergency flashing lights. Another automobile driven by an intoxicated motorist pulled in front of Officer Conner and ... in an effort to avoid that collision he lost control of his vehicle and struck the Blackwood vehicle.
“The Court finds this circumstance to be covered by the provisions of the immunity from tort liability granted by § 6-5-338(a) Code of Alabama [1975]. The officer was the driver of an authorized emergency vehicle using audible signal and light as required and responding to an emergency call as a police officer. In making the response to the call, he was performing a discretionary function. While there are allegations that his speed was excessive for the circumstances and others expressing opinion that it was not excessive for the circumstances, these questions of fact do not override the compelling public policy for granting immunity to law enforcement officers who must make split second decisions when responding in emergency mode and not be subject to the calculus of hindsight or second-guess. The Court is persuaded by the logic as expressed in Drain v. Odom, 631 So.2d 971 (Ala.1994), White v. Birchfield, 582 So.2d 1085 (Ala.1991), and Williams v. Crook, 741 So.2d 1074 (Ala.1999), which all essentially stand for the position that an officer deciding to respond to an emergency call and driving in emergency mode is performing a discretionary function and both the decision to respond to the call and manner in which he responded required the exercise of his own judgment and ... to expose the officer to liability for exercising his judgment would be to add unto the officer the responsibility to ponder and ruminate over decisions that should be made in a split second. Therefore, however unwise in hindsight the responding officer’s actions may seem, I must hold his decision to respond to the call as ranking officer and to drive at what is alleged to have been an excessive speed was in the context of the situation within the scope of his discretionary functions. See White v. Birchfield, holding that as a matter of law the officer is immune from tort liability based on his decision to answer a call regarding an emergency in progress. The Court there recognized that even though the call was not directed specifically to the officer (a circumstance not dissimilar from this situation) and he was alleged to have driven an excessive speed nonetheless the situation was in the boundaries of discretionary function authority.”

(Emphasis by the trial court.)

Blackwood asserts in his brief to this Court that Chief Flannagan’s departmental rule requiring Code III responders not to exceed the posted speed limit by more than 15% had not been effectively repealed before the accident because Chief Grimmet had not adopted a new rule to replace it. In that regard, Blackwood relies solely on the statement in Chief Flan-nagan’s memorandum issuing the departmental rules and regulations that only the chief of police could authorize any variation from the rules and that “only published changes” would be recognized. Black-wood offers no explanation, based on legal principle or otherwise, for how one police chief could bind all of his successors, in perpetuity, to a particular procedural policy. The record contains no suggestion that Chief Flannagan’s rules and regulations had been adopted or approved by the City of Hanceville, and we are aware of no limitation under the law on the right of a successor police chief to rescind any rule or regulation put in place by the mere personal declaration of his or her predecessor, including a rule purporting to limit the mode of communicating changes in the rules. Conner and the City have established by substantial evidence that Chief Grimmet expressly rescinded all of Chief Flannagan’s “rules and regulations” when he succeeded him, including specifically the 15% limitation-on-excess-speed rule. The mere fact that Chief Grimmet did not timely issue new rules and regulations does not serve to vitiate his unequivocal act of explicitly rescinding the rules and regulations promulgated by Chief Flanna-gan. Accordingly, Conner’s discretion to exceed the speed limit on the occasion of the accident at issue here was not subject to the by then rescinded 15% excess-speed limitation imposed by Chief Flannagan.

Apart from arguing that Conner’s personally estimated speed of 75 miles per hour would have violated Chief Flanna-gan’s 15% excess-speed-limitation rule, Blackwood advances no real argument in either his principal appellate brief or his reply brief that such a speed would exempt Conner from the privilege accorded by § 32-5A-7 to exceed the maximum speed limit. We note that the only evidence contained in the record concerning the propriety of a speed of 75 miles per hour under the prevailing circumstances was the opinion testimony of Conner. When asked in his deposition if it was his position that operating his vehicle at 75 miles per hour would have been reasonable and prudent under the circumstances, he answered: “Considering that I was watching the highway the whole time and gauging my speed on the climate of the highway, yeah, because I felt like I had control of the vehicle.” Thus, there is no basis in the record, at this stage of the proceedings, for concluding that a speed of 75 miles per hour at the time and place in question violated any of the conditions and limitations imposed by § 32-5A-7. Implicitly acknowledging that he does not contend that a speed of 75 miles per hour would be outside the privilege accorded Conner by § 32 — 5A—7(b)(3) to exceed the maximum speed limit, Blackwood states in his reply brief that “[t]he issue that is before this Court is whether traveling at speeds in excess of 90 miles per hour (90 m.p.h.) in a back-up role is unreasonable and/or excessive under the circumstances.” (Black-wood’s reply brief, p. 10.) Reiterating, Blackwood states later in his reply brief:

“However, the criticism of Conner is not his decision to proceed to the scene of the accident Code III and not his decision to travel at a speed in excess of the posted speed limit; the criticism of Conner, and where the liability rests, is with his decision to travel at an excessive rate of speed; a speed in excess of ninety miles per hour (90 m.p.h.) — where even he testified would be unreasonable.”

(Blackwood’s reply brief, p. 14.)

