author: MURDOCK, Justice.

text:
    Ginger BAILEY v. PROGRESSIVE SPECIALTY INSURANCE COMPANY.
    1081801.
    Supreme Court of Alabama.
    April 29, 2011.

      Gene T. Moore, Tuscaloosa, for appellant.
    R. Larry Bradford and Shane T. Sears of Bradford & Sears, P.C., Birmingham, for appellee.
   MURDOCK, Justice.

Ginger Bailey appeals from a summary judgment entered by the Tuscaloosa Circuit Court against her and in favor of Progressive Specialty Insurance Company (“Progressive”) on her claims seeking uninsured-motorist benefits and alleging breach of contract and bad-faith failure to pay. We affirm the judgment of the trial court.

I. Facts and Procedural History

On June 3, 2006, Bailey was a passenger in an automobile that was struck by a van being driven by Luvert Caver. The accident occurred in the City of Tuscaloosa. After the collision, Caver fled the scene. As a result of the accident, Bailey suffered physical injui’ies, including fractured vertebrae in her back, and she incurred medical bills for the treatment of those injuries. Bailey had an automobile insurance policy with Progressive that provided uninsured-motorist (“UM”) coverage up to $50,000 for a single person for one accident. She timely informed Progressive of the accident.

On October 28, 2006, Bailey informed Progressive that she had outstanding medical bills from the accident and that she was filing a claim under her policy for UM benefits to pay the medical bills. It is undisputed that Bailey had already settled with a “primary” UM insurer, ALFA Insurance, for $20,000.

On May 17, 2007, Bailey sued Caver and fictitiously named parties, alleging against various parties negligence, wantonness, and negligent entrustment. It is undisputed that Bailey timely informed Progressive of the filing of the action against Caver.

On June 12, 2007, Progressive filed a motion to intervene in the action in order to “evaluate its exposure for possible UM benefits for the plaintiff.” On the same date, Progressive filed what it styled to be a “Complaint in Intervention” in which it asked the trial court to “determine that [Bailey] is not entitled to recover UM benefits from [Progressive] or, in the alternative, [Progressive] requests the court to enter a judgment in its favor and against the defendant Caver to the extent of any payment made by Progressive to [Bailey].” The trial court granted Progressive’s motion to intervene.

On August 24, 2007, Progressive filed a cross-claim against Caver in which it averred that “[i]f Progressive is liable to [Bailey] for UM benefits, it is liable because [Bailey] is legally entitled to recover damages from Caver as a result of the accident.” Accordingly, Progressive sought a judgment against Caver for any amount it might be forced to pay Bailey as a result of the accident.

Bailey attempted service upon Caver several times, eventually serving Caver by publication. Caver never responded to the summons or to Bailey’s complaint. Bailey also ran a check for vehicle-registration information on Caver, attempted to obtain Caver’s insurance information from the accident report, and telephoned the State Department of Insurance in order to locate insurance information pertaining to Caver. All of Bailey’s inquiries concerning Caver failed to produce information on Caver’s insurance status or to cause Caver to make any appearance in the Tuscaloosa Circuit Court to defend the claims against him. Accordingly, on December 27, 2007, Bailey filed a motion for a default judgment against Caver. The trial court entered a default judgment against Caver the following day.

On January 22, 2008, Bailey filed a motion to set a hearing for the determination of damages on the default judgment. She filed an affidavit averring that her damages amounted to $125,000 for the “injuries and damages to her person and incurred expense for the associated medical treatment, as well as great pain and suffering.”

On January 23, 2008, Progressive filed a “Motion to Set Aside Entry of Default Judgment.” In the motion, Progressive sought from the trial court an order “to set aside the default judgment entered against Luvert Caver ... to the extent that [Bailey] seeks to bind Progressive by that judgment.” Following a hearing on Bailey’s motion for a determination of damages and Progressive’s motion to set aside the default judgment, the trial court on January 30, 2008, entered an order denying Progressive’s motion and setting the amount of damages against Caver. The order provided, in pertinent part:

“This Court having reviewed both briefs finds the cases cited by [Bailey] specifically, Lowe v. Nationwide Ins. Co., 521 So.2d 1309 (Ala.1988), and Champion Ins. Co. v. Denney, 555 So.2d 137 (Ala.1989), to be the authority in this matter and thus binding upon the parties.
“It is therefore ORDERED, ADJUDGED, and DECREED that this Court’s Order of Default Judgment against Defendant Caver of December 28, 2007, was proper and therefore, Progressive’s Motion to Set Aside Entry of Default is denied. However, this court specifically finds and orders that the defendant Progressive Specialty Insurance Company is not bound by the default judgment.
“This Court after reviewing [Bailey’s] Affidavit of Damages further finds that the amount stated of $125,000 for the bodily injury claim is fair and reasonable given the nature and conduct of [Caver] as well as the severity of the injuries to [Bailey]. And thus:
“It is further ORDERED, ADJUDGED, and DECREED that damages are hereby set against Defendant Luvert Caver in the amount of $125,000, all costs taxed to [Caver].”

(Capitalization in original; emphasis added.)

On March 31, 2008, Progressive filed a motion for a default judgment on its cross-claim against Caver. On May 15, 2008, the trial court entered an order of default against Caver on Progressive’s cross-claim.

On May 30, 2008, Bailey filed what she styled a “Supplemental Complaint” pursuant to Rule 15(d), Ala. R. Civ. P., in which she brought claims against Progressive for UM benefits, alleging breach of contract and bad-faith failure to pay the UM benefits she alleged were due to her based on the default judgment. In the complaint, Bailey noted that Progressive had intervened in her action against Caver, that Progressive had made legal filings and conducted discovery in the action, and that Progressive was aware of the default judgment entered against Caver in the amount of $125,000 and yet had intentionally refused to pay the amount of $50,000, the maximum payable for UM benefits under Bailey’s insurance policy. Subsequently, Progressive filed a motion to dismiss Bailey’s supplemental pleading, but the trial court denied the motion and accepted Bailey’s “supplemental complaint.”

On June 17, 2008, Progressive filed what it styled as a “Counterclaim” against Bailey in which it averred that “[i]t is Progressive’s position that Bailey has not established she is ‘legally entitled to recover’ and is not yet entitled to benefits under the Progressive policy as a result of injuries she attributes to this accident,” and that “this court has already found that Bailey’s default judgment against Caver is not binding upon Progressive.” Progressive requested that the trial court issue a judgment declaring that “the default judgment entered against Caver by Bailey is not binding upon Progressive.”

On June 25, 2008, Bailey filed her answer to Progressive’s “counterclaim” in which she argued that the trial court’s citation of Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988), and Champion Insurance Co. v. Denney, 555 So.2d 137 (Ala.1989), as binding authority in its order denying Progressive’s motion to set aside the default judgment meant that Progressive is bound by the finding of liability and the damages award in the default judgment. On December 14, 2008, Progressive filed its answer to Bailey’s “supplemental complaint” in which it denied all the material allegations in the complaint.

