author: BURKE, Judge. WELCH, Presiding Judge,

text:
    Keokie Tareze HUDSON v. STATE of Alabama.
    CR-09-1913.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2011.
    Rehearing Denied Oct. 28, 2011.

      William K. Bradford, Mountain Brook; and Cynthia Hooks Umstead, Birmingham, for appellant.
    Troy King and Luther Strange, attys. gen., and Cheairs M. Porter, asst. atty. gen., for appellee.
   BURKE, Judge.

Keokie Tareze Hudson was convicted of two counts of attempted murder, violations of § 13A-4-2, Ala.Code 1975, and one count of discharging a firearm into an occupied vehicle, a violation of § 13A-11-61, Ala.Code 1975. He was sentenced as a habitual felony offender to concurrent sentences of life imprisonment for each conviction of attempted murder, and to 20 years’ imprisonment for the shooting-into-an-occupied-vehicle conviction. Additionally, he was fined $50, payable to the Alabama Crime Victims Compensation Fund, for each count. This appeal followed.

Hudson raises two issues on appeal. First, he argues that the trial court improperly admitted collateral acts evidence, pursuant to Rule 404(b), Ala. R. Evid. Second, he contends that the trial court’s limiting instructions regarding the Rule 404(b) evidence were overly broad and did not indicate the specific purposes for which the jury was to use the evidence.

Hudson was brought to trial on two indictments stemming from two separate incidents. The first incident occurred on January 17, 2009, and formed the basis for the one count of attempted murder and one count of discharging a firearm into an occupied vehicle. The victim, Stanley Miles, testified that he was sitting in his vehicle, talking with a friend, when Hudson approached the vehicle and fired five shots into the vehicle. Miles stated that he was not hit and that he was able to telephone the police. The second incident, which was the basis for the second attempted-murder charge, occurred on June 28, 2009, when Miles was attending “Shep Day,” an event where people from the neighborhood gather to socialize and have a cookout. Miles testified that approximately 15 to 20 minutes after he arrived at “Shep Day,” Hudson showed up as well. According to Miles, Hudson fired two shots at him, one of which hit Miles in the back, damaging his lungs and heart. Hudson presented evidence suggesting that he was not present at “Shep Day” and that another individual actually shot Miles on June 28, 2009.

The State also presented evidence relating to three collateral acts involving Hudson, Miles, and Miles’s brother, Tavaries Bates. The first occurred sometime in February 2008, and involved both Miles and Bates. Early one morning, Miles and Bates drove their vehicle to an alley in the Gate City housing project. Hudson and others were hanging out in the alley. According to the testimony at trial, Hudson apparently believed that Miles and Bates were there to attack Hudson’s friend, Marco. Bates testified that Hudson “was saying something like he thought we was trying to jump on Marco or something, but it wasn’t like that.” (R. 90.) Bates then testified that “[Hudson] just upped with a gun” and pointed it into the vehicle. (R. 90.) According to Bates, Hudson then tried to rob him. During the attempted robbery, Hudson fired the pistol at Bates and the bullet went through Bates’s pants leg. Miles also witnessed the incident and testified that after shooting at Bates, Hudson ran back toward him and pointed the gun in his face. (R. 50.)

The second collateral act occurred in November 2008, and involved only Miles. Miles testified that he was at a birthday party for his four-year-old cousin when a man known only as “Stank” knocked on the back door in hopes of purchasing some marijuana from Miles. (R. 58.) Miles refused to sell him any marijuana because there were children in the house. However, Stank refused to leave. From the door, Miles saw Hudson sitting in a vehicle outside the house. Miles testified that Hudson “ups a gun” and fired two shots, one of which went through the bottom of the screen door and hit Miles in the ankle. (R. 58.)

The third collateral act occurred on January 27, 2009, and involved only Tavaries Bates. Bates testified that he was sitting on his girlfriend’s porch when Hudson, “Wee Wee,” and “Kenny Poo” drove by the house. Bates stated:

“I seen [Hudson] look over me, but I didn’t think they would turn around. So by the time I told my little daughter to go in the house, they had been turned around. So when they turned around, I heard like four shots hit me. And one hit me in the leg....”

(R. 106.)

Before trial, the State gave notice that it intended to offer the three collateral acts as evidence pursuant to Rule 404(b), Ala. R. Evid. (C. 55.) During trial, two separate hearings were held outside the presence of the jury on the admissibility of the Rule 404(b) evidence. In response to the court’s inquiry about the purpose behind offering the evidence, the State responded:

“Judge, the defendant has already brought into question the issue of identity, not only is this very relevant to identity in this case, it also goes towards his intent. This is an attempted murder. ... It goes towards opportunity. Every time [Hudson] sees Stanley Miles, he is shooting at him trying to kill him. These two other instances are exactly what [Rule] 404(b) is designed to be, not for his bad character, but to come in and give the jury a clearer picture as far as intent, plan, opportunity, identity.”

(R. 40.) The judge allowed the evidence of the first two collateral acts to come in, stating: “I’m going to admit it for the limited purpose under Rule 404(b) on the issue of intent and identity if identity is an issue.” (R. 41-42.) Later in the trial, the judge admitted testimony about the third collateral act. Hudson argued that evidence of the third collateral act should not be admissible because it involved only Tavaries Bates, not the victim in the present case. However, the judge stated: “Well, it would appear to me it’s kind of a package deal. I mean, it starts with the two of them [Bates and Miles] and continues with the two of them.... I’m going to admit it with a cautionary instruction as to how [the jury is] to view it. I’ll overrule your objection to it.” (R. 102-03.)

I.

On appeal, Hudson correctly asserts that Rule 404(b) is an exclusionary rule that prevents the State from introducing evidence of a defendant’s bad acts for the purpose of showing the defendant’s bad character. He notes that Rule 404(b) does allow the introduction of such evidence for other purposes “such as proof of notice, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In analyzing Rule 404(b), this Court has stated:

“ ‘evidence of the accused’s having committed another act or crime is not admissible if the only probative function of such evidence is to prove bad character and the accused’s conformity therewith. This is a general exclusionary rule which prevents the introduction of prior acts or crimes for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question. This rule is generally applicable whether the other crime or act was committed before or after the one for which the defendant is presently being tried....
“‘The foregoing exclusionary rule does not work to exclude evidence of all crimes or acts, only such as are offered to show the defendant’s bad character and conformity therewith on the occasion of the now-charged crime. If the defendant’s commission of another crime or misdeed is relevant for some other material purpose in the case then it may be admitted.’
“C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (5th ed.1996) (footnotes omitted). The other purposes for which collateral-crimes evidence may be admissible, i.e., the exceptions to the exclusionary rule, include:
“ ‘(1) Relevancy to prove physical capacity, skill, or means to commit the now-charged crime; (2) part of the res gestae or part of a continuous transaction; (3) relevancy to prove scienter or guilty knowledge; (4) relevancy to prove criminal intent; (5) relevancy to prove plan, design, scheme, or system; (6) relevancy to prove motive; (7) relevancy to prove identity; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes.’
“Nicks v. State, 521 So.2d 1018, 1026 (Ala.Crim.App.1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948 (1988), quoting Nelson v. State, 511 So.2d 225, 233 (Ala.Crim.App.1986), aff'd, 511 So.2d 248 (Ala.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).”

Lewis v. State, 889 So.2d 623, 661 (Ala.Crim.App.2003). Additionally, this Court noted that the exceptions to the exclusionary rule “do not apply unless there is a real and open issue as to one or more of those other purposes. Furthermore, the common plan, scheme, or design exception is essentially coextensive with the identity exception, and applies only when identity is actually at issue.” 889 So.2d at 661 (internal citations omitted).

In the present case, the trial court told defense counsel that “it certainly seems that you put identity in issue.” (R. 41.) The court went on to state that the evidence would also

“be admissible on the issue of [Hudson’s] intent, what he intended to do. Because [Hudson] may not have shot at [Miles] every time he’s seen him, but at least in the last two years, he’s shot at him apparently every time he’s seen him, assuming you believe what Mr. Miles says. Of course, that’s a jury issue.”

(R. 41.) So, the trial court admitted the evidence for the purposes of showing identity and intent. (R. 41-42.) Hudson argues that the collateral acts offered by the State do not meet the criteria for the identity exception. (Hudson’s brief at 17.) Specifically, he contends that the collateral acts are not similar enough to the charged crime i.e., that they lack “a peculiarly distinctive modus operandi, showing that it is the work of the same person.” (Hudson’s brief at 17.) He cites Irvin v. State, 940 So.2d 331 (Ala.Crim.App.2005), for the proposition that such evidence is admissible only when the surrounding circumstances of the prior acts and those of the charged crime show a great degree of similarity, such that anyone viewing the two offenses would naturally assume that they were committed by the same person.

The circumstances surrounding the collateral acts are that Hudson tried to kill both Stanley Miles and his brother, Tavar-ies Bates, on several occasions between February 2008, and January 27, 2009. The record reveals that in each incident Hudson was the shooter and either Miles or Bates was the intended victim; that the collateral acts, as well as the incidents that formed the bases of the charges, all happened within an 18-month period; and that all the acts happened in close proximity to the Gate City housing project. These facts, when taken together, show enough similarity to fit within the identity exception to the exclusionary rule. See Stegall v. State, 628 So.2d 1009, 1011-12 (Ala.Crim.App.1993) (finding that the identity exception was met when the prior bad act [indecent exposure] occurred at approximately the same physical location, the method of creating the crime was substantially similar, and the victims were young women with children in the car); Briggs v. State, 549 So.2d 155 (Ala.Crim.App.1989) (evidence of two prior fires allegedly set by a defendant who was on trial for arson was admissible when the defendant’s identity was at issue).

Additionally, this Court has held:

“ ‘The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.’ Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). This is equally true with regard to the admission of collateral-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998).”

Irvin v. State, 940 So.2d 331, 345 (Ala.Crim.App.2005). Based on the above, it cannot be said that the trial court abused its discretion by admitting the evidence for the purpose of showing identity.