As noted, § 6-5-338(a) provides that peace officers like Conner “shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function in the line and scope of his or her law enforcement duties.” (Emphasis supplied.)

In a plurality decision in Ex parte Cranman, 792 So.2d 392 (Ala.2000), this Court “restate[d] the rule governing State-agent immunity,” 792 So.2d at 405. The Court later adopted the “new test suggested in Cranman ” in Ex parte Butts, 775 So.2d 173, 177-78 (Ala.2000). The Cranman test is as follows:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405.

“Cranman is a restatement of the law of immunity, not a statute. ... Cran-man states categories, but does not purport to set forth an exhaustive list of activities falling within each category.” Howard v. City of Atmore, 887 So.2d 201, 206 (Ala.2003).

Before Cranman, the immunity accorded a peace officer under § 6-5-338(a) was analyzed in terms of whether at the time of the act complained of the officer was engaged in the performance of a discretionary act.

“Thus, this statute shields police officers from tort liability for discretionary acts performed ‘within the line and scope of [their] law enforcement duties.’ [§ 6-5-338(a) ]; Williams [v. Crook], 741 So.2d [1074] at 1076 [ (AJa.1999) ]. ‘Alabama law has defined “discretionary acts” as “ ‘[t]hose acts [as to which] there is no hard and fast rule as to course of conduct that one must or must not take’ and those requiring ‘exercise in judgment and choice and [involving] what is just and proper under the circumstances.’ ” ’ Montgomery v. City of Montgomery, 732 So.2d 305, 310 (Ala. Civ.App.1999) (emphasis added). ‘[U]n-der the distinction between ministerial and discretionary functions, “the official is immune only where that which he does in the performance of his lawful duties requires ‘personal deliberation, decision and judgment.’ ” ’ White v. Birchfield, 582 So.2d 1085, 1087 (Ala. 1991).”

Norris v. City of Montgomery, 821 So.2d 149, 153 (Ala.2001)(a post-Cranman case, but argued and decided without reference to Cranman). See also Ex parte City of Montgomery, 758 So.2d 565 (Ala.1999); Williams v. Crook, 741 So.2d 1074 (Ala. 1999); and Couch v. City of Sheffield, 708 So.2d 144 (Ala.1998).

However, “[w]hether a qualified peace officer is due § 6-5-338(a) immunity is now judged by the restatement of State-agent immunity articulated by Ex parte Cranman, 792 So.2d 392 (Ala.2000).... ” Hollis, 885 So.2d at 143.

“By enacting [§ 6-5-338], the Legislature intended to afford municipal law-enforcement officials the immunity enjoyed by their state counterparts. Sheth v. Webster, 145 F.3d 1231, 1237 (11th Cir.1998). Indeed, ‘[t]his statute, by its terms, extends state-agent immunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties.’ Moore v. Crocker, 852 So.2d 89, 90 (Ala. 2002) (emphasis added).
“In Ex parte Cranman, supra, this Court ‘restated the law of state-agent immunity in Alabama.’ Moore, 852 So.2d at 90. Since Cranman, we analyze immunity issues in terms of ‘State-agent’ immunity, rather than ‘under the dichotomy of ministerial versus discretionary functions.’ Ex parte Hudson, 866 So.2d 1115, 1117 (Ala.2003). See also Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003); Ex parte Turner, 840 So.2d 132, 134 n. 1 (Ala.2002). Thus, we will address the applicability of peace-officer immunity under the principles set forth in Cranman. See Moore, supra; Ex parte Duvall, 782 So.2d 244 (Ala.2000).”

Howard, 887 So.2d at 203.

The parties acknowledged at oral argument, and we agree based upon our independent assessment, that the facts of this case do not fall within any of the Cranman categories of State-agent immunized activity. The category coming the closest to having applicability would be category (4), extending immunity when the conduct made the basis of the claim against the State agent is based on the agent’s “exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to law-enforcement officers’ arresting or attempting to arrest persons.” The circumstances of Conner’s emergency run did not implicate the enforcement of the criminal laws of this State, however. Because Conner’s conduct does not fit within any category of conduct recognized by the restated rule of Cranman as immune, he is not entitled to State-agent immunity within the illustrations set forth in Cranman. Cranman, 792 So.2d at 406; Ex parte Rizk, 791 So.2d 911 (Ala.2000); and Wimpee v. Stella, 791 So.2d 915 (Ala.2000).

In Hollis, we made the following observations concerning the possibility that immunity under § 6-5-338(a) and under category (4) of Cranman might not completely overlap:

“We notice a difference between certain critical language in the statute, § 6-5-338(a), and certain critical language in the Cranman restatement describing the conduct immunized. That is, the statute refers to ‘conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties’ while immune category (4) of the Cranman restatement refers to conduct ‘exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons.’ In the particular case now before us, we need not decide whether or how the difference between the language of the statute and the language of the Cranman restatement affects the scope of the immunity, since the record does not establish without dispute or as a matter of law that the act of the policeman ... fits within either description of immune conduct. Nor does the record establish without dispute or as a matter of law that the act of the policeman fits within any of the other Cranman categories of immune conduct. Thus, we cannot rely on the § 6-5-338(a) immunity, as described by either the statute itself or the Cranman restatement, to affirm the summary judgment on the plaintiffs’ claim for vicarious liability for the act of the policeman.”