On January 29, 2009, Progressive filed a motion for a summary judgment as to Bailey’s “supplemental complaint.” In its brief accompanying its motion, Progressive argued that it was “entitled to a summary judgment because it is not liable under the facts of this case” in that the trial court had stated that the default judgment was not binding upon Progressive and Progressive was contesting liability and damages. In support of its motion, Progressive filed an affidavit from one of its claims adjusters, Bill Adams, who noted that Progressive had obtained Bailey’s medical records during discovery in her action against Caver. Adams averred that Bailey’s “medical bills were mostly paid by Blue Cross/Blue Shield of Alabama” and that “Blue Cross is asserting a subrogation claim in the amount of about $858.” He also claimed that based on Bailey’s medical records Progressive “determined that the $20,000 settlement with ... Alfa contributed significantly toward compensating Bailey for her damages” but that Progressive had “nonetheless offered Bailey an additional $10,000 in settlement in order to avoid excessive litigation expenses.” Adams noted that Bailey had rejected the settlement offer and instead filed her “supplemental complaint.”

On March 5, 2009, Bailey filed her response to Progressive’s motion for a summary judgment. Bailey reiterated the argument from her answer to Progressive’s “counterclaim” that Progressive was bound by the default judgment against Caver because the fact-finder had determined liability and damages to a certainty, which triggered payment of UM benefits under the insurance policy.

On May 25, 2009, the trial court entered an order granting Progressive’s motion for a summary judgment. The order provided, in pertinent part:

“The Court has reviewed all submissions in support of and in opposition to the motion, including the case of Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So.2d 344 (Ala.2008), as argued by [Progressive]. Based upon those submissions, this Court finds that the motion is due to be and hereby is GRANTED, and the claims asserted against Progressive in [Bailey’s] supplemental complaint are dismissed without prejudice.
“This dismissal is being made under the authority of Ex parte Safeway Ins. Co. of Alabama, wherein the Alabama Supreme Court held that a circuit court does not have subject-matter jurisdiction over an uninsured motorist coverage claim until the alleged tortfeasor’s liability is established and damages are fixed. While this Court has questions regarding the impact of such a rule on [UM] cases, the opinion appears controlling here. Since neither liability nor damages have been established here, this Court finds that it does not have subject-matter jurisdiction. Accordingly, [Bailey’s] claims against Progressive are dismissed without prejudice.”

(Capitalization in original.)

On June 5, 2009, Bailey filed a motion to alter, amend, or vacate the trial court’s summary judgment, and Progressive filed a response to that motion on July 17, 2009. The trial court never ruled upon Bailey’s motion, and, as a result, the motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., on September 3, 2009. Bailey filed a timely notice of appeal on September 17, 2009.

On November 2, 2009, Progressive filed with this Court a motion to dismiss Bailey’s appeal on the ground that she had appealed from a nonfinal judgment. Specifically, Progressive averred that its “complaint in intervention, cross-claim, and counterclaim remain pending before the court. Therefore, the trial court’s order did not adjudicate all the issues before it.”

On November 24, 2009, this Court issued an order stating that “[i]t appealed] to the Court that some claims, including claims for declaratory relief, have not been adjudicated.” Consequently, we remanded the cause to the trial court and gave it the option: (1) of making its summary judgment a final order pursuant to Rule 54(b), Ala. R. Civ. P.; (2) of adjudicating the remaining claims, thus making its “interlocutory order of May 25, 2009, appeal-able”; or (8) of doing nothing, in which case this Court would dismiss Bailey’s appeal as being from a nonfinal judgment.

On November 25, 2009, the trial court entered an order certifying its summary judgment in favor of Progressive as a final judgment and stating that, pursuant to Rule 54(b), Ala. R. Civ. P., there was no just cause for delaying the appeal of said order. On December 14, 2009, this Court entered an order denying Progressive’s motion to dismiss Bailey’s appeal.

II. Standard of Review

Our standard of review on an appeal of a ruling granting a motion for a summary judgment is well settled.

“ ‘ “We review a summary judgment de novo. We apply the same standard of review as the trial court in determining whether the evidence presented to the trial court demonstrated the existence of a genuine issue of material fact. A summary judgment is proper where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” ’ ”

Tanner v. State Farm Fire & Cas. Co., 874 So.2d 1058, 1063 (Ala.2003) (quoting Slay v. Keller Indus., Inc., 823 So.2d 623, 624-25 (Ala.2001) (citations omitted), quoting in turn Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 276 (Ala.2000)).

III. Analysis

In one sense, the parties’ arguments on appeal are straightforward. Bailey in essence contends that, under the authorities of Lowe and Champion, a genuine issue of material fact exists concerning Progressive’s liability on the claims in her “supplemental complaint” because a default judgment in the amount of $125,000 against Caver has been entered in her favor. Progressive responds that the trial court held that Progressive was not bound by the default judgment, that there is a dispute over liability and damages, and that therefore under Ex parte Safeway Insurance Co. of Alabama, Inc., 990 So.2d 344 (Ala.2008), Bailey’s claims of breach of contract and bad-faith failure to pay are not ripe for adjudication. Actions for UM benefits are anything but straightforward, however, so evaluating the parties’ arguments involves an exacting analysis.

We start with the understanding that

“[ujninsured motorist coverage in Alabama is a hybrid in that it blends the features of both first-party and third-party coverage. The first-party aspect is evident in that the insured makes a claim under his own contract. At the same time, however, third-party liability principles also are operating in that the coverage requires the insured to be ‘legally entitled’ to collect — that is, the insured must be able to establish fault on the part of the uninsured motorist and must be able to prove the extent of the damages to which he or she would be entitled.”

LeFevre v. Westberry, 590 So.2d 154, 159 (Ala.1991). Thus, the plaintiffs claim for UM benefits is dependent upon a determination, that is binding on the UM-insurance carrier, as to the extent, if any, of the tortfeasor’s liability to the plaintiff.

This Court has made it clear that, although the plaintiffs “legal[ ] entitlement] to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom,” § 32-7-23(a), Ala.Code 1975, is dependent upon establishing the tortfeasor’s fault and the certainty of damages, the claim for UM benefits is based on the contractual obligations of the insurance policy. See, e.g., Ex parte Barnett, 978 So.2d 729, 734 (Ala.2007) (observing that “a UM insurance carrier’s liability to the insured is based solely on its contractual obligations as laid out in the policy” and that, “[ajlthough the tortfeasor’s liability triggers the insurer’s obligation to pay, that liability serves only to establish that the insured ‘is entitled to recovery under the terms of the policy.’ ” (quoting Howard v. Alabama Farm Bureau Mut. Cas. Ins. Co., 373 So.2d 628, 629 (Ala.1979))).