Moreover, it was also admissible to show intent. In Presley v. State, 770 So.2d 104, 109 (Ala.Crim.App.1999), the defendant was convicted of murder made capital because it was committed during an armed robbery of a convenience store. At trial, the defendant argued that he did not intend to rob the convenience store clerk and, therefore, he was guilty only of intentional murder. The prosecution offered testimony from victims of prior armed robberies allegedly committed by the defendant. This Court held that the prior acts were relevant and probative to show that he did have the intent to rob the convenience store.

In the present case, the State had to prove that Hudson intended to cause the death of another person as part of its burden in proving attempted murder. See §§ 13A-4-2, 13A-6-2, Ala.Code 1975. By presenting evidence that Hudson shot at Miles and his brother on prior occasions, the State could demonstrate that Hudson intended to kill Miles on the day in question. Therefore, that evidence fits the Rule 404(b) exception for intent.

However, in order to be admissible, the evidence must not only be relevant and probative. The probative value must be weighed against the danger of unfair prejudice to the defendant.

“ ‘Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.’ United States v. Turquitt, 557 F.2d 464, 468-69 (5th Cir.1977) (citations omitted).
“However, it is ‘only when the probative value of evidence is “substantially outweighed by the danger of unfair prejudice,” ... that relevant evidence should be excluded.’ United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir.1982) (emphasis in original). ‘[T]he probative value of the evidence of other offenses must also be balanced against its “prejudicial nature” to determine its admissibility. “Prejudicial” is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial.’ State v. Daigle, 440 So.2d 230, 235 (La.Ct.App.1983).
“ ‘Of course, “prejudice, in this context, means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.” State v. Hurd, Me., 360 A.2d 525, 527 n. 5 (1976), quoting McCormick, Handbook on the Law of Evidence § 185 at 439 n. 31 (2nd ed.1972).’
“State v. Forbes, 445 A.2d 8, 12 (Me.1982).
“ ‘[Wjhen the evidence shows a common scheme or plan and the similarities between the two offenses are so numerous and distinctive that the evidence has great probative value, the fact that it leads inexorably to the logical conclusion that if the defendant committed the one crime he also committed the other, does not constitute “prejudice” but rather proper overwhelming proof of guilt. (People v. Haslouer, supra, 79 Cal.App.3d [818] at pp. 824-829, 145 Cal.Rptr. 234 [ (1978) ].)’ People v. Rance, 106 Cal.App.3d 245, 164 Cal.Rptr. 822, 825 (1980).”

Averette v. State, 469 So.2d 1371, 1374 (Ala.Cr.App.1985).

The fact that Hudson shot at the victim and his brother on prior occasions is both relevant and probative to show that he had the intent to kill Miles on both January 17, 2009 and June 28, 2009. Additionally, it was reasonably necessary to the State’s case because it was the only evidence tending to prove Hudson’s intent. Cf. Ex Parte Jackson, 33 So.3d 1279, 1285-86 (Ala.2009). Moreover, the prejudicial nature of the evidence does not substantially outweigh its probative value. The record reveals that Hudson has numerous prior convictions for various offenses. (C. 68-71.) However, the State appears to have chosen these specific collateral acts because of their similarity to the charged crimes. This suggests that the evidence was not introduced to show Hudson’s bad character but was intended to show that he possessed the requisite intent; specifically, the intent to kill Miles. It cannot be said that the collateral-acts evidence offered by the State was unfairly prejudicial. Accordingly, the trial court did not err by admitting the Rule 404(b) evidence.

II.

Hudson also argues that the limiting instruction given to the jury regarding the Rule 404(b) evidence was overly broad, thereby constituting reversible error. However, he failed to raise any objections to the limiting instructions at trial. Thus, Hudson is precluded from raising the issue on appeal. This Court has long held that “[i]n order to preserve for review an objection to the giving or the denial of a jury instruction, it is necessary for the appellant to state for the record upon what specific grounds the objection is made.” Buford v. State, 891 So.2d 423, 431 (Ala.Crim.App.2004), quoting Cauley v. State, 681 So.2d 1105, 1107 (Ala.Crim.App.1996).

In Jackson v. State, [Ms. CR-09-1580, December 17, 2010] — So.3d - (Ala.Crim.App.2010), the appellant argued that the circuit court erroneously failed to give the jury a limiting instruction regarding the admission of his prior convictions. This Court stated:

“At trial, [the appellant] neither requested a limiting instruction nor objected to the circuit court’s instructions. Rule 21.3, Ala. R.Crim. P., provides, in relevant part, that ‘[n]o party may assign as error the court’s ... giving of an ... incomplete or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.’ See also Shouldis v. State, 953 So.2d 1275, 1282 (Ala.Crim.App.2006) (holding that the appellant’s challenge to the circuit court’s jury instruction was not preserved and thus was not properly before this Court). Because [the appellant] failed to request a limiting instruction and failed to object to the circuit court’s instruction, he did not preserve this issue for this Court’s review. Therefore, this issue does not entitle him to any relief.”

Jackson v. State, — So.3d at -.

Like the appellant in Jackson, Hudson failed to object to either of the trial court’s limiting instructions. (R. 59, 110.) Consequently, he is precluded from raising the issue on appeal and is not entitled to relief.

For the foregoing reasons, the judgment of the trial court is due to be affirmed.

AFFIRMED.

WINDOM and JOINER, JJ., concur; WELCH, P.J., dissents, with opinion, joined by KELLUM, J.

WELCH, Presiding Judge,

dissenting.

The majority affirms Keokie Tareze Hudson’s convictions for two counts of attempted murder and one count of discharging a firearm into an occupied vehicle, charges based on two separate incidents. The first incident occurred on January 17, 2009, and the victim, Stanley Miles, testified that he was sitting in his car and talking with a friend when Hudson approached them and fired five shots into the vehicle. The second incident occurred on June 28, 2009, when Miles was attending a neighborhood gathering. Miles testified that Hudson arrived at the gathering approximately 15 to 20 minutes after he arrived and that Hudson fired two shots at him, one of which hit Miles in the back, damaging his lungs and heart. The State also presented evidence relating to three other collateral acts involving Hudson, Miles, and Miles’s brother, Tavaries Bates. The trial court admitted the collateral-act evidence over Hudson’s objections; Hudson raises those objections again on appeal. The majority finds no error in the trial court’s admission of the evidence. I disagree, and I would hold that the trial court committed reversible error when it admitted evidence of two of the collateral acts because that evidence was not admissible.

“Evidence of prior or subsequent collateral bad acts and crimes is generally inadmissible.” Bailey v. State, 75 So.3d 171, 183 (Ala.Crim.App.2011). The well established rule is that a defendant’s guilt or innocence is to be based on evidence relevant to the crime with which he is currently charged. Evidence of collateral bad acts is “presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged — thus, it draws the jurors’ minds away from the main issue.” Ex parte Drinkard, 777 So.2d 295, 296 (Ala.2000). The general rule of exclusion of collateral-act evidence protects the defendant’s right to a fair trial because the prejudicial effect of evidence of other crimes or bad acts is likely to far outweigh any probative value that might be gained from admitting the evidence. E.g., Irvin v. State, 940 So.2d 331 (Ala.Crim.App.2005). “Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of jurors.” C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (5th ed.1996).

Although the general rule is one of prohibition of collateral-act evidence, that evidence can be admitted for limited purposes in some cases. Rule 404(b), Ala. R. Evid., provides, in pertinent part:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident .... ”

That a collateral bad act or offense might be offered for one of the “other purposes” does not automatically render the evidence admissible. Further analysis must be performed by the trial court:

“ ‘Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.’ United States v. Turquitt, 557 F.2d 464, 468-69 (5th Cir.1977) (citations omitted).
“However, it is ‘only when the probative value of evidence is “substantially outweighed by the danger of unfair prejudice,” ... that relevant evidence should be excluded.’ United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir.1982) (emphasis in original). ‘[T]he probative value of the evidence of other offenses must also be balanced against its “prejudicial nature” to determine its admissibility. “Prejudicial” is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial.’ State v. Daigle, 440 So.2d 230, 235 (La.Ct.App.1983).”

Averette v. State, 469 So.2d 1371, 1374 (Ala.Crim.App.1985). Determinations of the admissibility of evidence are matters for the trial court’s discretion, and those determinations will be reversed only if the trial court abuses its discretion. See, e.g., Tariq-Madyun v. State, 59 So.3d 744 (Ala.Crim.App.2010).

The State’s pretrial notice of the proposed Rule 404(b) evidence stated, in relevant part:

“1. Between April to May 2008, Keokie Hudson attempted to rob Tavaries Bates, the victim’s brother, and shot at him while the victim was with his brother.
“2. On November 8, 2008, Keokie Hudson shot at Stanley Miles, the victim, in the current case, while he was at a birthday party located at 7542 66th Street South, Birmingham, AL 35206.
“3. On January 27, 2009, Keokie Hudson drove by the victim’s house where he lived with his brother Ta-varies Bates at-6th Avenue South, Birmingham, AL 35215. When Keokie drove by the house, he shot into it striking Tavaries Bates who was standing on the porch.”

(C. 120.)

At trial, outside the jury’s presence, the court considered testimony about the three collateral acts and admitted the testimony for limited purposes. Although the majority states that the trial court admitted the evidence to show identity and intent, the record indicates that the majority’s statement is only partially correct. At the conclusion of the hearing on the admissibility of the first two collateral acts, the trial court stated that it would admit evidence of those acts for a limited purpose on the issue of intent and on identity, if identity became an issue. (R. 41-42.) However, the trial court then instructed the jury during Miles’s testimony that the first two collateral acts were “admissible on the issues of intent, motive, or identity.” (R. 59.) After hearing testimony outside the presence of the jury from Tavaries Bates about the third collateral act — Hudson’s shooting Bates while Bates was at his girlfriend’s residence — the court overruled Hudson’s objection to the evidence and rejected Hudson’s argument that the evidence was inadmissible because Miles was not the victim of that shooting. The trial court then instructed the jury that the testimony from Bates about his being shot was “offered for a very limited purpose, not that the defendant is just a person of bad character and he acted in conformity with that bad character on this occasion. But it’s offered to show intent, motive, plan, scheme, design, those types of issues for that limited purpose only.” (R. 110.)