885 So.2d at 143-44.

We need not decide whether or how the difference between the language of § 6-5-338(a) and the language of the Cranman restatement might need to be further reconciled, because the conduct for which Conner is seeking immunity is the driving of an authorized emergency vehicle in response to an emergency call. In such a case, the immunity afforded the peace officer under either description of immune conduct is subject to, and limited by, the conditions imposed by § 32-5A-7. In the particular settings described by § 32-5A-7(a), the legislature has acted to restrain the manner in which the driver of the emergency vehicle may exercise his or her discretion and judgment.

In Williams, supra, a municipal police officer responding to a domestic-disturbance call on a rainy night elected to exceed the speed limit but not to turn on his patrol car’s flashing blue lights and siren. 741 So.2d at 1075. A vehicular collision occurred, and the officer and the municipality by whom he was employed were sued. The trial court entered a summary judgment for the officer and the municipality, under § 6-5-338, based on the officer’s explanation that he had exercised his discretion in deciding not to use his emergency signals “because he was concerned that using them might alert anyone at the site of the domestic disturbance to the imminent arrival of the police and that anyone seeking to evade the police might thus have an opportunity to flee.” 741 So.2d at 1075. This Court reversed the summary judgment, agreeing that § 32-5A-7 gave the officer discretion to drive at a speed in excess of the speed limit but determining that, under the language of that statute, the officer did not have the discretion to exceed the speed limit without using his emergency signals. Section 32-5A-7(c) expressly states that the various exemptions granted an authorized emergency vehicle by that Code section would apply only when the vehicle is using acceptable audible and visual signals. “Although [the officer] did have the discretion to decide whether he would drive in excess of the speed limit, once he made that decision he did not have the discretion to further decide whether he would comply with the audible- and visual-signal requirements of § 32-5A-7(c).” 741 So.2d at 1077.

As noted, § 32-5A-7 not only authorizes the driver of an emergency vehicle to exercise the various privileges set forth in the statute, including exceeding the maximum speed limit when using acceptable audible and visual signals, it also provides specifically that the driver of the emergency vehicle exceeding the maximum speed limit may do so “so long as he does not endanger life or property.” Section 32-5A-7(b)(3). Subsection (a) states that exercise of any of the privileges set forth in the statute is “subject to the conditions herein stated.” Subsection (d) concludes the statement of privileges with the declaration that they “shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard to the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” Obviously, the conditions imposed by subsections (b)(3) and (d) differ in degree from the audible- and visual-signals condition of subsection (c), in that the latter is an objectively “absolute” restriction whereas the others are subjectively “relative” restrictions. Nonetheless, the legislature saw fit to impose the restrictions in subsections (b)(3) and (d), and it is our obligation to determine the scope of those subsections and apply them to the facts of this case. We reject the argument made by Conner and the City in their brief to this Court that the actual speed at which Conner was traveling is “irrelevant,” although we agree that it is within a police officer’s discretion to drive at a speed in excess of the speed limit when driving an authorized emergency vehicle on an emergency run because the legislature has clearly provided that the officer may do so. Williams, 741 So.2d at 1077. The legislature has simultaneously declared, however, that an officer may do so only “so long as he does not endanger life or property” and has further conditioned the exercise of that privilege by recognizing the officer’s continuing “duty to drive with due regard for the safety of all of the persons,” removing the protection of the privilege if the officer drives with “reckless disregard for the safety of others.”

Obviously, the legislature did not intend § 32 — 5A—7(b)(3) simply to have a retrospective application, so that an emergency vehicle driver forfeits the privilege accorded by the statute any time he or she exceeds the speed limit and a wreck occurs that endangers life or property. Rather, it is clear that the legislature intended that this standard, along with the others specified in the statute, be applied from the perspective of a reasonably prudent emergency driver exercising his or her discretion under the prevailing circumstances. We need not attempt to refine the standards further for purposes of this case, because, under the unique evidentiary record presented, Conner’s own testimony establishes that traveling between 90 and 100 miles per hour in responding as backup to the scene of an accident, when another officer is already on the scene, would “not be reasonable,” and that to approach an intersection known to be dangerous at that speed would be “an unsafe thing to do.” Conner conceded that a speed of between 90 and 100 miles per hour in the locale in question would have been “unsafe.”

These admissions by Conner are sufficient to create a genuine issue of material fact as to whether, assuming (as we must under the standard of review that controls our identification of the facts in this case) Conner was traveling at a minimum speed of 91 miles per hour while approaching the dangerous Johnson’s Crossing intersection, he would be charged with notice that he was driving in a manner that endangered life or property and represented a reckless disregard for the safety of others. It will be for the jury to decide Conner’s actual rate of speed on the occasion in question and, under appropriate instructions from the trial court, to decide whether, acting within his discretion to exercise his best judgment, Conner should have known that the speed at which he was driving, under all the attendant circumstances, endangered life or property and constituted a reckless disregard for the safety of others, or whether he was acting with due regard for the safety of others. If the speed as determined by the jury is found by it to have been such as would necessarily endanger life or property and be a violation of Conner’s duty to drive with due regard for the safety of others, Conner will not be entitled to the protection of the immunity and privilege resulting from the interaction of § 6-5-338(a) and § 32-5A-7(b)(3). If the jury determines that Conner, traveling at the speed it determines he was traveling, was acting with due regard for the safety of others, he will be entitled to the protection of that immunity and privilege.

