author: STUART, Justice. MURDOCK, Justice

text:
    Ex parte Larry Ray DUNN. (In re State of Alabama v. Larry Ray Dunn).
    1071267.
    Supreme Court of Alabama.
    Oct. 31, 2008.
    Michael L. Cartee of Cartee & Lloyd, Tuscaloosa, for petitioner.
    Thomas M. Smith, dist. atty., and Patrick C. Glaze, deputy dist. atty., Tuscaloosa, for respondent.

      . Although Justice Murdock did not sit for oral argument of this case, he has viewed the video recording of that oral argument.

   STUART, Justice.

Larry Ray Dunn petitions this Court for a writ of mandamus directing the Court of Criminal Appeals to vacate its order granting the State’s petition for a writ of mandamus. In that order the Court of Criminal Appeals directed the trial court to set aside its order granting Dunn’s motion to suppress, to accept the jury’s verdict, and to sentence Dunn. Dunn, in effect, asks this Court to direct the Court of Criminal Appeals to enter an order denying the State’s petition for a writ of mandamus. We grant the petition and issue the writ.

Facts

Dunn moved the trial court to suppress evidence that was seized from his residence and that provided the basis for a criminal charge against him. After conducting a suppression hearing outside the presence of the jury, the trial court stated that it was taking Dunn’s suppression motion “under advisement” and that the trial would proceed. The State did not move, pursuant to Rule 15.6(b), Ala. R.Crim. P., for a pretrial determination on the admissibility of the evidence. At the close of the State’s case, Dunn renewed his motion to suppress. The trial court stated that it would continue to take Dunn’s suppression motion under advisement. After the jury returned a verdict of guilty, the trial court and counsel for both sides discussed a schedule for briefing Dunn’s suppression issues. The parties briefed the issues, and, after considering the briefs, the trial court granted Dunn’s motion to suppress.

The State then filed a petition for a writ of mandamus with the Court of Criminal Appeals, asking that court to prohibit the trial court from granting Dunn’s motion to suppress and to direct the trial court to enter a judgment of guilt finalizing the jury’s verdict and to pronounce sentence. The Court of Criminal Appeals granted the State’s petition and ordered the trial court to set aside its suppression order, to accept the jury’s verdict, and to sentence Dunn. State v. Dunn (CR-07-0644, May 28, 2008), — So.3d - (Ala.Crim.App.2008) (table).

Dunn petitions this Court for a writ of mandamus directing the Court of Criminal Appeals to vacate its order granting the State’s petition and to enter an order denying the State’s petition.

Standard of Review

“Our review of a decision of the Court of Criminal Appeals on an original petition for a writ of mandamus is de novo. Rule 21(e)(1), Ala. R.App. P.; Ex parte Sharp, 893 So.2d 571, 573 (Ala.2003). The standard for issuance of a writ of mandamus is well settled:

“ ‘A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’

“Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001)(citing Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000)).”

Ex parte McCormick, 932 So.2d 124, 127-28 (Ala.2005).

Discussion

Dunn contends that the Court of Criminal Appeals erred in issuing the writ because, he says, among other reasons, the State did not establish that the trial court had “an imperative duty ... to perform” and that it “refus[ed] to do so.”

“Mandamus is relief to be issued only in rare circumstances.” Ex parte United Equitable Life Ins. Co., 595 So.2d 1373, 1374 (Ala.1992). Here, the materials before us clearly establish that the State failed to satisfy the requirement for mandamus relief of “an imperative duty upon the [trial court] to perform, accompanied by a refusal to do so.” Because the State did not move for a pretrial determination on the admissibility of the evidence, the trial court had the discretion to take Dunn’s suppression motion under advisement, proceed with the trial, and issue a ruling after the jury returned its verdict. Thus, nothing before us indicates that at the time the trial court entered its order suppressing the evidence it had an imperative duty to perform and refused to do so. Mandamus is a drastic and extraordinary remedy that “will be denied, [when] there is another specific and sufficient remedy provided by law.” Arrington v. Van Houton, 44 Ala. 284, 286 (1870). Because the State failed to satisfy the requirements for mandamus relief, the Court of Criminal Appeals erred in issuing the writ.