This Court has provided a specific process that must be followed for both the insured and the UM-insurance carrier to protect their rights when the insured wishes to make a claim for UM benefits in connection with an action by the insured against the alleged tortfeasor:

“A plaintiff is allowed either to join as a party defendant his own liability insurer in a suit against the underinsured motorist or merely to give it notice of the filing of the action against the motorist and of the possibility of a claim under the underinsured motorist coverage at the conclusion of the trial. If the insurer is named as a party, it would have the right, within a reasonable time after service of process, to elect either to participate in the trial (in which case its identity and the reason for its being involved are proper information for the jury), or not to participate in the trial (in which case no mention of it or its potential involvement is permitted by the trial court). Under either election, the insurer would be bound by the factfinder’s decisions on the issues of liability and damages. If the insurer is not joined but merely is given notice of the filing of the action, it can decide either to intervene or to stay out of the case. The results of either choice parallel those set out above — where the insurer is joined as a party defendant.”

Lowe, 521 So.2d at 1310 (emphasis omitted). This procedure is applicable to claims seeking both uninsured- and under-insured-motorist benefits. E.g., Ex parte State Farm Mut. Auto. Ins. Co., 674 So.2d 75 (Ala.1995) (applying the Lowe procedure to claims involving UM benefits); Driver v. National Sec. Fire & Cas. Co., 658 So.2d 390 (Ala.1995) (same).

The above-described procedure was agreed to by this Court in Lowe in order to accommodate three competing interests:

“1) that of protecting the right of the insurer to know of, and participate in, the suit; 2) that of protecting the right of the insured to litigate all aspects of his claim in a single suit ...; and 3) that of protecting the liability phase of the trial from the introduction of extraneous and corrupting influences, namely, evidence of insurance.”

521 So.2d at 1309.

In this case, Bailey chose to forgo her right initially to file claims against the alleged tortfeasor and the UM carrier in the same action; she filed an action against only the alleged tortfeasor, Caver, and provided timely notice of the action to her UM-insurance carrier, Progressive. In order to protect its interests, as the Lowe Court recognized it had a right to do, Progressive elected to intervene in the action.

Progressive argues that it was not bound by the default judgment and the damages award of $125,000 assessed against Caver. Progressive argues that “there was no fact-finding on the issues of liability and damages” because the trial court simply entered a default judgment. Progressive notes that this Court in Ex parte Progressive Specialty Insurance Co., 985 So.2d 897 (Ala.2007), held that the plaintiffs underinsured-motorist-insurance carrier was not bound by a settlement between the plaintiff and the tortfeasor’s liability insurer because “there has been no fact-finding on the issues of liability and damages as underscored in Lowe.” 985 So.2d at 899.

Bailey responds by citing Champion Insurance Co. v. Denney, 555 So.2d 137 (Ala.1989). In Champion, the plaintiff, Dianna Denney, did not name her UM-insurance carrier, Champion, in her action against the uninsured tortfeasor, but she did provide Champion notice of the action. Champion elected not to intervene or otherwise to participate in the action. Den-ney obtained a default judgment against the tortfeasor in the amount of $100,000. Denney then filed a separate action against Champion seeking UM benefits. The trial court entered a summary judgment against Champion based upon the previous default judgment against the tort-feasor. On appeal, this Court concluded that the default judgment was binding upon Champion, explaining in part:

“The insured in this case obtained a valid and enforceable judgment against the uninsured motorist. An insurer, however, should not be bound by such a judgment unless it had full notice and adequate opportunity to intervene and present any defenses and arguments necessary to protect its position. We are of the opinion that the insurer in this case had such notice and opportunity.”

555 So.2d at 139-40.

Progressive argues that Champion stands for the proposition that a UM-insurance carrier is bound by a default judgment only if the carrier is provided notice of the insured’s action against the tortfeasor and it elects not to participate in the action. This case is different, Progressive contends, because it did intervene in the action in order to exercise its right to defend its own interests. We agree.

As contemplated by Lowe, a UM-insurance carrier has the right to intervene and defend its own interests, rather than choosing to rely upon the alleged tortfea-sor to defend the carrier’s interest. This includes the right to defend against the entry of any default judgments that would be binding upon the carrier and, if successful in doing so, thereafter to defend against the merits of the plaintiffs claims at a trial in which the plaintiff seeks to prove, as against the UM-insurance carrier, the plaintiffs entitlement to recover damages as a result of tortious conduct by the alleged tortfeasor. The plaintiff in this case, Bailey, after obtaining a default judgment that by its terms was binding against the alleged tortfeasor but not against the UM-insurance carrier, had every right to prosecute her claims on the merits against the carrier. Bailey has not attempted to do that in this case, however. Instead, Bailey has attempted to rely solely on the existence of the default judgment she obtained against the alleged tortfeasor. For its part, Progressive had every right to, and successfully did, defend against that default judgment insofar as it would bind Progressive. The trial court agreed that the default judgment would not bind Progressive and entered an order to that effect. Thereafter, Bailey failed to do what she had a right to do — pursue her claim against Progressive on the merits — choosing instead another attempt to force Progressive to make payment under a default judgment, a default judgment the trial court had already determined was not applicable against Progressive.

We do not agree that the trial court lacked subject-matter jurisdiction over the claims by Bailey that remained pending against Progressive in the wake of the trial court’s entry of a default judgment in favor of Bailey against the tortfeasor. Nonetheless, by limiting herself to a claim against Progressive based solely on that default judgment (which the trial court had determined was not binding on Progressive), rather than seeking to prove her entitlement to recover on the merits, Bailey was attempting to pursue a claim against Progressive that was not cognizable. We therefore affirm the judgment of the trial court dismissing Bailey’s claims against Progressive.

AFFIRMED.

COBB, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.

      . Under the procedure contemplated in Lowe v. Nationwide Insurance Co., 521 So.2d 1309, 1310 (Ala.1988), the insurance carrier is either named as "a party defendant” by the plaintiff or may intervene in that posture. Accordingly, Progressive’s "complaint in intervention” seeking a declaration that it is not liable to Bailey is properly considered a counterclaim against Bailey.

      . Rule 15(d), Ala. R. Civ. P., provides, in part, that, "[u]pon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.”

      . The record reflects that Progressive made its offer of settlement on September 17, 2007.