The majority holds that testimony about the three collateral acts was properly admitted because, the majority reasons, the testimony was relevant to prove identity and intent. In its discussion of the reasons the collateral evidence fits within the identity exception, the majority holds, in relevant part:

“The circumstances surrounding the collateral acts are that Hudson tried to kill both Stanley Miles and his brother, Tavaries Bates, on several occasions between February 2008 and January 27, 2009. The record reveals that in each incident Hudson was the shooter and either Miles or Bates was the intended victim; that the collateral acts, as well as the incidents that formed the bases of the charges all happened within an 18-month period; and that all the acts happened in close proximity to the Gate City housing project. These facts, when taken together, show enough similarity to fit within the identity exception to the exclusionary rule.”

85 So.3d at 472.

I am compelled to note, first, that the State did not argue at trial, nor did the trial court hold, that the collateral acts and the crimes for which Hudson was being tried had been committed in a novel or peculiar manner. Rather, the State essentially argued that evidence of the collateral acts was admissible in Hudson’s trial because Hudson had previously shot at Miles and Bates and that rationale is the very essence of the general prohibition against collateral-act evidence. Evidence is not admissible pursuant to Rule 404(b) when it is offered to prove a defendant’s character and to show the defendant’s conformity therewith. As for the trial court, when it ruled that the collateral-act evidence was admissible, the court simply stated that the defense had placed in issue Hudson’s identity as the shooter. Thus, in determining that the collateral crimes were sufficiently similar to the crimes for which Hudson was on trial, the majority makes an argument that neither the State nor Hudson made below.

As for the substance of the majority’s holding, I believe that the majority’s application of the identity exception to the exclusionary rule is far too liberal in this case. The principles governing the identity exception are well established. In Irvin v. State, 940 So.2d 331 (Ala.Crim.App.2005), this Court stated:

“Collateral-act evidence is admissible to prove identity only when the identity of the person who committed the charged offense is in issue and the charged offense is committed in a novel or peculiar manner. 1 Charles W. Gamble, McElroy’s Alabama Evidence § 69.01(8) (5th ed.1996); Ex parte Arthur, 472 So.2d 665 (Ala.1985); Johnson v. State, 820 So.2d 842, 861 (Ala.Crim.App.2000); Tyson v. State, 784 So.2d 328, 344 (Ala.Crim.App.), aff'd, 784 So.2d 357 (Ala.2000). ‘Under the identity exception to the general exclusionary rule prohibiting the admission of other or collateral crimes as substantive evidence of the guilt of the accused, the prior crime is not relevant to prove identity unless both that and the now-charged crime are “signature crimes” having the accused’s mark and the peculiarly distinctive modus operandi so that they may be said to be the work of the same person.’ Bighames v. State, 440 So.2d 1231, 1233 (Ala.Crim.App.1983). ‘[E]vi-dence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime “exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person.” ’ Ex parte Arthur, 472 So.2d at 668 (quoting Brewer v. State, 440 So.2d 1155, 1161 (Ala.Crim.App.1988)). See also Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953); and Govan v. State, 40 Ala.App. 482, 115 So.2d 667 (1959) (recognizing that the identity exception is applicable only where both the prior crime and the charged offense were committed in the same special or peculiar manner).
“When extrinsic offense evidence is introduced to prove identity, the likeness of the offenses is the crucial consideration. In other words, the physical similarity must be such that it marks the offenses as the handiwork of the accused.”

940 So.2d at 347. (Emphasis added.)

The circumstances of this case in no way support the majority’s holding, and the legal principles governing the admissibility of collateral-act evidence to prove identity demand a reversal here. The charged offenses and the collateral acts were not committed in any special or peculiar manner that would cause one to assume naturally that they had been committed by the same person. In fact, the circumstances surrounding the instances from which the charges arose were not even similar to one another. Furthermore, the circumstances surrounding the three collateral acts were not at all similar to one another. None of the crimes here could be considered “signature crimes,” i.e., crimes that had a distinctive modus operandi that identified Hudson as the perpetrator. Nothing identified any of the offenses — charged or uncharged — “as the handiwork of the accused.” Irvin, 940 So.2d at 347. The majority’s assertion that the identity exception applied because the incidents occurred within an 18-month period, because each incident involved Hudson as the shooter and either Miles or his brother as a victim, and because the incidents all occurred in or near the housing project is untenable; if the identity exception applied to allow these collateral acts into evidence, the exception would be rendered virtually meaningless.

“ ‘Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated ... rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ 1 McCormick on Evidence § 190 at 801-03 (4th ed.1992) (footnotes omitted).”

Hurley v. State, 971 So.2d 78, 83 (Ala.Crim.App.2006).

The only probative function of the evidence offered here was an impermissible one: “to prove the character of a person in order to show action in conformity therewith.” Rule 404(b), Ala. R.Crim. P. The collateral acts were not admissible under the identity exception. The trial court abused its discretion when it admitted the evidence under the identity exception, and I disagree with the majority’s analysis and decision as to this issue.

As for the majority’s determination that the collateral acts were admissible to show Hudson’s intent, I also disagree with this holding. The details regarding the collateral incidents that were developed at trial revealed that two of the collateral events involved Hudson’s actions toward a third party, the victim’s brother, Bates, and that Miles was not even present during the commission of the third collateral act. The details regarding the collateral acts were confusing with regard to Hudson’s intent, and that confusion was exacerbated by the fact that two of the three collateral crimes involved Bates, and not Miles. In fact, Bates testified that the first collateral act — when Hudson attempted to rob him— appeared to have occurred because Hudson was under the influence of drugs. The majority fails to explain how collateral incidents in which Hudson allegedly shot the ■victim’s brother were evidence of Hudson’s intent to shoot the victim during the subsequent incidents for which he was being tried. Rather, the majority simply states:

“In the present case, the State had to prove that Hudson intended to cause the death of another person as part of its burden in proving attempted murder. See §§ 13A-4-2, 13A-6-2, Ala.Code 1975. By presenting evidence that Hudson shot at Miles and his brother on prior occasions, the State could demonstrate that Hudson intended to kill Miles on the day in question. Therefore, that evidence fits the Rule 404(b) exception for intent.”

85 So.3d at 472-73.

I disagree. First, the quote from the majority opinion indicates that the primary purpose for introducing the collateral-act evidence was to encourage the jury to find Hudson guilty of the present shooting charges based on the fact that Hudson had previously shot at Miles and another man and that in the present shooting he had, apparently, acted in conformity with the prior acts. The majority’s rationale does not support its determination that the collateral-act evidence fit within the intent exception of Rule 404(b).

Second, this Court held in Hinkle v. State, 67 So.3d 161 (Ala.Crim.App.2010), a case presenting a similar issue, that evidence of a collateral offense was improperly admitted. Allen Hinkle was convicted for the shooting death of Caneshua Henry and for the attempted murder of Henry’s cousin. The trial court permitted testimony to the effect that, a few weeks before the shooting, Hinkle had struck Caneshua multiple times in the face during an argument; the court determined that the collateral-act evidence was admissible to prove Hinkle’s intent. We disagreed and said:

“Hinkle contends that because the jury could infer Hinkle’s intent to murder Caneshua from Hinkle’s use of a deadly weapon in effectuating the murder, the State could not present evidence of a collateral offense in order to prove intent. The Alabama Supreme Court has recognized that a defendant’s use of a deadly weapon to kill a victim is sufficient to give rise to an inference that the defendant intended to kill the victim. See, Ex parte Burgess, 827 So.2d 193, 199 (Ala.2000) (‘intent to kill may be inferred from the defendant’s act of using a deadly weapon.’). Thus, by demonstrating that Hinkle used a handgun to shoot and kill Caneshua, the State produced sufficient evidence from which the jury could infer that Hinkle acted with the requisite intent to murder Caneshua Henry. However, this Court has held that once the inference has been created, the State may not present evidence of collateral offenses to support a showing of intent. See Hunter v. State, 802 So.2d 265, 269 (Ala.Crim.App.2000), quoting Brewer v. State, 440 So.2d 1155, 1159 (Ala.Crim.App.1983) (‘ “When the element the State bears the burden of proof on can ‘be inferred from the act itself,’ the State may not use extraneous offenses as circumstantial evidence of that element in its case in chief.” ’) (citations omitted). Accordingly, the trial court erred in allowing the State to present testimony regarding the prior altercation between Hinkle and Canesh-ua as evidence of intent to commit the charged offense, pursuant to Rule 404(b), because the facts of the murder already gave rise to an inference of intent.”

67 So.3d at 164.

As in Hinkle, the evidence about the charged shootings presented at trial already gave rise to an inference of Hudson’s intent to murder Miles. The jury heard testimony that on one occasion Hudson had fired multiple shots into a vehicle in which Miles was a passenger, and that, in the other incident, Hudson had walked up to Miles at a social gathering and had fired two shots at him, one of which struck him in the back and damaged his lungs and heart. There was no dispute about the intention of the shooter that might have warranted admission of any collateral-act evidence to prove intent. The defense did not argue that the shootings resulted from an accident or that Hudson had fired the shots in self-defense or during a heated confrontation. Rather, if Hudson committed the shootings, his intent was evident from the use of the deadly weapon. Therefore, the trial court abused its discretion by admitting the collateral acts to prove intent.