Conclusion

Based on the foregoing, we grant Dunn’s petition and direct the Court of Criminal Appeals to vacate its writ and to enter an order denying the State’s petition.

PETITION GRANTED; WRIT ISSUED.

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

WOODALL and MURDOCK, JJ., concur in the result.

MURDOCK, Justice

(concurring in the result).

I believe the main opinion reaches the right result, but for the wrong reason. The State was not entitled to a writ of mandamus from the Court of Criminal Appeals if it could not establish all four of the elements necessary for the issuance of such a writ:

“(1) a clear legal right to the relief sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of this Court.”

Ex parte Bill Heard Chevrolet, Inc., 927 So.2d 792, 798 (Ala.2005). The main opinion concludes, wrongly in my view, that the State failed to establish the second element, i.e., that the trial court was under “an imperative duty ... to perform” but refused to do so. I believe the proper ground upon which to base our decision in this case, however, is that the State failed to establish the first element, i.e., that it had “a clear legal right to the relief sought.”

If the State had a clear legal right to the entry of a judgment based on the jury's verdict, then I do not see how it would not be “imperative” for the trial court to enter that judgment at the procedural juncture at which the trial court and the parties had arrived when the State sought mandamus relief from the Court of Criminal Appeals. The trial was at an end. The jury had returned its verdict against the defendant. The trial court had ruled that some of the evidence upon which the jury had reached its verdict should have been suppressed. The only thing left for the trial court to do — indeed, the very next thing for the trial court to do — was to consider the entry of an order granting the defendant a new trial or a judgment of acquittal. If the State was to obtain the relief it sought — the avoidance of an order for a new trial or a judgment of acquittal, and instead the procurement of a judgment of conviction based upon the jury’s verdict— it obviously was imperative for the State to obtain that at the juncture at which it sought it. Further, the trial court’s post-trial, postverdict order granting the defendant’s motion to suppress the evidence was tantamount, at least in this particular case, to a refusal to enter a judgment of conviction based on the jury’s verdict.

The problem in my view is not that the duty, if any, on the part of the trial court to perform was not imperative; it is that there simply was no such duty — at least not as this case has been argued. In other words, the problem for the State as I see it is that it has no “clear legal right to relief’ in the circumstances presented.

The order of the trial court suppressing the evidence in question has not been challenged on its merits in the Court of Criminal Appeals or in this Court. The only other challenge to this ruling that the State could make, and the only challenge that it has in fact attempted to make, is that the suppression order by the trial court came too late procedurally — specifically, that the trial court could not suppress the evidence at the late date (posttrial and postverdict) at which it purported to do so. It is not necessary to address the merits of this argument in order to determine that the State does not have a clear legal right to relief based upon it. This is so because it is an argument that the State did not make to the trial court. To the contrary, the State repeatedly had the opportunity throughout the litigation — before, during, and after the trial — to assert this position but did not do so. It repeatedly acquiesced in the trial court’s continued reservation of the issue of suppression until after the trial had been concluded and a verdict returned.

Our appellate courts do not grant relief based on arguments presented for the first time to the appellate court. Ex parte Farley, 981 So.2d 392, 397 (Ala.2007) (quoting Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992), and Baldwin County Elec. Membership Corp. v. Catrett, 942 So.2d 337, 348 (Ala.2006)). See also Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 659, 55 S.Ct. 890, 79 L.Ed. 1636 (1935) (“The verdict for the plaintiff was taken pending the court’s rulings on the motions and subject to those rulings. No objection was made to the reservation or this mode of proceeding, and they must be regarded as having the tacit consent of the parties.”). Thus, the State did not seek in its petition to the Court of Criminal Appeals to vindicate a “clear legal right to relief.” It is on this basis that I concur in the result.