Given the genuine issues of material fact that exist in that regard, Conner is not presently entitled to judgment as a matter of law. Moreover, because the City’s immunity is linked to Conner’s, see § 6-5-338(b) and Howard, 887 So.2d at 211, the summary judgment entered for City is likewise unsustainable.

Our holding in this case does not in any way represent a retreat from our recognition that police officers have to be accorded a high degree of discretion in the performance of their duties because, as the Alabama Court of Civil Appeals has observed in reviewing our cases on point:

“[O]ur supreme court has stated that discretionary-function immunity must exist because a police officer should not be required ‘to ponder and ruminate over decisions that should be made in a split second.’ White v. Birchfield, 582 So.2d 1085, 1087 (Ala.1991). Our supreme court has also stated that the grant of discretionary-function immunity is justified by ‘ “[t]he need to attract and keep capable [police] officers, the allocation of scarce resources for law enforcement, and the need for officers to make decisions based on the requirements of the circumstances rather than on their potential for personal liability.” ’ Nunnelee v. City of Decatur, 643 So.2d 543, 546 (Ala.1993) (quoting Thetford v. City of Clanton, 605 So.2d 835, 843 (Ala.1992)). In addition, it has been held that the shield of discretionary-function immunity is '“particularly applicable” ’ where ‘ “[a police] officer is required to make difficult decisions on the spur of the moment” ’ while performing his law-enforcement duties, Nunnelee, 643 So.2d at 546 (quoting Thetford, 605 So.2d at 843), and in situations where a police officer responds to a ‘life-threatening situation,’ Birchfield, 582 So.2d at 1087. More recently, it has been held that discretionary-function immunity applies when a police officer is required to make ‘difficult split-second decisions] under unusual circumstances.’ Ex parte City of Gadsden, 781 So.2d at 940.”

Thurmond v. City of Huntsville, 904 So.2d 314, 320 (Ala.Civ.App.2004).

Rather, our holding is based on the particular facts of this case, at least in the light in which they must be viewed under the applicable standard of review for a summary judgment, and on our recognition that to hold that a peace-officer driver of an emergency vehicle on an emergency call would have the discretion to drive at whatever speed he or she might chose, without limitation, would render meaningless the several “conditions” imposed by the legislature in § 32-5A-7. We also note that we are not called upon to consider whether any additional or separate principles might apply if the peace officer driving a patrol car is not simply “responding to an emergency call,” but rather, in accord with another of the scenarios stated by § 32-5A-7(a), is “in the pursuit of an actual or suspected violator of the law.”

The summary judgment entered in favor of Conner and the City is reversed, and this cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, LYONS, WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.

      . The DPS rules, although referenced and paraphrased at several points during Conner's deposition, are not included in the record on appeal.

      . We note that Justice Lyons, the author of Cranman, stated in his special writing in Hollis, supra:
      "The day may well come when the restatement in Ex parte Cranman, 792 So.2d 392 (Ala.2000), should be modified so as to extend the reference in paragraph (4) dealing with 'exercising of judgment in the enforcement of criminal laws,' 792 So.2d at 405 (emphasis added), to include an additional phrase dealing with 'discharge of law-enforcement duties.' However, I agree with the main opinion that that issue at this stage of the proceedings in the instant case is not yet ripe for determination.”
      885 So.2d at 145. Neither party asks us to undertake in this case such an extension of category (4) of the Cranman test, and, given our ensuing analysis and disposition of the immunity issue presented, a modification of Cranman category (4) along the lines discussed by Justice Lyons in Hollis would have no effect on the outcome of this case. Therefore, we need not consider whether such a modification is in order.


author: SEE, Justice.

text:
    Connie SPARKS et al. v. CITY OF FLORENCE, a municipal corporation; et al.
    1041036.
    Supreme Court of Alabama.
    Feb. 10, 2006.

      J. Wilson Mitchell of Mitchell, Bernauer, Winborn, Austin & Miles, Florence, for appellants.
    A. Stewart O’Bannon III and Vickie M. Willard of O’Bannon & O’Bannon, L.L.C., Florence; and William T. Musgrove III, city atty., for appellees the City of Florence and Shane Blalock.
    Larry B. Moore of Moore & Trousdale, P.C., Florence, for appellee Alfa Mutual Insurance Company.
   SEE, Justice.

Connie Sparks, Keith Sparks, Sue Copeland, and Billy Ray Copeland appeal from a partial summary judgment entered in favor of Alfa Mutual Insurance Company, an intervenor in the case below. We dismiss the appeal as being from a nonfinal judgment.

Facts and Procedural History

Connie Sparks, Keith Sparks, Sue Copeland, and Billy Ray Copeland were in a vehicle when the vehicle was involved in a traffic accident with a police vehicle being driven by Officer Shane Blalock of the City of Florence Police Department. The Sparkses and the Copelands sued the City of Florence and Officer Blalock, seeking damages for personal injuries. The City of Florence and Officer Blalock answered the complaint, averring, among other things, that any damages for which they may be found liable cannot exceed the amount provided in Ala.Code 1975, § 11-47-190.