For purposes of this dissent I assume, without deciding, that the second collateral act proffered by the State — the November 8, 2008, shooting of Miles — was properly admitted to show Hudson’s motive. Even assuming that the collateral-act evidence involving Miles was admissible, the collateral acts involving Miles’s brother did not meet the basic requirements of the balancing test: “The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.” Averette v. State, 469 So.2d 1371, 1374 (Ala.Crim.App.1985), quoting United States v. Turquitt, 557 F.2d 464, 468-69 (1977) (emphasis added). The majority has not made any attempt to explain how evidence about shootings in which Miles’s brother was the victim was relevant and, in my opinion, the majority could not do so because that evidence was clearly irrelevant. Even if the second collateral act that involved Hudson’s firing a shot at Miles would have been admissible standing alone, the jury here was also provided with irrelevant, unduly prejudicial evidence about Hudson’s actions toward Miles’s brother, and that evidence served only to portray Hudson as having poor character and to encourage the jury to find Hudson guilty of the charged crimes because in committing them he was acting in conformity with his character.

Finally, the trial court failed to consider the balancing of the prejudicial effect of the evidence relative to its possible probative value, and the majority here also has failed to adequately balance the relevant factors. A proper balancing of the prejudicial effect of evidence relative to its possible probative value requires an analysis of the purpose for which the evidence was offered, whether the proffered evidence was relevant and reasonably necessary to the State’s case, and only then a consideration of whether the evidence is unfairly or unduly prejudicial. See Ex parte Jackson, 33 So.3d 1279, 1284-85 (Ala.2009), and cases quoted therein. Although I would hold that evidence about the first and third collateral incidents was inadmissible because the evidence did not fit within any exception to the general prohibition against such evidence and was not relevant to the State’s case, even if the evidence had fit into one or more of the exceptions and had been relevant so that a balancing of the relevant factors was necessary, I would have concluded that the evidence was unduly and unfairly prejudicial to Hudson.

The collateral evidence was not reasonably necessary to the State’s case. If the facts regarding the shooting occurred as Miles testified, there would have been no question that Hudson committed the shootings for which he was on trial. The evidence of collateral acts against Miles’s brother undoubtedly confused the issue of Hudson’s guilt in the charged offenses. The probative value, if any, of the irrelevant testimony about shootings of another person did not outweigh that undue prejudice to Hudson. The admission of irrelevant collateral-act evidence created a substantial danger that the jury was inflamed by the evidence and decided that because Hudson committed other shootings, he also probably committed the crimes for which he was on trial. The majority’s decision in this case permits the undue and unfair prejudice that Rule 404(b) was intended to protect against.

Although the trial court has discretion to decide whether collateral-act evidence is admissible, that discretion has limits. I believe the trial court abused its discretion when it admitted the evidence of the collateral acts against Miles’s brother. Hudson is entitled to a reversal and a new trial.

For the foregoing reasons, I dissent.

KELLUM, J., concurs.

      . The record is unclear as to the actual identities of “Wee Wee” and "Kenny Poo.”

      . The judge went on to state that defense counsel implied that identity was at issue in his opening statement. (R. 40-41.) Furthermore, Hudson presented evidence at trial that someone else shot Bates on June 28, 2009.

      . It should be noted that "[a] trial court will not be placed in error for assigning the wrong reason for a proper ruling, if that ruling is correct for any reason.” Irvin v. State, 940 So.2d 331, 345 (Ala.Crim.App.2005)(internal citation omitted).

      . The trial court’s instructions were clearly inadequate. See Ex parte Billups, [Ms. 1090554, Dec. 30, 2010] - So.3d - (Ala.2010) ("By simply reciting the complete 'laundry list’ of permissible theories under Rule 404(b), the trial court’s instruction in this case gave the jury inadequate guidance. ... The trial court’s instruction also failed to limit the State to the purposes — as nonspecific as they were — that it advanced in support of admission of the evidence regarding Billups’s involvement in [the collateral incidents]. Thus, we conclude that the trial court erred by failing to limit the jury's consideration of that evidence to only those purposes for which the evidence was purportedly offered by the State (plan, identity, motive, and intent).”). Furthermore, the trial court’s final charge to the jury in this case included no instruction about the collateral-act evidence. However, because Hudson did not raise these objections at trial, he failed to preserve the issue for appeal.

      . The Court held that the error was harmless because the jury would have returned a ver-diet of guilty regardless of the erroneous admission of that evidence.


source: Caselaw Access Project

author: BURKE, Judge.

license: Public Domain

text:
    STATE of Alabama v. Steven Tim HARWELL.
    CR-10-0568.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 2011.

      Troy King and Luther Strange, attys. gen., and John M. Porter, asst. atty. gen., for appellant.
    William Howard Turner, Montgomery, for appellee.
   BURKE, Judge.

The State of Alabama appeals the trial court’s pretrial dismissal of the charges against Steven Tim Harwell. The following facts are undisputed. Harwell was indicted by a Montgomery County grand jury for theft of property in the second degree, a violation of § 13A-8-4, Ala.Code 1975, and for burglary in the third degree, a violation of § 18A-7-7, Ala.Code 1975. A trial on those charges was set for January 10, 2011, but the courthouse was closed that day as a result of inclement weather. The next day, January 11, 2011, the court reopened and the trial court called the case for trial. However, the State’s witnesses, who had been subpoenaed to appear on January 10 but not on January 11, were not present. Because the witnesses were not present, the State moved for a continuance. The trial court denied the motion for a continuance and dismissed the case for lack of prosecution. On January 12, 2011, the State filed a motion to reconsider, which the trial court denied on January 24, 2011. The State filed a notice of appeal to this Court on January 14, 2011.

On appeal, the State contends that the trial court’s dismissal of the case violated the State’s right to procedural due process because, the State says, it did not have any notice that the trial had been rescheduled for January 11, 2011. We agree.

Harwell argues that the trial court did not violate the State’s right to procedural due process by calling the case for trial on January 11 because, he says, the State failed to fulfill its duty to follow the status of its case. Harwell contends that the controlling authority for the present case is Bowman v. Slade, 501 So.2d 1236 (Ala.Civ.App.1987), which states:

“As a general rule, Alabama cases have held that a party, whether represented by counsel or acting pro se, has a duty to follow the status of his own case, and no duty rests upon either the court or opposing parties to advise that party of his trial date. Additionally, Alabama courts have held that even where it is customary for the circuit clerk to notify parties not represented by counsel of their trial date, a party’s reliance upon such custom is unjustified and may warrant the dismissal of his case upon his failure to appear for trial. Finally, we note that the dismissal of a party’s case and the subsequent refusal to set aside the dismissal for want of prosecution rests largely within the sound discretion of the trial court.”

501 So.2d at 1237 (citations omitted). In Bowman, the Court of Civil Appeals affirmed the circuit court’s dismissal of the defendants’ case because the defendants failed to appear on the trial date. However, unlike the factual situation in present case, in Bowman, the record revealed that the case was set for the regular trial docket by the circuit court and that the case was set to be tried on a specific date. The defendants failed to appear on that date, and the circuit court dismissed their case. Bowman, 501 So.2d at 1237.

In the present case, there is no evidence indicating that the State failed to follow the status of its case. The record reveals that the trial was originally set for January 10, 2011; however, nothing in the record indicates that the case was reset for January 11, 2011 or that the State had been told what would occur in the event of a cancellation of the January 10 trial. Even a party who diligently follows the status of his case cannot be required to have knowledge of a trial date that has never been set or to assume when the trial will occur. Fundamental principles of due process simply require more. Therefore, Harwell’s argument is without merit.

The situation in the present case is analogous to the situation in State v. Smith, 23 So.3d 1172 (Ala.Crim.App.2009). In Smith, the defendant appeared on November 13, 2008, before the circuit court to plead guilty to certain pending charges. At the guilty-plea hearing, the circuit court dismissed the charges. The State filed a motion to reconsider that dismissal. Subsequently, on November 20, 2008, the circuit court granted the State’s motion to reconsider and immediately called the ease for trial. After the circuit court called the case for trial and asked the State whether it had any witnesses present, the prosecutor responded that he was not aware that the case was set for trial. The circuit court then immediately dismissed the ease. Also, on that day, the circuit court made the following entry on the case-action-summary sheet: “Motion to Reconsider granted. Case called for trial, State had no witnesses. Disposed as to pending charges.” Smith, 23 So.3d at 1173. The State appealed that decision to this Court, arguing that the circuit court’s dismissal of the charges after it had called the case for trial violated the State’s right to procedural due process because, according to the State, it had no prior notice that the case would be called for trial on November 20, 2008.

On appeal, this Court reversed the circuit court’s dismissal and held:

“ ‘Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them. See Pike v. Southern Bell Telephone & Telegraph Co., 263 Ala. 59, 81 So.2d 254 (1955); Vernon v. State, 245 Ala. 633, 18 So.2d 388 (1944). It is generally understood that an opportunity for a hearing before a competent and impartial tribunal upon proper notice is one of the essential elements of due process.’
“Ex parte Weeks, 611 So.2d 259, 261 (Ala.1992).
“In State v. Morrell, 8 So.3d 353 (Ala.Crim.App.2008), the trial court, after conducting a status conference, granted Morrell’s motion to suppress and dismissed the charges against Morrell based on the State’s failure to produce any evidence as to why the motion to suppress should not be granted. The State appealed, arguing that the trial court erred in granting Morrell’s motion to suppress because the court did not give the State notice that the motion to suppress would be considered at the status conference. 8 So.3d at 354. The State contended that, as a result of the lack of notice, it was not prepared to go forward with a hearing on the motion to suppress and was effectively denied an opportunity to present evidence in opposition to the motion. 8 So.3d at 355. This court, relying on Ex parte Weeks, supra, agreed with the State and reversed the trial court’s order granting Morrell’s motion to suppress and dismissing the charges against Morrell. We held:
“ ‘ “[JJustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The balance of justice was not kept true in this case because the State was denied proper notice of the hearing on the motion to suppress. The trial court erred when it granted Mor-rell’s motion to suppress and dismissed the case against him based on the State’s failure to present evidence at a hearing on a motion to suppress when the State had not been notified that the motion would be the subject of the hearing.’
“Morrell, 8 So.3d at 356.
“Here, just as in Morrell, the record does not indicate that the State received notice that the circuit court intended to conduct a trial on November 20, 2008, at which it would consider evidence pertaining to the remaining criminal charges pending against [the defendant]. Indeed, the transcript of the November 20, 2008, proceedings before the circuit court indicate that the prosecutor was unaware that it was set for trial. The circuit court granted the motion to reconsider and on the same day called the matter for trial with no apparent notice to the State, as established by the case-action-summary sheet.
“The circuit court erred when it proceeded to trial on the last two counts of the indictment against [the defendant] without proper notice of the trial to the State. The State’s failure to present evidence, through the testimony of witnesses or otherwise, at the November 20, 2008, trial was through no fault of its own.”