      . Rule 15.6(b), Ala. R.Crim. P., provides:

        “(b) Admissibility of Evidence. Upon motion of either party or upon its own motion, the court may order that the question of the admissibility of any specified evidence be submitted for pre-trial determination as if a motion to suppress had been timely filed by the party opposed to the introduction of the evidence.”
      A request by the State for a pretrial ruling on the admissibility of evidence permits the State, if its evidence is suppressed, to appeal the trial court’s suppression order to the Court of Criminal Appeals. See Rule 15.7, Ala. R.Crim. P. See also State v. A.R.C., 873 So.2d 261, 267 (Ala.Crim.App.2003)(recogniz-ing that if the State filed a motion in limine seeking a pretrial ruling on the admissibility of the evidence and the trial court suppressed the evidence, the State could appeal the ruling, pursuant to Rule 15.7, Ala. R.Crim. P., to the Court of Criminal Appeals).


source: Caselaw Access Project

author:
BOLIN, Justice.
      MURDOCK, Justice

license: Public Domain

text:
    Alfred Douglas HAMMOCK, as executor of the estate of Annie L. Moncus, deceased v. WAL-MART STORES, INC., et al.
    1070939.
    Supreme Court of Alabama.
    Nov. 7, 2008.
    R. Timothy Morrison and N. Kirkland Pope of Pope, McGlamry, Kilpatrick, Morrison & Norwood, LLP, Atlanta, Georgia; and Claude E. “Skip” McCoy of Johnson, Caldwell & McCoy, Lanett, for appellant.
    Marda W. Sydnor and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for appellees.
   BOLIN, Justice.

Alfred Douglas Hammock, as executor of the estate of Annie L. Moncus, deceased, appeals from a summary judgment in favor of Wal-Mart Stores, Inc., Wal-Mart Stores East, L.P., and Merissa La-shaun Ransom. We dismiss the appeal.

Facts and Procedural History

On the afternoon of December 29, 2004, Annie Moncus and her husband, Elmer Boyd Moncus, were in the parking lot of the Wal-Mart discount store in Valley, walking toward the entrance of the store. While Annie and Elmer were walking through the yellow-painted crosswalk, Annie was struck and killed by an automobile driven by Ransom. At the time, Ransom was employed at the Wal-Mart store and was returning from her lunch hour. Ransom was on her way to the employee parking lot when the accident occurred.

On September 29, 2005, Hammock, Annie’s son, as executor of his mother’s estate, filed a wrongful-death action against Ransom, alleging negligence and wantonness. Hammock also named as defendants Wal-Mart Stores, Inc., and Wal-Mart Real Estate Business Trust, Inc., which Hammock asserted owns the property on which the Wal-Mart discount store is located, alleging that at the time of the accident Ransom was acting within the line and scope of her employment for Wal-Mart Stores and Wal-Mart Real Estate and that, therefore, they were liable for Ransom’s negligence. He also alleged that Wal-Mart Stores and Wal-Mart Real Estate negligently or wantonly designed, constructed, controlled, inspected, and/or maintained the parking lot and crosswalk where the accident occurred and that they were negligent in training and supervising their employees by allowing the employees to drive through the customer parking lot, exposing business invitees to an unreasonable risk of harm, instead of requiring employees to take an alternate route to the employee parking lot.

On January 2, 2008, Wal-Mart Stores and Wal-Mart Real Estate filed a summary-judgment motion. Hammock filed a response, and the trial court held a hearing on the motion. On February 1, 2008, the trial court entered an order dismissing Hammock’s wantonness claim. The court granted Wal-Mart Stores and Wal-Mart Real Estate’s summary-judgment motion with regard to Hammock’s claim based on respondeat superior. However, the trial court denied the summary-judgment motion as to the remainder of Hammock’s claims.

On February 13, 2008, Hammock filed a motion to amend his complaint to remove his wantonness claim pursuant to the trial court’s order of February 1, 2008, and to add Wal-Mart Stores East, L.P., as a party. On February 15, 2008, Hammock filed a motion to alter, amend, or vacate the summary judgment on his claim of respon-deat superior. On March 3, 2008, Hammock filed a motion dismissing Wal-Mart Real Estate as a defendant. On March 4, 2008, the trial court granted Hammock’s motion to amend his complaint. That same day, the trial court entered an order, finding, in pertinent part, as follows:

“[T]hat Ransom was not being paid by Wal-Mart at the time of the accident, that Ransom was driving her own vehicle, that Ransom was on her lunch hour and not performing a special errand for Wal-Mart, that Ransom was not compensated by Wal-Mart in any manner for her travel time or expenses that day, that Wal-Mart did not require Ransom to commute to work in her own vehicle as a condition of her employment, or that Ransom was not designated a specific route through the parking lot by Wal-Mart to the employee parking area. In the case at bar, the court finds that there exists no genuine issue of material fact and the defendants, Wal-Mart Stores, Inc., and Wal-Mart Stores East, L.P., are entitled to judgment as a matter of law on the issue involving respon-deat superior.”