      . It appears that the effect of the trial court’s ruling on Progressive's motion for a summary judgment was that nothing was left to be adjudicated. Progressive’s "Complaint in Intervention” merely asked the trial court to conclude that "[Bailey] is not entitled to recover UM benefits from [Progressive],” which the trial court did when it granted Progressive's motion for a summary judgment. Its "counterclaim” against Bailey merely asked the trial court for a declaration that "the default judgment entered against Caver by Bailey is not binding upon Progressive.” The trial court stated as much in its order denying Progressive's motion to set aside the default judgment against Caver. Finally, Progressive's cross-claim against Caver became relevant only if Bailey recovered from Progressive. The trial court already had entered a default against Caver on Progressive’s cross-claim, but once the trial court dismissed Bailey’s claims against Progressive, Progressive’s cross-claim was effectively mooted.

      . In Safeway, this Court held that where the damages recoverable against the alleged tort-feasor had not been established, a claim alleging “bad faith” against a UM-insurance carrier lacked "ripeness,” and, therefore, the trial court lacked subject-matter jurisdiction as to such a claim. 990 So.2d at 351-53. (The author of the present opinion disagreed with this holding, expressing the view that the issue was not one of ripeness implicating subject-matter jurisdiction but merely the inability of the plaintiff to prove the elements of her bad-faith claim. 990 So.2d at 353 (Murdock, J., concurring in the result).) Unlike Safeway, the present case is not limited to a bad-faith claim, but also involves a breach-of-contract claim against the UM-insurance carrier. Further, as to that bad-faith claim, unlike the plaintiff in Safeway, the plaintiff here attempts to ground her bad-faith claim against the UM-insurance carrier on a default judgment that has established, although only as against the tortfeasor, the amount of damages the plaintiff may recover; this Court has subject-matter jurisdiction to assess the cognizability of such a claim, or legal theory, under Alabama law.


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Ex parte COMMUNITY HEALTH SYSTEMS PROFESSIONAL SERVICES CORPORATION. (In re City of Irondale, a duly incorporated municipality v. Affinity Hospital, LLC, et al.).
    1100523.
    Supreme Court of Alabama.
    May 6, 2011.

      William L. Campbell, Jr., and John R. Jacobson of Railey Wancock & Jacobson, PLC, Nashville, Tennessee, for petitioner Community Health Systems Professional Services Corporation.
    Ernest Cory, Jason A. Shamblin, and Hirlye R. “Ryan” Lutz III of Cory, Watson, Crowder & DeGaris, P.C., Birmingham; and Greg L. Morris of Morris & Brumlow, P.C., Birmingham, for respondent the City of Irondale.
    A brief was filed by Joseph B. Mays, Jr., Marc James Ayers, and Darrell C. Tucker II of Bradley Arant Boult Cummings LLP, Birmingham, for Affinity Health Systems, LLC, and Affinity Hospital, LLC, d/b/a Trinity Medical Center, in support of the petition for writ of mandamus.
   STUART, Justice.

According to the amended complaint filed by the City of Irondale in the underlying action, the owners and operators of a hospital located on Montclair Road in the City of Birmingham, known as Montclair Baptist Medical Center and subsequently known as Trinity Medical Center, decided to relocate the hospital in the City of Iron-dale. Later, after the City of Irondale had engaged in negotiations to purchase the relocation site and had taken steps toward infrastructure improvement on the site, a decision was made not to relocate the hospital in the City of Irondale, but instead to relocate the hospital at a different location in the City of Birmingham. During the course of determining where to relocate, the hospital has been sold, purchased, and operated by various corporate entities, including the petitioner Community Health Systems Professional Services Corporation (“CHSPSC”).

In the underlying action, the City of Irondale sued CHSPSC and others in the Jefferson Circuit Court, alleging breach of contract, fraud/suppression, promissory estoppel, and intentional interference with contractual and business relations. During discovery, the City of Irondale sought to depose Wayne Smith, the chief executive officer and president of CHSPSC. The trial court denied CHSPSC’s motion for a protective order preventing Smith’s deposition, and CHSPSC has petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying CHSPSC’s motion for a protective order and to enter a protective order preventing Smith’s deposition. We deny the petition.

Standard of Review
“A writ of mandamus can be issued to affect the trial court’s control of the discovery process, but this Court’s review of a petition seeking a writ in a discovery dispute is particularly stringent:
“ ‘The law relating to the issuance of a writ of mandamus in a case involving a discovery dispute was recently set out in Ex parte Henry, 770 So.2d 76 (Ala.2000). In Ex parte Henry, this Court stated:
“ ‘ “Rule 26, Ala. R. Civ. P., governs the discovery of information in civil actions. When a dispute arises over discovery matters, the resolution of the dispute is left to the sound discretion of the trial court. ‘Discovery matters are within the trial court’s sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.’ Wolff v. Colonial Bank, 612 So.2d 1146, 1146 (Ala.1992) (citations omitted); see also Ex parte Hicks, 727 So.2d 23, 33 (Ala.1998) (Maddox, J., dissenting).
“ . The writ of mandamus is a drastic and extraordinary remedy, to be issued only when there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So.2d 979, 983 (Ala.1998)(citing Ex parte United Serv. Stations, Inc., 628 So.2d 501 (Ala.1993)); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)(citing Martin v. Loeb & Co., 349 So.2d 9 (Ala.1977)). Moreover, this Court will not issue a writ of mandamus' compelling a trial judge to alter a discovery order unless this Court ‘determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion.’ Ex parte Horton, 711 So.2d at 983. Moreover, ‘ “[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,” and “[t]he writ will not issue where the right in question is doubtful.” ’ Ex parte Bozeman, 420 So.2d 89, 91 (Ala.1982)(quoting Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 102 (Ala.1981)).” ’
“Ex parte Pitts, 822 So.2d 418, 421-22 (Ala.2001).”

Ex parte Cooper Tire & Rubber Co., 987 So.2d 1090, 1100-01 (Ala.2007).

Discussion

Before addressing the merits of this petition, we consider the City of Iron-dale’s contention that CHSPSC’s petition for a writ of mandamus was not timely.

Rule 21(a)(3), Ala. R.App. P., provides:

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

Rule 4(a), Ala. R.App. P., provides that a party who has a right to appeal to this Court or to an intermediate court of appeals must file a notice of appeal of an order or judgment within 42 days of the entry of the order or judgment. Thus, the presumptively reasonable time for filing a petition for a writ of mandamus is 42 days, unless an exception applies.

CHSPSC filed its petition for a writ of mandamus on the 42d day after the trial court denied its motion for a protective order. The City of Irondale maintains that in Ex parte Horton Homes, Inc., 774 So.2d 536 (Ala.2000), this Court created an exception to the 42-day rule for filing a petition for a writ of mandamus challenging a trial court’s denial of a motion for a protective order. According to the City of Irondale, Ex parte Horton Homes provides that for CHSPSC’s petition to be timely, CHSPSC had to file its petition within the time limitation set forth in the trial court’s order compelling the deposition of Smith. We disagree.