At the time of the accident, Connie Sparks and Billy Ray Copeland had in effect insurance policies with Alfa Mutual Insurance Company that provided uninsured/underinsured-motorist coverage. Sparks and Copeland filed with Alfa claims for uninsured/underinsured-motorist benefits as a result of the accident. Alfa intervened in the Sparkses and Cope-lands’ action against the City of Florence and Officer Blalock and answered the complaint, also asserting as a defense that any damages to which the plaintiffs may be entitled are limited by Ala.Code 1975, § 11-47-190.

Alfa moved for a partial summary judgment, contending:

“Alfa has no liability to the plaintiffs for any judgment rendered in the instant case against the City of Florence in excess of $100,000 per person / $300,000 per occurrence; and ... Alfa has no liability to the plaintiffs for any judgment rendered in the instant case against Officer Shane Blalock in excess of $100,000 per person / $300,000 per occurrence since the undisputed evidence shows that Officer Blalock was acting within the line and scope of his employment with the City of Florence at the time the accident made the basis of this suit occurred and the municipal damages cap found in Ala.Code § 11-93-2[] applies, as a matter of law, to municipal employees acting in the line and scope of their municipal employment.”

The City of Florence and Officer Blalock also moved for a partial summary judgment, arguing that they “have no liability to the plaintiffs for any judgment or combination of judgments rendered in the instant suit in excess of $100,000 per person injured and $300,000 combined total for all persons injured in the accident.” In response to the summary-judgment motions, the Sparkses and the Copelands argued, among other things, that the cap on damages to be paid by municipalities is intended to protect the coffers of municipalities and other government entities but is not intended to protect carriers of uninsured/underinsured-motorist insurance such as Alfa.

The trial court entered an order on March 17, 2005, and then entered a corrected order on March 22, 2005, finding that the accident occurred while Officer Blalock was “acting within the line and scope of his duty as a Florence Police Officer” and that at the time of the accident Connie Sparks and Billy Ray Copeland had insurance policies with Alfa that provided underinsured-motorist benefits. The trial court further found that

“any damages under any judgment against the City of Florence, Alabama and defendant Shane Blalock arising out of the accident made the basis of this suit shall be limited to $100,000 for bodily injury for one plaintiff and recovery for damages under any judgment or judgments against the City of Florence and defendant Shane Blalock shall' be limited to $300,000 in the aggregate for three or more plaintiffs.”

In addition, the trial court found that

“[the] plaintiffs are only entitled to recover legally against Alfa Mutual Insur-anee Company to the extent that they can recover from tortfeasor City of Florence, Alabama and defendant Shane Blalock and thus Alfa Mutual Insurance Company has no liability to the plaintiffs for any judgment rendered in excess of $100,000 per individual and $300,000 in the aggregate as set forth above. See Ex parte Carlton, 867 So.2d 332 (Ala.2003).”

The trial court, apparently intending to certify its order as a final judgment under Rule 54(b), Ala. R. Civ. P., stated: “There being no just cause for delay, this is a final appealable order.” The Sparkses and the Copelands appeal.

After the parties filed their principal briefs and the circuit clerk filed the record with this Court, the clerk of this Court directed the Sparkses and the Copelands to show cause why their appeal should not be dismissed as being from a nonfinal order. The Sparkses and the Copelands contend that the trial court’s March 22, 2005, order is a final appealable judgment because, they say, it “effectively dismisses Alfa Mutual Insurance Company as a party defendant as it, if upheld on appeal, completely absolves defendant Alfa Mutual Insurance Company from any potential liability under its [uninsured/underinsured-motorist] coverage as to plaintiffs.” The Sparkses and the Copelands state that the March 22, 2005, order is “a complete and final judgment as to any and all claims involving defendant Alfa Mutual Insurance Company in this pending litigation.”

Alfa also responded to the show-cause order, concurring with the Sparkses and the Copelands’ contention that the trial court’s order “effectively dismisses [Alfa] as a party defendant by completely absolving it from any potential liability under the uninsured/underinsured (‘UM’) coverage issued” to Sparks and Copeland and thus constitutes a final judgment.

The City of Florence contends that the trial court’s order is a final judgment because, it says, the order “effectively dismisses any and all claims of over $100,000.00 per person/$300,000.00 in the aggregate ... under the Alabama Municipal cap on damages claims, as well as any claim against ALFA for [uninsured/under-insured-motorist] benefits in excess of said cap.”

Analysis

The City of Florence’s characterization of the trial court’s order is the most accurate. The trial court’s order absolves Alfa of liability for any amount over $100,000 per plaintiff or $300,000 in the aggregate. It does not, as the other parties characterize it, completely absolve Alfa. The order merely concludes that Alfa has “no liability to the plaintiffs for any judgment rendered in excess of $100,000 per individual and $300,000 in the aggregate.” We cannot conclude that that language completely absolves Alfa from liability for payment of underinsured-motorist benefits.