Smith, 23 So.3d at 1173-74.

Likewise, in the present case, the State was entitled to procedural due process, including proper notice and an opportunity to be heard. Here, as in Smith, the record does not indicate that the State received any notice that the case would be called for trial on January 11, 2011. The case-action-summary sheet specifically states that the case was set for trial on January 10, 2011, at 8:30 a.m. (C. 2.) The next entry on the case-action-summary sheet was made on January 11, 2011, and it simply states: “Case dismissed for lack of prosecution.” (C. 2.) There is no evidence indicating that the trial had been rescheduled for January 11. Because the State had no notice that the case would be called for trial on January 11, the State cannot be faulted for failing to have its witnesses present or subpoenaed to appear on that day. Therefore, because the State did not receive proper notice that the case would be called for trial on January 11, the trial court’s dismissal of the case violated the State’s right to procedural due process.

Based on the foregoing, the judgment of the trial court is reversed and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH, P.J., and WINDOM, KELLUM, and JOINER, JJ., concur.


author: WELCH, Presiding Judge.

text:
    Gregory Lamar BALLARD v. STATE of Alabama.
    CR-10-0123.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 2011.
    Dan William Taliaferro, Montgomery, for appellant.
    Troy King and Luther Strange, attys. gen., and Michael G. Dean, asst, atty., gen., for appellee.
   On Return to Remand

WELCH, Presiding Judge.

Gregory Lamar Ballard appeals from the denial of his petition for resentencing, which he filed pursuant to § 15-22-54.1, Ala. Code 1975.

On September 1, 2010, Ballard filed his petition for resentencing. According to Ballard’s petition, he was convicted of first-degree theft and first-degree receiving stolen property and was sentenced to 15 years’ imprisonment. Ballard states in his petition that he was sentenced on July 12, 2007, and that his probation was revoked on April 20, 2009. On September 23, 2010, the circuit court held a hearing at which it held that it did not have jurisdiction to resentenee Ballard under § 15-22-54.1 because Ballard was incarcerated as a result of the revocation of his community-corrections sentence and not as a result of the revocation of probation. Accordingly, the circuit court denied the petition. This appeal followed.

Before considering whether the circuit court was correct in holding that it did not have jurisdiction to resentence Ballard because Ballard was incarcerated following the revocation of a community-corrections sentence, this Court found it necessary to remand this case by order to the circuit court for that court to clarify whether Ballard had been placed in the community-corrections progress as part of a split sentence or as a condition of his probation. Section 15-18-175(d)(l), Ala.Code 1975, recognizes that a person may be placed in a community-corrections program as part of a split sentence or as a condition of probation, providing, in pertinent part:

“The court may sentence an eligible offender as defined in this section directly to any appropriate community-based alternative provided, either as a part of or in conjunction with a split sentence as provided for in Section 15-18-8, or otherwise as an alternative to prison; or as a condition for a defendant to meet in conjunction with probation; and under such additional terms and conditions as the court may prescribe.”

The circuit court has filed a return to this Court. The circuit court’s order on remand states that Ballard was placed in the community-corrections program as part of a split sentence. The circuit court having complied with our instructions on remand, we now turn to whether § 15-22-54.1, Ala. Code 1975, permits a circuit court to re-sentence a petitioner whose community-corrections sentence has been revoked.

In 2010, the legislature amended § 15-22-54, Ala.Code 1975, to limit incarceration in the penitentiary for eligible offenders whose probation had been revoked because of technical violations and to provide retroactive relief to certain inmates serving time following the revocation of their probation for a technical violation. Section 15-22-54.1, as amended effective April 30, 2010, provides for the retroactive review of a sentence following a probation revocation that occurred before the amendment:

“(a) Any person convicted of a nonviolent offense now serving a prison sentence based on revocation of probation as a result of only technical violations shall be entitled to be resenteneed upon petition to the sentencing court. Such petition shall be on a form and filed in the manner prescribed by the Administrative Office of Courts. Petitions shall be considered authorized motions for modification of sentence, assigned a unique identifier by the Administrative Office of Courts, and shall not require payment of a filing fee.
“(b) The court shall have jurisdiction to resentence the offender in accordance with the terms of this section, upon a showing of the following:
“(1) The offender successfully completed the terms of probation for six months.
“(2) Probation was thereafter revoked and the offender was sentenced to the penitentiary only as a result of technical violations of probation.
“(3) The offender has no disciplinary infractions while serving the sentence in the penitentiary.
“(4) The offender has no pending charges or convictions for a new offense.”

§ 15-22-54.1, Ala.Code 1975 (emphasis added).

Although the revocation of a sentence being served under a community-corrections program is treated the same as a probation revocation, see § 15-18-175(d)(3)b., Ala.Code 1975, and Ex parte Hill, 71 So.3d 3, 8 (Ala.2009), serving a term of probation and serving in a community-corrections program as part of a split sentence are different. A person who is serving a term of probation has had his or her sentence suspended, see § 15-22-50, Ala.Code 1975, whereas a person serving a community-corrections sentence as part of a split sentence is serving the confinement portion of his or her sentence and is in the custody of the Department of Corrections. See § 15-18-171.1, Ala.Code 1975, and § 15-18-175(d)(3)e., Ala.Code 1975. Section 15-22-54.1, Ala.Code 1975, applies to inmates currently incarcerated following revocation of probation. Ballard was not serving a term of probation, but, instead, was serving his split sentence in a community-corrections program. Ballard’s split sentence was revoked. Therefore, Ballard is not eligible to be resentenced under § 15-22-54.1, Ala.Code 1975. Accordingly, the circuit court properly held that it did not have jurisdiction to resentence Ballard.

Based on the foregoing, the circuit court’s judgment is affirmed.

AFFIRMED.

WINDOM, KELLUM, BURKE, and JOINER, JJ., concur.


author: TAYLOR, J.

text:
    Staria T. NEWBOLD-FERGUSON, as Personal Representative of the Estate of Ivan Warmsley Ferguson, deceased, for and on behalf of lawful survivors/claimants, Staria T. Newbold-Ferguson, surviving spouse, Vanessa Ferguson, surviving minor child, and Ivina Florence Ferguson, surviving minor child, Appellants, v. AMISUB (NORTH RIDGE HOSPITAL), INC. d/b/a North Ridge Medical Center, Appellee.
    No. 4D09-3610.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Rehearing Denied May 8, 2012.

      Harvey J. Sepler, Hollywood, for appellants.
    Donna M. Krusbe of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, for appellee.
   TAYLOR, J.

Plaintiff Staria Newbold-Ferguson appeals a final judgment entered upon a defense verdict for the North Ridge Medical Center in her suit against the hospital for the wrongful death of her husband. Because the plaintiff had the ability to state a legally viable non-delegable duty claim against the hospital, based on the emergency room doctor’s alleged negligence, we reverse.

By way of background, in December 2000 Ivan Ferguson underwent back surgery at AMISUB d/b/a North Ridge Medical Center (“the hospital”) and died the following day from a cardiac arrhythmia. Subsequently, plaintiff brought a wrongful death suit against the hospital for its direct negligence and negligence of the hospital’s employees and agents, alleging that they failed to meet the prevailing standard of care.

The trial court granted summary judgment for the hospital and denied the plaintiff’s motion for leave to file a Third Amended Complaint. On appeal, we reversed the final summary judgment, holding that genuine issues of material fact remained as to the plaintiffs claim of nursing negligence. See Newbold-Ferguson v. Amisub, 962 So.2d 418 (Fla. 4th DCA 2007). We remanded the case with directions to the trial court to allow the plaintiff to file a third amended complaint specifically identifying the physicians and other employees or agents of the hospital for whose negligence the hospital was responsible. Id. at 419.

After remand, the plaintiff filed a Third Amended Complaint specifically naming emergency room physician, Dr. Friedman, as one of the negligent agents for whom the hospital was vicariously liable. In Count I, the plaintiff alleged that the hospital was vicariously liable as the respondeat superior of its nurses, agents, servants and employees, including Dr. Friedman, an emergency room physician. In Count II, the plaintiff alleged that the hospital was responsible for Dr. Friedman’s negligent acts and omissions as a result of a “nondelegable duty to supervise ... so that competent and careful medical personnel are provided.... ” The plaintiffs expert witness opined during a deposition that Dr. Friedman deviated from the standard of care by his delayed response after the emergency code was called on Mr. Ferguson.

The hospital filed a motion for partial summary judgment, challenging the hospital’s liability for Dr. Friedman, an independent contractor with the hospital. Following a hearing, the trial court granted the defense motion for partial summary judgment on the ground that Dr. Friedman was not an actual or apparent agent of the hospital. With regard to the plaintiffs allegation of a non-delegable duty “to supervise” Dr. Friedman, the trial court concluded that no such duty existed and struck all allegations regarding the negligence of Dr. Friedman as attributable to the hospital. However, the court allowed the plaintiff another opportunity to amend the complaint to try to assert a viable claim involving a non-delegable duty for Dr. Friedman. The trial court instructed the plaintiffs counsel that the issue was “the non-delegable duty to diligently determine that competent physicians are afforded house privileges or staff privileges.”

The plaintiff filed a Fourth Amended Complaint, but the hospital again moved to dismiss, as the complaint still contained allegations that Dr. Friedman was the hospital’s agent and did not contain any new non-delegable duty theories. The trial court granted the motion, dismissing all allegations regarding the negligence of Dr. Friedman as attributable to the hospital. The trial court ultimately ruled that the plaintiff could travel on the Third Amended Complaint and that the Third Amended Complaint would be redacted of any reference to Dr. Friedman.