In Ex parte Horton Homes, this Court addressed the timeliness of the filing of a petition for a writ of mandamus challenging a trial court’s order compelling discovery. In Ex parte Horton Homes, after conducting a hearing, the trial court on October 14, 1999, ordered Horton Homes to produce the documents requested by the plaintiffs, John Britt and Landria Britt, within 21 days from the date of the order, i.e., on or before November 4, 1999. On October 27, 1999, Horton Homes moved the trial court to reconsider its order compelling the production of the documents. The trial court denied the motion on October 29, 1999. On November 19, 1999, Horton Homes moved for a protective order. The trial court denied the motion, and Horton Homes petitioned this Court for a writ of mandamus directing the trial court to vacate its order requiring Horton Homes to produce the discovery. We denied Horton Homes’ petition, concluding that it was not timely filed. We stated:

“[Ex parte ] Reynolds Metals [, 710 So.2d 897 (Ala.1998),] stands for the proposition that a party dissatisfied with the trial court’s ruling on a motion to compel discovery must first make a timely motion for a protective order, so as to create a record to support the essential allegation that the petitioner has no other adequate remedy. Id. The motion for a protective order pursuant to Rule 26(c)[, Ala. R. Civ. P.,] and any subsequent mandamus petition must be filed within the time period set for production by the trial court in its order compelling discovery....
“The trial court’s October 14, 1999, order allowed Horton Homes 21 days to comply with the [Britts’] discovery requests. Although Horton Homes filed a motion to reconsider on October 27, 1999, this motion was denied by the trial court on October 29, 1999, and, therefore, did not stay the running of the 21 days. Thereafter, November 4, 1999, the 21st day, came and went without the required production. Horton Homes finally filed a motion for a protective order on November 19, 1999, more than two weeks after the trial court’s 21-day period had expired. By not moving for a protective order within the 21-day period, Horton Homes waived its right to a protective order under Rule 26(c); because it waived its right to a protective order, it cannot show a clear legal right to the relief sought.”

774 So.2d at 540.

According to the City of Irondale, Ex parte Horton Homes requires that for a petition for a writ of mandamus challenging a trial court’s discovery order to be timely the petition must be filed within the limitations period set forth in the trial court’s order. The City of Irondale reasons that for CHSPSC’s petition for a writ of mandamus to be timely, CHSPSC had to file its petition within 30 days from the date of the trial court’s order denying the protective order. The City of Irondale, however, ignores facts that make the rule set forth in Ex parte Horton Homes inapplicable to this petition.

In this case, on November 1, 2010, the trial court entered an order directing that Smith’s deposition be taken within 30 days. On November 5, 2010, CHSPSC moved the trial court to reconsider, to set aside the order, and to issue a protective order prohibiting the deposition of Smith. On November 30, 2010, the trial court granted a separate motion filed by CHSPSC to stay the order compelling Smith’s deposition until after a hearing on the matter. On December 17, 2010, the trial court conducted a hearing, and on December 21, 2010, after reviewing the evidence, the trial court denied CHSPSC’s November 5, 2010, motion. The trial court’s order stated that “the [City of Irondale] is admonished to take into account Mr. Smith’s schedule so as to arrange his deposition in such a manner that it will not be unduly burdensome or amount to oppression.”

Here, the language in the trial court’s order denying CHSPSC’s motion for a protective order modified the time period the trial court had originally established for deposing Smith. Unlike the order in Ex parte Horton Homes, which did not modify the time for complying with the discovery order, the order in this case denying a protective order modified the period for the taking of Smith’s deposition from 30 days from the denial of CHSPSC’s motion for a protective order to a time that “will not be unduly burdensome or amount to oppression.” Therefore, the rule set forth in Ex parte Horton Homes is inapplicable, and CHSPSC was not required to file its petition for a writ of mandamus within 30 days of the trial court’s denial of the motion for a protective order. CHSPSC’s filing of the petition within 42 days of the trial court’s order of December 21, 2010, denying the motion for a protective order was timely.

We now consider whether a petition for a writ of mandamus is the proper means of review for the issue presented. CHSPSC contends that the trial court exceeded the scope of its discretion by denying its motion for a protective order prohibiting Smith’s deposition because, it says, the City of Irondale seeks to depose Smith to obtain “duplicative” information, i.e., information it “has already obtained ... from other sources and subordinate employees of CHSPSC,” in order “to harass and unduly burden CHSPSC.”

In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003), this Court stated:

“Generally, an appeal of a discovery order is an adequate remedy.... In certain exceptional cases, however, review by appeal of a discovery order may be inadequate, for example, ... when a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party....”

(Footnote omitted.) Thus, a petition for a writ of mandamus is an appropriate means for review of the trial court’s denial of CHSPSC’s motion for a protective order. See Ex parte Jacksonville State Univ., 40 So.3d 672, 676 (Ala.2009) (concluding that mandamus review of a trial court’s denial of a protective order prohibiting the depositions of high-ranking university officials concerning allegations unrelated to the case was proper when the petitioner argued that “ ‘the discovery sought ... is an improper attempt to obtain patently irrelevant and immaterial information in order to harass, unduly burden, and embarrass the defendants’ ”).

We now must determine whether CHSPSC has established a clear legal right to a protective order prohibiting the City of Irondale from deposing Smith.

Rule 30(a), Ala. R. Civ. P., provides, in pertinent part, that “any party may take the testimony of any person, including a party, by deposition upon oral examination.” Rule 26(c), Ala. R. Civ. P., provides:

“Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or, alternatively, on matters relating to a deposition or production or inspection, the court in the circuit where the deposition or production or inspection is to be taken may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense .... ”

In Ex parte Jacksonville State, 40 So.3d at 676-77, we discussed a party’s right to discovery and the trial court’s discretion in managing discovery, stating:

“ ‘ “In Ex parte AMI West Alabama General Hospital, 582 So.2d 484, 485-86 (Ala.1991), we explained:
“““This rule [Ala. R. Civ. P. 26(b)(1) ] contemplates a broad right of discovery. Discovery should be permitted if there is any likelihood that the information sought will aid the party seeking discovery in the pursuit of his claim or defense. Discovery is not limited to matters that would be admissible as evidence in the trial of the lawsuit. Ex parte Dorsey Trailers, Inc., 397 So.2d 98 (Ala.1981).’
“ <«trial judge, who has broad discretion in this area, should nevertheless incline toward permitting the broadest discovery and utilize his discretion to issue protective orders to protect the interests of parties opposing discovery.’ 582 So.2d at 486.
“ ‘ “In order for the matter to be discoverable, the information sought must also be relevant. ‘ “Relevancy,” as used in our discovery rules, means relevant to the subject matter of the action; evidence is relevant if it affords a reasonable possibility that the information sought will lead to other evidence that will be admissible....””
“Ex parte CIT Commc’n Fin. Corp., 897 So.2d 296, 299-800 (Ala.2004) (quoting Zaden v. Elkus, 881 So.2d 993, 1005 (Ala.2003)).
“ ‘Recognizing that the right to discovery is not unlimited and the trial court has broad powers to control discovery to prevent abuse, nevertheless, the party who seeks a protective order has the burden of showing good cause why discovery should not be had.
“ ‘ “Thus, to be entitled to a protective order, a movant must either show good cause why the objected-to deposition or production of documents would be unduly burdensome or expensive, oppressive, embarrassing or annoying, or that the subject matter sought to be discovered is privileged....”’
“Ex parte Scott, 414 So.2d 939, 941 (Ala.1982) (quoting Assured Investors Life Ins. Co. v. National Union Assocs., Inc., 362 So.2d 228, 231 (Ala.1978), overruled on other grounds by Ex parte Norfolk Southern Ry., 897 So.2d 290 (Ala.2004)).”