On March 19, 2008, the trial court entered an order making the summary judgment against Wal-Mart Stores and Wal-Mart Stores East (hereinafter referred to collectively as “Wal-Mart”) on the claim of respondeat superior final pursuant to Rule 54(b), Ala. R. Civ. P. The claims against Ransom and the other claims against Wal-Mart remain pending. Hammock appealed.

Analysis

Hammock seeks to hold Wal-Mart liable under the doctrine of respondeat superior for Ransom’s action. Before we can address that argument, however, it is necessary to determine whether this Court has jurisdiction to hear Hammock’s appeal.

In our recent case of North Alabama Electric Cooperative v. New Hope Telephone Cooperative, 7 So.3d 342, 344-45 (Ala.2008), this Court stated:

“It is incumbent upon this Court to ensure that it has jurisdiction to hear the appeal.
“ ‘ “As this court has said many times previously, a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties. ...”
“ ‘When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.’

“Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974) (quoting McGowin Investment Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973)).

“ ‘Ordinarily, an appeal can be brought only from a final judgment. Ala.Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay.’

“Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala.2001).

“As noted above, the trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. As this Court has held, however, ‘ “[n]ot every order has the requisite element of finality that can trigger the operation of Rule 54(b).” ’ Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361 (Ala.2004) (quoting Goldome Credit Corp. v. Player, 869 So.2d 1146, 1147 (Ala.Civ.App.2003) (emphasis omitted from Dzwonkowski)). Indeed, ‘ “[i]t bears repeating, here, that ‘“[Certifications under Rule 54-(b) should be entered only in exceptional cases and should not be entered routinely.” ’ ... ‘ “ ‘Appellate review in a piecemeal fashion is not favored.’ ” ”” Schlarb v. Lee, 955 So.2d 418, 419 (Ala.2006) (quoting Dzwonkowski 892 So.2d at 363, quoting in turn State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002), and Goldome, 869 So.2d at 1148 (other citations omitted) (some emphasis added)). See, e.g., Winecoff v. Compass Bank, 854 So.2d 611, 613 (Ala.Civ.App.2003); Moss v. Williams, 747 So.2d 905, 907 (Ala.Civ.App.1999).

“In Scrushy v. Tucker, 955 So.2d 988 (Ala.2006), this Court expounded on how courts determine whether claims are so intertwined that a Rule 54(b) certification is untenable. The Scrushy Court quoted with approval the United States Court of Appeals for the Seventh Circuit for ‘ “certain rules of thumb to identify those types of claims that can never be considered separate” ’ for purposes of Rule 54(b). 955 So.2d at 998 (quoting Stearns v. Consolidated Mgmt., Inc., 747 F.2d 1105, 1108 (7th Cir.1984)). One such rule is that ‘ “ ‘claims cannot be separate unless separate recovery is possible on each.... Hence, mere variations of legal theory do not constitute separate claims.’ ” ’ Id. (quoting Stearns, 747 F.2d at 1108-09, quoting in turn Amalgamated Meat Cutters v. Thompson Farms Co., 642 F.2d 1065, 1071 (7th Cir.1981)). The Scrushy Court also noted the similar rule of the United States Court of Appeals for the Second Circuit, see Rieser v. Baltimore & Ohio R.R., 224 F.2d 198, 199 (2d Cir.1955), which was summarized by the commentators of Federal Practice and Procedure:

“ ‘ “A single claimant presents multiple claims for relief under the Second Circuit’s formulation when the possible recoveries are more than one in number and not mutually exclusive or, stated another way, when the facts give rise to more than one legal right or cause of action.... However, when a claimant presents a number of legal theories, but will be permitted to recover only on one of them, the bases for recovery are mutually exclusive, or simply presented in the alternative, and plaintiff has only a single claim for relief for purposes of Rule 54(b).” ’

“955 So.2d at 998 (quoting 10 Charles Alan Wright et al., Federal Practice & Procedure § 2657 (3d ed.1998) (footnotes omitted)).”