The case proceeded to trial, where the plaintiff was precluded from introducing evidence that Dr. Friedman’s response to the code deviated from the standard of care. At the conclusion of the trial, the jury returned a verdict in favor of the hospital. The plaintiff filed a motion for new trial, in which the plaintiff challenged the propriety of certain comments made by defense counsel during closing argument. There was no contemporaneous objection, however, to defense counsel’s comments. The trial court denied the motion for new trial and entered final judgment in the hospital’s favor. This appeal follows.

On appeal, the plaintiff argues that the trial court erred in denying her efforts to amend the complaint in order to assert a non-delegable duty claim against the hospital based on Dr. Friedman’s alleged negligence. The hospital responds that the trial court did allow the plaintiff to file a Third Amended Complaint identifying Dr. Friedman as one of the allegedly negligent doctors, but the agency theory was disposed of on summary judgment and the non-delegable duty claim was properly dismissed for failure to state a cause of action.

The issue presented in this case boils down to whether the plaintiffs proposed amendments to her complaint regarding the non-delegable duty stated a cause of action against the hospital. The issue of whether a complaint states a cause of action is an issue of law, reviewed de novo. See Ball v. D’Lites Enters., Inc., 65 So.3d 637, 638 (Fla. 4th DCA 2011).

The general rule is that a hospital is not liable for the negligent acts of a physician who is not its employee, but an independent contractor. See Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 863 So.2d 343, 349 (Fla. 1st DCA 2003); see also Pub. Health Trust of Dade Cty. v. Valcin, 507 So.2d 596, 601 (Fla.1987). As a matter of Florida tort law, however, several exceptions exist to this rule of non-liability.

First, a hospital may be liable for the actions of a physician where the physician is either an actual or apparent agent of the hospital. See Roessler v. Novak, 858 So.2d 1158, 1161-62 (Fla. 2d DCA 2003).

Second, a hospital can be liable in tort for failing to exercise due care in the selection and retention of an independent contractor physician on the hospital staff. See Insinga v. LaBella, 543 So.2d 209, 214 (Fla.1989).

Third, the rule of a hospital’s non-liability for acts of an independent contractor fails where the duty is non-delegable. See Pope v. Winter Park Healthcare Group, Ltd., 939 So.2d 185, 187 (Fla. 5th DCA 2006). A non-delegable duty may arise out of a statute, a regulation, or a contract. Id. at 187-88. For example, we held that a hospital had a non-delegable duty to provide competent anesthesia services where there was both a contractual and a statutory basis for imposing such a duty. See Wax v. Tenet Health Sys. Hosps., Inc., 955 So.2d 1, 11 (Fla. 4th DCA 2006); but see Tarpon Springs Hosp. Found., Inc. v. Reth, 40 So.3d 823, 829 (Fla. 2d DCA 2010) (certifying conflict with Wax to the extent that it determined a hospital has a non-delegable duty to provide non-negligent anesthesia services based on Chapter 395 and an administrative rule).

In Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982), we held that where a trial court instructed the jury that a hospital could not be liable in tort for acts of an independent contractor, the trial court erred in failing to instruct the jury on the exception to this “no liability” rule for the non-dele-gable duty owed by a hospital to an emergency room patient. This non-delegable duty is grounded upon an implied “contractual relation existing between a hospital and an emergency room patient.” Id. at 60.

Irving establishes that a hospital which provides emergency room services has a non-delegable duty to provide competent emergency treatment based upon an implied contract. It is therefore clear that the plaintiff could have pleaded a claim against the hospital for the emergency room doctor’s negligence on a non-dele-gable duty theory. The imposition of a non-delegable duty to provide competent emergency room services makes sense, because a patient in an emergency room generally has little, if any, control over who will be the treating physician. Cf. Kristensen-Kepler v. Cooney, 39 So.3d 518, 520 (Fla. 4th DCA 2010) (explaining that the imposition of a non-delegable duty to provide competent anesthesia services makes sense where the patient “has little, if any, control over who administers the anesthesia,” but rejecting the proposition “that a hospital likewise has a non-delega-ble duty to supervise the physician a patient has chosen to perform an elective procedure”).

In this case, however, the question becomes whether the plaintiffs proposed amendments to the complaint should have been permitted. Contrary to the trial court’s ruling, the plaintiff was not limited to pleading a “duty to diligently determine that competent physicians are afforded house privileges or staff privileges.” We think the plaintiffs allegation that the hospital had a non-delegable “duty to supervise” Dr. Friedman can be fairly interpreted as falling under the category of a non-delegable duty to provide competent emergency services, at least under a theory of implied contract, see Irving, 415 So.2d at 60.

Therefore, on remand, and for guidance in future cases, we instruct that the plaintiff should amend the complaint to clearly allege that the hospital had a non-delega-ble duty to provide competent emergency care to the plaintiffs husband, and must plead the specific source of the hospital’s non-delegable duty that the plaintiff seeks to rely upon-an implied contract, an express contract, a statute, an administrative regulation, or some combination thereof.

Reversed and Remanded for further proceedings.

GERBER and LEVINE, JJ., concur.

      . The plaintiff also alleged that the hospital was responsible for the negligence of several other physicians, but those allegations are not relevant to this appeal.

      . The plaintiff has not challenged this ruling on appeal.

      . Because we are reversing on the first point on appeal, we need not reach the issue of whether defense counsel's closing argument amounted to fundamental error under Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000).

      . In fact, in Kristensen-Kepler, we referred to the non-delegable duty to provide competent care as a "non-delegable duty to supervise the physician-”39 So.3d at 520.


author: PER CURIAM.

text:
    AIRAN2, Airan-Pace & Crosa, P.A., Lalita Damodar Airan, and Damodar Sarup Airan, Appellants, v. CADENCE BANK, N.A., Appellee.
    No. 2D10-3911.
    District Court of Appeal of Florida, Second District.
    March 16, 2012.
    Timothy W. Weber of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellants.
    Robin S. Trupp, Brian R. Cummings, and Ronald B. Cohn of Arnstein & Lehr LLP, Tampa, for Appellee.
   PER CURIAM.

The law firm of Airan2, Airan-Pace & Crosa, P.A, and two of its lawyers, Mr. Damodar Sarup Airan and Ms. Lalita Da-modar Airan, appeal an order requiring them to pay half of the attorney’s fees incurred by appellee Cadence Bank, N.A. (Cadence), as a sanction pursuant to section 57.105, Florida Statutes (2009). The trial court entered the order based on the filing of a third-party complaint that the trial court concluded was frivolous. We affirm the order in all respects except for the judgment against Mr. Airan.

The law firm was counsel of record for four defendants — Mrs. Surinder Joshi; her son, Dr. Ashok Joshi; and two of their business entities (collectively, the Joshis)— who were involved in buying and operating a truck stop in Hillsborough County. The truck stop was facing foreclosure proceedings that Cadence’s predecessor (the Bank) initiated in November 2007. The foreclosure suit became complicated and protracted when the Airan law firm filed counterclaims on behalf of the Joshis against the Bank in February 2008, as well as a third-party complaint in May 2008 naming the tenant in the truck stop. The Joshis alleged that the third-party defendant and the Bank had colluded and forced the property into foreclosure. Without need for additional discussion, we agree with the trial court that the third-party complaint was frivolous and warranted a sanction under section 57.105. The question becomes against whom should the sanction be ordered.

In the early stages of this foreclosure case, Mr. Airan filed a notice of appearance as co-counsel. He signed an initial third-party complaint, but he did not sign the amended third-party complaint on which the case was tried. That pleading was signed by Ms. Airan and a Mr. Hitesh Gupta, another lawyer employed by the Airan law firm. When the Bank filed a motion for attorney’s fees nearly a year after Mr. Airan’s notice of appearance, it did not identify Mr. Airan as an attorney against whom fees were sought individually. Despite his notice of appearance, the Bank’s certificate of service shows service on Ms. Airan and Mr. Gupta, but not on Mr. Airan.

From this record, it does not appear that the Bank requested a judgment against Mr. Airan. Moreover, the record does not establish that his limited .role in this lawsuit would warrant this sanction even if the Bank had requested it. Accordingly, the trial court erred in holding Mr. Airan jointly and severally responsible for half of the section 57.105 fee sanction imposed. We therefore reverse and vacate that part of the final judgment directed at Mr. Airan.

Affirmed in part, reversed in part, and remanded for correction of the final judgment in accordance with this opinion.

ALTENBERND, CASANUEVA, and LaROSE, JJ., Concur.

      . Mrs. Joshi and Dr. Joshi were named individually as defendants in the foreclosure suit by virtue of their status as loan guarantors.


author: WELLS, Chief Judge.

text:
    Quineice SAINTVIL, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D12-500.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Quineice Saintvil, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before WELLS, C.J., and RAMIREZ and LAGOA, JJ.
   WELLS, Chief Judge.

Quineice Saintvil’s petition for writ of habeas corpus claiming ineffective assistance of trial counsel is denied without prejudice to file an appropriate rule 3.850 motion in the court below.


author: CASANUEVA, Judge.

text:
    SWOPE RODANTE, P.A., Appellant, v. Thomas HARMON and Harmon, Woods, Parker, Hendricks & Abrunzo, P.A., Appellees.
    No. 2D11-3228.
    District Court of Appeal of Florida, Second District.
    March 28, 2012.

      Stanford R. Solomon of The Solomon Law Group, P.A., Tampa, for Appellant.
    Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa; and Daniel P. Mitchell of Barr, Murman & Tonelli, P.A., Tampa, for Appellees.
   CASANUEVA, Judge.