According to CHSPSC, the trial court exceeded the scope of its discretion by denying a protective order prohibiting Smith’s deposition. CHSPSC maintains that it has shown good cause for the protective order because, it says, Smith is a high-ranking corporate officer who does not have superior or unique knowledge of the decision to relocate the hospital to a different location in the City of Birmingham instead of to a location in the City of Irondale and that the City of Irondale has not exhausted less intrusive means in an effort to obtain the information. According to CHSPSC, the taking of Smith’s deposition would constitute harassment and would be duplicative, inconvenient, and burdensome.

In support of its argument, CHSPSC directs this Court to Baine v. GMC, 141 F.R.D. 332 (M.D.Ala.1991), in which the federal district court entered a protective order quashing the deposition notice of one of a corporation’s top executive officers. Sharon D. Baine had sued General Motors Corporation, alleging that the restraint system had failed in a General Motors’ vehicle during an accident and had contributed to the pain and death of Baine’s decedent, who, at the time of the accident, was wearing an allegedly defective seat-belt. Baine noticed the deposition of Edward H. Mertz, a vice president at General Motors — the top executive of the Buick Division. Mertz, some 14 years earlier, had been involved in General Motors’ engineering activities and, after driving a 1978 prototype vehicle for a few days, had written a memorandum regarding the performance of the restraint system. General Motors moved for a protective order quashing the deposition notice of Mertz, arguing that deposing Mertz would be “burdensome, inconvenient, duplicative, and premature.” 141 F.R.D. at 333. General Motors offered as an alternative to the deposition of Mertz the deposition of the employee who headed the company’s engineering-analysis section and suggested that before taking Mertz’s deposition the deposition of the designated corporate officer should be taken to see what information it produced. The district court quashed Baine’s notice of deposition, stating:

“[General Motors] here has shown good cause why Mr. Mertz should not be deposed at this time. The court finds that deposing Mr. Mertz at this time would be oppressive, inconvenient, and burdensome inasmuch as it has not been established that the information necessary cannot be had from [the head of the company’s engineering-analysis section], other distributees of the Mertz memorandum, interrogatories, or the corporate deposition. The corporate deposition has not yet been taken, and it could satisfy some of [Baine’s] needs. At the very least, it would aid in developing and refining a line of questioning. These avenues have not yet been exhausted or even pursued. It has not been demonstrated that Mr. Mertz has any superior or unique personal knowledge of the restraint system or of the accident which led to [Baine’s] decedent’s death.”

141 F.R.D. at 335. The district court specifically stated that its decision was based on its concern for the “possibility of duplication, inconvenience, and burdensomeness” and that, if, during the course of discovery, Baine’s questions were not answered by Mertz’s answers to interrogatories, the corporate deposition, and the deposition of others who were lower in the corporate hierarchy than Mertz, the noticing of Mertz’s deposition would be proper.

CHSPSC contends that the deposition of Smith is not necessary because Smith, who is the chief executive officer and president of CHSPSC, does not have unique or superior knowledge regarding the decision to change the relocation site of the hospital from the City of Irondale to the City of Birmingham. CHSPSC points out that the deposition of several participants in the decision-making process have established that Smith was not the primary decision-maker regarding the decision to relocate the hospital within the City of Birmingham instead of relocating to the City of Irondale. CHSPSC, however, ignores the following relevant facts that establish that Smith does have personal knowledge and involvement in that decision: After an announcement had been made that the hospital was relocating to the City of Irondale, Smith was involved in the first conversation that led to an agreement to instead relocate the hospital within the City of Birmingham; that Smith requested that an employee of CHSPSC visit the site in the City of Birmingham to determine its viability as a relocation site; that, after public statements had been made that the hospital was relocating to the City of Irondale, Smith represented to the owners of the relocation site in the City of Birmingham that CHSPSC had not yet made a relocation decision and that CHSPSC would be a “fool” not to consider all its options; that the alleged primary decision-maker discussed the two possible locations with Smith; that Smith offered guidance and suggestions during the relocation decision-making process; that the alleged primary decision-maker had submitted to Smith a memorandum detailing the hospital’s obligations to the City of Irondale and the potential liabilities if a decision was made to relocate elsewhere; that Smith’s “blessing” was required on the decision for the relocation site; and that Smith, himself, telephoned the owners of the relocation site in the City of Birmingham to inform them that the hospital would begin the process for relocating to them site. The foregoing establishes that Smith was an integral participant in deciding whether to relocate the hospital in the City of Birmingham, instead of the City of Irondale, and that Smith possesses relevant knowledge regarding the decision-making process that cannot be gleaned from other corporate employees. Therefore, CHSPSC has failed to establish good cause for the issuance of a protective order in this regard.

Likewise, because of Smith’s involvement in the decision-making process, CHSPSC has not established that less intrusive means of discovery would be adequate. We acknowledge that the materials before us indicate that the City of Irondale has not taken the deposition of the corporate representative, pursuant to Rule 30(b)(6), Ala. R. Civ. P. However, in light of the materials presented to us and the extensive discovery already conducted by the City of Irondale, at this stage in discovery requiring the deposition of the corporate representative before deposing Smith appears to be of minimal benefit. This case does not present a situation where a party is attempting to depose a high-ranking corporate officer who has little to no personal knowledge of the subject matter of the litigation. Indeed, the materials before this Court indicate that Smith was an integral participant in the relocation decision-making process; consequently, only he can provide the information, and a less intrusive means of discovery in this particular case would be inadequate. Therefore, we cannot conclude that deposing Smith at this stage in the discovery process is premature or that CHSPSC has established good cause for a protective order in this regard.