In the present case, the trial court certified as final Hammock’s claim against Wal-Mart based on respondeat superior. Specifically, Hammock had alleged that Ransom was acting in the line and scope of her employment at Wal-Mart when the accident occurred because Wal-Mart required Ransom to park her automobile in an employee parking lot and Ransom was operating her car incident to and in furtherance of the duties assigned her by Wal-Mart under its parking policy. Wal-Mart controls the location of its employee and customer parking lots, controls the design, construction, and operation of its parking lots, and has the authority to control the routes employees take to get to the employee parking lot. The trial court concluded that Ransom was not acting within the line and scope of her employment and that, therefore, Wal-Mart was not liable under the doctrine of respondeat superior.

Hammock’s remaining claim involves negligent supervision and training. With regard to negligent supervision and training, Hammock alleged in his complaint that Wal-Mart was negligent in failing to adopt and to enforce appropriate training policies requiring its employees to use an alternate route to the employee parking lot so that employees would not expose business invitees to an unreasonable risk of harm. Hammock further alleged that Wal-Mart’s failure to adopt and to enforce such policies and “its failure to adequately train and supervise [Ransom] by requiring her to take an alternate route to the employee parking lot, subjected Mrs. Moncus to an unreasonable risk of harm.”

The respondeat superior claim certified under Rule 54(b), Ala. R. Civ. P., and the negligent-supervision-and-training claim that remains to be adjudicated are “intertwined” because of the common element they share. Like a claim of respondeat superior, liability under a theory of negligent supervision is based on the employment relationship. The trial court ruled on Hammock’s respondeat superior claim, determining that Ransom was not acting within the line and scope of her employment when she struck and killed Moncus. As a result, a separate adjudication by the trial court on negligent supervision and training leaves open the possibility of “inconsistent results.”

Accordingly, the trial court erred in certifying its summary judgment on the claim of respondeat superior as final pursuant to Rule 54(b), Ala. R. Civ. P. “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974).

APPEAL DISMISSED.

COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I fully concur in the main opinion. I write separately to add that the “intertwining” of the respondeat superior claims and the negligent supervision and training claims against Wal-Mart Stores, Inc., and Wal-Mart Stores East, L.P., would appear to extend to the elements of causation and damage, in addition to the element of line and scope of employment. I also note for Rule 54(b), Ala. R. Civ. P., purposes that these two additional elements are common to the remaining claims against Wal-Mart Stores and Wal-Mart Stores East, which allege negligent design, construction, control, inspection, and/or maintenance of the parking lot and crosswalk where the accident occurred.

      . Hammock subsequently amended his complaint to add Wal-Mart Stores East, L.P., as a defendant; Wal-Mart Real Estate Business Trust, Inc., was dismissed as a defendant.


author: PER CURIAM.

text:
    Ex parte GENTIVA HEALTH SERVICES, INC. (In re Jerry Savage v. Gentiva Health Services, Inc., and Tracy Chaviers).
    1061805.
    Supreme Court of Alabama.
    Nov. 14, 2008.

      J. Mitchell Frost, Jr., and Neal D. Moore III of Ferguson, Frost & Dodson, LLP, Birmingham, for petitioner.

      Nat Bryan, Thomas M. Powell, and Henry B. Cornelius of Marsh, Rickard & Bryan, P.C., Birmingham, for respondents.
   PER CURIAM.

Gentiva Health Services, Inc. (“Genti-va”), seeks a writ of mandamus compelling the trial court to vacate its discovery order requiring Gentiva to produce the resignation letter of Tracy Chaviers, Gentiva’s codefendant. Gentiva argues that this letter is protected from discovery by § 6-5-551, Ala.Code 1975, a part of the Aabama Medical Liability Act of 1987, § 6-5-540 et seq., Ala.Code 1975. Jerry Savage, the plaintiff in the underlying action, argues that Gentiva is procedurally barred from seeking mandamus relief from this Court because it failed to file a motion for a protective order before petitioning for the writ and because its petition was not timely filed; Savage also argues that Chavi-ers’s resignation letter is not protected from discovery by § 6-5-551. For the reasons stated below, we grant the petition and issue the writ.