An “uninsured motor vehicle” is defined by statute as one with respect to which “[t]he sum of the limits of liability under all bodily injury liability bonds and insurance policies available to an injured person after an accident is less than the damages which the injured person is legally entitled to recover.” Ala.Code 1975, § 32-7-23(b)(4). Although the trial court determined that, by operation of Ala.Code 1975, § 11-47-190, the Sparkses and the Cope-lands are legally entitled to recover a maximum of $100,000 per person or a total of $300,000 per occurrence, there is no information in the record before us to indicate “the sum of the limits of liability under all bodily injury liability bonds and insurance policies available to” them or whether that sum is less than what the Sparkses and the Copelands may be legally entitled to recover. See Ala.Code 1975, § 32-7-23. The parties make no reference in their responses to the show-cause order or in their appellate briefs to whether the City of Florence has or does not have insurance that would cover the accident. Thus, we do not know whether Alfa may be called upon for umnsured/underinsured-motorist coverage if the Sparkses and/or the Cope-lands are legally entitled to recover from the City of Florence. Because it is not clear whether or how much insurance is available to the Sparkses and the Cope-lands, or, more significantly, whether the amount available will be less than the amount the Sparkses and the Copelands are legally entitled to recover, we cannot determine whether Alfa will be called upon for uninsured/underinsured-motorist coverage. Thus, we cannot conclude that the trial court’s order, in effect, disposes of Alfa as a party.

Because the order does not dispose of Alfa, or any other party or claim, it is not appealable under Rule 54(b), Ala. R. Civ. P., which provides:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

Rule 54(b), Ala. R. Civ. P., confers appellate jurisdiction over an otherwise nonfinal order only where the trial court “has completely disposed of one of a number of claims, or one of multiple parties.” Committee Comments on 1973 Adoption, Rule 54(b), Ala. R. Civ. P. It is “our time-honored rule that a final judgment is an essential precondition for appealing to this Court.” John Crane-Houdaille, Inc. v. Lucas, 534 So.2d 1070, 1073 (Ala.1988).

The fact that the trial court purported to certify its order as final is not determinative. The “ ‘trial court cannot confer appellate jurisdiction upon this court through directing entry of judgment under Rule 54(b) if the judgment is not otherwise “final.” ’ ” Tanner v. Alabama Power Co., 617 So.2d 656, 656-57 (Ala.1993), quoting Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978). See also Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999). (“[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.”).

Therefore, the trial court’s purported Rule 54(b) certification was not effective to make its order a final judgment, and that order was not appealable as of right.

For the foregoing reasons, we dismiss the appeal.

APPEAL DISMISSED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . Alabama Code 1975, § 11-47-190, provides:
      "No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his or her duty ... and whenever the city or town shall be made liable for damages by reason of the unauthorized or wrongful acts or negligence, carelessness or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured. However, no recovery may be had under any judgment or combination of judgments, whether direct or by way of indemnity under Section 11-47-24, or otherwise, arising out of a single occurrence, against a municipality, and/or any officer or officers, or employee or employees, or agents thereof, in excess of a total $100,000 per injured person up to a maximum of $300,000 per single occurrence, the limits set out in the provisions of Section 11-93-2 notwithstanding.”

      . Alabama Code 1975, § 11-93-2, provides:
      "The recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence. Recovery of damages under any judgment or judgments against a governmental entity shall be limited to $300,000.00 in the aggregate where more than two persons have claims or judgments on account of bodily injury or death arising out of any single occurrence. Recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for damage or loss of property arising out of any single occurrence. No governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth.”

      . In Carlton, this Court stated that the phrase "legally entitled to recover” in the statute requiring automobile insurers to provide uninsured-motorist coverage means that " '[i]n a direct action by the insured against the insurer, the insured has the burden of proving ... that the other motorist was uninsured, legally liable for damage to the insured, and the amount of this liability.’ ” Carlton, 867 So.2d at 334 (quoting State Farm Mut. Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 431, 286 So.2d 302, 306 (1973)). Accordingly, the Court in Carlton concluded that an employee, injured in a motor-vehicle accident while acting in the scope of his employment, who was barred by the exclusivity-of-remedy provision in the Workers’ Compensation Act from recovering from a co-employee for the co-employee’s negligence, was not entitled to uninsured-motorist benefits, because he was not "legally entitled to recover damages” from the co-employee. 867 So.2d at 338.

      . In its summary-judgment motion, Alfa sought a judgment that "Alfa has no liability to the plaintiffs for any judgment rendered in the instant case against either the City of Florence or Officer Shane Blalock in excess of $100,000 per person / $300,00 per occurrence." (Emphasis added.)

      . With regard to Officer Blalock’s coverage, the Sparkses and the Copelands argue in their brief to this Court that Officer Blalock is an "uninsured motorist” because he failed to notify his insurance company of the claims against him.