Swope Rodante, P.A. (“Swope”), filed a three-count complaint against Thomas Harmon and Harmon, Woods, Parker, Hendricks & Abrunzo, P.A. (collectively, “Harmon”). In that complaint, Swope claimed that (1) Harmon tortiously interfered with its contract for legal representation of a client which resulted in Swope’s being fired and Harmon’s being hired, (2) Harmon breached an oral contract between Swope and Harmon, and (3) Swope was entitled to a constructive trust over funds that Harmon owed it pursuant to the oral contract. The trial court dismissed the entire complaint with prejudice. We hold that Swope alleged sufficient facts to support two of these claims and reverse the trial court’s dismissal in part.

Standard of Review

“For ... purposes of a motion to dismiss for failure to state a cause of action, allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.” Wallace v. Dean, 3 So.3d 1035, 1042-43 (Fla.2009) (quoting Ralph v. City of Daytona Beach, 471 So.2d 1, 2 (Fla.1983)). “When considering a motion to dismiss, the trial court is limited to consideration of the allegations contained within the four corners of the complaint.” Al-Hakim v. Holder, 787 So.2d 939, 941 (Fla. 2d DCA 2001) (citing Roberts v. Children’s Med. Servs., 751 So.2d 672, 673 (Fla. 2d DCA 2000)). This court reviews an order granting a motion to dismiss de novo. Id.

Count I

Count one asserted tortious interference with Swope’s contract with a client. There are four elements of tortious interference with a business relationship: “(1) the existence of a business relationship ... (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship.” Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla.1994) (quoting Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985)).

For this count, Swope’s operative allegations consist of more than eighty numbered paragraphs, with specific statements regarding each of the four elements. For example, Swope alleged that Harmon intentionally contacted a person whom he knew to be Swope’s client and made “numerous false representations” regarding Swope’s legal performance under the contract; that those false representations were made “knowingly and ... recklessly;” that Harmon’s “intentional, unjustified, and fraudulent actions” caused Swope to suffer damages; that Harmon told the client that Swope had breached his contract with them and had not performed any work; and that Harmon’s statement to Swope’s clients “were patently false.”

We conclude Swope has asserted sufficient factual allegations to withstand a motion for dismissal. The pleading alleges that Harmon knowingly, intentionally, and unjustifiedly provided disparaging information about Swope to Swope’s client for the purpose of inducing the client to fire Swope and hire Harmon. It further alleges that Swope suffered damages because it lost out on a legal fee due to Harmon’s actions. Where a claim for tortious interference sets forth an attorney-client relationship and a contingency fee agreement, and includes “elements of knowledge, intentional and unjustified interference, and damage,” the party has sufficiently pled a cause of action. Ellis Rubin, P.A. v. Alarcon, 892 So.2d 501, 503 (Fla. 3d DCA 2004).

Count II

Count two asserted breach of an oral contract arising out of the disposition of settlement funds. After hiring Harmon, the client obtained a settlement. But the settlement check had Swope’s name on it. Swope and Harmon allegedly came to an agreement that Swope would remove his name from the settlement in exchange for Harmon’s retaining fifteen percent of the settlement funds in trust until the fee dispute between Harmon and Swope could be settled. Swope asserted that he held up his end of the bargain but that Harmon did not hold the funds in trust. The trial court dismissed this count, concluding that Swope’s claim was premature when Swope had not yet proven entitlement to the fee.

On this motion to dismiss, the trial court was required to assume the veracity of Swope’s allegations. See Wallace, 3 So.3d at 1042-43. Swope alleged that he performed his side of an oral contract with Harmon by taking his name off the settlement. Harmon breached this contract by failing to hold the disputed funds in trust. Swope’s allegations are sufficient to demonstrate a legal right to Harmon’s performance of the bargain, even if Swope may not be able to establish the value of that right at this point in the pleadings. “It is well established in Florida that where the allegations of a complaint show the invasion of a legal right, the plaintiff on the basis thereof may recover at least nominal damages, and a motion to dismiss should be overruled.” Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla.1972).

One of the basic purposes of a motion to dismiss is to test the over-all sufficiency of the complaint to state a claim upon which relief can be granted. Since the complaint states a claim upon which at least nominal damages may be awarded, then it follows that the motion to dismiss the amended counter-claim should not have been granted, even though some of the damages alleged may have been non-recoverable. Augustine v. Southern Bell Telephone & Tel. Co., Fla.1956, 91 So.2d 320.

Abstract Co. of Sarasota v. Roberts, 144 So.2d 3, 5 (Fla. 2d DCA 1962); see also Augustine v. S. Bell Tel. & Tel. Co., 91 So.2d 320, 323 (Fla.1956) (“[I]f the complaint states a claim upon which at least nominal damages may be awarded, then a motion to dismiss such a complaint should not be sustained.”).

Because Swope’s allegations demonstrate a right to at least nominal damages, the trial court should not have dismissed this count.

Count III

Count three asserted an action for a constructive trust. The trial court dismissed this claim, finding that Swope failed to allege sufficient facts to satisfy all the requirements for imposition of a constructive trust. We affirm the result but for a different reason than espoused by the trial court.

In 2005, this court held that “[a] constructive trust ... is not a traditional cause of action; it is more accurately defined as an equitable remedy.” Collinson v. Miller, 903 So.2d 221, 228 (Fla. 2d DCA 2005). Therefore, “[b]ecause a constructive trust is a remedy, it must be imposed based upon an established cause of action.” Id. We continue to follow this rule. B & C Investors, Inc. v. Vojak, 79 So.3d 42 (Fla. 2d DCA 2011) (affirming a dismissal of a claim for constructive trust because it is an equitable remedy).

As in B & C Investors, we conclude the trial court correctly dismissed the claim for a constructive trust because a constructive trust is a remedy, not a cause of action.

Conclusion

We reverse the trial court’s dismissal of counts one and two and affirm the dismissal of count three. We are not called upon to determine whether the equitable remedy of a constructive trust is available under either or both of the remaining causes of action.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

WHATLEY and MORRIS, JJ„ Concur.


text:
    George E. BUSHONG, Petitioner, v. Sarah M. PEEL, Respondent.
    No. 2D11-4795.
    District Court of Appeal of Florida, Second District.
    March 28, 2012.

      John M. Strickland of Livingston, Patterson, Strickland & Siegel, P.A., Sarasota, for Petitioner.
    Susan J. Silverman, Sarasota, for Respondent.
   CASANUEVA, Judge.

George E. Bushong petitions this court for a writ of certiorari to quash three orders of the circuit court that protect certain documents from discovery. Mr. Bushong contends the documents relate to corporations that form part of the marital estate and are necessary to determine issues of equitable distribution and alimony in his and Sarah M. Peel’s pending marital dissolution action. We grant the petition.

Background

Mr. Bushong has a long history of working for professional employer organizations that lease employees and perform other administrative functions for businesses, including providing insurance. In 1995 he was the sole incorporator, registered agent, director, CEO, and vice-president of Administrative Concepts Corporation, a staff leasing and benefits business. By the time he filed for divorce in 2011, he and Ms. Peel owned and operated several professional employer companies (the Companies) that operated under the rubric of Administrative Concepts, and they held themselves out as employee leasing specialists.

Because this industry is heavily regulated, see §§ 468.520-.535, Fla. Stat. (2011), and because Mr. Bushong is a convicted felon, their business and personal counsel, Joseph L. Najmy, advised that because of licensing issues Mr. Bushong should not appear as an officer of the Companies and the stock and other interests in the Companies should be issued solely in Ms. Peel’s name. The couple followed their counsel’s advice, and Mr. Bushong resigned from all his official ownership positions in the Companies. But he retained the major role in servicing their clients. Mr. Najmy and his law firm also prepared the parties’ estate plan in which the Companies formed the major part. Except for 150,000 shares of stock held by Ms. Peel as trustee of the Four Corners Employees’ Stock Option Plan, Ms. Peel, through a revocable trust drafted by Mr. Najmy, is the titular sole owner and president of the Companies. However, in marketing the services their Companies provide, both Mr. Bushong and Ms. Peel are touted for their expertise. At the time he filed for divorce, Mr. Bush-ong claimed the value of the Companies was in excess of $20,000,000.

A week after Mr. Bushong filed for divorce, Ms. Peel fired him from any position of importance he held in the Companies.

Mr. Bushong is the genitor of the original company; he and Ms. Peel are the only principals in all the Companies; and it is their expertise that drives the product, i.e., servicing other organizations. He thus claimed that all the Companies were marital assets, and Ms. Peel did not dispute his claim. Mr. Bushong sought full discovery of all financial aspects of the Companies that were now barred to him, contending that a full accounting was needed to determine equitable distribution and Ms. Peel’s entitlement to alimony. Through requests for production, interrogatories, and subpoenas and depositions duces tecum, Mr. Bushong sought information from three sources: from Ms. Peel; from Mr. Najmy; and from the Companies through their current CEO, Mr. Justin Mays. Although many of his requests were complied with, Ms. Peel and Misters Najmy and Mays moved separately for protective orders on a substantial amount of the requested discovery.

The circuit court granted the three motions for protective orders, finding that Mr. Bushong had failed to establish that he had any ownership interest in the Companies other than Leasing Consultants, Inc. The circuit court further ordered that only the documents relating to Ms. Peel’s financial interest in the Companies be provided. The circuit court based its conclusions on the authority of Southwest Acceptance Finance Co. v. Schauer, 804 So.2d 542 (Fla. 2d DCA 2002), and Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin, 602 So.2d 955 (Fla. 3d DCA 1991).

Standard of Review

In order to merit the granting of a petition seeking to review this pretrial discovery order, Mr. Bushong must show that the circuit court’s order departed from the essential requirements of law and caused “material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.” Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987), superseded by statute on other grounds, § 768.72, Fla. Stat. (1989), as stated in Williams v. Oken, 62 So.3d 1129 (Fla.2011); see also State Farm Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993).

Certiorari is rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal.
However, when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.

Giacalone v. Helen Ellis Mem. Hosp. Found., Inc., 8 So.3d 1232, 1234-35 (Fla. 2d DCA 2009) (citations and footnote omitted). Mr. Bushong’s case falls directly in the circumstances outlined above.