Facts and Procedural History

On June 17, 2005, Savage filed the underlying medical-malpractice action against Gentiva and Chaviers. The malpractice claim arises from the administration of home health care to Savage during follow-up treatment for a surgical procedure to remove a cyst from the back of Savage’s leg. Savage’s doctor ordered that a wound vac be applied to the surgical site following the surgery. On June 25, 2004, in her capacity as a nurse and an employee of Gentiva, Chaviers went to Savage’s home to apply the wound vac. While examining Savage’s wound, Chaviers found that the wound was not open and that it could not drain. Chaviers then telephoned Savage’s doctor for instructions as to how to proceed. According to Savage, Chaviers misrepresented the doctor’s instructions and then proceeded to open the wound with a nonsterile instrument and to pack the wound with gauze. Savage further alleges that, because of Chavi-ers’s actions, on June 26, 2004, he was forced to undergo a surgical debridement of a post-operative hematoma. Savage also alleges that at a drug screening on July 9, 2004, Chaviers screened positive for amphetamine/methamphetamine use.

On July 27, 2004, Chaviers resigned her employment with Gentiva and submitted a letter setting forth her purported reasons for resigning. This letter has been filed “under seal” with this Court. Although critical of Gentiva, the letter does not make any reference to Savage or to Chavi-ers’s alleged drug use. The letter does not cite any specific instance of a patient’s being injured as a result of lack of proper care.

On June 17, 2005, Savage sued Gentiva and Chaviers, alleging fraud, suppression, negligence, reckless and/or wanton hiring and training, and breach of contract. Savage requested production of Chaviers’s personnel file, including any documents related to her resignation. Initially, Gentiva filed “objections and responses to [Savage’s] requests for production.” On February 22, 2006, a hearing was held on all pending discovery issues. On May 22, 2006, the trial court ordered Gentiva to produce to Savage Chaviers’s personnel file up to the date that Chaviers provided treatment to Savage and to produce to the court all other documents within her personnel file for an in camera review. On July 20, 2006, the trial court ordered Gen-tiva to produce the resignation letter to Savage, but the court delayed the production of the letter for 14 days “so that defendants may have an opportunity to file written objection within said time period.” On August 3, 2006, Gentiva filed a motion entitled “Motion to Reconsider Order Requiring Production of Tracy Chaviers’ ‘Termination Letter.’ ” On August 14, 2007, the trial court issued an order that denied Gentiva’s motion. The order also stated that “production of the letter shall be withheld for 42 days to afford [Gentiva and Chaviers] the opportunity to seek appropriate review of this order pursuant to [Ala. R.App. PJ Rule 21.”

This petition for writ of mandamus was filed on September 21, 2007.

Standard of Review

“Mandamus is an extraordinary remedy and will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). This Court will not issue the writ of mandamus where the petitioner has ‘ “full and adequate relief’ ’ by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)).

“Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991). Accordingly, mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.

“Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court’s review of a petitioner’s grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order. See Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992) (‘Mandamus disrupts the trial proceedings, forcing the parties to address in an appellate court issues that otherwise might have been resolved as discovery progressed and the evidence was developed at trial.’). In certain exceptional cases, however, review by appeal of a discovery order may be inadequate, for example, (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001) (‘If a trial court orders the discovery of trade secrets and such are disclosed, the party resisting discovery will have no adequate remedy on appeal.’) .... The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala.1992).”

Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813-14 (Ala.2003) (footnote omitted).

The exemption from discovery offered by § 6-5-551, Ala.Code 1975, which prohibits a party in a medical-malpractice action “from conducting discovery with regard to any other act or omission,” i.e., any act or omission other than the one that allegedly renders the health-care provider liable, is treated as a privilege for purposes of determining whether in issuing the discovery order the trial court has disregarded a privilege, thus warranting review of the discovery order by way of a petition for a writ of mandamus. Ex parte Mendel, 942 So.2d 829, 886 (Ala.2006).