      . In responding to the show-cause order, Alfa and the City of Florence have asked this Court, in the event that we determine that the trial court’s order is not final, to remand the matter to the trial court to enter a certificate of appealability under Rule 5, Ala. R.App. P. Rule 5(a), Ala. R.App. P., provides:

        “A petition to appeal from an interlocutory order must contain a certification by the trial judge that, in the judge’s opinion, the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation. The trial judge must include in the certification a statement of the controlling question of law.”
      Whether to certify an order as appealable pursuant to Rule' 5, Ala. R.App. P., is within the trial court’s discretion. Ex parte Showers, 812 So.2d 277, 282 (Ala.2001), Ex parte Burch, 730 So.2d 143, 145 (Ala.1999), and Wilson v. Wilson, 736 So.2d 633, 634 (Ala.Civ.App.1999). Moreover, the trial court is in a better position than is this Court to.judge whether the question before that court meets the requirements of Rule 5. Therefore, we decline to offer the trial court any suggestion that it should certify some question as appeal-able.


text:
    Ex parte James Kenneth ATCHLEY, Sr. (In re James Kenneth Atchley, Sr. v. Lawton Dale Fuller).
    1041364.
    Supreme Court of Alabama.
    Feb. 10, 2006.

      James Kenneth Atchley, Sr., pro se.
    L. Dale Fuller, pro se.
   SEE, Justice.

James Kenneth Atchley, Sr., petitions this Court for a writ of mandamus directing Judge F. Timothy Riley to recuse himself from the underlying legal-malpractice litigation. Atchley also requests that, once Judge Riley recuses himself, this Court “permit” the Administrative Office of Courts (“AOC”) to appoint a judge to sit in the case. We deny the petition.

Background

In January 2005, Atchley sued his former attorney, Lawton Dale Fuller, in the Marshall Circuit Court, alleging legal malpractice. In February 2005, both of the judges in the Marshall Circuit Court, Presiding Judge Tim Jolley and Judge David Evans, recused themselves from Atchley’s legal-malpractice action. Apparently pursuant to a standing order, Atchley’s case was then reassigned to Judge Riley, the presiding district court judge. Atchley moved Judge Riley to recuse himself because, he said, “there has been no appropriate assignment or order appointing Judge Riley to this case,” and because “Fuller[,] being a local attorney, ... give[s] an appearance of impartiality [sic].” Atchley’s mandamus petition, Exhibit 2. Judge Riley denied Atchley’s motion, entering the following statement on the ease-action summary: “Standing Order By Presiding Circuit Judge assigning cases to either other Circuit Judge or Presiding District Judge applies in this case. The undersigned is the Presiding District Judge. Motion to Recuse is denied.” Atchley now petitions this Court for a writ of mandamus ordering Judge Riley to re-cuse himself and “permitting” the AOC to reassign this case because once Judge Riley recuses himself there will not be a judge with authority to hear the case available in Marshall County.

Standard of Review

“ ‘A writ of mandamus is an extraordinary form of relief.’ Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 810 (Ala.2002). ‘[A] writ [of mandamus] will issue only upon a showing of “(a) a clear legal right in the petitioner to the order sought, (b) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (c) the lack of another adequate remedy, and (d) the properly invoked jurisdiction of the court.” ’ Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)).”

Ex parte City of Tuskegee, 932 So.2d 895, 900 (Ala.2005).

Analysis

I.

Rule 13(A), Ala. R. Jud. Admin., provides that “[t]he presiding circuit court judge may temporarily assign circuit or district court judges to serve either within the circuit or in district courts within the circuit.” Atchley argues that, because Judge Jolley, the presiding circuit judge of the Marshall Circuit Court, recused himself from this case, he could not then “assign” this case to Judge Riley under Rule 13(A), Ala. R. Jud. Admin. It is true that the authority of the presiding circuit judge to assign a case is circumscribed where that judge is disqualified from sitting on that case. See Ex parte Jim Walter Homes, Inc., 776 So.2d 76 (Ala.2000); and Ex parte Kirby Co., 784 So.2d 290 (Ala.2000). In Ex parte Jim Walter Homes, the trial judge recused himself and then personally assigned the case to another judge of his choosing. This Court concluded that the trial judge’s actions created the appearance of impropriety and held that

“after a judge presiding in a particular case has been disqualified from hearing that case, under the Canons of Judicial Ethics, either voluntarily or by objection, he or she can take no further action in that case, not even the action of reassigning the case under Rule 13, Ala. R. Jud. Admin.”

776 So.2d at 80.

This Court then held that the appropriate procedure for initiating the reassignment of a case when the presiding judge in the circuit has been disqualified from a case under the Canons of Judicial Ethics is as follows:

“[1] In a circuit with more than one circuit judge, the presiding judge shall enter an order notifying the next senior judge within that circuit of the presiding judge’s disqualification. A circuit judge who is so notified but who is also disqualified shall enter an order notifying the next senior judge within that circuit of that judge’s disqualification. A circuit judge who is so notified and who is not disqualified shall become the judge to whom the case is assigned, unless that judge assigns the case to another judge within the circuit who agrees to take the case. [2] In a circuit with only one circuit judge, if the district judge within the county in which the action is pending has been temporarily assigned by the presiding circuit judge to serve in circuit court pursuant to Rule 13, Ala. R. Jud. Admin., the circuit judge shall notify that district judge of the circuit judge’s disqualification. If no judge with authority to hear the case is available in the county in which the action is pending, the case shall be referred to the AOC for assignment of a judge.”

Ex parte Jim Walter Homes, 776 So.2d at 80.