Discussion

The two cases in which the circuit court found authority to grant the protective orders, Pyszka, 602 So.2d 955, and Southwest Acceptance, 804 So.2d 542, do not support its conclusion. Although in both cases one spouse was seeking discovery from the other spouse’s employer, we find them factually distinguishable.

In Pyszka, the Third District granted the husband’s law firm’s petition for writ of certiorari when the circuit court had denied the firm a protective order in the husband’s marriage dissolution proceedings. The wife in Pyszka sought discovery to determine the husband’s interest in the firm where he was not an equity partner and earned the greater of $85,000 or four percent of the firm’s net yearly profits. 602 So.2d at 955. In addition to the husband’s compensation, the wife had requested information on all the firm’s benefit plans; insurance policies; financial statements given to third parties; loan documents; investments; documents used to calculate income; liability invoices; and documents showing gross income, as well as certain state, federal, county, personal property, and intangible tax returns. Id. at n. 1. The Third District concluded that the information the wife sought was not likely to disclose the husband’s interest in the firm and that a protective order was necessary to protect the law firm’s partners’ privacy interests. The district court limited the wife’s discovery to documents “probative of the husband’s financial interest in the firm.” Id. at 956.

In this case, Mr. Bushong and Ms. Peel essentially are the Companies. Mr. Bushong has shown that together they have a great financial interest in them, and he was far more than an employee until his summary dismissal. Mr. Bushong claims, and Ms. Peel does not dispute, that he directed and managed the day-to-day affairs of the Companies during the marriage and served as CEO of the primary corporations until she terminated him under her authority as titular owner of virtually all the stock and membership interests. Only because of his status as a convicted felon did he not have a titular ownership interest in them.

The distinction from Southwest Acceptance is similar. The husband worked for Southwest Acceptance, a company that purchased finance sales contracts from automotive sales companies, of which Car Credit, Inc., was one. 804 So.2d at 543. Steven Cuculich owned both Southwest Acceptance and Car Credit. The wife subpoenaed Bank of America to produce all documents that it had that pertained to Mr. Cuculich’s business accounts, to Southwest Acceptance, and to Car Credit. She subpoenaed Mr. Cuculich to produce information pertaining to her husband but also to the confidential financial and business affairs of Southwest Acceptance and Car Credit. Id. Because there was no record evidence that the husband was more than an employee, this court granted the petition for certiorari. Id. at 544.

As noted above, and in contrast to Southwest Acceptance, Mr. Bushong is more than an employee of the Companies and is entitled to a full picture of the financial status of the Companies that form the great majority of the marital estate. Otherwise, his ability to argue and the court’s ability to determine the true context of the parties’ financial affairs so as to fashion an equitable distribution and establish Ms. Peel’s need, if any, for alimony will be hampered. Unlike the wife in Southwest Acceptance, Mr. Bushong has “established] that [he] has a sufficient financial interest in one or more of the ... businesses, aside from his employment, [so that] they can be required to produce records not directly related to his employment.” Id.

Conclusion

Mr. Bushong has shown sufficient financial interest in the companies to allow him access to their complete financial status in order to evaluate them for distribution. The harm to Mr. Bushong “is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.” See Giacalone, 8 So.3d at 1234-35. Therefore, we grant the petition for writ of certiorari and remand the cause with instructions to deny the three motions for protective orders.

Petition granted, protective orders quashed, and case remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . This court previously summarily granted the petition due to Mr. Bushong's serious health concerns, noting that an opinion would follow. This is that opinion.

      . The Companies are Four Corners of Excellence, Inc., formed in 2008 as the holding company for the first corporation, Administrative Concepts Corporation, its affiliates and successors that included, by the time of the divorce, Simple Employer Solutions, Inc.; Administrative Concepts 2003, Inc.; Administrative Concepts 2010, Inc.; Administrative Concepts 2000 Corporation; Southern Eagle Insurance Company; Peel-Bushong Holding Corporation; Southern Eagle Underwriting Management Company; Administration Concept, Inc.; Leasing Consultants, Inc.; and Employment Concepts, LLC. Only Leasing Consultants, Inc., was excepted from the protective order that the circuit court entered. Some of these companies appear in various motions, requests for production, or subpoenas duces tecum, and at other times not.

      . It may be that Mr. Bushong had failed to establish that he had any ownership interest in the Companies. But that interest would be a "legal” ownership interest only. Mr. Bush-ong has shown that he had a substantial equitable interest in them as marital assets because he started the Companies, operated them in conjunction with Ms. Peel until his summary dismissal, and was a major factor in their success. We do not detail here the many individual documents that are subject to the protective orders because Mr. Bushong has shown entitlement to all of them. His interest is substantial enough and his discovery requests were not too overbroad or burdensome.

      . In the order granting Mr. Najmy's motion as to Mr. Najmy's Requests 2 and 4, the circuit court required that Mr. Najmy produce only estate planning documents and billing records relating to Mr. Bushong or the parties jointly. Our granting of Mr. Bush-ong's petition as it relates to Mr. Najmy should be read to encompass the documents and records in Mr. Najmy's possession that pertain to the Companies even if they are part of Ms. Peel’s estate plan, giving due deference to Ms. Peel’s individual attorney-client privilege.


author: CIKLIN, J.

text:
    CASTELO DEVELOPMENT, LLC, Appellant, v. AURORA LOAN SERVICES LLC, Patricia Perez; Nibaldo Perez; any and all unknown parties claiming by, through, under, and against the herein named Individual Defendant(s) who are not known to be Dead or Alive, whether said Unknown Parties may claim an Interest as Spouses, Heirs, Devisees, Grantees or other Claimants; Canterbury at Quantum Village Property Owners Association of Palm Beach, Inc.; Quantum Park Property Owners’ Association, Inc.; John Doe and Jane Doe as Unknown Tenants in Possession, Appellees.
    No. 4D11-1987.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.
    Rehearing Denied May 11, 2012.

      Jonathan J. Alfonso of Wesoloski Carlson, P.A., Miami, for appellant.
    Nancy M. Wallace, Katherine E. Gid-dings and Jason S. Lichtstein of Akerman Senterfitt, Tallahassee, and William P. Heller of Akerman Senterfitt, Fort Laud-erdale, for appellee Aurora Loan Services, LLC.
   CIKLIN, J.

Castelo Development, LLC (“Castelo”) appeals from a non-final order that denied its motion for the trial court to confirm a foreclosure sale at which it was the highest bidder and to direct the clerk of the court to issue certificates of sale and title. Because we find that the trial court did not abuse its discretion in denying Castelo’s motion, we affirm.

On October 26, 2010, the circuit court entered a final judgment of foreclosure in favor of Aurora Loan Services LLC (“Aurora”) in the amount of $280,982.34 and set a foreclosure sale date of January 5, 2011. The foreclosure judgment required the clerk of the court to sell the property by electronic sale to the highest bidder for cash “in accordance with section 45.031, Florida Statutes.”

An electronic foreclosure sale occurred on January 5, 2011. Castelo was the successful bidder with a high bid of $6500. The clerk of the court, however, would not issue the certificate of sale or the certificate of title because the notice of sale was not published in advance of the foreclosure sale as required by section 45.031.

Castelo filed a motion seeking to have the circuit court confirm the foreclosure sale and order the clerk of the court to issue certificates of sale and title. In response, Aurora filed a motion to reschedule the foreclosure sale claiming that “[tjhrough inadvertence and by mistake, the Clerk of Courts allowed the online foreclosure sale to proceed. The Clerk subsequently recognized its error and did not issue a certificate of sale or certificate of title.” Following a hearing on Aurora’s motion, the trial court ordered the foreclosure sale to be rescheduled for September 21, 2011.

Subsequently, the trial court held a hearing on Castelo’s motion to confirm the earlier foreclosure sale. The trial court denied that motion “due ... to no Affidavit of Publication being filed by [Aurora].”

Castelo argues on appeal that it was a good faith purchaser at a foreclosure sale and that the trial court grossly abused its discretion by effectively vacating the foreclosure sale. We disagree.

The trial court’s final judgment of foreclosure required the clerk of the court to sell the property by electronic sale to the highest bidder for cash “in accordance with section 45.031, Florida Statutes.” Section 45.081, Florida Statutes, requires that notice of sale “be published once a week for 2 consecutive weeks in a newspaper of general circulation.” § 45.031(2), Fla. Stat. (2011). It is undisputed that in this case the notice of sale was not published as required by statute. Castelo argues that the statute is silent as to what happens if the notice of sale is not published. A plain reading of the statute, however, supports the trial court’s interpretation that a foreclosure sale should not be confirmed if the notice of sale was not published.

Subsection four of the statute dictates that after the sale of the property, the clerk of the court shall promptly file a certificate of sale. § 45.031(4). The statute, however, requires that as part of the certificate of sale, the clerk must certify that the “notice of public sale of the property described in the order or final judgment was published in ... a newspaper circulated in” the county where the property is located. Id. Thus, if the clerk cannot certify that the notice of sale was published, the clerk should not issue the certificate of sale. Without a certificate of sale, the clerk of the court lacked authority to issue a certificate of title and thereby confirm the sale. § 45.031(5), (6).

In summary, the clerk of the court acted properly in refusing to issue a certificate of sale because the clerk could not certify that the notice of sale was published prior to the public sale. The trial court, therefore, correctly denied Castelo’s motion to compel the clerk to do so. We also find that the trial court did not abuse its discretion by refusing to confirm the foreclosure sale.

Affirmed.

GROSS and LEVINE, JJ„ concur.

      . The Florida Legislature amended section 45.031 in 2008 to allow a clerk of the court to conduct foreclosure sales through electronic means, that is, over the internet. Ch. 2008-194, § 1, at 2234, Laws of Fla. Here, the final judgment of foreclosure indicated that the clerk of the court was to sell the property “[b]y electronic sale beginning at 10:00 a.m. on the prescribed date at www.mypalmbeach clerk.clerkauction.com. ’'

      . Although the electronic foreclosure sale was held on the date specified in the final judgment of foreclosure, Aurora did not submit any bids.