Discussion

Gentiva contends that Chaviers’s resignation letter is protected from discovery under § 6-5-551, Ala.Code 1975, and, thus, that the trial court’s discovery order should be reviewed by a petition for a writ of mandamus. Savage responds that Gen-tiva is procedurally barred from seeking mandamus relief because, Savage alleges, Gentiva failed to file a motion for a protective order before it petitioned this Court for the writ and the petition was not timely filed. Moreover, Savage further contends that the resignation letter is not protected from discovery under § 6-5-551.

In Ex parte Orkin, Inc., 960 So.2d 635 (Ala.2006), this Court “reaffirm[ed] the principle that ‘the party seeking a writ of mandamus in a discovery dispute must properly move for a protective order under Rule 26(c), Ala. R. Civ. P.[, before petitioning for the writ].’ ” 960 So.2d at 640 (quoting Ex parte CIT Commc’n Fin. Corp., 897 So.2d 296, 298 (Ala.2004)). This Court further stated that “[t]his sequencing promotes the sound policy of ‘afford[ing] the trial court the opportunity to address its alleged error before a party seeks mandamus relief from an appellate court to correct the alleged error.’ ” Orkin, 960 So.2d at 640 (quoting Ex parte Reynolds Metals Co., 710 So.2d 897, 900 (Ala.1998)).

The requirements regarding a protective order are set forth in Rule 26(c), Ala. R. Civ. P.:

“Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition or production or inspection, the court in the circuit where the deposition or production or inspection is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. A motion for a protective order shall be accompanied by a statement of the attorney for the moving party stating that the attorney, before filing the motion, has endeavored to resolve the subject of the discovery motion through correspondence or discussions with opposing counsel or, if the opposing party is not represented by counsel, with the opposing party.”

In the present case, Gentiva has sufficiently satisfied the procedural requirement of filing a motion for a protective order before it sought mandamus relief. Gentiva’s motion to “reconsider” the trial court’s order requiring production of Chaviers’s resignation letter specifically sought to prohibit discovery of Chaviers’s resignation letter, as protected under § 6-5-551, Ala.Code 1975, and the motion clearly afforded the trial court the opportunity to address its alleged error before Gentiva sought mandamus relief from this Court to correct the alleged error. In substance, Gentiva’s motion to “reconsider” was actually a motion for a protective order. See Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala.2005) (noting that “[t]his Court will look at the substance of a motion, rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure”). Therefore, Gentiva filed a motion for a protective order before it petitioned this Court for the writ of mandamus; thus, Gentiva is not procedurally barred from seeking mandamus relief on the basis that it failed to file a motion for a protective order.

Next, Savage argues that Gentiva’s petition to this Court was not timely filed. This argument is based on Savage’s mistaken belief that Gentiva failed to file a motion for a protective order.

Rule 21(a)(3), Ala. R.App. P., provides: “The petition [for the writ of mandamus] shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of the trial court or of a lower appellate court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

Rule 4(a)(1), Ala. R.App. P., states that appeals as of right shall be filed within 42 days of the judgment or order from which relief is sought.

The presumptively reasonable time for filing a petition for writ of mandamus in a case in which a motion for a protective order has been filed begins to run on the date the trial court denies the motion. Ex parte Nationwide Mut. Ins. Co., 990 So.2d 355, 361 (Ala.2008); Orkin, 960 So.2d at 640.

In the present case, Gentiva’s petition for writ of mandamus was filed within 42 days of the date the trial court denied its motion to reconsider the trial court’s order requiring production of Chaviers’s resignation letter but beyond 42 days from the date the trial court issued the initial order requiring Gentiva to produce the resignation letter. As discussed earlier, Gentiva’s motion was in substance a motion for a protective order; thus, Gentiva’s petition for a writ of mandamus is timely because the presumptively reasonable time for filing the petition did not begin to run until the trial court ruled on the motion.

Finally, Gentiva contends that the trial court erred in holding that § 6-5-551, Ala. Code 1975, does not protect Chaviers’s resignation letter from discovery. We agree.