This case is not squarely addressed by the holding in Ex parte Jim Walter Homes. Marshall County has two circuit judges, both of whom recused themselves from hearing Atchley’s legal-malpractice case. However, the second scenario outlined above, pertaining to circuits with only one circuit judge, is applicable to this case by analogy because, whether one circuit judge in a circuit with only one circuit judge recuses himself or herself or two circuit judges in a circuit with only two circuit judges recuse themselves, the result is the same: no other circuit judge in the circuit has authority to hear the case. In such an instance, if the district judge in that county has been “temporarily assigned by the presiding circuit judge to serve in circuit court pursuant to Rule 13, Ala..R. Jud. Admin., the circuit judge shall notify that district judge of the circuit judge’s disqualification.” We see no reason that a district judge with authority to serve in the circuit court pursuant to Rule 13, Ala. R. Jud. Admin., may not do the same.

Atchley contends that because both circuit judges in the circuit recused themselves the AOC must appoint a judge to hear his case. However, Ex parte Jim Walter Homes calls for the AOC to appoint a judge in a particular case “[i]f no judge with authority to hear the case is available in the county in which the action is pending .... ” If Judge Jolley, the presiding circuit judge, provided in a standing order that the presiding district judge shall be temporarily assigned to serve in the circuit court when needed, pursuant to Rule 13, Ala. R. Jud. Admin., then Judge Riley is a “judge with authority to hear the case ... in the county in which the action is pending,” and Atchley’s case, need not be referred to the AOC for reassignment.

Atchley does not include Judge Jol-ley’s standing order as an attachment to his mandamus petition. See Rule 21(a)(1)(E), Ala. R.App. P. (“The petition shall contain ... [c]opies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.”). We presume that trial court judges know and follow the law. See Ex parte Slaton, 680 So.2d 909, 924 (Ala.1996) (“Trial judges are presumed ... to know the law and to follow it in making their decisions.”); and Carter v. State, 627 So.2d 1027, 1028 (Ala.Crim.App.1992) (“A trial judge’s actions are presumptively correct in the absence of a showing to the contrary.”). Thus, absent evidence to the contrary, we presume that the standing order provides a procedure that is consistent with the procedure in Ex parte Jim Walter Homes. That presumption is consistent with Judge Riley’s May 20, 2005, entry on the case-action summary, which Atchley does attach to his mandamus petition: “Standing Order By Presiding Circuit Judge assigning cases to either other Circuit Judge or Presiding District Judge applies in this case. The undersigned [Judge Riley] is the Presiding District Judge.” We presume that the standing order provides for the presiding district judge to temporarily sit in the circuit court when needed, a scenario that Rule 13, Ala. R. Jud. Admin., permits, and such an order would negate the alleged impropriety of a judge who has recused himself or herself from a case from assigning that case to another judge; therefore, we cannot conclude that the assignment of this case to Judge Riley was improper.

II.

Atchley argues that Canon 3.C., Canons of Judicial Ethics, requires that Judge Riley recuse himself from Atchley’s case. Canon 3.C.(1) provides in pertinent part that “[a] judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned .... ” In Ex parte City of Dothan Personnel Board, 831 So.2d 1 (2002), this Court noted:

“ ‘Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when “facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.” Specifically, the Canon 3(C) test is: “Would a person of ordinary prudence in the judge’s position knowing all the facts known to the judge find that there is a reasonable basis for questioning the judge’s impartiality?” The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality — whether there is an appearance of impropriety.’ ”

831 So.2d at 5-6 (quoting Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.1994) (citations omitted)).

Atchley contends that Judge Riley cannot “legally” preside over this case because, he says, “Defendant Fuller has practiced in Judge Riley’s courtroom on countless cases and Judge Riley and Fuller have an affinity relationship, are members of the same bar association, and decided opinions would compromise Judge Riley’s ability to look to the issues and evidence in the case versus his opinions.” Atchley’s mandamus petition, p. 5. Atchley does not describe Fuller and Judge Riley’s “affinity relationship” nor does he present any facts that would reasonably call into question Judge Riley’s impartiality with respect to Atchley. Atchley fails to distinguish the relationship between Fuller and Judge Riley from the typical attorney-judge relationship. Thus, the facts as presented by Atchley’s petition do not support his argument that Judge Riley cannot preside over his case impartially.

Conclusion

Atchley has not demonstrated that his case was improperly assigned to Judge Riley or that, if it was properly assigned, Judge Riley is disqualified from presiding over it. Thus, he has not shown a clear legal right to the relief he seeks. Accordingly, we deny Atchley’s petition for the writ of mandamus.

PETITION DENIED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . Atchley also argues that “the standing order appears to equate with a local rule prohibited by Rule 83, Ala. R. Civ. P., and abolished 4/14/92.” Atchley's mandamus petition, pp. 4-5. Rule 83, Ala. R. Civ. P., provides: "All local rules are abolished effective April 14, 1992, and no local rules shall thereafter be permitted." However, Rule 83, Ala. R. Civ. P., as amended in 1992, allows a trial court to issue orders relating to procedure in the court so long as the area addressed by the order is not within the purview of the Alabama Rules of Civil Procedure. Committee Comments to April 14, 1992, Amendment to Rule 83, Ala. R. Civ. P. (“The abolition of local rules does not prevent the trial court from issuing orders that are essential to the administration of its docket in areas outside the scope of the Alabama Rules of Civil Procedure.”). The standing order appears to fall within this category of permitted orders.