CHSPSC has failed to establish that the trial court exceeded the scope of its discretion in denying its motion for a protective order prohibiting Smith’s deposition. The trial court has broad discretion in overseeing discovery and in protecting persons from whom discovery is sought. Its actions in this case are reasonable. This Court is aware that Smith has responsibilities to CHSPSC; however, CHSPSC has not shown good cause for a protective order prohibiting his deposition. Indeed, the trial court has instructed that his deposition be “arrange[d] ... in such a manner that it will not be unduly burdensome or amount to oppression.” Consequently, CHSPSC has failed to establish a clear legal right to a writ of mandamus.

Conclusion

CHSPSC has failed to establish a clear legal right to a protective order prohibiting Smith’s deposition; therefore, CHSPSC’s petition for a writ of mandamus is denied.

PETITION DENIED.

COBB, C.J., and PARKER, SHAW, and WISE, JJ„ concur.

      . The selected site in the City of Irondale was along 1-459 and was owned by the State of Alabama.


author: WOODALL, Justice. WOODALL, Justice COBB, Chief Justice

text:
    Ex parte William Floyd NALLS, Jr. (In re William Floyd Nalls, Jr. v. State of Alabama).
    1100629.
    Supreme Court of Alabama.
    May 6, 2011.

      Laura K. Segers of Turner, Webb & Roberts, P.C., Tuscaloosa, for petitioner.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   WOODALL, Justice.

WRIT DENIED.

STUART, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

WOODALL, J., concurs specially.

COBB, C.J., dissents.

MAIN and WISE, JJ., recuse themselves.

WOODALL, Justice

(concurring specially).

I concur specially to point out that the Chief Justice’s dissent is based on her misunderstanding of the holding in the Court of Criminal Appeals’ unpublished memorandum affirming the conviction of William Floyd Nalls, Jr. Nalls v. State (No. CR-09-1323, Jan. 28, 2011), — So.3d - (Ala.Crim.App.2011) (table). The Court of Criminal Appeals did not hold that Nalls had failed to preserve the issue of the retroactive application of the Community Notification Act, § 15-20-20 et seq., Ala.Code 1975 (“the CNA”), to his case. In fact, that court stated that “Nalls appears to have reserved an argument relating to retroactive application of the CNA.”

On appeal to the Court of Criminal Appeals, however, Nalls raised several specific due-process or equal-protection issues for the first time. It was those issues that the Court of Criminal Appeals held had not been preserved or reserved for appellate review. “[I]n the guilty-plea context, an issue relating to a defect occurring before the entry of the plea must be both preserved by a timely and specific motion and/or objection and adverse ruling from the trial court and reserved for appeal before the entry of the plea.” Mitchell v. State, 913 So.2d 501, 505 (Ala.Crim.App.2005) (some emphasis added). None of the facts before this Court reflect any error in the Court of Criminal Appeals’ holding that the issues raised on appeal had not been properly preserved or reserved for appellate review.

COBB, Chief Justice

(dissenting).

I respectfully dissent. In this case the trial court responded to the statement by the defendant, William Floyd Nalls, Jr., that he wanted to reserve an issue for appeal by stating:

“I understand you want to challenge whether ... the fact that you pled guilty years ago to the sex crime would make you subject to the [Community Notification Act (‘CNA’) ], because this was subsequently passed by the legislature.... I’ll make a note that you want to reserve that issue for appeal.”

Nalls states in his petition for certiorari review that he argued on appeal in the Court of Criminal Appeals that the retroactive application of the CNA in his case violated his rights to due process and equal protection, and he contends that the Court of Criminal Appeals did not address the merits of this issue because it held that he failed to preserve the issue for appeal. Indeed, in its unpublished memorandum affirming Nalls’s conviction, Nalls v. State (No. CR-09-1328, January 28, 2011), — So.3d - (Ala.Crim.App.2011) (table), the Court of Criminal Appeals stated:

“In this case, Nalls appears to have reserved an argument relating to retroactive application of the CNA; however, he did not preserve the specific due process or equal protection issues that he is now raising for this Court’s review.”

I believe that this Court should grant Nalls’s petition to consider whether Court of Criminal Appeals erred in determining that Nalls failed to preserve “specific due process [and] equal protection issues” regarding the retroactive application of the CNA in his case. The trial court understood that Nalls’s objection to the retroactive application of the statute was based on due-process grounds. In Jefferson County Commission v. Edwards, 49 So.3d 685, 691 (Ala.2010), this Court, quoting IEC Arab Alabama, Inc. v. City of Arab, 7 So.3d 370, 374 (Ala.Civ.App.2008), stated:

“ “When a court is called on to consider whether retroactive legislation is constitutional, its focus is on whether the ret-roactivity of the legislation denies due process. [Monroe v. Valhalla Cemetery Co., 749 So.2d 470,] 473-74 [ (Ala.Civ.App.1999), overruled on other grounds, Patterson v. Gladwin Corp., 835 So.2d 137, 153 (Ala.2002) ] (quoting United States v. Carlton, 512 U.S. 26, 30-31, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994)).’ ”

I believe that a reasonable trial court would understand that an objection to the retroactive application of a statute is based, at the very least, on due-process grounds. Succinctly stated, the law requires that once a defendant’s objection sufficiently informs the trial court so as to enable that court to understand the grounds of the objection — here a violation of the right to due process of law — that issue is preserved for appellate review and should be addressed on the merits. Ex parte Hatfield, 37 So.3d 733 (Ala.2009), and Coleman v. State, 870 So.2d 766, 768 (Ala.Crim.App.2003) (Cobb, J., concurring in part and concurring in the result in part). Accordingly, I would grant Nalls’s petition to review this issue on its merits.

I .respectfully disagree with Justice Woodall’s understanding of the unpublished memorandum issued by the Court of Criminal Appeals. In addition to stating (in the context of discussing Nalis’s challenge to retroactive application of the CNA) that Nalls failed to preserve “specific due process [and] equal protection issues,” the Court of Criminal Appeals also stated in a separate paragraph:

“On appeal, Nalls argues that the circuit court’s application of the CNA violated his due process rights because he was not provided with a hearing to determine whether the CNA was applicable in his case, his misdemeanor conviction for attempted sexual abuse was actually a case of domestic violence, and the application of the CNA violated his equal protection rights by treating juveniles and adults charged with the same crimes differently. Nalls, however, failed to preserve and/or reserve these issues for this Court’s review.”

Justice Woodall interprets this paragraph as an exhaustive listing of the arguments Nalls raised on appeal to the Court of Criminal Appeals. Justice Woodall further states that Nails’s petition for certio-rari review is not due to be granted because those issues were not specifically-preserved. If the petition sought review of any of those issues, I would be inclined to agree with Justice Woodall and concur in denying the writ. However, in his petition, Nalls does not argue that this Court should grant the petition to review any of those issues. Rather, Nalls seeks review of what he contends is the failure of the Court of Criminal Appeals to review the merits of his due-process and equal-protection challenges to the retroactive application of the CNA, arguments he contends he did raise in that court.