Section 6-5-551, Ala.Code 1975, provides:

“In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action. The plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts. The plaintiff shall amend his complaint timely upon ascertainment of new or different acts or omissions upon which his claim is based; provided, however, that any such amendment must be made at least 90 days before trial. Any complaint which fails to include such detailed specification and factual description of each act and omission shall be subject to dismissal for failure to state a claim upon which relief may be granted. Any party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.”

(Emphasis added.)

In Ex parte Ridgeview Health Care Center, Inc., 786 So.2d 1112 (Ala.2000), this Court held:

“Section 6-5-551, as amended, makes it clear that in an action against a healthcare provider, based on acts or omissions in the ‘hiring, training, supervision, retention, or termination of [the healthcare provider’s employees],’ the plaintiff is entitled only to discovery concerning those acts or omissions ‘detailed specifically] and factually] described]’ in the complaint and ‘alleged by [the] plaintiff to render the health care provider liable to [the] plaintiff.’ Thus, if the plaintiff alleges that the defendant health-care provider breached the standard of care by negligently training, supervising, retaining, or terminating an employee or by negligently entrusting an employee with an instrumentality, then the plaintiff may discover information only concerning those acts or omissions by those employees whose conduct is detailed specifically and factually described in the complaint as rendering the healthcare provider liable. Consequently, Hayes is not entitled to discovery regarding acts or omissions by Ridgeview in the hiring, training, supervising, retaining, or terminating of employees other than those employees whose acts he detailed specifically and factually described in his complaint as rendering Ridgeview liable.”

786 So.2d at 1116-17; see also Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 218 (Ala.2000) (holding that, under § 6-5-551, a nursing-home resident, who alleged that the nursing home was negligent, wanton, and/or willful and had breached a contractual duty to provide adequate hiring, training, and staffing of its personnel was not entitled to discovery regarding acts or omissions by the nursing home in hiring, training, and supervising employees other than those employees who had provided care and/or services to the resident).

In the present case, the acts or omissions specifically set forth in Savage’s complaint consist of the following: (1) that Chaviers misrepresented to Savage the treatment prescribed by Savage’s doctor; (2) that Gentiva negligently hired, retained, trained, and supervised Chaviers; (3) that Chaviers failed to obtain Savage’s informed consent before she performed a medical procedure on him; (4) that Genti-va and Chaviers breached the acceptable standard of care in providing medical services to Savage; (5) that Gentiva and Chaviers breached an implied contract to provide adequate medical services to Savage; and (6) that Chaviers allegedly was using illegal drugs when she was working for Gentiva and Gentiva knew or should have known about this drug use. Chavi-ers’s resignation letter does not contain any information concerning any of the alleged acts or omissions set forth in the complaint. The letter does not make any reference to anything associated with Savage’s care, to Chaviers’s training or supervision, or to Chaviers’s alleged drug use. Furthermore, the letter does contain information regarding alleged acts or omissions by Gentiva in the hiring, training, and supervising of employees other than Chaviers. Therefore, based on prior decisions of this Court and a plain reading of § 6-5-551, Ala.Code 1975, we conclude that Savage is prohibited from obtaining Chaviers’s resignation letter through discovery and, thus, that Gentiva has a clear legal right to have the trial court’s discovery order vacated.

Conclusion

Gentiva sufficiently satisfied the procedural requirement of filing a motion for a protective order before seeking mandamus relief in this Court. Also, Gentiva’s petition for the writ of mandamus was timely filed because the presumptively reasonable time for filing the petition did not begin to run until the trial court ruled on Gentiva’s motion for a protective order. Finally, the trial court erred in holding that § 6-5-551, Ala.Code 1975, does not protect Chaviers’s resignation letter from discovery. The resignation letter does not contain information concerning any of the alleged acts or omissions set forth by Savage in the complaint. Furthermore, the letter does contain information regarding other alleged acts or omissions by Gentiva; thus, discovery of the letter is prohibited under § 6-5-551, Ala.Code 1975.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . A wound vac is a technique of wound closure that is used to promote healing in large wounds.

      . Without seeing the letter, Savage is under the impression that the resignation letter contains information concerning only the conduct of Chaviers and the provision of medical care to Savage. Savage’s brief at p. 18. However, the letter simply does not contain this information. As a practical matter, this petition is a dispute over the discovery of material that appears to be largely irrelevant to the underlying claims.