I am left to conclude either (1) that the Court of Criminal Appeals held that, by “reserving] an argument relating to retroactive application of the CNA,” Nalls did not sufficiently preserve specific due-process or equal-protection challenges to the retroactivity of CNA or (2) (under Justice Woodall’s interpretation of the Court of Criminal Appeals’ unpublished memorandum) that the Court of Criminal Appeals altogether failed to perceive Nalls raised due-process and equal-protection challenges to the retroactive application of the CNA and thus left this issue out of its list of the arguments Nalls raised on appeal. Either way, further review is warranted, and the petition is due to be granted. Accordingly, I respectfully dissent.

      . Nalls pleaded guilty to attempted sexual abuse in the first degree in August 1994, before the effective date of the CNA.

      . He argued "that the circuit court’s application of the CNA violated his due process rights because he was not provided with a hearing to determine whether the CNA was applicable in his case, his misdemeanor conviction for attempted sexual abuse was actually a case of domestic violence, and the application of the CNA violated his equal protection rights by treating juveniles and adults charged with the same crimes differently.”

      . Nalls's guilty-plea conviction for attempted sexual abuse in the first degree predates the effective date of the CNA.

      . A third theoretical possibility exists — that Nalls is asking this Court to review an issue he claims he presented the Court of Criminal Appeals but did not in fact present to that court. At this point, I see no reason to question the integrity of Nalls's attorney in this matter; furthermore, unless the petition for the writ of certiorari is granted, it is not possible to determine whether this is the case. Of course, if Justice Woodall is correct, and the Court finds out after issuing the writ that the Court of Criminal Appeals was never presented with the specific due-process and equal-protection challenges to the application of the CNA that form the basis of Nalls’s petition, then the Court may quash the writ. However, at this preliminary stage of review, the petition presents a probability of merit and is therefore due to be granted. See Rule 39(0, AH. R.App. P. (“If the Supreme Court, upon preliminary consideration, concludes that there is a probability of merit in the petition and that the writ should issue, the Court shall so order.”).


author: BOLIN, Justice. COBB, Chief Justice

text:
    Ex parte Detra Lyniece CATLIN. (In re Detra Lyniece Catlin v. State of Alabama).
    1100671.
    Supreme Court of Alabama.
    May 13, 2011.
    Roger C. Apell, Birmingham, for petitioner.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   BOLIN, Justice.

WRIT DENIED. NO OPINION.

WOODALL, STUART, PARKER, and SHAW, JJ., concur.

COBB, C.J., and MURDOCK, J., concur specially.

MAIN and WISE, JJ„ recuse themselves.

COBB, Chief Justice

(concurring specially).

I concur with the majority to deny the writ, and I write specially to note my concerns that the plain language of the statute making Detra Lyniece Catlin’s offense a capital one, Ala.Code 1975, § 13A-5-40(a)(16), often, as applied to a particular set of facts, does not reflect the legislature’s intent and sometimes leads to an absurd result, as is illustrated by the present case.

At the trial of this case, the State presented evidence indicating that Catlin was involved with the victim in a verbal altercation that began inside the four walls of a dwelling. After or at some point during the altercation, Catlin stepped through the front doorway of the dwelling and onto the front porch before turning and firing a shot into the living room of the dwelling, striking and killing the victim. Catlin was convicted under § 13A-5-40(a)(16) of murder made capital because Catlin committed the murder by or through the use of a deadly weapon fired or otherwise used from outside a dwelling while the victim was in a dwelling.

In 2006, the Alabama Legislature passed a joint resolution, Act No. 2006-642, Ala. Acts 2006 (“the 2006 joint resolution”), in response to a case in which the defendant was convicted of capital murder for violating Ala.Code 1975, § 13A-5-40(a)(18), by killing the victim while the defendant was in a vehicle and the victim was not, although the vehicle was in no way related to the commission of the offense. There was no indication that the murder was gang-related. The 2006 joint resolution stated:

“[I]n the early 1990’s there was a public outcry against so called drive-by shootings that were murder committed by or through the use of a deadly weapon fired or otherwise used within or from a vehicle which murders were gang-related or intended to incite public terror or alarm; and
“[I]n response to the foregoing concerns, the Legislature in 1992 passed Act 92-601 of the 1992 Regular Session (Acts 1992, p. 1247), amending Section 13A-5-40, Code of Alabama 1975, to, among other things, add a subdivision (18) to make murder committed by or through the use of a deadly weapon fired or otherwise used within or from a vehicle as a capital offense.”

The 2006 joint resolution then urged the attorney general and district attorneys to use care in charging capital murder under that section and urged this Court and the Court of Criminal Appeals to narrowly interpret that section. Among the “other things” accomplished by Act No. 92-601, Ala. Acts 1992, the act the 2006 resolution addressed, was the enactment of § 13A-5-40(a)(16), which makes it a capital offense to commit murder “by or through the use of a deadly weapon fired or otherwise used from outside a dwelling while the victim is in a dwelling.”

“The touchstone of legislative construction is to ascertain and effectuate the intent of the legislature as expressed in the statute.” Horn v. Citizens Hosp., 425 So.2d 1065, 1070 (Ala.1982) (emphasis added). This Court gives effect to the intent of the legislature as expressed in the plain, unambiguous language of the statute. Jefferson County Comm’n v. Edwards, 32 So.3d 572, 586 (Ala.2009). “A resolution is not a law but merely the form in which the Legislature expresses an opinion. The Legislature has no power to make laws by resolution. Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933).” Gunter v. Beasley, 414 So.2d 41, 43 (Ala.1982).

The plain language of the statute in question, § 13A-5-40(a)(16), like the language of § 13A-5-40(a)(18), the statute addressed in the 2006 joint resolution, contains nothing to restrict its application to killings that are “gang-related or intended to incite public terror or alarm.” Thus, despite the legislature’s intent as expressed in the 2006 joint resolution, we cannot amend the statute to make it apply only in such cases. As a result, § 13A-5-40(a)(16) is often applied in cases such as this, where there is no indication that the murder made capital by the statute was “gang-related or intended to incite public terror.” The murder in this case is made a capital offense merely because Catlin stepped across the threshold of the front door of the residence and onto the porch before firing the fatal shot. This result is somewhat absurd and does not comport with the legislature’s statement in the 2006 joint resolution that it enacted Act No. 92-601 in response to “a public outcry against so called drive-by shootings ... which murders were gang-related or intended to incite public terror or alarm.”

Accordingly, I urge the legislature to amend Ala.Code 1975, § 13A-5^40(a)(16), so that the plain language of the statute will effectuate the legislature’s intent to combat killings that are “gang-related or intended to incite public terror or alarm.”

MURDOCK, J., concurs.

      . As this Court stated in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998):
      "It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.”